1 of 120 DOCUMENTS 

WILLIAM A. WATERS, and others, vs. WASHINGTON WATERS and ELLEN M. WATERS. WASHINGTON WATERS and ELLEN M. WATERS vs. WILLIAM A. WATERS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

28 Md. 11; 1867 Md. LEXIS 80 

December 20, 1867, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Orphans' Court of Montgomery County.

A caveat to the will of Tilghman Waters, was filed in the Orphans' Court of Montgomery county; plenary proceedings were ordered; the petition of the caveators (now appellants) and the answer of the caveatees (now appellees) thereto, were filed; and issues were sent by the Orphans' Court to the Circuit Court for Montgomery county, and removed from thence, at the instance of the caveators to the Circuit Court for Howard county, and from thence at the suggestion of one of the caveatees to the Circuit Court for Anne Arundel county for trial. The case was tried at the October term, 1865, of said Court. Upon the first trial, the jury found on the first issue, that the paper purporting to be the will of Tilghman Waters, was executed by him when he was not of a sound and disposing mind, and capable of making a valid deed or contract; on the second issue, that the said paper was executed and attested as required by law to pass title to real estate; on the third issue, that the said paper was not executed by Tilghman Waters under the influence of suggestions and importunities, when his mind from its diseased or enfeebled state was unable [**2]  to resist the same; on the fourth issue, that the said paper and the execution thereof, was the free and voluntary act of Tilghman Waters, to which he was induced with a knowledge of its contents, and without the exercise of a dominion and influence by any person or persons, which prevented in his then condition, the exercise of a sound discretion; on the fifth issue, that the execution of said paper was not procured by undue influence, fraudulent devices, importunities, misrepresentations and deceits practised on the said Tilghman Waters; on the sixth issue, that the execution of said paper was not procured by the exercise of an undue influence, dominion or control, obtained over the said Tilghman Waters, by his wife, Ellen M. Waters, and which in his then condition he was unable to resist; and on the seventh and last issue, that the said Tilghman Waters was not at any time subsequent to the execution of said paper writing, desirous of altering or cancelling the same, and was not prevented from so doing by management, fraud, undue influence or importunities. A motion was thereupon made by the caveatees for a new trial, upon the grounds, that the verdict was against the evidence and [**3]  the weight of evidence; and of inconsistency between the issue found for the caveators and those found for the caveatees. The motion for a new trial was granted. An appeal was taken by the caveators from the order granting a new trial, and the appeal was dismissed by this Court. (See Waters vs. Waters, 25 Md. Rep., --.) Upon a second trial, the jury found a verdict upon all the issues in favor of the caveatees. The record, with a certificate of the Judge, (MAGRUDER) certifying to the finding of the jury on the last trial, was transmitted to the Orphans' Court of Montgomery county. The caveators then filed their petition in said Court, alleging that the record so transmitted was not properly certified, in this, that the Judge of the Circuit Court for Anne Arundel county had not ordered a full transcript of all the proceedings in said case to be certified, and that it did not appear from the certificate of the said Judge, how the case originating in the Orphans' Court of Montgomery county, came into the Circuit Court for Anne Arundel county for trial, or by what authority the Judge of that Court certified in the case to said Orphans' Court; and praying that the record should be remanded [**4]  to the Circuit Court for Anne Arundel county for amendment, so that the whole and complete record in the case should be brought before the Orphans' Court.

The Orphans' Court, by order of the 7th May, 1867, refused the prayer of the petitioners, and from this order the first appeal is taken. The second appeal is from an order of the said Orphans' Court, passed on the 18th June, 1867, dismissing the petition of the appellants, filed the 23d April, 1867, and the amended petition, filed 28th May, 1867, without prejudice to the rights of the petitioners, on the final hearing of the cause, and also adjudging that the Court would not proceed to final decree in the cause, (the admission to probate of the will of Tilghman Waters, and granting letters testamentary to the executor,) until the appeal taken from the said order of the 7th May, 1867, should be determined by this Court. The two appeals were argued together.  

DISPOSITION:
Orders affirmed and cause remanded.  

HEADNOTES:

Decision of the Appellate Court conclusive -- Issues from the Orphans' Court -- Judge's certificate -- Transmission of Record -- Appeal -- New trial.

A decision of this Court, once pronounced in any case, is the law of the case, and binding upon the parties, the Court below and upon this Court, in the subsequent proceedings in the same case, and cannot be disregarded or called in question.

The setting aside the verdict of a jury, and awarding a new trial by a Circuit Court, being within the exercise of the legal discretion vested in that Court, is final in its nature, and not subject to examination on appeal.

Where a verdict is set aside, and a new trial ordered, the case stands as if no trial had taken place, and the verdict rendered upon the second trial, is in contemplation of law the only verdict in the case.

Where a verdict had been set aside, a new trial granted and a verdict rendered on the second trial, in the transmission of the record of the proceedings to the Orphans' Court, there was the certificate of the Judge, setting forth correctly the findings of the jury upon the several issues, on the second trial, but making no mention of the first verdict. HELD:

That it would have been improper to have mentioned the first verdict, as it had been annulled and set aside; and to have certified it as the finding of the jury, would have had a tendency to mislead the Orphans' Court, who could not under any circumstances lawfully consider it, or be governed by it.  

COUNSEL:
James Revell and William Harwood, for the appellants.

The only question on the first appeal is, whether the Orphans' Court should have remanded the record as certified by the clerk of the Circuit Court for Anne Arundel county,  [**5]  back to that Court. The clerk of the Circuit Court for Anne Arundel county certified either to the certificate of Judge MAGRUDER, or to the whole record, originating in the Orphans' Court of Montgomery county, and passing by removals to Anne Arundel county. The record, if full and complete, would show the two contrary verdicts rendered by the first and second juries, and the erroneous awarding of the venire facias de novo, by Judge TUCK, for supposed errors patent in the first verdict as rendered. Regarding this venire, upon the avowed grounds taken in the order of the Judge, as an error of law, patent on the record, and in nowise the exercise of a discretionary power to grant a new trial, we hold that after the final judgment was rendered by the Orphans' Court, it is competent for this Court to see that the judgment is entered upon the true and sufficient first verdict, and not on the second verdict resulting from an erroneous awarding of a venire facias de novo.

The case is not yet ripe for a discussion of this important question, which, at the proper time, we shall fully argue upon authority and principle and the manifest policy of the Code; but, to guard against any prejudice [**6]  to or compromise of that question, we are apprehensive that the Judge's certificate is alone certified to by the clerk, or at least that this certificate is all that the Orphans' Court can regard, and as the Judge has only certified the last verdict, we should in that event be precluded from raising the question of the legal finality of the first verdict. Neither the certificate of the clerk, or Judge stating certain facts, is a proper transmission of the action or finding of the Court, upon issues submitted from the Orphan's Court; there must be a full record of the proceedings and finding of the jury in the Circuit Court, authenticated in the form prescribed by law. Hammond vs. Norris, 2 H. & J., 132. It is plain that the Judge has only certified the last verdict directly to the Orphans' Court. At the foot of this judicial certificate the clerk simply certifies "that the aforegoing is truly taken from the record of the proceedings of the Circuit Court for Anne Arundel county." Now is this a certificate to the whole record, or only to the Judge's certificate? If to the whole record, is it such an authentication as will authorize the Orphans' Court to consider the first verdict, and [**7]  decide on which verdict the judgment shall be entered? If this question can be affirmatively answered, our object is accomplished; but we fear it cannot be, because the Code expressly declares that in these issues from the Orphans' Court, "a certificate from such Court (meaning the Court of law,) or the Judge thereof, of the verdict or finding of the jury under the seal thereof, shall be admitted by the Orphans' Court to establish or destroy the claim, or any part thereof." Code of Pub. Gen'l Laws, Art. 93, secs. 224 and 250.

This leaves open the case of two verdicts and the question, which is the legal verdict in the case? There is no order of the Court to certify the whole record, as there might have been; but there is an express certificate of the Judge of the finding of the last jury alone.

Is anything before the Orphans' Court but Judge MAGRUDER'S certificate under seal of his Court? If there be anything else before the Orphans' Court, it is only there because the clerk has chosen, of his own accord, to give a transcript of the whole record, and for this there is no legal authority. The case stands simply as if Judge MAGRUDER had certified nothing but the finding of [**8]  the last jury; and in that case how is the Orphans' Court to know the authority of Judge MAGRUDER so to certify? The Orphans' Court sent the issues to Montgomery county, and if there be no authenticated transcript showing all the proceedings, the first as well as the last verdict, there is nothing to show how the case got before Judge MAGRUDER, and the Orphans' Court cannot act on his certificate at all. If this be so, how is the Orphans' Court to act? If, as argued, they cannot remand the case so as to allow the Judge of the Circuit Court of Anne Arundel county to order the whole record to be certified, (which we are authorized to say he wishes to do if it be not already legally done,) then the Orphans' Court can never enter up judgment. This would be a great failure of justice it must be admitted.

It is true the Orphans' Court has no constructive powers, but it has been decided "that the power to revoke letters of administration is necessarily inherent in the Orphans' Court and a part and of the essence of the power delegated to them of granting administration." Raborg vs. Hammond, 2 H. & G., 42.

So we submit that the jurisdiction to enter judgment on verdicts certified [**9]  to the Orphans' Court involves, of necessity, the power to remand the record to cure any want of authority in the Judge's certificate or any other defect appearing. Suppose the Judge were to certify the verdict contrary to the finding, or not under seal of the Court, is there no remedy in the Orphans' Court by which the Judge should correct his certificate?

The Court of law acts merely as an auxiliary to the Orphans' Court in the trial of these issues. Browne vs. Browne et al. 22 Md. Rep., 116.

If this be so and it becomes material to inquire on which of two opposing verdicts the judgment should be entered, there must be a power in the Orphans' Court to obtain the first verdict as well as the last. Here our petition averring that there was a legal first verdict, not certified by the Judge, is supported by the transcript sent to the Orphans' Court by the clerk, and all we require is, that this first verdict, with the order setting it aside, should be authenticated, especially when, without such authentication, there is no evidence of the authority of the Judge who has certified the last verdict. In other words, we maintain the necessity of a complete transcript legally certified,  [**10]  in order that the Orphans' Court shall decide whether it shall render judgment on the first or second verdict, that is, which is the true legal verdict.

If the first verdict ought to stand in law, and was erroneously vacated by the Judge, then the second verdict was a nullity, and the erroneous awarding of a venire facias de novo can now be corrected or disregarded by the Orphans' Court, or by this Court.

In State vs. Manly, 1 Md. Rep., 136, a record in a criminal case was remanded because the County Court remanding it, had no jurisdiction, and yet a writ of diminution cannot be granted in a criminal case by a County Court. Price vs. The State, 8 Gill, 302.

We do not ask diminution, but only a remanding of the record. In State vs. Shillinger, 6 Md. Rep., 450, this Court recognized the propriety of remanding the record where it was sent to a Court not having jurisdiction. We therefore contend that the Orphans' Court erred in dismissing our petition to remand the record for amendment by the Court from which it came. There can be no escape from this conclusion, but by holding that all the procedings, including the first verdict, are properly before the Orphan's Court. We [**11]  are entitled to such a record as will enable us to claim the judgment on the first verdict, non obstante, the second illegal verdict. We consider that this Court has clearly decided that the final judgment in the Orphans' Court may be rendered upon facts outside of the verdict certified, and therefore that if it appear that the verdict certified was a nullity on its face, or aliunde, and that there was a legal prior verdict in the record which ought to stand, and is properly certified by the Court, as well as the last, that the Orphans' Court may enter judgment on the true and proper verdict. Pegg et al., vs. Warford, 4 Md. Rep., 393, 394.

If the Judge had certified the first verdict, and also certified a second contrary verdict without showing that the first had ever been set aside, what judgment would be entered? And so if the last verdict should be contradictory and inconsistent on its face, how could the Orphans' Court act on it? We see nothing to appeal from in the second case, as the prayer of the appellants was granted substantially, and nothing to appeal from in the first, if this Court be of the opinion that the whole record, including the first verdict, is properly certified [**12]  for the consideration of the Orphans' Court.

William P. Maulsby and William D. Merrick, for the appellees.

The petition of the appellants, praying that the record might be remanded for amendment, is nothing more than an application for a writ of diminution. If the Orphans' Court had no jurisdiction in remanding the proceedings to the Circuit Court for Anne Arundel county, then this Court must sustain its action, and affirm its order in this respect. Under the judicial system of this State, the Orphans' Courts are Courts of limited, not general jurisdiction. In this respect they are of inferior dignity to the Circuit Courts; the writ of diminution is issued by a Court of superior jurisdiction, upon appeal from the Court of inferior jurisdiction, from whose decree or order the appeal has been taken. By the 29th Article of the Code of Pub. Gen'l Laws, sections 29, 30, 31, provision is made for the issuing out of the Court of Appeals of a writ of diminution to the inferior Court, from which the record is removed. There is no other statutory provision in this State for the issue of the writ of diminution. Diminution at common law can only be issued out of the superior Court on [**13]  an appeal from an inferior Court. Evans Practice, 259, (old edition,) 549, (new edition.)

The Orphans' Court therefore had no authority to remand the cause to the Circuit Court for Anne Arundel county. Being an inferior tribunal, they must take the record as they find it. Bacon's Abridgement, Error E.

Diminution cannot be certified contrary to the record, which is certified. 2 Tidd's Prac., 1104, (marginal page,) and note d.

Here the record contains the finding of the jury on the first trial, and upon the principle of the authority above stated, diminution cannot be alleged. The test of the jurisdiction of any Court, consists in its powers to enforce its mandates. Can it be assumed that the Orphans' Court of Montgomery county could issue an attachment for contempt, against the Judge of the Circuit Court for Anne Arundel county, in refusing to certify the finding of the issues on the first trial, or could the Orphans' Court issue a mandamus, to compel the Judge to certify the finding as prayed in the petition?

Article 50 of the Code of Pub. Gen'l Laws, ("Mandamus,") vests the power to issue a mandamus in the Circuit Courts of the counties, and in the Superior Court [**14]  of the City of Baltimore; the Orphans' Courts cannot exercise any jurisdiction, not expressly conferred by law, and have no incidental or constructive powers. Code of Pub. Gen'l Laws, Article 93, sec. 252.

But, even if the Orphans' Court had power to remand the record to the Circuit Court for Anne Arundel county, no purpose could be accomplished by it, because the record did not require any amendment, in order to bring before the Orphans' Court the whole and complete record in the case. The record transmitted to the Orphans' Court of Montgomery county, from the Circuit Court for Anne Arundel county, does show all the proceedings had in said cause. It does appear from the record, how the case originated in the Orphans' Court of Montgomery county; how issues were transmitted to the Circuit Court for Montgomery county; how the record was transmitted to the Circuit Court for Howard county; how it was transmitted thence to the Circuit Court for Anne Arundel county, that a trial of the issues was had in the Circuit Court for said county; that a new trial was granted; that an appeal was taken from the order granting a new trial to this Court, and that said appeal was dismissed by this [**15]  Court; that the new trial was had, and a verdict found by the jury in favor of the caveatees on all the issues; and that the finding of the jury was certified by the Judge of the Circuit Court for Anne Arundel county, to the Orphans' Court of Montgomery county.

The principles of law, applicable to the trial of issues from the Orphans' Court, and of issues to be followed by judgments, are precisely the same. Ramsay and Jenkins vs. Glass et al., 9 Gill, 62; Waters vs. Waters, 26 Md. Rep.

Issues sent by the Orphans' Court to the County Court for trial, may be removed to any adjoining county for trial. Townshend vs. Townshend, 9 Gill, 506.

When issues are once granted, the functions of the Orphans' Court are suspended until the finding of the jury be certified, and when that is done, the Orphans' Court has no discretion in regard to it, but is imperatively required to enter up judgment in conformity thereto. Pegg et al. vs. Warford, 4 Md. Rep., 394; Browne vs. Browne et al., 22 Md. Rep., 116.

The exercise of a discretionary power by an inferior Court will not be reviewed and reversed on appeal, because accompanied with the assignment of an erroneous reason for its action.  [**16]  Howard & Wife et al. vs. Waters et al., 19 Md. Rep., 529; Ford vs. The State, 12 Md. Rep., 547.

In regard to the second appeal, being from the order passed on the 18th of June, 1867, it may be remarked: that the petition of the appellants, filed on the 23d of April, 1867, went on the assumption, that it was the duty of the Orphans' Court to enter judgment on the first verdict, that is to say, the finding of the jury, which was set aside and which was followed by the granting of a new trial, and totally to disregard the last verdict found by the jury on the new trial, and certified by the Judge of the Circuit Court for Anne Arundel county. It therefore prayed that judgment be entered by the Orphans' Court, sustaining the caveat, and annulling the will of Tilghman Waters, which had been fully sustained on the new trial, by a verdict on all the issues for the appellees, and that letters of administration on the estate be granted. The petition of the 28th May, 1867, setting out the first appeal, prayed that the Orphans' Court would pass no final judgment until the record from the Circuit Court for Anne Arundel county had been amended as prayed for in the case, wherein the said first [**17]  appeal was taken. The order of the Orphans' Court substantially granted this latter prayer, inasmuch as it determined, that it would not proceed to final judgment, until the appeal then taken to this Court should be disposed of. So far as this prayer and order are concerned, the appellants can sustain no possible injury from the order, and are not entitled therefore to a reversal. 2 Md. Digest 23, Paragraph 131.

That the proposition contained in the petition of the 23d of April cannot be sustained, and consequently that there is no error in the order of the Orphans' Court, relating to that petition, it is supposed to be conclusively settled by the opinion of this Court in the case of Waters vs. Waters, to be found in 26 Md. Rep. A decision of the Court of Appeals is binding and final in all subsequent litigation between the same parties, and upon the same subject matter of controversy. Mitchell vs. Mitchell's Lessee, 6 Md. Rep., 224; Preston & Hepburn vs. Leighton, use of Kelly, Ball & Co., 6 Md. Rep., 88; Mong vs. Bell's adm'rs, 7 Gill, 244; McClellan vs. Crook, 7 Gill, 333; Young vs. Frost et al., 1 Md. Rep., 377. Brown vs. Somerville, 8 Md. Rep., 444.  

JUDGES:
The cause was argued [**18]  before BARTOL, C. J., GRASON, ALVEY and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*22]  BARTOL, C. J., delivered the opinion of this Court.
These appeals have been argued together, and as they involve the same questions, will be considered and disposed of in the same way.
No principle is better established than that a decision of the Court of Appeals once pronounced in any case is binding upon the Court below and upon this Court in the subsequent proceedings in the same case, and cannot be disregarded or called in question. It is the law of the case binding and conclusive upon the parties, not open to question or examination afterwards in the same case.
If this were not so, controversies would be endless; "debet finis esse litium," is the maxim which has been invariably applied by this Court, whenever this question has arisen.
On the former appeal between these parties, decided at October Term, 1866, it was finally adjudged, that the action of the Circuit Court before which the trial of the issues was pending, in setting aside the verdict of the jury and awarding a new trial, was within the exercise of the legal discretion vested in that Court, final in its nature and not subject [**19]  to examination on appeal, and the appeal was therefore dismissed. The legal effect of that decision was that the ruling of the Circuit Court stood unreversed. The verdict having been set aside and a new trial ordered, the cause stood as if no trial had taken place, and no verdict had been rendered; 

 [*23]  and the verdict of the jury therefore rendered upon the second trial was in contemplation of law the only verdict in the cause, for the government and direction of the Orphans' Court.
The object of the appellants in the several petitions filed by them in the Orphans' Court, and contained in the records before us, seems to be to re-open before the Orphans' Court the question of the propriety of granting the new trial, and in that way to have re-examined in the Orphans' Court, and perhaps in this Court by another appeal, the same questions which were finally determined in the cause upon the former appeal. Such an attempt is wholly inadmissible.
By the petition filed on the sixth day of May, 1867, the appellants ask that the record shall be remanded to the Circuit Court for two causes:
1st. "That the Judge of the Circuit Court has not ordered a full transcript of all the proceedings [**20]  in the said case to be certified to the Orphans' Court."
2d. "That it does not appear from the certificate of the said Judge, how the case originating in the Orphans' Court of Montgomery county, came into the Circuit Court for Anne Arundel county for trial, or by what authority the said Judge certified in the said case to the Orphans' Court of Montgomery county."
An inspection of the record furnishes a complete answer to this petition. The transcript sent to the Orphans' Court contains all the proceedings from the origin of the case in the Orphans' Court to the final verdict upon the issues rendered in the Circuit Court for Anne Arundel county, showing the successive removals of the cause first from the Circuit Court for Montgomery county to which the issues had been sent, to the Circuit Court for Howard county, and thence to the Circuit Court for Anne Arundel county, where they were finally passed upon by the jury. Every thing that took place in the progress of the cause is shown by the transcript, including the first verdict rendered by the jury, the action of the Circuit Court in setting it aside and granting the motion for a new trial, the appeal therefrom and the judgment of [**21]  the Court of Appeals thereon, the second trial, and the final verdict of the 

 [*24]  jury. This transcript was sent by the clerk of the Circuit Court prefaced with a statement that what followed was "in the record of the proceedings of the same Court," and the conclusion verified by the certificate of the clerk and the seal of the Court. There is no order of the Judge requiring the transmission of the record to the Orphans' Court; but this is not necessary. The act of the clerk in that behalf is the act of the Court, and is a compliance with the law, furnishing to the Orphans' Court in a complete and legal form the grounds for their future action.
Appended to the record is a certificate of the Judge of the Circuit Court which sets forth the findings of the jury upon the several issues. This certificate is in exact conformity with the truth; no discrepancy whatever is found between it and the verdict itself as set forth in the record; and is therefore not obnoxious to any objection. It certifies only the last verdict, making no mention of the first; to have done so would have been improper, as the first verdict had been annulled and set aside, and to have certified it as the finding [**22]  of the jury would have had a tendency to mislead the Orphans' Court, who could not under any circumstances lawfully consider it, or be governed by it. An order will be passed affirming the order of the Orphans' Court passed on the 7th day of May, 1867, and dismissing the petition of the appellants filed on the 6th day of May, 1867.
And for the reasons already assigned the order of the Orphans' Court passed on the 18th day of June, 1867, will be affirmed, and the appellants' petition filed on the 23d day of April, 1867, and the amended petitions filed on the 21st day of May, 1867, on the 28th day of May, 1867, and the motion of the 18th day of June, 1867, will be overruled and dismissed.
In these appeals the costs in both Courts will be awarded to the appellees, and the cause will be remanded to the Orphans' Court for further proceedings in conformity with this opinion.
Orders affirmed and cause remanded. 

2 of 120 DOCUMENTS 

MARY J. LEVY and ROBERT C. BARRY, Adm'rs, vs. AMELIA LEVY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

28 Md. 25; 1867 Md. LEXIS 81 

December 20, 1867, Decided 

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

This appeal is taken from the action of the Orphans' Court of Baltimore city in passing certain orders in the matter of the estate of Joseph M. Levy, deceased.

On the 29th October, 1866, a paper-writing purporting to be the last will and testament of Joseph M. Levy was filed in the Orphans' Court of Baltimore city, and shortly thereafter was duly admitted to probate, and on the 5th November, 1866, Robert A. McAllister, who had been appointed executor in said will, refused to act as such and filed a renunciation, and letters of administration, with the will annexed, were issued in common form and without contest to Mary Jane Levy, the widow of the testator, and Robert C. Barry, the appellants in this cause. On the 12th November, 1866, certain persons, representing themselves as the next of kin of the said Joseph M. Levy, deceased, filed, in the Orphans' Court, a petition and caveat, averring the invalid execution of said pretended will, the want of testamentary capacity of the testator at the time said will was signed by him, the exertion of fraud and undue influence by certain persons therein named, over the testator, in the [**2]  procurement of said will, and that its contents had not been fully explained to him, and praying that the probate already had, might be examined into, and the letters revoked and probate rescinded. To this petition an answer was filed by the appellants, denying all the allegations and charges in said petition, and inviting the strictest scrutiny into the validity and legality of said will, upon caveat, after probate and letters granted. On the 26th December, following, the questions at issue between the respective parties, were set forth with a prayer that issues might be awarded and transmitted to the Superior Court of Baltimore city, which was accordingly done by order of the Orphans' Court. At the January term of said Superior Court, 1867, when the case was called, the caveators (the appellees,) not being ready for trial, asked for a continuance. In the opinion of the court, however, the causes assigned were not sufficient, and the counsel for the appellants insisting that the same should be disposed of without delay, the counsel for the appellee "dismissed" it. The record of these proceedings was afterwards transmitted by the Superior Court to the Orphans' Court.

On the 11th [**3]  May, 1867, the appellees who had filed the first petition and caveat, as above stated, filed a second petition and caveat in the Orphans' Court of Baltimore city, in the very language of the first petition, and in all respects a literal copy of it, the only difference being that one Eliza Hendricks made the affidavit to the truth of the matters alleged in the petition and caveat in the second petition, and one Jonas P. Levy did so in the first petition and caveat.

On the 21st May, 1867, the appellants filed an answer to the second petition and caveat, setting forth the proceedings already had by the Orphans' Court on the first petition, and the action of the Superior Court, and praying that the said second petition might be dismissed, and on the 28th May, 1867, they, by their counsel, filed a motion to the said Orphans' Court to pass an order dismissing the first cause. After argument on the 12th June, 1867, the said Orphans' Court passed two orders, one overruling the application and prayer of the appellants for the dismissal of the said second petition and caveat, and requiring them to file a good and sufficient answer thereto; the other declining to dismiss the said first cause,  [**4]  and decreeing that the appellees should pay the costs of the same.

From these orders the appeal was taken.  

DISPOSITION:
Affirmed and remanded.  

HEADNOTES:

Orphans' Court -- Issues -- Practice.

By the 250th section of the 93d Article of the Code of Pub. Gen'l Laws, the Orphans' Court is vested with discretionary power to award costs and enforce their payment; and where issues are sent by the Orphans' Court to a Court of law, this Court has decided that the Court to which such issues are sent, cannot enter judgment for costs. The established practice in such cases is to certify to the Orphans' Court, the verdict of the jury and the costs, leaving for that Court to enter the proper judgment.

Where issues are sent by the Orphans' Court to a Court of law, contesting the validity of a will, and the same are dismissed by order of the caveators, and the record of the proceedings therein transmitted to the Orphans' Court, it is competent for the same parties to file another petition and obtain issues a second time. 

COUNSEL:
Henry Clay Dallam and S. Teackle Wallis, for the appellants, argued:

That both on principle and authority and in view of the policy of the law of Maryland touching issues framed and sent from the Orphans' Court there was error in the ruling of the Orphans' Court. The law gives precedence to such cases, and places them upon the trial calendar of the Court to which they are sent, at the first term. Code, Art. 93, sec. 249 and 250. The policy is to promote a speedy settlement of estates, so that creditors and legatees may be paid, and to this end the duty is imposed upon all who feel aggrieved by the action of the probate Court, to make their grievances known at once. The argument ab inconvenienti applies here most forcibly. If it be competent for these appellees to do what they are now endeavoring to do, then they may repeat it ad infinitum. All intendments are with the appellants. They are acting under a will, duly probated, and on its face entirely legal. The caveators have made the issue against its validity, and it was imperative upon [**5]  them to have been ready to try the cause which they themselves instituted. It is the right of legatees and others claiming under a will, to demand that those seeking to invalidate it shall do so at once. If this were not so, and the caveators can at their option renew the issues, it might amount to a denial of justice, for in the lapse of time the witnesses to the will, and the witnesses who could speak as to the testamentary capacity of the testator, and refute the allegation of the fraudulent procurement and execution of the will, might all die, and thus the caveatees be entirely deprived of proof. The "dismissal" of the issues by the caveators in the Superior Court concludes them. It was their laches that there was no trial. After full argument on their motion for a continuance, the Court overruled the same and ordered the trial to proceed, and then the caveators "dismissed" their issues. This was an abandonment of their case, and they are not in the situation of ordinary plaintiffs, who can dismiss and renew their suits at will. The caveators, (and they seem to have embraced all persons interested in the estate of Joseph M. Levy,) were the same in both proceedings, and it is not [**6]  competent for the same parties in an exactly similar proceeding to renew their issues. It would be vexatious to permit them so to do. Pegg, et al., vs. Warford, 4 Md. Rep., 385; Cecil vs. Cecil, et al., 19 Md. Rep., 78 and 79; Bearblock vs. Tyler, 1 Jac. & Walk., 225; Johnston vs. Todd, 3 Beav., 223.

If the plaintiff make default in going to trial, the issue will be taken pro confesso. Casborne vs. Barsham, 5 Mylne and Craig, 113, 122 and 124; Hargrave vs. Hargrave, 8 Beav., 289; 2 Daniell's Ch. Prac. & Plead., "Feigned Issues," 1101.

If one or more of the caveators had dismissed the case, it might be that this could not deprive the others who were not parties to its dismissal of their right to frame issues, and have the finding of a jury thereon, but here all the parties dismiss. So, if there were other parties interested in contesting the validity of the will, and not parties to this caveat, it would be competent for them to have issues sent; but such is not the case here.

The motion made by appellants' counsel was the proper one, and should have been granted; the Orphans' Court, from which the issues had gone, being the proper Court for final action in the premises.  [**7]  Browne vs. Browne, et al., 22 Md. Rep., 103; Warford, et al., Lessee, vs. Colvin, 14 Md. Rep., 532; Price vs. Taylor, 21 Md. Rep., 356; Price vs. Moore, et al., 21 Md. Rep., 366.

John P. Poe and I. Nevett Steele, for the appellees.

1st. That the appellees had a perfect right to dismiss their case in the Superior Court. Evans' Pr., 361; 2 Dan'l Ch. Pr., 1299; Code Pub. Gen'l Laws, p. 688; Pegg, et al., vs. Warford, 4 Md. Rep., 385.

2d. That such dismissal necessarily resulted in its return to the Orphans' Court, where it was placed precisely as it stood before they filed their caveat. Price vs. Taylor, 21 Md. Rep., 356; Price vs. Moore, et al., 21 Md. Rep., 366.

3d. That the probate of the will in question, being merely had in common form and without contest, there could, as a matter of course, be no restriction upon the right of the appellees to dispute its validity, either upon plenary proceedings before the Orphans' Court, or by new issues made up and transmitted for trial--that the controversy, to all intents and purposes, remained still undecided--and that, consequently, there was no error in the orders of the Orphans' Court imposing upon the appellees the costs [**8]  of the case which they had dismissed, and requiring the appellants to put in a good and sufficient answer to the caveat filed on the 11th of May.  

JUDGES:
The cause was argued before BARTOL, C. J., GRASON, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
GRASON 

OPINION:

 [*29]  GRASON, J., delivered the opinion of this Court.
This is an appeal from two orders, passed by the Orphans' Court of Baltimore city, on the 12th day of June, 1867; the one for payment of costs by the appellees, and the other requiring the appellants to answer a petition, filed in said Orphans' Court by the appellees, on the 11th day of May, in the year 1867.
By the 250th section of the 93d Art. of the Code, the Orphans' Court is vested with discretionary power to award costs and enforce their payment; and this Court has decided that a Court of law, to which issues are sent by the Orphans' Court, cannot enter judgment for costs, but that the established practice, in such cases, is to certify to the Orphans' Court the verdict and 

 [*30]  the costs, leaving for that Court to enter the proper judgment. Browne vs. Browne, et al., 22 Md. 103. It appears from the record that the Orphans' Court had been certified [**9]  of the dismissal of their issues by the appellees, and, in ordering the payment of the costs by them, the said Court was exercising a power vested in it by law, and we can discover no error in passing said order.
It is contended by the appellants, that the second petition of the appellees, filed 11th May, 1867, should have been dismissed by the Orphans' Court upon the ground that the dismissal of their issues by the appellees, in the Superior Court of Baltimore city, was an abandonment of the contest and the cause, and that they are thereby barred from again contesting the will mentioned in the record. In support of this position they rely upon the cases of Pegg, et al., vs. Warford, 4 Md. 385; Cecil vs. Cecil, et al., 19 Md. 72; Price vs. Taylor, 21 Md. 356; and Price vs. Moore, et al., 21 Md. 366. In the case of Pegg, et al., vs. Warford, two caveats were filed against the will, and two sets of issues, upon the application of different parties, had been sent to a Court of law for trial, and some months afterwards a third caveat was filed by a third party. Pegg then filed a petition to [**10]  the Orphans' Court, asking a revocation and remodelling of the issues which had been granted, and a joinder of all the caveators, &c., which petition was dismissed, and Pegg appealed. Upon that appeal this Court decided among other things that, after issues are sent to a Court of law for trial, the Orphans' Court cannot revoke or remodel them, and that, when an issue is sent, upon the petition of one party, the same issue cannot be granted on the petition of another party to be tried before another jury; for the reason that there might be different verdicts rendered. In no part of the decision is it intimated by the Court, that a dismissal of issues would bar the party from further proceedings in the Orphans' Court. On the contrary, we may fairly infer, from the language used by the Court, that they were of opinion, that the dismissal would 

 [*31]  not operate as a bar; for they say, that "when the question has been once fairly answered by a jury, it ought to be considered as definitively settled." From this language the inference is plain, that it was the opinion of the Court, that a dismissal of issues would not operate as a bar to further proceedings.
The case of Cecil and  [**11]   Cecil presents the question whether a distributee is barred by a proceeding in the Orphans' Court, between his co-distributees, and to which he was not a party on the record. The Court say that "in matters in rem, such as the factum of a will, where solemn proof has been resorted to, the decisions are final, if not appealed from; and issues, involving the same question, will not be sent a second time;" and the case of Pegg and Warford is cited in support of these positions. Construing the language, used in Cecil and Cecil, by the light thrown upon it by Pegg and Warford, it must be intended to mean, that issues, involving the same questions will not be sent a second time, after having been once fairly answered by the verdict of a jury. This view of the court's meaning is made still more apparent by reference to another part of their opinion, in which they say that "justice requires that every case be once fairly and impartially tried." In the case under consideration no trial ever took place and no judgment was ever rendered; and therefore no bar has been interposed to further proceedings. In the cases of Price vs. Taylor and Price vs. Moore the Court [**12]  say that Mrs. Taylor, having dismissed her issues, thereby abandoned the contest; and this is relied upon by the appellants as meaning a final abandonment of her cause, which would bar her from further proceedings. We think that such a construction cannot fairly be put upon the language used, but that the Court intended nothing more than, that, by dismissing the issues, Mrs. Taylor abandoned her then pending contest. This interpretation of their language is in accordance with the settled law, that a party may, at any time before trial, dismiss his suit, without losing the right to institute another upon the same cause of action. Art. 93, sec. 250, of the Code, regulating 

 [*32]  the trial of issues from the Orphans' Courts, provides that the power of the court of law and the proceedings thereto relative shall be as directed by law respecting the trial of issues. This section of the Code is taken mainly from sect. 17 of sub-chap. 9 of the Act of 1798, which provides, "that the power of the court of law, and proceedings thereto relative, shall be as hereinbefore directed respecting the trial of issues." The only other provision to be found in the laws, regulating the trial of [**13]  issues, is to be found in the 20th sect. of sub-chap. 8 of the Act of 1798, which provides for the manner of settling disputes with respect to debts due by an executor to his testator's estate. One mode is by issues sent to a court of law, by the Orphans' Court, and it is provided, that the court of law shall have power to instruct the jury, and grant a new trial, "as if the issue or issues were in a suit therein instituted;" that is, instituted in said court of law. The 93d Art., sec. 250, of the Code, must be construed with reference to previous legislation upon the same subject matter, and so construing it, the conclusion is irresistible that the Code requires issues from the Orphans' Courts to be subject to the same law and mode of proceedings as are the issues which are instituted in courts of law. This being so, a party may at any time, before trial, dismiss them, and yet not be barred from instituting other proceedings and obtaining issues a second time. The argument, so forcibly urged by the counsel of the appellants, as to the inconvenience which might arise from the unrestricted use of such a right, is entitled to considerable weight. But as we can find no statutory provision [**14]  limiting its exercise, and all the authorities, in our opinion, sanctioning the view we have taken of it, we cannot permit such an argument to control our judgment, especially, as by doing so, parties might be deprived of all opportunity of establishing their rightful claims to property. The penalty of costs, imposed upon parties dismissing their issues, will, in all probability, prevent them from using this right for the purpose of vexation or delay.

 [*33]  The next question to be decided is, as to the mode of proceeding in the Orphans 'Court after the issues were dismissed. Ought the appellees to have filed a new petition or proceeded upon the petition first filed. It was decided by this Court, in the case of Price vs. Taylor, and again in Price vs. Moore, 21 Md. Rep., that the dismissal of the issues necessarily results in a return of the case to the Orphans' Court, where all persons interested would have the right to become contesting parties; and that the effect of such dismissal is to place the case precisely as it was before the filing of the caveat. It is apparent therefore that the dismissal of the issues ends the contest both as regards the issues themselves [**15]  as well as all the proceedings in the Orphans' Court, and any person interested had the right to file another petition contesting the validity of the will. Both of the orders passed by the Orphans' Court of Baltimore city, on the 11th May, 1867, must therefore be affirmed.
Affirmed and remanded. 

DISSENTBY:
ALVEY 

DISSENT:

ALVEY, J., dissenting, delivered the following opinion:
Instead of affirming I am of the opinion that the order of the Orphans' Court refusing to dismiss the last caveat filed, should be reversed; for it seems to me that this last caveat was wholly unnecessary and vexatious.
Though a party, at whose instance issues have been framed in the Orphans' Court, may dismiss them while pending in a court of law for trial, without being thereby precluded the right to have new issues framed in reference to the same subjects of inquiry, I do not agree that, by the simple dismissal of the issues in the court of law, the whole proceeding in the Orphans' Court is by that act disposed of. The issues are only auxiliary to the proceeding in the Orphans' Court, which alone has jurisdiction to pronounce judgment in the cause; and if this be so, then the caveators after the dismissal [**16]  of the first issues framed, if they desired the same facts to be tried by jury, should have gone back to the Orphans' Court, and 

 [*34]  asked for new issues, in the same proceeding in which the first were framed, instead of filing a duplicate caveat, and requiring a new answer thereto. This was an unnecessary multiplication of proceeding, the effect of which was to deprive the caveatees of the benefit of the progress that had been made in the first instance.
Before a second caveat, for the same causes, by the same parties, should be allowed to be filed and proceeded with, the first caveat should have been dismissed in the Orphans' Court, with costs of the whole proceeding to the caveatees. 

3 of 120 DOCUMENTS 

JASPER BROWN vs. ANNA B. KEMPER, by her next friend, JOHN KOLBE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 666; 1867 Md. LEXIS 73 

November 12, 1867, Decided 

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

This is an appeal from a decree of the Circuit Court of Baltimore City, perpetuating an injunction to restrain execution upon a judgment rendered in an action at law. The facts of the case will appear sufficiently stated in the opinion of the Court.  

DISPOSITION:
Decree reversed, injunction dissolved and bill dismissed--each party to pay his own costs, above and below.  

HEADNOTES:

Liability of a Wife's Separate Estate for a Tort by her -- Pleading -- Judgment by default.

Husband and wife, in an action at law, were jointly declared against, as having committed a wrong, from which it was claimed, damages resulted. A judgment by default was rendered against them jointly; the amount of the damages were determined by inquisition and an execution was issued, and levied upon the separate estate of the wife. HELD:

That the judgment being in an action for a tort, was not void at law; that the amount though determined by inquisition was as effectual as a verdict found upon issues, and that the fact that the property levied on, was the separate estate of the wife, did not justify an injunction to restrain execution.

The action not being to subject the wife's property to the payment of the husband's debts, nor to enforce her contract in relation to her separate estate, but, against the wife, per invitum, as well as the husband, for a tort of the wife, the judgment recovered therein may be enforced against her separate estate.

In an action for a tort by a feme covert, during coverture, or before coverture, the husband and wife must be jointly sued.  

COUNSEL:
Thomas A. Hopkins and Patrick M'Laughlin, for the appellant, contended:

1. That the action at law against husband and wife for a tort, was properly instituted; and the declaration made a good legal cause against husband and wife. Estill and Wife vs. Fort, 2 Dana, 238; Phillips vs. Phillips, 7 B. Monroe, 268; Roadcap and Wife vs. Sipe, 6 Gratt., 213; Vine vs. Saunders, 33 Eng. Com. Law R., 290.

2. A judgment by default is as binding as any other judgment. Green vs. Hamilton, 16 Md. Rep., 317.

3. Proof taken under an ex parte commission, in support of the allegations of the bill, should be such, as would be exacted of the complainant, if by the answer they were neither confessed nor denied. Oliver vs. Palmer and Hamilton, 11 Gill & John., 426.

4. Where two [**2]  Courts have concurrent jurisdiction of the same cause, that Court which first acquires jurisdiction of the cause, shall retain it. Albert and Wife vs. Winn and Ross et al., 7 Gill, 446. And this is a matter, too, of which the Court will, of its own motion, take notice. Withers et al. vs. Denmead, 22 Md. Rep., 135.

5. By making the motion to strike out the judgment in a Court of law, the appellee waived her right to apply to a Court of Equity, at least until redress was refused her in a Court of law. Henderson & Ross vs. Gibson, Garn. of Johnson, 19 Md. Rep., 234.

6. If the complainant make a case by her evidence, by which she shows that she is not entitled to the relief prayed for, then this Court will reverse the decree. Oliver vs. Palmer & Hamilton, 11 Gill & John., 426.

7. The appellee could have taken an appeal from the judgment at law, but it may be said, that by the judgment by default, and the inquisition, she would be barred from excepting to the testimony for insufficiency, or other cause. This is true, but it results from her fault. If the declaration do not show a good cause of action, she can successfully appeal from it, and therefore she has not exhausted [**3]  her remedy at law. If the declaration show a good cause of action, the testimony in this case is far short of making a good case for an injunction.

H. Clay Dallam, for the appellee.

In the absence of proof to the contrary, this Court will assume the verity of the statements made in an interlocutory decree under the Act of 1820, ch. 161, and that it was legitimately passed. Long vs. Long, 9 Md. Rep., 348; Calwell vs. Boyer, 8 G. & J., 148; Fitzhugh et al. vs. McPherson, Adm'r of Neth, 3 Gill, 408; Code Pub. Gen. Laws, Article 16, sections 100, 115, 117; Code Pub. Gen. Laws, Art. 5, sec. 26.

The judgment recovered in the Superior Court, so far as the appellee was concerned, was null and void; she never appeared by an attorney in that suit; and even if she had, it would not, in any way, have affected her rights. She was a feme covert and not sui juris, and not competent even to employ an attorney. Not only was the interposition of a Court of Equity properly invoked by her, but it was the forum which alone could grant the relief she desired. Whatever appertains to the separate property of a married woman, has always been a peculiar subject of the jurisdiction of Courts of [**4]  Equity. Griffith vs. Clark, 18 Md. Rep., 463; Bridges & Woods vs. McKenna, 14 Md. Rep., 261; Wallingsford vs. Wallingsford, 6 H. & J., 485; Burton et al. vs. Marshall, 4 Gill, 487; Norris vs. Lantz & Hyde, 18 Md. Rep., 261.

The Code declares that the property of a feme covert "shall be protected from the debts of the husband, and not liable, in any way, for the payment thereof." A debt "is any claim for money." Code Pub. Genl. Laws, Art. 45, sec. 1.

And if "a married woman" having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced, presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent," (Koontz vs. Nabb, 16 Md., 549) it can hardly be contended that under the very vague and loose declaration which set forth the appellant's case in the Superior Court, such a result can be attained. In that declaration not only is not the interest of the wife stated distinctly and affirmatively, but it is not stated at all--the joinder of her was therefore improper, and she not being sui juris, and never having appeared to the suit, she can now impeach the judgment. And [**5]  this Court has decided, that "where a suit is in the joint names of husband and wife, the interest of the wife must be stated distinctly and affirmatively in the declaration, otherwise the joinder is improper." Ridgeley vs. Crandall & Wife, 4 Md. Rep., 435; Stirling et al. vs. Garritee, 18 Md. Rep., 468; Griffith vs. Clarke, 18 Md. Rep., 464; Barr & Wife vs. White, 22 Md. Rep., 259; 1 Chitty's Pleading, 74, 75; Higdon vs. Thomas, 1 H. & G., 139.

A feme covert can only be sued for her own actual wrong or trespass, and cannot become a trespasser, merely by her previous or subsequent assent during coverture. 1 Chitty's Pleading, 82, (66.)

Where the wife commits theft or burglary or any civil offence, in the company of her husband, the law construes it to be done by his coercion, excuses her, and he alone is responsible. 1 Hale P. C., 45; 3 Thomas' Coke, 528, and notes; 4 Black. Com., 29; Hasbrouck vs. Weaver, 10 Johns., 247.

An action will not even lie against both for a tort, unless there is proof that the wife committed it, along with the husband. 2 Bright on Husband and Wife, sec. 8, p. 80; 2 Kent's Com., 150 (7th Edition); Berry vs. Harper, 4 G. & J., 467; 1 Chitty's [**6]  Plead., 85.

In some cases a tort by the husband and wife is considered, in law, as the act of the former; thus trover lies against the husband alone, on a conversion by both.

But, whether the judgment recovered in the Superior Court against the appellee and her husband, is or is not, as to her, a nullity; it is clear, that the separate estate of the married woman cannot be seized, on an execution, at law, to satisfy it. The property levied on was the separate property of the wife, conveyed to her directly, by deed from the grantor. Smith, Ex'r of Smith, vs. Morgan, 8 Gill, 133; Bridges & Woods vs. McKenna, 14 Md. Rep., 267, 268.

Even in a case where it is proven that, jointly with her husband, she was a wrong-doer, and judgment recovered against both, it is submitted that under the laws of Maryland, her separate estate, could not be subjected, by any proceeding at law, to satisfy the judgment, but could only be charged by a proceeding in equity.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*671]  WEISEL, J., delivered the opinion of this Court.
This appeal is from an order perpetuating an injunction. After the injunction [**7]  itself had been granted and the writ served, the complainant below proceeded, under an interlocutory order, obtained by reason of the failure of the defendant (the appellant) to appear to the subpoena, to take proof ex parte in support of her bill, and upon its return, to obtain the final order appealed from, perpetuating the injunction. We are therefore to examine this proof and the bill of complaint, to ascertain whether there was error or not in this final order. The proof simply verifies the facts alleged in the bill, that Anna Barbara Kemper, the complainant, (suing by a next friend) is the wife of Henry Kemper, to whom she was lawfully married in July, 1859; that she is the grantee in the deed exhibited with the bill, and is still the owner of the property thereby conveyed; that she is the identical person named in the suit at law of Jasper Brown against Henry Kemper and Mary Barbara Kemper, his wife, and that she was inaccurately summoned in said suit by said name of Mary Barbara Kemper; that she and her husband were still living and resided in Baltimore county. The exhibits with the commission were the deed of the city of Baltimore to Anna Barbara Kemper, dated 11th February,  [**8]  1863, for certain real estate in Baltimore city in fee; and the record of a suit at law in the Superior Court of Baltimore City, in which Jasper Brown (the appellant) was plaintiff and Henry Kemper and Mary Barbara Kemper, his wife, were defendants, which resulted in a judgment upon an inquisition, on a judgment by default for want of plea; and a fieri facias was issued thereon and levied on the property conveyed by the said deed. A motion to strike out the judgment was entered after the issuing of the fi. fa., but this seems to have been abandoned. The record does not show any further proceeding upon it. The next step 

 [*672]  taken was the bill of complaint, filed on behalf of Mrs. Kemper, in the Circuit Court of Baltimore City, praying for the writ of injunction against the said Brown and the sheriff, restraining them, &c., from levying the fieri facias on said property to satisfy said judgment; and for a subpoena to answer. The injunction was ordered and issued the same day. The allegations upon which the injunction was granted, were that in the suit at law it was falsely alleged that the plaintiff had sustained damages through the tort and wrongful act  [**9]   of Henry Kemper, the husband; that a judgment was obtained by default, against both; that this and the subsequent proceedings by inquisition and judgment thereon, resulted from the gross negligence and inattention of the attorney employed, but without any agency of the complainant; that the judgment as to her is a nullity and without legal effect; and that the property levied on under the fi. fa. is her sole and separate estate, and the title thereto will be seriously affected and clouded, and its value impaired by the proceeding under it. The record of the judgment at law was not exhibited with the bill, but only the docket entries, which did not disclose the true nature of the suit. It appears from the record, put in evidence under the commission, that the defendants, husband and wife, were jointly declared against, as having committed a wrong, from which the damages claimed, resulted.
In an action for a tort by a feme covert, during coverture or before coverture, the husband and wife must be jointly sued. 1 Chitty's Pl., 81, 92. The judgment was rendered against them jointly. And although it was a judgment by default, and the amount found by inquisition, the finding [**10]  was as effectual as a verdict found upon issues. If injustice be done, it is the fault of the defendants, who could have participated in the inquiry. Green vs. Hamilton, 16 Md. 317, 329. And for any negligence or inattention of the attorney employed, a Court of Equity can 

 [*673]  afford them no relief. The judgment, therefore, being in an action for a tort, is not void at law, and this Court cannot so regard it. It is different, essentially, from the case of Griffith vs. Clarke, 18 Md. 457. That was an action upon a contract entered into by a feme covert, which could not be enforced against her by any proceedings at law, as has been repeatedly determined. Is there anything in the fact that the property levied on was the separate estate of the wife, to justify the continuance or perpetuation of the injunction? This question may be new and must be determined upon principle. In this State all property, real and personal, belonging to a woman at the time of her marriage, or subsequently acquired (except from the husband after marriage in prejudice of subsisting creditors,) shall be held for her separate use, and protected from the debts [**11]  of the husband, and not be in any way liable for the payment thereof. 1853, ch. 245 and Code of Pub. Gen. Laws, Art. 45; Unger & Wife vs. Price, 9 Md. 552; Schindel vs. Schindel, 12 Md. 294. And if the case before us, were one in which it was attempted at law, to subject the wife's property to the payment of the husband's debts, or to enforce her contract in relation to her separate estate, there would be no difficulty in sustaining the decree of the Court below. But we think a different rule must be applied, when a judgment like this is to be enforced. The debt is one, not of contract nor of the husband, but against the wife, per invitum, as well as the husband, for a tort of the wife. We are not at liberty to draw any other inference from the record in the action at law, as to the character of the wrong complained of, and for which damages were assessed by the inquisition. In cases where the wrong is done by the wife herself, Courts in England have refused to discharge the wife, who had been taken in execution upon a judgment against her husband and herself, where it appeared that the wife had a separate property. Pitts vs. Mella et ux., 2 Stra. 1167; [**12]  

 [*674]  Finch vs. Duddin, ib. 1237; Lanstaff vs. Rain, 1 Wils. 149; Newton & Wife vs. Rowe, 7 Man. & Grang. (49 Eng. C. L. R.) 330; Macqueen on Husb. & W. (59 L. L.) 40, 41, 125; Tidds' Pr., 9th Ed., 1026. If the wife can thus be made liable at law for a wrong committed by her, there seems to be no reason to resort to Equity, to subject her separate estate to the satisfaction of the judgment. If her person cannot be discharged, when she has an estate of her own, from the demands of a ca. sa. (where that writ is in use) there would be the less reason for discharging the property itself, if that were taken in execution. To avoid circuity and prevent an accumulation of costs, the better rule would be to let the execution proceed. The proceeding in this case was by interlocutory decree (Code, Art. 16, sec. 115,) and conducted to a final decree in the same manner, as if the defendant had appeared and put in his answer. Had the Court below entertained the views expressed in this opinion, the injunction would not have been continued, as no further proceedings were necessary, and the bill and proof would not sustain the injunction. The injunction [**13]  would, therefore, necessarily have been dissolved and the bill dismissed. To this result our consideration of the case has conducted us; but we will order each party to pay his own costs.
Decree reversed, Injunction dissolved and Bill dismissed--each party to pay his own costs, above and below. 

4 of 120 DOCUMENTS 

ALEXANDER HAMILL vs. SYLVIA C. HAMILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 679; 1867 Md. LEXIS 75 

November 12, 1867, Decided 

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

On the 7th of February, 1865, in the Circuit Court of Baltimore City, the appellee filed a bill for divorce a vinculo matrimonii against her husband, William J. Hamill, alleging adultery and abandonment, and that he was beyond the jurisdiction of the Court, and asking alimony pendente lite, and alimony, and the appointment of a receiver to take charge of the property of her husband, including an establishment for the refining of coal oil, and also that an injunction might issue. A receiver was appointed and the injunction issued. Shortly afterward an order was passed requiring the receiver to pay to the appellee as alimony pendente lite, the sum of two hundred dollars a month, and finally a decree for divorce as prayed for. At this stage of the proceedings the appellant filed a petition, alleging that he was the father of the said William, and his partner in the business of "Coal Oil Refining" at the time of his desertion of his wife--that he and his said son had taken the lease of the property at the south-east corner of Eden street and Canton avenue--that he had furnished a large part of the capital for the construction of the [**2]  building originally erected on said lot, as also a large part of the capital for carrying on the said business of "Coal Oil Refining," and he asked to be allowed to become a party defendant in the case. The Court, the solicitor for the complainant (now appellee) consenting, passed an order making him a party defendant. The appellee filed her answer in which she denied that the appellant was a co-partner of the said William at the time of his desertion of her, and that he and the said William have a lease of the lot mentioned; and whilst admitting that prior to 1861 certain buildings were erected on said lot by the appellant and the said William, she denied that the appellant furnished a large part of the capital for the erection thereof--she admitted that after a fire in 1861, which destroyed the buildings, the co-partnership which had previously existed between the appellant and the said William was virtually dissolved, and that new buildings were erected on said lot, and the necessary machinery and stock to carry on the business were purchased and placed therein by the said Willam, out of his own private funds, and that again in 1862 said buildings, with the machinery and stock,  [**3]  were destroyed by fire; that after the last mentioned fire the said William erected the buildings now used as a "Coal Oil Refinery" out of his own funds. After the coming in of the answer a commission was issued, and thereunder a large amount of testimony was taken. The Court, after consideration of the petition, answer, evidence and argument therein by counsel, dismissed the petition on the ground that the appellant had failed to establish affirmatively, the co-partnership as alleged by him. Subsequently the appellant moved the Court to rescind the order previously passed appointing a receiver, on the ground that he was a co-partner of his son in the property or a part thereof, mentioned in the proceedings, and therefore entitled to its possession and control. The Court overruled the motion. From the decree dismissing the petition, as also from the order overruling the motion to rescind the appointment of the receiver, this appeal is taken.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Partnership Rights -- Appointment of a Receiver.

Where a partner absconds, his co-partner is entitled to take possession of the partnership property and effects, for the benefit of the firm; and the appointment of a receiver by the Court to take charge of the property of the absconding partner, does not operate to divest the partner remaining, of his right to the partnership property.

To justify the appointment of a receiver to take possession of partnership property, there must be allegations of waste and fraud committed, or about to be committed by one partner, to the loss and injury of the other partner, or his legal representatives. A receiver, as an officer of the Court which appoints him, is bound to obey its orders; and where, under a misapprehension of his duties and rights, he takes possession of partnership property, the Court may require him to make restitution of the same.  

COUNSEL:
John T. Morris and Edward Otis Hinkley, for the appellant, contended:

That there was error in the opinion of the Judge below, "that the appellant had not established affirmatively the partnership [**4]  alleged by him." The evidence shows, as will be seen by a careful examination of it, that there did exist a partnership as alleged, in 1861, and the burden of proof was then upon the appellee to establish affirmatively a dissolution of it. But even assuming that the burden is upon the appellant, to show both the formation and the continuation of the partnership, that is to prove affirmatively that the partnership which once existed was not dissolved, there is abundant evidence to show its continued existence ever since its formation. The use of the firm name by William during the whole period of his presence, is a clear admission of its existence. For although it may be argued that such use of a partnership name is often made after dissolution, by consent, yet the answer is conclusive, that without evidence of such consent (and there is no such evidence here) no assumption can be made of the fact of its being so used, and the necessary implication of its use in the regular, ordinary and legitimate way must remain and bind the man who used it. This use of the firm name is shown by the sign of the firm being kept up, until the receiver ordered it to be painted out; by the notes of the [**5]  firm being given by William; by the acceptance by William, in the name of the firm, of the Pittsburg draft; by the fact that all the bills for all three factories, and for oil purchased, were made out against the firm, and all the business was done in the name of the firm. And after William left Baltimore, it appears that the appellant was called upon by the appellee to sign an order, for the purpose of settling a partnership affair with M. Logan. The evidence is clear that the appellant invested large sums of money in the business, not only in building the factories, but also in buying goods. The lease of the land in the joint names of William and Alexander cannot, by any means, except by some writing, be taken away from the appellant, and there is no such writing, the evidence being that the appellee tried to get it, but the appellant refused. If it be argued that the partnership was dissolved, it may be asked when? it certainly was not by all the evidence, before William left. Can it, with any pretext of justice, be argued that the fires, or either of them, dissolved that partnership, or that the rebuilding of the factory a third time by William, while Alexander was paralyzed, had [**6]  the effect to dissolve the partnership, and vest exclusive title to the land in William?

Again, can William's running away justly deprive Alexander of any rights, or in any manner change the land title? Even if it be assumed, which we contend is not law, without any proof of any agreement between parties for dissolution, that the running away of one partner does of itself actually and legally dissolve a partnership, without any legal proceeding to declare a dissolution for such cause, what is the result? It still does not deprive the remaining partner of his rights, which are to retain possession of the partnership property and wind up its affairs. As the Court has taken the property in this case out of the possession of the appellant, by appointing a receiver, without any cause or necessity shown, we ask this Court to declare the right of the appellant to possession and to wind up the business. Even if this Court should find from the facts in the case that there was a dissolution, and should be of opinion that the appellee, claiming in the divorce bill, has all the rights of her husband, still it must be asked, was there ever any settlement of the partnership affairs? There is [**7]  no evidence of any. So that finally, if this Court think it equitable to let one claiming under a partner who has run away, have a receiver put on the partnership property, without any impropriety of conduct on the part of the remaining partner, either alleged or shown, and that without any bond, and where the remaining partner is competent and willing to settle the affairs without charge, and to give any bond required, there yet remains the questions, is not the appellant entitled to an account, and is there evidence sufficient under the Statute of Frauds to divest him of his title to the land, and which we submit to the decision of this Court? The case depending almost wholly on the facts, there is scarcely any occasion to refer to decisions upon the subject of partnership, and the appointment of receivers, but it may be suggested that there are certain known modes of dissolution of a partnership, clearly laid down in the text books, as to none of which is there any evidence here, and there are certain just grounds for appointment of receivers, none of which are shown here. The Court may decide what part of the evidence excepted to is admissible, but it is contended that even if [**8]  all the evidence offered by the appellee be admitted, it is not sufficient to change the result that Alexander was a partner and entitled to possession; the very letter of William when he went away, if admissible, shows an existing partnership and that no settlement had been made.

Robert C. Barry and Charles J. M. Gwinn, for the appellee, contended:

That the Court below did not err in ruling that the onus probandi, was upon the appellant, to establish affirmatively the co-partnership alleged by him; and in overruling his motion to rescind the appointment of the receiver, because such is the well settled rule of Equity Jurisprudence. 1 Greenleaf's Evi., sec. 74; Gresley's Eq. Ev., sec. 388; Robert vs. Salisbury, 3 Gill & John., 425; Benson vs. Wallace, 4 Gill & John., 479. The petition of the appellant, which was under oath, and alleged a co-partnership between him and the said William J. Hamill, and that he was interested in the property described in the proceeding, is contradicted by the answer of the appellee, likewise under oath, and it was therefore incumbent upon the appellant, to establish by affirmative proof, the facts alleged in his petition, before he was entitled [**9]  to the relief asked. A material allegation in a bill, (and it is submitted that the same rule applies to a petition,) even though not denied, must be proved. Joice vs. Taylor, 6 Gill & John., 54; Dilly vs. Barnard, 8 Gill & John., 170.

An answer, responsive, to the bill, denying its allegations, is conclusive upon that question, unless overcome by the testimony of two witnesses, or one with corroborating circumstances. Feigley vs. Feigley, 7 Md. Rep., 537. Such was the well settled rule prior to the Act of 1852, ch. 133; and such is still the rule, where the cause, at final hearing, is heard upon the bill and answer. Warner vs. Twilley, 10 Md. Rep., 39. This rule is not altered by Section 103 of Article 16 of the Code of Pub. Gen. Laws, in cases like the one at bar; that section not applying to motions to discharge a receiver. If, then, this case were to be tried upon the petition and answer, there is no doubt the judgment of the Court below, dismissing the petition, must be affirmed, because the appellant did not establish affirmatively the partnership alleged by him. And it is submitted that an examination of the evidence, offered in the Court below, by the respective parties,  [**10]  will demonstrate that so far from the appellant's allegations of partnership, as stated in his petition, being established affirmatively, it was clearly shown that said allegations were unfounded, and the Court below acted properly in dismissing his petition, and overruling his motion to rescind the appointment of the receiver.  

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

OPINIONBY:
CRAIN 

OPINION:

 [*685]  CRAIN, J., delivered the opinion of this Court.
The record in this case discloses the fact that about the 20th of August, 1864, William J. Hamill, the son of the appellant, deserted his lawful wife, and six infant children, and fled with his paramour to Europe. It does not appear that he authorized or empowered any one to take charge of his property, for the purpose of protecting and preserving it. The appellee, deserted and abandoned by her husband, filed her bill in the Circuit Court of Baltimore City, for a divorce a vinculo matrimonii, which she obtained, and the Court appointed a receiver to take possession of the property of the husband. The receiver, after executing his bond, proceeded to take charge of all the property of W. J. Hamill, including [**11]  an oil refining establishment at the corner of Eden street and Canton avenue. The appellant, at this stage of the case, filed his petition in the cause, alleging that he was a partner of his son W. J. Hamill in carrying on the coal oil refining business, and asking to be made a party 

 [*686]  "defendant in the case, to enable him fully and properly to represent his interest in the matter." Upon the filing of the answer of the appellee, denying the allegations of the petitioner, a commission, by consent, was issued, to take testimony, and a large mass of evidence was taken to prove and disprove the co-partnership. At the hearing of the petition, the Judge of the Circuit Court dismissed the petition, on the ground that there was no evidence to establish affirmatively the co-partnership as alleged by him. This Court is now called on to adjudicate a question of fact, and to determine whether the Judge was justified, from the evidence in the cause, in dismissing the petition of the appellant, on the ground that he had failed to prove, affirmatively, the co-partnership of his son and himself, as alleged in his petition. From our examination of the evidence, we are satisfied that the appellant [**12]  and W. J. Hamill entered into a co-partnership in 1861, as alleged by Alexander Hamill. In this opinion we do not deem it necessary to state in detail all the testimony taken in the cause.
It must be conceded, as it was clearly proved, that the property was jointly leased by them for carrying on the coal oil refining business, and that it was carried on in the name of A. & W. J. Hamill. Nor do we find evidence sufficient to satisfy us, that the partnership was dissolved previous to the absconding of W. J. Hamill in August, 1864, for we find as late as 11th of June, 1864, that W. J. Hamill accepted a draft drawn on him in the name of A. & W. J. Hamill. And Alexander Hamill, in his evidence, states positively that they were partners to the time of his son's absconding from Baltimore, and his evidence is not contradicted by any witness, or by any facts and circumstances developed by the testimony taken in the cause. Both parties treated the partnership as existing up to the period of the absconding of W. J. Hamill; and those claiming under W. J. Hamill are concluded 

 [*687]  by his acts and declarations. We are therefore of opinion that the Circuit Court erred in dismissing the appellant's [**13]  petition. As the appellant was invested with all the rights of a partner, he was entitled, upon the absconding of W. J. Hamill, to take possession of the partnership property and effects for the benefit of the company, and the appointment of a receiver by the Court to take charge of the property of W. J. Hamill, did not operate to divest Alexander Hamill of his rights to the partnership property, and we know of no principle of equity which would justify the appointment of a receiver to take possession of partnership property without allegations of waste and fraud committed or about to be committed by one partner to the loss and injury of the other partner or his legal representative. In the absence of all such averments and allegations, a receiver appointed to take possession of the property and effects of W. J. Hamill, had no legal right or authority to dispossess Alexander Hamill of the partnership property. As a receiver is an officer of the Court, he must obey the orders of the Court, and as the receiver in this case has taken possession of the partnership property under a misapprehension of his duties and rights, the Court can order and require him to make restitution of the partnership [**14]  property to the appellant.
We shall reverse the decree of the Circuit Court and remand the case to be proceeded with in conformity to the views expressed in this opinion.
Decree reversed and cause remanded. 

5 of 120 DOCUMENTS 

WILLIAM B. NORRIS, JOHN K. CALDWELL AND JACOB NORRIS vs. JOHN CAMPBELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 688; 1867 Md. LEXIS 76 

November 12, 1867, Decided 

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

The appeal in this case was taken from a decree of the Circuit Court of Baltimore City, granting a perpetual injunction, to restrain proceedings at law, upon a fieri facias issued out of the Court of Common Pleas of Baltimore City, on a judgment rendered by the said Court on the 14th of January, 1863, in a suit in which the appellants, Wm. B. Norris, John K. Caldwell and Jacob Norris, trading as Norris, Caldwell & Co., were plaintiffs, and the appellee, as surviving partner of Campbell & James, was defendant.

The appellee, in his bill of complaint, which was filed on the 2d of February, 1866, alleged that the judgment against him had been recovered unfairly and improperly, and was in fact a fraud, that he never was a partner of James; that before the institution of the suit, he had left the State, and did not return until after the rendition of the judgment--that the judgment was rendered on an attachment issued after two summonses had been returned non est--that he had no knowledge of the prosecution of said suit, and that if he had known of it, he would have defended it with undoubted success. The answer of the appellants,  [**2]  Wm. B. Norris, John K. Caldwell and Jacob Norris admitted the recovery of the judgment, but affirmed that the same had been obtained fairly and properly and without fraud, and pleaded it in bar of the relief which the appellee sought by his bill--that they had been credibly informed, and believed that the appellee was a partner of James at the time of the contracting of the debt, on which the judgment was recovered; that the question of partnership was not examinable by a Court of Equity, but should have been raised at law before the judgment became final; and that if the appellee never received notice of the suit, such failure was caused by his wilful absence from the State, and not by any negligence on the part of the respondents. Under a commission to take testimony, evidence was adduced on the part of the appellee, to show that he never had been a partner of James and had never received notice of the pendency of said suit. This evidence was excepted to.  

DISPOSITION:
Order and decree reversed and bill dismissed.  

HEADNOTES:

Equity Jurisdiction -- Injunction -- Weight of Evidence.

Courts of Equity do not lightly interfere with judgments at law, and only for the prevention of fraud. It is never merely for the correction of informalities or irregularities in legal or judicial proceedings.

In an action at law, two summonses having been returned non est, against a defendant who was absent from the State, and the plaintiffs having produced their account with an affidavit of the bona fide indebtedness of the defendant, an attachment was issued, and a judgment of condemnation rendered. HELD:

That such voluntary absence was not a sufficient ground for the interposition of a Court of Equity, to restrain the plaintiffs from proceeding to realize their judgment by execution.

That the account, having been made out against the defendant as a surviving partner of J., and sworn to as such, and the plaintiffs in their answer under oath, to the bill of complaint of the defendant seeking to restrain them from realizing their judgment, having stated that they were credibly informed and verily believed that the defendant was a partner of J., at the time the debt was contracted, the said answer being responsive to the bill, is not outweighed by the testimony of the defendant, and his son who swore that he never was the partner of J.  

COUNSEL:
David Fowler, for the appellants.

The judgment which the Court below (Alexander, J.,) declared to have been obtained by surprise and constructive fraud, was a judgment of [**3]  condemnation on an attachment, after two summonses had been returned non est. The appellants, Wm. B. Norris, John K. Caldwell and Jacob Norris, who were plaintiffs at law, proceeded under Section 25, Article 10 of the Code of Public General Laws, which provides, that "when two summonses have been returned non est, against a defendant, **** the plaintiff, upon proof of his claim as hereinbefore required, shall be entitled to an attachment, **** and the same proceedings shall be thereupon had, as in attachments issued against absconding debtors." The evidence offered by the appellants before the commissioner, consisting of the record of the attachment case in the Court of Common Pleas, shows that the judgment was rendered by said Court, in the legitimate exercise of its jurisdiction, and was obtained without fraud.

The only questions which can arise in this case, are the jurisdiction of the Court of Common Pleas, and fraud on the part of the appellants in obtaining the judgment. There can be no doubt with regard to the jurisdiction of the Court. There are, in the appellee's bill, general allegations of fraud, but there is no proof of fraud anywhere in the cause, unless it [**4]  be contended that the absence of Campbell, and want of actual and personal notice of the suit at law, are facts which establish fraud. It would be remarkable if the facts of absence and want of actual notice, could be used as evidence of fraud--when the law authorizes an attachment like the one in question, to be issued only when the defendant is absent and cannot be summoned. Sec. 25, Art. 10, Code of Pub. Gen. Laws. The process of attachment, after two summonses have been returned non est, is the only mode which the law of Maryland provides, for cases like the one at bar. The only notice required in this proceeding is the constructive notice given by service of the writ of attachment. The Methodist P. Church vs. The Mayor and C. C. of Baltimore, 6 Gill, 400. Having, therefore, proceeded in the recovery of the judgment, according to the requirements of the statute, and there being no evidence of fraud, the decree of the Court below must be reversed.

The judgment of condemnation in said attachment proceeding, is a judgment in rem and not in personam. Personal notice is not requisite to the validity of a judgment in rem. Wright vs. Wright's Lessee, 2 Md. Rep., 451; Woodruff vs.  [**5]  Taylor, 20 Vermont, 65. The record and judgment in the attachment case are conclusive of the whole question. The fact of partnership was determined by the Court of Common Pleas upon evidence submitted by the appellants. 2 Smith's Leading Cases, 795, 796, and cases there cited. Vorhees vs. The Bank of the United States, 10 Peters, 449; Barney vs. Patterson's Lessee, 6 H. & J., 182; Crepps vs. Durden, 1 Smith's Leading Cases, 1015, 1016, and cases there cited. Clark & Jackson vs. Bryan & Lunt, 16 Md. Rep., 171; Tomkins vs. Tomkins, 3 Stockton, (New Jersey,) 512; Beech vs. Abbott, 6 Vermont, 591; Ridley vs. Ridley, 24 Miss., 648; Lessee of Paine vs. Mooreland, 15 Ohio, 435.

John Carson and John B. Wentz, Jr., for the appellee, contended:

That the judgment was obtained through mistake or fraud, and ought in equity to be set aside, and referred to the following authorities in support thereof. Taymon vs. Mitchell, 1 Md. Ch. Dec., 505, '6; Fowler vs. Lee, 10 Gill & John., 362; Briesch vs. McCauley, 7 Gill, 189; Marine Ins. Co. vs. Hodgson, 7 Cranch, 336; Tabler vs. Castle, 12 Md. Rep., 144; Windwart vs. Allen, 13 Md. Rep., 196; Gardner vs. Jenkins, 14 Md. Rep., 58.  

JUDGES:
The cause [**6]  was argued before BOWIE, C. J., BARTOL, WEISEL and CRAIN, J.  

OPINIONBY:
CRAIN 

OPINION:

 [*691]  CRAIN, J., delivered the opinion of this Court.
We think, upon principle, as well as upon the authority of numerous adjudged cases, the injunction was improperly granted in this case, and the decree of the Circuit Court of Baltimore City ought to be reversed. In the bill there is no fact stated to show that fraud was committed in the obtaining the judgment, and there is no 

 [*692]  evidence that any was committed. The only ground for the relief asked against the judgment, is the fact averred in the bill, that the appellee had not been in the State of Maryland, with the exception of a few days, from the commencement of the suit up to the time of his filing his bill, and that he had no knowledge of the case. It has been very correctly said that Courts of Chancery do not lightly interfere with judgments at law; they only interfere for the prevention of fraud; never merely for the correction of informalities or irregularities in legal or judicial proceedings. In this case the complainant, in his bill, avers that the property had been attached under judicial process, and been condemned by the judgment [**7]  of the Court. The appellants, after indulging their debtor for nearly two years, availed themselves of their legal remedy to recover their money. It appears that they did not proceed by attachment against the appellee, as a non-resident or absconding debtor, but pursued the remedy prescribed by the statute, after the return of two summonses of non est. The defendant was not prevented by any act of fraud or accident on the part of the appellants, from defending the suit, and his own voluntary absence from the State, is no ground for the interposition of the Chancery tribunal. If this Court were to recognize the absence of the defendant from the State, as a sufficient ground for the interference of a Court of Equity, every judgment obtained by the process of attachment, would be a subject of review in a Court of Equity. If the defendant absented himself, and did not defend the suit, the fault and negligence is with himself, and a Court of Equity will not interfere. But, upon the merits of the case, we think the decree of the Circuit Court should be reversed. The account on which the attachment issued is made out against John Campbell, surviving partner of W. J. James, with an affidavit [**8]  attached of John K. Caldwell, one of the firm and one of the appellants, and all 

 [*693]  the members of the firm of Norris, Caldwell & Co., in their answer under oath, say that they are credibly informed, and verily believe, that the appellee was a partner of W. J. James at the time when the debt was contracted. Their answer is responsive to the allegations of the bill, and in our opinion is not outweighed by the testimony of the appellee and his son. After obtaining the judgment, the appellants did not exhibit any anxiety or haste to make the money, to the prejudice and injury of the appellee. The judgment was obtained on the 14th of January, 1863, and they did not issue an execution on it, until 1866. So that the appellants, by their forbearance and indulgence, afforded the most ample time to the appellee to have the judgment reviewed in this Court, if any irregularities or errors were committed in the obtaining of it. We will sign a decree reversing the order and decree of the Circuit Court, with costs to the appellants in both Courts, and dismiss the bill.
Order and decree reversed and bill dismissed. 

6 of 120 DOCUMENTS 

JAMES A. CLARK and others vs. MARY WILLSON, Adm'x of JOHN W. WILLSON. JAMES A. CLARK and others vs. MARY WILLSON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 693; 1867 Md. LEXIS 77 

November 12, 1867, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans' Court of Baltimore City, and also an

APPEAL from the Circuit Court of Baltimore City.

These two cases present substantially the same questions. John W. Willson was twice married. The surviving children by the first marriage, with the husbands of three of the daughters respectively, are the appellants in these cases. Willson's first wife died in April, 1842, and on the 23d April, 1844, he executed a deed to David Stewart, by which, for a nominal consideration, he conveyed to said Stewart valuable fee-simple and leasehold property, in trust for himself during his natural life, without impeachment of waste, and, after his death, in trust for the use and benefit of his children therein named, the fruit of his first marriage. In the year 1846 or 1847, Willson married a second time, and died in 1864, intestate, leaving his second wife and six infant children surviving him, who are the appellees in these cases. His widow administered upon his personal estate. After his death a decree of the Circuit Court of Baltimore City was obtained for a sale of the property conveyed to Stewart by the deed of April, 1844, and a distribution of the proceeds thereof, among [**2]  the surviving children of the first marriage. The said children of the first marriage, who were the distributees of this estate, filed a petition on the 30th of January, 1867, in the Orphans' Court of Baltimore City, seeking for a distribution of the personal estate (exclusive of said trust estate,) of their deceased father, and claiming the right to share equally therein with the children of the second marriage. After answer by the widow to said petition, admitting a surplus after payment of debts, and consideration by the Court, it was ordered, on the 2d March, 1867, that the leasehold property conveyed in trust, for the benefit of said petitioners, by the deed of April, 1844, should be deemed as an advancement of a portion of their father's estate, and in the distribution to be made by the administratrix, should be reckoned in the surplus, and rated at its value at the time of the death of said Willson, when the petitioners received it. From this order, the petitioners appealed, and this constitutes the first case. The second case arises upon an appeal from the decree of the Circuit Court of Baltimore City, passed on the 22d March, 1867, upon proceedings instituted by the same parties,  [**3]  asking for a sale of the real estate of their deceased father, not embraced in the deed of trust of April, 1844, and a distribution of the proceeds thereof, among his heirs. By this decree it was adjudged that the real estate conveyed by the deed of April, 1844, was an advancement to the children of the first marriage, and that they could only come into partition with the children of the second marriage, on bringing such real estate, or the value thereof at the time of the death of their father, when the same was in fact received by them, into hotchpot, with the estate descended. Testimony was taken on either side to show the intention of Willson in making the deed of 1844, which was excepted to in the Court below, on the ground that the witnesses were not present at its execution, and that the declarations of Willson offered in evidence, were not made at the time of its execution; and the exceptions were sustained.  

DISPOSITION:
Decrees affirmed and causes remanded.  

HEADNOTES:

Evidence -- Time when the value of an Advancement is to be estimated -- Advancement.

An advancement is a giving by anticipation, the whole or a part of what it is supposed, a child will be entitled to receive, on the death of the parent making it, and dying intestate; and is to be distinguished from a debt due, or from an absolute or independent gift or conveyance, having no view whatever to a portion or settlement.

It is not necessary to constitute an advancement, that the provision should take place in the parent's lifetime. A portion secured to the child in futuro, or to commence after the father's death, or upon a contingency that has happened, or to arise within a reasonable time, is an advancement.

It is a presumption of law in this State, liable, however, to be repelled or rebutted by evidence proper for the purpose, that a gift from parent to child unexplained at the time, or a conveyance which is silent as to its design, is an advancement.

The introduction of proof properly admissible, to repel the legal presumption which would attach to a conveyance from a parent to a child, as showing it to have been intended as an advancement, does not contravene the general rule of evidence, excluding parol proof, to explain or vary the terms of a written contract.

Where an advancement is brought into hotchpot, its value must be estimated as of the time, when it is received, that is, at the time when it is made complete by its actual possession and enjoyment. 

COUNSEL:
Robert C. Barry, for the appellants, contended:

1st. That although the legal title to the property conveyed by the said deed of trust, was at that time in the said John W. Willson, yet his repeated declarations, that it [**4]  was his wife's property, are conclusive as against those now claiming under him. He could not have been compelled to execute the said deed, but having executed it, it became binding on him, and on his heirs. It was, in fact, but an anticipation by him of the provisions of the second section of Article 45 of the Code of Public General Laws.

2d. That where there are several sets of children, the property of one set of children from their own mother, or from any other person, is not a subject for hotchpot in distributing the father's estate.

3d. That the facts and circumstances of the case show that the father did not intend the property so conveyed by the deed of trust, as an advancement, portion or settlement, but as a disposition thereof in accordance with a moral obligation. Code of Pub. Genl. Laws, Art. 47, sec. 31, Art. 93, sec. 126; Stewart and Wife et al. vs. Pattison's Exc'r et al., 8 Gill, 54, 58; Parks vs. Parks et al., 19 Md. Rep., 323, 331; Cecil vs. Cecil et al., 20 Md. Rep., 156.

4th. That if the children of the first marriage are bound, in the distribution of their father's estate, to bring into hotchpot, the portion they received of their mother's estate,  [**5]  then it should be accounted for at its value, when they obtained it, being the date of the deed of trust, and that in estimating its value, the value of the life estate of the father should be deducted, so as to ascertain the value of the remainder to the children. Oyster vs. Oyster, 1 Serg. & Rawle, 422; Toomer vs. Toomer, 1 Murphey, (N. C. Reps.,) 93; Warfield vs. Warfield et al., 5 Harr. & Johns., 459.

I. Nevett Steele, for the appellees.

The deed executed by Mr. Willson in April, 1844, being a voluntary deed, founded on no other consideration than natural love and affection, and conveying land from a father to his children, is presumed and held in law to be an advancement. This presumption can only be rebutted by clear and satisfactory proof, that the parent intended the property conveyed, to be an absolute gift in addition to, (and not a part of) a share of his estate. Dying intestate, he leaves the law to make his will, and while the law cannot take from his children that which he has conveyed to them, it will distribute the balance of his estate in such manner as to produce equality as far as practicable, among all his children, unless his intention to the contrary [**6]  is clearly established. Parks vs. Parks et al., 19 Md. Rep., 330 to 334; Cecil vs. Cecil et al., 20 Md. Rep., 153; Edwards vs. Freeman, 2 Peere Williams Rep., 435; Toller's Law of Executors, 377, 378; Code Pub. Gen'l Laws, Art. 47, Sec. 31 and Art. 93, Sec. 126.

The evidence in this case, whether the testimony of the three witnesses examined, or that of Mrs. Turner only, be considered, entirely fails to show that Mr. Willson meant this conveyance to be an absolute gift, as contra-distinguished from an advancement or portion of his estate. The three pieces of property conveyed by the deed, belonged to Mr. Willson, had been purchased by him and held by him for many years. The three deeds showing these purchases, are in evidence in the cause. The property then being absolutely his, all that the evidence shows, is the motive which influenced him in conveying to his children, and not his intention as to whether the conveyance should be an absolute gift, or as a portion. As the evidence shows that the reason why Mr. Willson made the conveyance, was, in part at least, because he contemplated a second marriage, it would seem clear, that if he thought and meant, that the children of the [**7]  first marriage should have the property conveyed, because it was earned during the first marriage, then he must at the same time have thought and meant that they should not have what might be earned during the second marriage, and that such earnings should go to the children of that marriage. If the testimony of Mrs. Turner be admissible, which is denied, no reason is perceived why the testimony of the other witnesses should not also be admitted.

The value of the property should be estimated at the time it was received by the cestuis que trust, which was after Mr. Willson's death. In ordinary cases of advancement, the property is received by the child at the same time that the deed or gift is made. In such cases the value of the property is estimated, as of the time when it was so received, delivered or given, for then, those words are convertible, and have the same meaning. But when the deed is made at one time, and the gift is to take effect in possession at a future time, it is contended, that the value of the property should be taken as of that time, at which, by the terms of the deed or gift, the property was to be actually received or delivered. This question has not been [**8]  decided in Maryland, in any reported case. The case of Warfield vs. Warfield et al., in 5 H. & J., 459, simply carries out the provision of our Maryland Act of descent and inheritance, by estimating the value at the time when the property was received. The true rule, when a life estate has been reserved by the father, is to be found in the following cases: Hook vs. Hook, 13 B. Monroe, 526; Wilk's Adm'r vs. Greer et al., 14 Alabama, 437.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*699]  WEISEL, J., delivered the opinion of this Court.
These causes involve the same questions, and the proof introduced into the one, with other admitted facts, was by agreement, made a part of the other and to the same extent and effect. John W. Willson, the husband of Mary Willson, by a second marriage, and the father of the remaining parties, executed in his lifetime and before his marriage with the said Mary, a deed of trust of certain leasehold and fee simple property, for the benefit, after his death, of his children by his first marriage; the appellants, in both of these appeals, who were the parties, petitioners and complainants in the respective proceedings [**9]  below; the one in the Orphans' Court for Baltimore City touching the leasehold; the other in the Circuit Court of Baltimore City, being a bill for a partition or sale in equity of the real estate in fee, of which said John W. Willson died seized, and intestate. The only questions decided below, and now under review, were, whether the properties conveyed by the deed of trust on the 23d of April, 1844, to David Stuart, were given as an advancement to the cestuis que trust, (the petitioners and complainants below,) and if so, and brought into hotchpot, at what time their valuation should be made, at the date of the conveyance, or at the death of the grantor and intestate, in 1864, when the parties entitled were put in actual possession and enjoyment? The decree of the Orphans' Court, as to the leasehold, and that of the Circuit Court of Baltimore City as to the realty, are the same. They declare the respective properties as advancements, and direct that the one should be reckoned in the surplus of the personal estate at its value, at the time of the death of the intestate; and that the real estate or the value thereof, at the time of the death aforesaid, should be brought into hotchpot [**10]  with the 

 [*700]  estate descended, if the complainants elect to come into partition with the infant defendants; otherwise to be excluded from the distribution of the proceeds of sale of the estate descended. We think there was no error in either of these decrees, and that both should be affirmed.
An advancement is a giving by anticipation the whole or a part of what it is supposed a child will be entitled to, on the death of the parent making it and dying intestate. 17 Mass. 358. It is to be distinguished from a debt due, or from an absolute or independent gift or conveyance, having no view whatever to a portion or settlement. And, therefore, where a gift from parent to child is unexplained at the time, or a conveyance is silent as to its design, it is the province of the law to declare its proper effect. In some States, as in Massachusetts, it must be proved to have been intended as an advancement, or it will be deemed an absolute gift. But in England, and in various States in this Union, and in this State, the presumption of law is, that it is an advancement, liable to be repelled or rebutted by evidence proper for the purpose. In such cases the law leans in [**11]  favor of the equitable rule of equality, which distinguishes all Statutes of Distribution. "In the absence of such evidence," (remarks our lately deceased brother Cochran, in his opinion in Parks vs. Parks et al., 19 Md. 323, 331,) "and of anything in the deed to indicate the intended character of the property conveyed, the law looking to the equal relationship and right of other distributees, will presume the character most favorable to equal distribution, to have been intended by the donor." See also, Stewart and Wife et al., vs. Pattison's Exc'r et al., 8 Gill 46, 55; Mut. Ins. Co., in Baltimore County, vs. Deale, 18 Md. 26, 45; Cecil vs. Cecil et al., 19 Md. 72, 81, and 20 Md. 153, 156; Wilk's Adm'r vs. Greer et al., 14 Ala. 437. It is not necessary to constitute an advancement, that the provision should take place in the parent's lifetime. A portion secured to the child in futuro, or to commence 

 [*701]  after the father's death, or upon a contingency that has happened, or to arise within a reasonable time, is an advancement. Edwards vs. Freeman, 2 P. Wms. 442; [**12]  2 Williams on Extrs., 1289; Toller on the Law of Extrs., 377; Wilk's Adms. vs. Greer et al., 14 Ala. 437, 442; Hook vs. Hook, 13 B. Mon. 526, 528.
The deed of trust in the record, of the 23d of April, 1844, which gave rise to this controversy, is for the nominal consideration of five dollars. The subject matter conveyed in trust, are several parcels of fee simple and leasehold properties, to be held in trust for the grantor John W. Willson, during his natural life, without impeachment of waste, and after his death, in trust for the use and benefit of his seven children therein named, (all then infants,) who were to receive the clear rents and profits equally, until the youngest of said children should attain the age of twenty-one years; then the portions of the males to be conveyed and assigned to them in fee; and those of the females to be held in trust for their respective lives, and upon their deaths respectively, in trust, for such persons as would by the laws of Maryland, existing at the execution of the deed, be the heirs of the daughters respectively, to take an estate in fee simple in lands by descent from them, and for the [**13]  heirs and legal representatives of such person or persons forever; with a provision, in the event of any of the grantees dying without issue, before the arrival of the youngest at full age, then in trust for the survivors; and in the event of any dying before that time, leaving issue, the child or children of such to take his share, &c. Nothing in this deed indicates the purpose of the grantor to be other than that of making an advancement to the children named in it as cestuis que trust. Its character and provisions all support the legal presumption, rather than suggest a different intent. But this, as has been said and the authorities already cited show, can be repelled by evidence 

 [*702]  properly admissible; for the introduction of proof for this purpose does not contravene the general rule of evidence, excluding parol proof to explain or vary the terms of a written contract. The object being collaterally to affect the title to other property, evidence can be gone into to show its true character and design; otherwise the law of advancement under our statute would, in most cases, prove a dead letter, as observed by Dorsey, Justice, in Stewart vs. The State, 2 H. & G. 114. [**14]  This was not controverted in the argument, but the proof introduced in this case to remove the legal presumption, and also to support it, consisting of the declarations of John W. Willson, the grantor, was excepted to, on the ground that the declarations were not made at the time of the execution of the deed. And it was urged that the rule on this subject, as given in the cases of Parks vs. Parks et al., 19 Md. 323, 331, and Cecil vs. Cecil et al., 20 Md. 153, is that the intention may be ascertained by parol evidence of the donor's or grantor's declarations at the time of the gift or of executing the conveyance, or of the donee's or grantee's admissions afterwards, or by proof of facts and circumstances from which the intention may be inferred. We think that according to this rule, even liberally applied, the exceptions on both sides were well taken, and that the testimony furnished by the declarations in proof, was of too vague and uncertain a character to change the legal intendment of the conveyance. But if they could be regarded as admissible, their tendency would be to strengthen the conclusion that an advancement was intended; and there [**15]  is nothing in the other facts and circumstances that can authorize us to adopt a different view. Regarding it, then, as an advancement, the next question to be determined is, at what time is the valuation of the property brought into the account to be made? And upon this point we consider it clear, both upon authority and reason, and upon the 

 [*703]  express language of our statutes of Distribution (Code of Pub. Genl. Laws, Art. 47, sec. 31, and Art. 93, sec. 126,) that the value of the property should be estimated at the time it was received--that is, at the time when the cestuis que trust were placed in possession or enjoyment of it-- and this was after the death of John W. Willson, the grantor. The clause, "or the value thereof at the time such advancement was received," found in the 31st sec. of Art. 47 of the Code of Public General Laws, seems to have been introduced into our law of Descents of 1820, ch. 195, sec. 5, for the purpose of removing any doubt or difficulty on this particular subject; as that clause is not in the corresponding provision of the old law of 1786, (ch. 45, sec. 5.) The language of our Testamentary law, regulating the distribution of personal [**16]  estate, (Code of Public General Laws, Art. 93, sec. 126,) is a literal transcript from the Act of 1798, ch. 101, sub. ch. 11, sec. 6, and is not so specific as that in the law of Descents; but it is susceptible of the same construction, and the rule of equality should prevail, in assigning to it the same meaning and application. Otherwise there would be different modes of estimating the value of real and personal property given by way of advancement, which should not be the case, unless the language of the statutes, or the adjudications upon them, distinctly so directed. The Alabama statute provides that the value of property advanced should be fixed "at the time it was delivered;" and the Supreme Court of that State considered that language clear and unambiguous, and admitted of no other construction than that the heirs advanced, should be chargeable with the value of the property at the time they come to the actual possession of it. This decision was given in a case in which children had been advanced by a deed for slaves, in which the father reserved the use of them during his life. Wilk's Adm'r vs. Greer et al., 14 Ala. 437, 443. A similar but much 

 [*704]   [**17]  stronger case arose in Kentucky. In that the father executed a deed of gift to his children of his land and slaves, reserving to himself a life estate in the property conveyed. After his death a question arose between the children advanced, and grandchildren, the children of a deceased son, not provided for. After determining that the property conveyed was an advancement, the Court of Appeals proceeded to the other inquiry, as to the period of valuation. The Kentucky statute provided that "all advancements should be estimated at their value when made." And the Court, in answer to the query, "at what time shall an advancement secured by deed, but to be enjoyed at a future period, be deemed to have been made or given?" expressed the opinion, and so decided (sustaining the views of the Court from which the appeal had been taken) that it should be at the time the advancement is made complete by the actual possession and enjoyment of it; adding, in the course of well sustained reasoning upon the subject, "that when an advancement is received by some of the children at the death of their father, the value of the property at the time they receive it is that which, in justice [**18]  and equity, they should be chargeable with, in making a distribution of the estate." Hook vs. Hook, 13 B. Mon. 526, 529.
The cases relied upon by the appellants as settling a contrary doctrine, and confining the valuation to the date of the deed, we think do not conflict with the construction we have given to the sections of the Maryland Code, regulating the distribution of advancements. The case of Oyster vs. Oyster, 1 Serg. & R. 422, was one in which the property was delivered at the time of the deed, and applying the rather general and indefinite language (as to time) of the Pennsylvania statute, as construed in practice through a long course of years, in relation to personal property, the Court subjected real estate to the same rule of construction, but that was that the child 

 [*705]  advanced accounts for the advance, according to its value when he received it. The case of Toomer vs. Toomer, 1 Murphey's (N. C.) Rep., 93, is the same as to the fact of the property conveyed, having passed into the possession of the grantee with the deed, and the valuation at the time of the conveyance, was adjudged to be the rule in the [**19]  case; but it was the time when the property was actually received. So in the Maryland case of Warfield vs. Warfield et al., 5 Har. & J. 459, which arose under the law of 1786, ch. 45, and was decided by the Chancellor before the Act of 1820 was passed, the real estate brought into hotchpot, passed into the possession of the grantee at the time of the execution of the conveyance, and this Court, as then constituted, determined that the grantee's claim of bringing it into hotchpot at the value of the advancement at the time he received it, was correct, and that he should account for it at that valuation. This case was regarded by the Supreme Court of Alabama, in the case of Wilk's Adm'r vs. Greer et al., already referred to, as sustaining the position taken in it. And we see nothing in it to induce a different conclusion from the one we have arrived at and expressed. The decrees appealed from will, therefore, both be affirmed, with costs to the appellees, and the causes remanded.
Decrees affirmed and causes remanded. 

7 of 120 DOCUMENTS 

STATE, use of JOHN H. LONGNECKER, Clerk, &c., vs. GEORGE H. CARMAN and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 706; 1867 Md. LEXIS 78 

November 12, 1867, Decided 

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

This suit was instituted 18th August, 1864, in the Circuit Court for Baltimore County, whence it was subsequently removed to the Superior Court of Baltimore City. It was an action brought on the official bond of George H. Carman as Clerk of the Circuit Court for Baltimore County, to the use of John H. Longnecker, his successor in office, suing in his official capacity. The appellees pleaded separately, non est factum, and special pleas of performance of the condition of the bond. To the pleas of the several appellees, the appellant replied, that the said writing obligatory was their deed respectively, and that said Carman did not perform the condition of his said bond. At the trial it was admitted that Carman had been Clerk of the Circuit Court for six years, ending December 1st, 1863, that the Honorable John H. Price had been Judge of the said Court during that time, and that John H. Longnecker succeeded Carman in office, and was still Clerk. The appellant then proposed to offer in evidence a certified copy of the bond, dated 5th December, 1861, which was in the form prescribed by statute, for the official bonds of Clerks of the [**2]  Circuit Courts, and which had been approved by the Judge on the day of its date, and recorded by the appellee Carman, as Clerk, on the following day. On its face it appeared that there was only one seal, which was opposite to the name of the appellee Carman. No proof was offered of the execution or delivery of the bond. The appellees objected to the admission of the said certified copy, as proof of the execution of said bond by them respectively, or as evidence, by itself, to maintain the issues on the part of the appellant, upon the several pleas of non est factum. But the Court (MARTIN, J.) overruled the objection, and permitted the same to be read to the jury, and ruled that it was conclusive evidence, that the said instrument of writing therein recited, was the bond of all the appellees. To this admission of said writing as evidence and to the ruling of the Court, the appellees severally, excepted. The appellant then proposed to show, that Carman, while Clerk of the Circuit Court, received fees amounting to $ 6,378.33, for business of the office, which he ought to have finished, and that said business was left unfinished for more than six months after the expiration of his term [**3]  of office, and was never completed by him; it being at the same time admitted that only a portion of said business had been finished by the appellant. The Court refused to admit such evidence; to which refusal, the appellant excepted. The appellant further proposed to prove, that although by far the larger part of the work so left unfinished by the appellee Carman, remained uncompleted by himself at the date of the institution of this action, he had yet done some of it, and that the fees received by said Carman, for the portion of work thus subsequently performed by the appellant, amounted to $ 800. The Court rejected the evidence, and ruled that there could be no recovery on the bond sued on in behalf of the appellant, the successor of Carman, until he had completed all the business of the Clerk's office, left unfinished by said Carman. To this ruling the appellant excepted. By agreement of counsel there was no finding by the jury upon the issues raised by the pleas of non est factum. Upon the other issues the verdict and judgment were for the appellees.

The question as to the admissibility of the certified copy of the bond as evidence, for the purpose for which it was offered,  [**4]  was not considered by this Court in its opinion, and the argument thereupon, for that reason, is omitted.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Action on a Clerk's Official Bond -- Fees of Office.

In an action on the official bond of a Clerk of the Circuit Court for Baltimore County, instituted by his successor in office, in the name of the State, to recover fees received by the former, for work which he had left unfinished, and which had been subsequently done by the latter, it was held that there could be no recovery until he had completed all the business of the Clerk's office left unfinished by the former.

Under the 8th section of the 38th Article of the Code of Public General Laws, the remedy given to the Clerk, to recover for work done by him, the fees which had been received therefor by his predecessor in office, is by an action against the "former Clerk or his representatives," and not by a suit upon his official bond. (BARTOL, J.) 

COUNSEL:
W. Shepard Bryan and A. Randall (Attorney General) for the appellant:

The appellant's exceptions must be decided on the construction of Article 38, sections 7 and 8 of the Code of Pub. Genl. Laws. The ruling of the Court was, that there could be no recovery until the whole of the work had been completed by Longnecker. To determine whether there could be a recovery on the bond, it must be ascertained whether there had been a breach of it. If there were a breach, a recovery is the necessary consequence; the amount to be recovered will be considered as a separate question. The terms of the bond are very comprehensive; after enumerating many particulars, it binds the Clerk to discharge the duty of his office, "legally, duly and faithfully." One of his duties unquestionably was to perform the work for which he had received the fees in controversy. Consequently he broke the condition of his bond by failing to do it. What should be the extent of the recovery?

The money received by Carman was the property of the State, to be accounted for by him. If [**5]  he had paid it over to Longnecker, Longnecker would then have become accountable to the State, and his official bond would have been liable for it. It was obviously Carman's duty, according to the statute, to have done so. The law makes it the duty of Longnecker to do the work left undone by Carman; and it makes it the duty of Carman to pay over to Longnecker the public money in his hands, received by him for work never done. It may be asked, should Longnecker receive the money before he does the work? The answer is, that he receives it for the State, and he must account for it as other public money. Surely it is competent for the Legislature to direct that an outgoing Clerk should pay over public money to his successor in office, and to direct that the successor should perform duties left undone by him. It is an error to suppose that the money is to be paid to the successor as a compensation for work done by him, inasmuch as he can get only his salary, whether he receives this money or not. There has been a breach of the bond; the damages are the amount received for duty unperformed. Code Pub. Genl. Laws, Art. 75, sec. 70. And these damages belong to the State. They are now sued for [**6]  in the name of the State by the public officer, appointed by the statute to receive them. Even if these views be totally incorrect, it is submitted that it is error to refuse a recovery to the extent of the work actually done.

Arthur W. Machen, for the appellees, contended:

That conceding, for the sake of the argument, that the bond in question is the deed of all the appellees, this is a suit against sureties to recover, for the use of a new Clerk, money to which he is no more entitled, to say the least, than the previous incumbent of the office--the work for which it is to be a compensation, still remaining unperformed. The language of the statute upon which the action must rest, (Code Pub. Genl. Laws, Art. 38, secs. 7, 8,) is express, that the new Clerk shall complete ALL the unfinished business which his predecessor failed to finish, within the six months allowed him for the purpose, after his retirement from office; and that he shall be allowed, for so doing, the usual fees, to be collected from the former Clerk, where he has received the fees. Completion of the whole unfinished work is thus a condition precedent. The reason is obvious. What the law is aiming at, is completion;  [**7]  and this object would be frustrated, if the new Clerk were at liberty to select such part as he might think fit, of the unfinished arrears, exact payment for this, and leave the rest undone. There is a general provision, that no officer shall send out his fees on execution more than once in every year, and that between the first of January and the first of May. Code Pub. Genl. Laws, Art. 38, sec. 2. The section in question imposes the further condition, as to unfinished work left over from the preceding term, that he must clear up the whole before seeking compensation for a part. The remedy provided is special. The right of action is founded altogether upon the 8th section of Article 38, and by it recourse is limited to the predecessor, or his representatives. If it had been intended to give the succeeding Clerk the benefit of an action upon his predecessor's bond, the law would have so said. A statutory remedy cannot be enlarged. And not only is no action on the bond expressly given in the statute, but, on the contrary, negatived, upon the principle expressio unius est exclusio alterius, by the insertion of the word "representatives," pointing to those who shall stand in personal [**8]  succession to the faulty Clerk, and ignoring sureties; but the condition of the bond itself seems equally to exclude such extension of liability. The bond, the obligation of which is by law limited to two years, provides simply that the principal "shall well and faithfully pay over to the Treasurer of the State of Maryland all sums of money received by him for the use of the State, according to law, &c., and shall well and truly account for the same with the officer or persons authorized to receive the same." The fees now sought to be recovered back, must have been accounted for by Carman in the years in which they were respectively received by him. If, taking them into account, the emoluments of the year exceeded twenty-five hundred dollars, he paid the excess to the Treasurer. That was his duty--Code Pub. Genl. Laws, Art. 18, sec. 9: and it is to be presumed he performed it. If he did not, it was a breach of his bond, being within the letter of the condition, and also expressly made a breach of it by section 12 of Art. 18. Thus, what the bond was answerable for, was the payment to the Treasurer of the excess over twenty-five hundred dollars, if the receipt of these fees swelled the [**9]  emoluments of any one year beyond that limit. For the payment over of them to the succeeding Clerk, after the expiration of his own term of office, in consideration of such successor having done the work, the bond and the sureties are no more responsible than they would be for the payment of due compensation to any third person, whom the ex-Clerk, during his six months of grace, might have contracted with and employed to do such work. The obligation of sureties is not to be extended by implication. Fullerton et al. vs. Miller, 22 Md. Rep., 1.

Carman duly accounted to the State for the fees in question in the year in which he received them, or he did not. If he did not, the bond was immediately liable. Now, it is absurd to say that after a recovery of them then for the use of the State, the sureties could, at this day, be made liable again for the same money, in a suit for the use of Longnecker. If Carman did account for them in the year when received, then a fortiori the State has no interest in the prosecution of Longnecker's demand, and the obligation of the bond, which was discharged whilst Carman was Clerk, cannot be revived, or renewed, by implication, for the benefit of [**10]  Mr. Longnecker. This point is made still more clear, if possible, by recurring to the legislation anterior to the Code, and embodied in it. The form of the bond was established by the Act of 1800, ch. 82, the object of which, as declared in the preamble, was to secure the payment of the moneys payable by the Clerks "to the Treasurer of the several shores of the State." The provisions of the 7th and 8th sections of Art. 38 of the Code Pub. Genl. Laws, formed the subject matter of the Act of 1844, ch. 311. The words of that Act are, "said fees to be recovered from the old officers or their legal representatives." It did not in any manner indicate an intent to increase the responsibility of the bond of the old Clerk or Register. As it appears on its face to have been intended to operate upon existing incumbents, and their predecessors, it could not reasonably, nor perhaps, constitutionally, have enlarged the obligations of sureties assumed previously. At any rate, the Act manifested a careful abstinence from such a purpose, both by omitting a clause charging the bonds with the burden, and by limiting the right of recovery to the ex-officer and his legal representatives. The Act, in giving [**11]  the right of action against the original parties, in the case where the predecessor had not received the fees, uses the same form of expression," "recovered," and points in the one case and the other to a proceeding directly against the debtor, and not the collateral remedy of an action on an official bond. And all these features are substantially perpetuated in the Code. When the Act of 1853, ch. 444, was passed, providing for the payment to the State of any excess of emoluments over twenty-five hundred dollars, it expressly made the bond answerable. See sec. 6 of that Act. Upon this ground, therefore, as well as upon that considered by the Court below, the evidence offered was inadmissible as not tending to show any breach of the bond in suit. No evidence was offered that the fees sought to be reclaimed, were received by Mr. Carman, after the 5th of December, 1861, the date of the bond. Indeed, the offer in terms reached back to the time when Mr. Carman entered upon office in 1857. It would be unprecedented to make the bond import a retrospective responsibility. "The duty of his said office," in the condition, refers to the time while the principal is still Clerk. When his term expires,  [**12]  he ceases to be Clerk-- he "retires from office." Code Pub. Genl. Laws, Art. 38, sec. 7. He performs that part of the condition which relates to the papers and record books, by surrendering them to his successor; and having thus discharged his bond, and being no longer Clerk, he has the personal privilege of receipting for papers to his successor, and, by the use of them, of completing and finishing his business within six months. Nothing in the bond looks to any prolongation of the liability of the sureties. The fallacy of the position which forms the basis of the plaintiff's argument, is manifest. It is not sufficient to show some breach of the bond, without reference to the question of damages. To maintain this action, for the use of Longnecker, such a breach must appear as he is interested in.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*713]  BOWIE, C. J., delivered the opinion of this Court.
At the trial of this cause below, three exceptions were taken, one by the defendants, (the appellees) and two by the plaintiff, the appellant. If the ruling of the Court below were correct in the latter, it will be unnecessary to examine [**13]  the former, as the appellant's right of action in the present suit is virtually involved in his exceptions. The appellant sues as "cestui que use" on the official bond given by the appellee to the State, conditioned for the faithful performance of the office of Clerk of the 

 [*714]  Circuit Court for Baltimore County. The breaches of the bond are not set out in the nar., but are matter of evidence without being specially pleaded, under the provisions of the Code. The appellant's cause of action is founded on the construction of the 7th and 8th sections of the 38th Art. of the Code of Public General Laws, entitled "Fees of Officers." The 7th section requires the retiring Clerk, within six months from the time he retires from office, to complete the unfinished business of his office, and during that time gives him the right of possession (on receipting for the same) to all needful papers to enable him to finish his business. Section 8 imposes on the incoming Clerk, the duty of finishing all business left unfinished by his predecessor, within six months given in the preceding section, and further provides "and such Clerk or Register shall be allowed the usual fees for so doing,  [**14]  the same to be paid by his predecessor or his representatives in cases where his predecessor has received the fees, and in cases where the fees have not been received by his predecessor, such Clerk or Register shall collect the same from the parties, in the same manner that he collects other fees for similar services. The appellant, in his first bill of exceptions, proposed to offer evidence that Carman, his predecessor, as Clerk received fees amounting to $ 6,378.33, as stated in the bill of particulars, for business which he ought to have finished, and left unfinished after six months from the expiration of his office, but admitted that only a portion of said business had been finished by the appellant.
The second bill of exceptions presents the same question in another form, viz: The appellant, before the day of bringing the suit, had completed work left unfinished by Carman, (and for which he had received fees,) to the amount of $ 800, leaving other work unfinished by Carman, unperformed by the appellant, claiming to recover "pro rata" for the amount of work performed. The 

 [*715]  Court below rejected the evidence tendered in both bills of exceptions, and in the second,  [**15]  instructed the jury that there could be no recovery on the bond sued on in behalf of the appellants, until he had completed all the business of the office left unfinished by Carman. It does not appear that the question whether the remedy was on the bond, or against Carman individually, was presented below, but rather whether the appellant could sue under the then state of facts. It is not necessary to consider the case more broadly than it was presented to the Court below. Both parties concede the right of action, if any, is founded on the 38th Art. of the Code, sec. 8. But one cause of action is contemplated in that section, which arises on the completion of the work left unfinished by the retiring Clerk; any other construction would subject him, or others liable, to infinite litigation. We do not intend to decide whether the remedy is on the bond, or against the Clerk individually, or his representatives. Concurring with the Court below in its rulings on the appellant's first and second exceptions, the judgment below will be affirmed.
Judgment affirmed. 

CONCURBY:
BARTOL 

CONCUR:

BARTOL, J., delivered the following separate opinion:
I concur with the Chief Justice in the opinion that [**16]  the judgment of the Superior Court ought to be affirmed. According to my construction of the 8th section of the 38th Article of the Code, upon which this case depends, the remedy given to the Clerk for the recovery of fees for work done by him, for which his predecessor had been paid, is by an action against the "former Clerk or his representatives," and not by a suit upon the bond. This seems to me to be the true intent of the words of the Code; and this action, therefore, cannot for that reason be maintained.  

8 of 120 DOCUMENTS 

VIRGINIA LYNN vs. GEORGE F. GEPHART and others. VIRGINIA LYNN vs. JOHN G. LYNN and JAMES M. SCHLEY and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 547; 1867 Md. LEXIS 66 

July 19, 1867, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Equity side of the Circuit Court for Allegany County.

Prior to the third day of October, 1849, the children and descendants of David Lynn, deceased, were seized and possessed as tenants in common, in fee, of a valuable real estate, situated in Allegany county, which had been devised to them by the will of their ancestor. The devisees, of whom George Lynn, the husband of the appellant, was one, took equal shares under the will. A part of the land devised to them, known as "The Rose Hill Estate," was subject to the life estate therein, of the widow of the testator; this property adjoined the town of Cumberland, lying chiefly within its corporate limits, on the west side, and having a considerable front for wharves on the basin of the Potomac, and also an extensive area suited for building sites and other purposes. The construction of the Chesapeake & Ohio Canal and of the Baltimore & Ohio Railroad, had opened to the said town a prospect of rapid growth in business and population, and consequently greatly enhanced the value of said estate. The devisees, therefore, with their husbands and wives, thinking to make their common property more productive by having it divided [**2]  into lots and parcels best adapted for sale, and ready to meet the demands of purchasers, and at the same time to provide for a transfer of titles with the least inconvenience to themselves, united in choosing Erastus Edgerton as their common agent and trustee, to whom they conveyed said property, a part being excepted, by their deed bearing date the third day of October, 1849, for the purposes therein declared. Edgerton having afterwards removed to New York, James M. Schley was substituted in his place, and Edgerton, with his cestuis que trust, (the grantors in the aforesaid deed to him) united in executing a deed of trust to the said Schley, bearing date the 17th day of December, 1850. The appellant was one of the grantors with her husband in both deeds, and the property, or at least the greater part of it, was held under the deed to Schley at the time of her husband's death, and is still held by him. And the two suits in equity, instituted in the Circuit Court for Allegany County, and now before this Court on appeal, are the suits of creditors of her said husband, George Lynn, deceased, George F. Gephart claiming, in the one case, a decree for the sale of his real estate, for the [**3]  benefit of creditors generally, and John G. Lynn in the other, a decree for the special benefit of himself, who claims to be a preferred creditor. The Court passed a decree in each case similar in terms, ordering a sale of the real estate of George Lynn, or of so much thereof as might be necessary, for the payment of his debts, and excluding his widow from all claim to dower in the same. From these decrees the widow appealed. The trusts and objects of the deed to Schley, together with other facts in the case will be found sufficiently disclosed in the opinion of the Court.  

DISPOSITION:
Decrees reversed and cause remanded.  

HEADNOTES:

Conversion -- Right of Dower in the Equitable estate of the Husband -- Act of Assembly -- Dower.

The inclination of Courts of Equity, in determining as to the conversion of realty into personalty, or personalty into realty, is not generally to change the quality of the property, unless there is some clear act or intention by which a definite character, either as money or as land, has been unequivocally fixed upon it throughout. If this intention do not clearly appear, the property retains its original character, there being no equity between the heir and next of kin in such cases.

A deed was executed by numerous persons, conveying certain real estate to a trustee, who was thereby empowered and directed to convey the legal title so vested in him, to such person or persons, company or companies, in such manner and under such restrictions as a majority of the grantors should direct him in writing to do. It also declared that the object of the grantors, as to a part of said real estate, was merely to vest the legal title of the same in the trustee for the greater certainty and convenience of conveying the same to purchasers, and thereby avoiding the legal difficulties that would result should any of the grantors die, leaving infant heirs. The trustee was also required to discharge certain judgments and mortgages, existing against some of the grantors, and which were liens on their respective shares of said property, out of their proportion respectively of the purchase money, instead of paying it to them. The trustee was also directed as to the distribution of the proceeds of sale of the trust property, among the parties entitled. HELD:

That there was no conversion of the real estate conveyed by the deed of trust, -- that the grantors in the deed retained an equitable interest in the property until sold, and in the proceeds thereof, after sale, to the extent of their respective shares, which are to be treated as real estate.

And that the share or interest of a deceased grantor in all the estate conveyed by the deed of trust is liable to be sold for the payment of his debts, in aid of his personal estate; the proceeds thereof to be applied first to the satisfaction of an existing lien thereon, and the surplus to be subject to the claim of dower by his widow, in preference to all other liens, not acquired prior to her marriage, or created afterwards by her husband with her consent.

Under the Act of 1818, ch. 193, sec. 10, a widow is entitled to dower out of an equitable estate of inheritance, held by her husband, or not parted with at the time of his death, without prejudice to prior liens.

The right of dower has always been deemed a meritorious one, founded on the highest consideration, and favored in law.  

COUNSEL:
J. H. Gordon, William J. Read and Samuel M. Semmes, for the appellant.

The only question for decision in this case is, whether the deed of the 17th December, 1850, operated as an equitable conversion of the land thereby conveyed, into personalty, or whether it operated to divest Virginia Lynn, the wife of George Lynn, of her right of dower in said lands? It is contended on the part of the appellant, that no conversion took place under the deed until an actual sale by the trustee. The doctrine of equitable conversion has grown out of the practice of Courts of Equity,  [**4]  in cases in which property is brought within their jurisdiction for distribution. In such cases, for the purpose of facilitating their own proceedings upon application by the proper parties, they will treat those things as done, which they would decree to be done from the time they should have been done. 2 Story's Eq. Jur., s. 790, and note 2. But this doctrine is only applied for the purpose of carrying out the intention of the parties, and giving to their agreements, wills or deeds, the precise effect upon their property which they intended them to have. Story's Eq. Jur., s. 791, 792, 793; also, secs. 1212, 1213, 1214.

It follows, therefore, that the first inquiry should be, what was the object of the grantors in making the deed? Did they intend immediately to change the character of their property from real to personal? or did they only intend to put the property in a position which would enable them to convert it into money, in case a favorable opportunity should be presented for that purpose? In determining these questions, the deed itself is our best guide. By reference to the deed, we find it conveys "The Rose Hill Estate," "excepting thereout, and which is not intended [**5]  hereby to be conveyed, all such parts of the same as have been sold and conveyed since the death of David Lynn, and all such parts as said parties are now under contract to convey; also all that tract of land called 'Sampson's Riddle Solved,' to James M. Schley, his heirs and assigns forever, for the following uses," &c.:

"First. He shall hold for the exclusive use of Mary Lynn, the widow of the testator, during her life, and as she now enjoys the same under the will of her said husband," the land on which stands the dwelling-house, &c.

The deed also provides in the same paragraph: That "the said Schley shall also hold the land lying south of Flat street extended, to meet Allegany street, and not included in the assignment made by the parties of the first part, with the Mount Savage Iron Company, for wharves and so forth, and which is not included in the garden reserved for the widow of the testator, subject to the disposition which may be made of the same by the parties of the first part, or a majority of them, who may be of full age at the time of such disposition or sale." The deed then provides that Schley shall convey the legal title so vested in him to such person or [**6]  company as the majority shall direct in writing. It also provides that in case of sale, the expenses shall first be deducted from the proceeds, and the balance to be distributed among all the grantors according to their respective rights thereto. The deed then recites the objeet of conveying the last named land to be "merely to vest the legal title of the same in James M. Schley, for the greater certainty of conveying the same to purchasers, and thereby avoid the legal difficulties that would result from the death of any of the parties leaving infant heirs." Then the balance of said lands conveyed to said Schley "shall, by said Schley, be divided and laid off into such streets, lanes, alleys, lots and portions, as said Schley, John G. Lynn and James C. Lynn, or a majority of them, shall determine to be most promotive of the best interest of all parties concerned." And the same shall be sold in such lots and parcels, and on such terms as Schley, John G. and James C. Lynn, or a majority of them, shall determine.

The deed also provides for the appointment of a new trustee if Schley should die, by the parties of the first part, who may then be living and of full age. This case, like [**7]  all others of the kind, must be determined by the deed itself, and the surrounding circumstances, so far as they reflect light upon the transaction. The cases referred to can only assist in guiding us to a correct conclusion by analogy, which must be closer or more remote in proportion as their facts happen to agree or disagree with those now before us. For instance, there are cases in which the deed or instrument provides in specific language for the "sale and conversion of real estate into money," without any restriction or limitation on the power of the trustee, and in such cases there can be no mistake about the intention of the grantor. There are other cases in which real estate is to be sold "for the purpose of paying debts or pecuniary legacies." And the intention of the grantor or testator to convert, is equally clear in these cases to the extent of the debts or legacies to be paid. But the conversion goes no further than is necessary to pay the charge upon the land. And if the trustee or executor sells the real estate, in execution of the power, for more money than is necessary to pay the debts or legacies, the balance will be real assets in his hands, which goes to the heir-at-law,  [**8]  and not to the personal representative.

The case of Biggs vs. Anderson, 5 Sim., 424, is a case of absolute conversion, belonging to the first class, because in that case "he desired to convert his real and personal property into money for the payment of his debts, and the residue after paying debts, to be held by the trustee for "the grantor, his executors," &c.

For the second class of cases, see Leigh & Dalzell on Conversion, 93, 94, &c. These cases, however, afford very little assistance in determining what the grantors in this deed intended, and we must go back at last to the deed, to ascertain their intention in that respect.

The trustee gets no commission for disposing of a part of the trust property, and is to convey as directed by the majority of the grantors in writing. The deed states that the conveyance of this part to Schley was only to avoid the difficulties that would result from death of any of the grantors leaving infant heirs. This is only a dry trust. The property remains under the entire control of the grantors, and no conversion can take place with regard to it, without their consent. It cannot therefore be contended that this part of the land was [**9]  converted into money. Taking the whole deed together it is manifestly the intention of these grantors to put their real estate into the hands of the trustee. So then in case of anything occuring that might make it for their interest to sell, they could then determine for themselves, through the parties provided in the deed, to take advantage of a favorable opportunity without the hinderance of infant heirs. The authorities clearly show that where there is discretionary power in another than the trustee, to determine the question of sale or no sale, there is no conversion. In De Beauvoir vs. De Beauvoir, 3 House of Lords Cases, 524, where trustees have a mere power with the consent of a person in possession of certain settled estates, to lay out personal property in the purchase of land to be settled to the same uses, no absolute conversion takes place. 1 Lead. Cas. in Eq., 565, margin. So where money was to be laid out in the purchase of land, "with the joint approbation and consent of the husband and wife, and not without," and no approbation or consent was given by them, the money was considered as unconverted. Davies vs. Goodhew, 6 Simons, 585; 1 Lead. Cas. in Eq., 565, 567, margin.  [**10]  

This case is exactly in point, and the analogy between them complete. In the case referred to the money was to be laid out in land, "with the joint approbation of the husband and wife." In this case the land was to be sold. In one case, "when the majority shall direct in writing;" in the other, "at such time or times, and in such lots or portions, as J. G. and J. C. Lynn, together with Schley, or a majority of them, shall determine."

And if the sale take place without the consent of the parties to be consulted, the proceeds will be considered as lands. And whenever there is a discretionary power vested to convert, the conversion is not absolute. 1 Leading Cas. in Eq., 677, margin.

It is contended that because the appellant joined in the deed to Schley, that therefore she has no dower in the land. But if the title were only placed in Schley for convenience, and not for the purpose of changing or converting it into land, her part of the deed is like all the others, and her dower interest stands in the land like all the other interests, and if no sale be made, or the object of the trust fails and is never accomplished, her dower would result to her as an interest in real [**11]  estate, just as the interest of any of the other parties would go to them in that case.

The learned Judge who decided the case below, held that no conversion had taken place, and that the parties grantors, were seized of an equitable estate in fee of the lands; but that the appellant was not entitled to dower notwithstanding, either under the deed, or by virtue of the Act of 1818, ch. 193, sec. 10.

In the opinion of the Circuit Court, this Act of 1818, ch. 193, sec. 10, is to be strictly construed, and it is thought by that Court that "so far as the Act has undergone a construction by the Court of Appeals of this State, it has been confined to cases of vendor and purchaser, where purchase money has been paid in whole or in part, and the case of an equity of redemption, where, upon payment of the purchase money in full, in the one case, and of the mortgage debt in the other, the purchaser and mortgagor would be entitled to conveyance of the land itself."

Chancellor Kent understood our Act to vest widows with a title to dower, in all trust estates, in which the husband held a beneficial interest, and that she was only excluded in cases where he was seized in fee of the [**12]  dry technical title, by way of trust or power, for the sole interest of others, as the widow of Schley would be, if claiming under his seisin as trustee in this case. 4 Kent's Com., 45. The words of the Act explicitly support this view of the Chancellor, and their literal meaning cannot, upon any fair construction of the Act, be qualified, or their effect limited, by the subsequent words used, except to prevent the Act from operating to the prejudice of claims for the purchase money, or other liens on the land. In the case of Hopkins et al. vs. Frey, 2 Gill, 359, the Court of Appeals, in its exposition of said Act, say, "The words, (that is the words of the Act,) it is believed, are sufficiently explicit to prevent the law from operating to the prejudice of the rights of any, but creditors, heirs, and the devisees in a will, made after its passage. In the case of Mantz vs. Buchanan, 1 Md. Ch. Dec., 205, Chancellor Johnson says, "there cannot be a question that, under the Act of 1818, chap. 193, sec. 10, widows are entitled to dower in lands held by equitable title in the husband; for the Act in terms declares, that widows shall be entitled to dower in lands held by such title. He expressly [**13]  decides in that case, "that although a wife joins her husband in subjecting the land to an incumbrance, such as a mortgage, for instance, she has a right to call upon the personal representatives of her deceased husband to apply the personal assets to the extinguishment of the mortgage debt, so as to free her dower from the incumbrance." By specifying, as the Act does, what particular claimants are not to be prejudiced by it, we have the stronger reason for insisting that claimants of no other kind were to be saved from its operation. We had a right to expect that the widow's right to dower in her husband's share of "The Rose Hill Estate," so far from being ignored in toto as it has been, should not have been regarded as even questionable, except in favor of purchasers under the deed to Schley, or of claimants showing themselves to be within the privilege of the Act of Assembly. But the dowress had no claimant or purchasers of that kind to contend against before the Circuit Court. Her only competitors were creditors of her husband, of whose claims, as appears from her answer, she knew nothing. The terms of the Act are explicit, and leave no room for doubt or equivocation.

James [**14]  M. Schley, C. B. Thruston and G. A. Thruston, for the appellees:

The appellees think that the Circuit Court erred in deciding that the interest of George Lynn in "The Rose Hill Estate" and in the "Wharf Property," was real estate, and as such liable to be sold under a creditors' bill, and that they were right in determining that the appellant, the widow of the said George, was not entitled to dower in said property or its proceeds. The first question which it is proposed in behalf of the appellees, to discuss, is the effect of the deed of trust to James M. Schley, which was executed and acknowledged with all the formalities requisite to the conveyance of real estate in fee simple.

It will be contended, therefore, that after the execution and delivery of that deed, the interest of George Lynn in the property therein conveyed was no longer real estate, but a mere chose in action, or right to receive under that deed and in pursuance of its provisions, the proceeds of the sales as made from time to time, and that a conversion by such deed was wrought of real into personal estate. Upon reading said deed of trust, the Court will perceive that the absolute fee simple title has passed [**15]  to the said James M. Schley, his heirs and assigns forever, both in the granting part of the deed, and in the habendum, to be held by him upon uses and trusts in the said deed set forth.

From a consideration of this deed of trust as a unit, it is manifest that it was the intention of the parties who executed it, that all the real estate, except that portion of it lying south of Flat street, &c., should be sold and converted into money; every contingency which could in the course of human events prevent or put a stop to such conversion was carefully guarded against. Such as the event of Schley's death, his physical inability, the death of either of the parties of the first part, leaving infant children, or even the death of any of the parties of the first part leaving adult children. For it is distinctly provided in the deed of trust, that in the case of the death of Schley, or his physical inability to execute the trust, a majority of the parties of the first part, except Edgerton, living at the time of such death or disability, should be empowered to appoint a new trustee to execute the provisions of the deed. The words in this connection, "and of full age," were mere surplusage--as [**16]  all the parties of the first part were of full age. This distinction is confined to the parties of the first part themselves, and is not extended to their heirs or representatives.

The deed of trust contains a distinct declaration, that all the property conveyed thereby was to be sold. It reads, "it shall not be necessary immediately to survey and divide all said property to be sold under the provisions of this deed," &c. This provision thus declaring that it was all "to be sold," it was intended to say, that it would not be necessary to sell it immediately.

Again, the particularity with which the deed makes provision for the distribution of the purchase money, and the provisions for paying off liens against the distributees, and the payment of the charges against certain of them, created by the will of David Lynn, deceased, abundantly prove that the parties contemplated a conversion of the land into money under the provisions of the deed of trust. There are two species of trusts, simple trusts and special trusts. In simple trusts the cestui que use has the jus habendi and jus dispondi, and the Statute of Uses executes the trusts. In special trusts the cestui que trust, where [**17]  solely intrusted, may elect not to have the land converted into money, or the money into land, and where there are any provisions of the trust other than for his benefit, by paying annuities, &c., he may provide for that, and elect to keep the estate as it is.

But, until the cestui que trust or joint cestuis que trust countermand the specific execution, the special trust will proceed. Lewin on Trusts, 496, 497, mar.

In these cases of special trusts, even where a right of election exists in the cestui que trust to have the property remain as real estate, its character of personal estate in equity, impressed upon it by the will or deed, remains until such election is made. It is the instrument which evidences the intention to have the property converted, that works the conversion in equity, which conversion remains impressed upon it, until the party having a right to make the election, does actually make it. In cases of special trusts, where the trustee has certain active duties to perform in relation to the trust property, the Statute of Uses does not execute the use in the cestui que use, but the legal title passes to the trustee, and remains in him; for otherwise, the trustee [**18]  would not be able to perform the duties imposed upon him by the deed or will. 1 Cruise's Digest, 416, 417, title "Trust," chp. 1, sect. 20 to 26 inclusive. Ware et al., vs. Richardson, 3 Md. Rep., 505, 547.

The case cited in 1 Leading Cases in Equity, page 676, 677, mar., shows how strongly the Courts will give countenance to this doctrine of conversion, when, from any expressions in the instrument, an inference can be drawn, that it was the intention of the testator, that a certain species of conversion should take place--although he has confided an option in that respect in the trustee. It is deemed proper to quote this whole clause:

"But although conversion is apparently optional, as where trustees are directed to lay out personalty, either in the purchase of lands of inheritance or at interest, or in land or some other securities, as they shall think most fit and proper; yet, if the limitations are adopted only to real estates, so as to manifest the testator's intention that land shall be purchased, the money must be considered as land, although it be not actually so invested by the trustees. Where a conversion is to take place, at the request of certain persons, if the [**19]  words of the request are merely inserted for the purpose of enforcing the obligation to convert, although a conversion has taken place without consent, it will be considered to have been properly made. But where, however, words requiring the request or consent of parties to a sale, are inserted for the purpose of giving a discretion to them, if that sale takes place without their request or consent, the proceeds of the sale will still be considered as land." The case under consideration is even stronger for the conversion, than where the conversion is to take place upon the request of a third person. And this, though at the death of the devisor or intestate, the property remains unsold. Lewin on Trustees, 676, 677, mar.

The appellant, the widow of George Lynn, joined with him in the execution of the deed of trust to James M. Schley. This deed was signed and sealed by her, and acknowledged with all the formalities required by the Act of 1830, ch. 164, secs. 3 and 4. This Act declares that a married woman shall not be barred of her right of dower in her real estate, unless she signs, seals and acknowledges the deed, in the mode therein prescribed. The fourth section distinctly and [**20]  pointedly declares, that if she do so sign, seal and acknowledge, she shall be barred of her dower. It is clear then, that this widow is barred, unless, as is contended upon the other side, by the operation of the deed itself, an equitable title to these lands is vested in the husband, such as would entitle her to dower under the Act of 1818, ch. 193, sec. 10. On behalf of the appellees, it is contended that no equitable title to lands is by the operation of this deed, vested in the grantors.

There can be no doubt that a sale and conveyance by Schley under the provisions of this deed of trust, as well after as before the death of any of the grantors, would convey the land to the purchaser, free from dower of any of the married women who executed that deed.

The whole object and intent of the deed of trust would be defeated, if these married women, upon becoming widows, could claim dower in the land. If they had a dower interest, Schley could not convey a perfect title, unless they joined therein in the deed. If such be the case, then their joining in the deed of trust was an act without meaning. If such were the law, then a party who owned lands, could not, in conjunction [**21]  with his wife, execute a deed of trust to a trustee, to lay the same off into town lots, with the express power to sell, receive the purchase money and execute conveyances, and directing the trustee to pay over the proceeds to himself. Because, if the principle contended for on the other side be correct, the direction, that the proceeds should be paid over to himself, revests him with the equitable title to the lands, which could only be conveyed out of him by the execution of another deed to the purchaser from the trustee, and in which to bar dower, the wife would be obliged to join.

The Act of 1818, ch. 193, sec. 10, does give dower to widows "in lands held by equitable title in the husband." And the Act itself, upon its face, distinctly shows what is meant by "lands held by equitable title." As it provides that such claim of dower shall not prejudice any claim for the purchase money of such lands, or other lien on the same. The equitable title here meant, is where the husband has purchased land, and has not received a conveyance for the same, or where he had the legal title, and had passed it out by mortgage, or other instrument, before marriage, creating a lien on the same,  [**22]  upon the payment of which lien he would be entitled to a reconveyance. The equitable titles to lands under this Act, has reference exclusively to cases where the husband has a right under certain circumstances, such as the payment of the purchase money, or the satisfaction of a mortgage, where any such exists, to demand a deed; or where he owes nothing upon the lands, to demand the legal conveyance. Dower at the common law was strictly confined to lands of which the husband had legal seizin in his lifetime, and the sole object of the Act of 1818 was to give dower where there was an equitable seizin of the husband. Hopkins et al. vs. Frey, 2 Gill, 364.

And this Act of 1818 has been so strictly construed, that if the husband, without his wife, conveys in his lifetime lands to which he has an equitable title, the wife upon his death has no dower. Purdy vs. Purdy, 3 Md. Chy. Dec., 547.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*561]  BOWIE, C. J., delivered the opinion of this Court.
As these appeals involve principles common to both, and which control the relief prayed in each, they have been argued together, and will be decided and [**23]  disposed of as one. The appellee Gephart, on the 26th December, 1860, filed a creditors' bill, charging that George Lynn, deceased, had died intestate, indebted to him and others in large sums, without leaving personal estate sufficient to pay his debts, but seized of real estate, which descended to his heirs, and prayed the same might be decreed to be sold for payment of debts, and made the appellant his widow, his heirs at law, and his administrator only, parties. Subsequently, Messrs. John G. Lynn and James M. Schley, claiming to be creditors of the deceased, filed their petition in the cause, setting forth the filing of the bill and its object, but alleging it did not specify what real estate the deceased died seized of; that the deceased, with others, had executed a deed of trust, therewith exhibited, dated 17th of December, 

 [*562]  1850, by which certain lands were conveyed to said James M. Schley. The petitioner Lynn claimed a lien on George Lynn's share of the same, and the petitioner Schley as a creditor, and prayed that they might be made defendants in the cause, in order that it might be determined whether the said lands were liable to be sold under the creditors' bill.  [**24]  
The prayer of the petitioners being granted, they filed their answers, setting out their claims, and insisting that by virtue of the deed of trust the interest of George Lynn in all the lands therein described was converted into personalty, and not liable to be sold, at the instance of the creditors, as real estate.
John G. Lynn claiming a lien upon all proceeds of sale to be made by James M. Schley, under the deed of trust, to the extent of the interest of George Lynn therein, and also, upon the wharf property and dues as by certain agreements, dated respectively the 8th of September, 1849, and the 21st of October, 1852.
James M. Schley, trustee, claiming, as creditor, a balance of $ 16,666.66 2/3, as by an agreement between himself, his co-petitioner, and George Lynn. The respondent, John G. Lynn, further relied on his bill of complaint, filed 21st of March, 1861, against Virginia Lynn, James M. Schley et al., claiming an equitable lien on the proceeds of the trust property aforesaid, as far as George Lynn was entitled to a share thereof, and in such property as remained unsold, including the Wharf and Cement property. The answer of Virginia Lynn, widow of George, (the appellant [**25]  in each of these cases,) admits seizin of George Lynn and others, as tenants in common, during the life of said George, prior to the 3d of October, 1849, in the property described in the bill of complaint, subject to the life estate of Mary Lynn, widow of David. She admits the execution of the deed of trust by her husband and others on the 3d of October, 1859, to James 

 [*563]  M. Schley, but insists its object, as declared in the deed, was "merely to vest the legal title of the land in the trustee for greater certainty and convenience of conveying the same to purchasers, and thereby avoiding the legal difficulties that would result should any of the grantors die leaving infant heirs." Consequently, George Lynn continued seized during his life as tenant in common of an equitable estate in fee, in all the property conveyed by said deed to Schley, except such as was sold; and the undivided equitable estate in fee of which said George died seized, descended upon his heirs at law, subject to the respondent's right of dower, of which she prayed the benefit, as if she had not united in the deed of trust, which, as she alleged, was executed for no other consideration, than to facilitate [**26]  the transfer of the titles to various purchasers.
The questions presented by these conflicting pretensions are, first, whether there was any change in the character of the property described in the deed of trust, by virtue of its mere execution, on which depend, the subordinate questions, whether the appellee was entitled to a preference over other creditors, and to the exclusion of the appellants claim for dower.
As to the primary question, we may safely adopt the views of the Judge who decided this case below, and who, in his opinion, has very clearly announced the result of the best considered cases. "The inclination of Courts of Equity upon this branch of jurisprudence, is not generally to change the quality of the property unless there is some clear intention or act by which a definite character either as money or as land, has been unequivocally fixed upon it throughout. 2 Story's Eq. Jur., sec. 1214. If this intention do not clearly appear, the property retains its original character, there being no equity between the heir and the next of kin in such cases; in construing instruments of this kind, Courts of Equity will regard the substance and 

 [*564]  not the mere form [**27]  of the agreement, and give to it the precise effect which the parties intended." 1 Story Eq., sec. 791; 16 U.S. 246, 3 Wheat. 246, 335, 4 L. Ed. 381.
There can be no question as to the nature of the trust or the object of the parties in this case. They are indelibly stamped on the face of the deed and expressed in the most explicit terms, viz: "The said James W. Schley shall convey the said legal title so vested in him to the same by this conveyance, to such person or persons or company or companies, in such manner and under such restrictions as the majority shall direct him to do." Again "The said Jas. M. Schley is to receive no per centum or commission, all expenses of conveyancing, etc., to be borne by the parties of the first part, except said Edgerton, by first deducting the same out of the amount of the purchase money, the balance to be distributed or divided among themselves according to their respective rights to the same, it being the object of the said parties as to the last named land, merely to vest the legal title of the same in the said James M. Schley, for the greater certainty and convenience of conveyancing the same to purchasers, [**28]  and thereby avoiding the legal difficulties that would result should any of the parties of the first part (except said Edgerton) die leaving infant heirs." It is further recited in said deed, "whereas, there are existing judgments and mortgages against some of the parties of the first part, which are liens on their respective shares of said property," it is enjoined upon the said Schley, John and Jas. Lynn, out of the proceeds of sale, instead of paying the same to the cestuis que trust, to apply the same to the extinguishment of said liens." They are further enjoined in the distribution of proceeds, to carry out and execute the provisions of the will of David Lynn, in regard to advancements to his several children, so as to produce equality.
There being no conversion of the real estate conveyed by the deed of trust to James M. Schley, the grantors in 

 [*565]  said deed retained an equitable interest in the same until sold, and in its proceeds after sale, to the extent of their respective shares, which are to be treated as real estate. The next inquiry is, what rights or liens attached to this equitable estate either through the acts of the parties, or by operation of law.  [**29]  The Judge who decided this case below held it unnecessary to determine what title, if any, John G. Lynn had acquired to the land or its proceeds, but reserved the question until the proceeds might be brought into Court, but held the appellant was excluded from dower by the operation of the deed of trust in the lands as such. It is not distinctly declared in the decree, that she is not entitled to dower of the proceeds, but as such an inference may be drawn from it, we think it erroneous to that extent.
In the present attitude of these cases it becomes necessary to determine the relative rights of these parties.
On the 21st of October, 1852, John G. Lynn and George Lynn entered into articles of agreement under seal for the purchase by the latter, of four hundred shares of stock for the aggregate sum of $ 12,000. By these articles, it is agreed on the part of George Lynn, as additional security to the said John, that the agreement should operate as a lien and be binding in law on his interest in the Rose Hill Estate, including the Wharf and Cement property; that the said John shall, at any time he desires, have the agreement recorded in the clerk's office, and it shall be as binding [**30]  in that respect as if recorded at the date of the instrument. The instrument does not appear to have been acknowledged before a Justice of the Peace or recorded.
As between parties and privies, this agreement was a pledge of the property or its proceeds, for the specific purpose to which it was dedicated, and gave the creditor a prior claim, to satisfaction out of the fund; it was in equity an assignment of the fund pro tanto, being made 

 [*566]  for a valuable consideration. The appellant, as widow of George Lynn, claims a right of dower in the equitable estate of her husband by virtue of the Act of 1818, ch. 193, sec. 10, which enacts, "That widows shall be entitled to dower in lands held by equitable title in the husband, unless the same be devised by a will made before the passage of this Act; but such right of dower shall not operate to the prejudice of any claim for the purchase money of such lands, or other lien on the same."
The first case in which the Act of 1818, ch. 193, sec. 10, was referred to by this Court, is that of Hopkins et al., vs. Frey, 2 Gill 359, 363. The facts of that case are, that Frey, the husband, acquired the land,  [**31]  of which the widow sought to be endowed in the year 1802, and executed a mortgage to secure the purchase money. In the year 1803, he married. In 1818, there was an arbitration between mortgagor and mortgagee, and an award, that upon payment of a sum ascertained, the mortgagees should release the mortgaged premises. The mortgagees filed their bill against the mortgagor for sale, "but the mortgagor relying upon the award, the bill was dismissed. In 1816, before the award, Frey mortgaged the equity of redemption to others, who afterwards filed a bill and obtained a decree to sell the premises, which were sold in July, 1823. The Court held the widow was not entitled to dower at common law, or under the Act of 1818, ch. 193, sec. 10, because the law was passed after the execution of the mortgage; vide 2 Gill 365.
In the case of Miller vs. Stump, 3 Gill 304, 310, 311, this Court referred to the Act of Assembly in these words, "Our Act of Assembly of 1818, ch. 193, is the only law of Maryland, which gives the widow a right to dower in an equitable estate; and that Act as expounded by this Court in Hopkins vs. Frey, does not give the defendant [**32]  in error, dower in this land. It was there decided, that the claim to dower in an equitable estate, can be asserted with 

 [*567]  success only when the allowance of it cannot operate to the prejudice of any, but creditors, heirs and devisees, in a will executed subsequently to the passage of the law. It would operate to the prejudice of others, if in this case, when the equitable title had been parted with, by the husband, during his life, the widow was allowed dower. The Act of Assembly does not say and it ought not to be construed to mean, that the widow shall be "entitled to dower in lands held by equitable title in the husband" at any time during the coverture."
The husband Willson, (the mortgagor in that case) held the lands in fee by deed subject to the life estate, before the termination of which, he mortgaged the land and then applied for the benefit of the insolvent laws. The trustee afterwards sold the lands for a sum exceeding that due on the mortgage. It was held, the widow was not entitled to dower of the lands in specie, in the hands of the purchaser. As to the surplus of the proceeds, this Court held "In some cases, it may be argued, that the widow is entitled [**33]  to a portion of the surplus. It is not necessary, however, upon this appeal, to enquire if such be the law of this case, if indeed, she be entitled to "receive anything, she is not entitled to receive it of the purchaser, and he is the only person of whom she is now claiming." This would imply if the application had been made for dower in the surplus, it would have been allowed. The same question was directly presented and decided by the late Chancellor Johnson, in the case of Mantz vs. Buchanan, 1 Md. Ch. 202, 205. In that case, the widow, although joining with her husband, the mortgagor, was allowed dower out of the surplus of the proceeds of sale, after satisfying the mortgage debt. The Chancellor said "there cannot be a question that, under the Act of Assembly of 1818, ch. 193, sec. 10, Mrs. Buchanan would, but for the proceedings on the Equity side of Washington County Court, be entitled to dower to some extent in these 

 [*568]  lands; because, notwithstanding the mortgage, the equitable title was in the husband, and the Act in terms declares, that widows shall be entitled to dower in lands held by such title, and the question therefore is, whether [**34]  such proceeding shall deprive her of this right, when it is obvious her title to the lands assigned her in that proceeding, must yield to the subsequent sale, to satisfy the mortgage." This language imports that the widow is entitled to dower out of an equitable estate however created, provided it is not to the prejudice of the vendor, or other lien attaching before her marriage or subsequently with her consent. Referring to the Act of Assembly again, and the nature of the liens embraced therein, the Chancellor proceeds, "The Act of Assembly, however, makes no discrimination between the lien of the vendor and other liens. It says, "such right of dower shall not operate to the prejudice of any claim for the purchase money of such lands, or other lien on the same." This other lien, if by the act of the husband without the concurrence of the wife, must, it is said, have reference to liens created prior to the marriage, and this it is thought is the sound construction. But if the wife does concur, by uniting in the mortgage or relinquishing her dower, the lien must be attended with the same consequences, as if created before the marriage, or residing in the vendor for the security [**35]  of the purchase money." 1 Md. Ch. 202, 207.
In the case of Stewart vs. Beard, 4 Md. Ch. 319, 321, the widow was allowed dower out of an equitable estate of which her husband died seized in fee, in preference to a junior judgment creditor. The conclusion to be drawn from these decisions is that by virtue of the Act of 1818, ch. 193, sec. 10, the provisions of which are since incorporated into the Code of Public General Laws, the widow is entitled to dower out of an equitable estate of inheritance held by her husband, or not parted with at the time of his death, without prejudice to prior liens. The right 

 [*569]  of dower has always been deemed a meritorious one, founded on the highest consideration, and favored in law. The object of the Act of 1818, was probably to remove that anomaly in the administration of justice, which allowed the husband of a cestui que trust, an estate by the curtesy, but denied dower to the widow--an inequality which was long considered a reproach to our jurisprudence.
It results from the preceding views, that the share or interest of the late George Lynn in all the estate conveyed by the deed of trust to James [**36]  M. Schley is liable to be sold for the payment of his debts, in aid of his personal estate, that the said sale will be made free, clear and discharged of all claim of the parties to the cause; the proceeds thereof to be applied first to the satisfaction of the lien of John G. Lynn, and the surplus to be subject to the claim of dower of Virginia Lynn, widow of said George, according to the rules of the Circuit Court, in relation to dower, in preference to all other liens not acquired prior to her marriage or created afterwards by her husband with her consent. For these reasons, the decrees appealed from are reversed as far as the same conflict with the views hereinbefore expressed, and the cause is remanded.
Decrees reversed and cause remanded. 

9 of 120 DOCUMENTS 

THE CUMBERLAND COAL AND IRON COMPANY vs. JAMES SCALLY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 589; 1867 Md. LEXIS 68 

July 19, 1867, Decided 

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

This was an action instituted by the appellee against the appellant, on the 19th of September, 1862, in the Circuit Court for Allegany County, to recover for injuries sustained by the former, while employed by and at work on a railroad of the latter. The defendant pleaded that it did not commit any of the wrongs alleged, and that the injury complained of was caused solely by the negligence and want of care of the plaintiff. The case subsequently, at the instance of the plaintiff, was removed to the Circuit Court for Washington County.

Exception: Upon all the evidence in the cause the plaintiff asked the following instruction:

That if the jury shall find, that the plaintiff was, during the fall of the year 1861, an employee of the defendants, as a miner in the coal mines of the defendants, in Allegany county; and that said defendants at that time, were the owners and operators of a railroad, leading from their said mines to the town of Cumberland; and that said railroad was of heavy and difficult grade for the greater part of the length thereof; and that said defendants used for the transportation and conveyance of the [**2]  burden and loadened cars over said road, and down the grade thereof, a steam engine or engines; and that said plaintiff, so being employed as a miner as aforesaid, in the latter part of October, or about the first of November, in the said year 1861, upon a sudden break and obstruction occurring in and on said railroad, was, together with many others of the miners and employees about the mines of the defendants, employed by the defendants to work upon and repair said railroad; and that the plaintiff was detailed and placed in the course of the employment on said road for the repairs thereof, in a gang of hands consisting of miners and persons not practiced in the management and conduct of cars on a railroad, under a foreman or superintendent, whose orders and directions said hands were required to observe and obey; and that, during the employment aforesaid, on said road, and up to the day of the occurrence of the injury sued for, the defendants had used a steam locomotive engine or engines, in moving and hauling material for such repair on said road, and that said plaintiff and others of said gang of hands, on the day of the occurrence of said injury, were required and directed to load [**3]  a train of gondola or open burden cars with materials for the repair of said road, and under the direction and by the assistance of said foreman or superintendent, to run and convey said train of cars, so loaded, over and down a long and heavy grade on said road for several miles to the place where said materials were required, without a locomotive engine, but by force of the grade alone, and without any other check or means of restraint of said cars than the common brakes thereto; and that in attempting so to convey and conduct said train of cars down said road, the same became unmanageable by the hands thereon, and ran off with great speed, imperiling the safety of those on said train, and that nearly all the hands thereon jumped off, leaving the plaintiff and two or three others thereon, who were unable to check said cars; and that said plaintiff afterwards, and while said cars were running with great speed, either by being thrown thereout, or in attempting to escape therefrom, was seriously and dangerously injured, and that without negligence or want of caution on his part, then if said injury to the plaintiff was caused by either the want of ordinary skill and experience on the [**4]  part of the other hands in charge of said train, to manage and conduet the same, the plaintiff, himself, using all the diligence of which he was capable in that behalf, or by any obvious defect or insufficiency that might have been discovered by ordinary care in said cars, or any of them, or in the machinery and appliances for controlling and governing the same, at the time of placing the same on the road to be worked by the plaintiff and others with him, and which defect or insufficiency, (if any,) was unknown to the plaintiff, and which rendered said cars unsafe for the particular use or employment, or by the want of a locomotive engine, under the management of an engineer of competent skill to conduct down said train, if the risk of running said cars down the grade of said road without a locomotive engine was dangerous, the plaintiff is entitled to recover; which the Court (WEISEL, J.,) granted with the following modification: Provided he can prove to the satisfaction of the jury by evidence, that the defendants did not use reasonable care in the selection and employment of the foreman, who conducted said cars, and that the said cars were not of approved construction and material,  [**5]  and selected by persons who were not of competent skill and judgment for the purpose.

The defendant submitted twenty-one prayers, the first, second, third, ninth and tenth of which were subsequently withdrawn; the thirteenth, sixteenth, eighteenth, twentieth and twenty-first, were granted as offered. The eighth and fourteenth were granted with modifications, and the others were rejected. In the view taken of the case by this Court, it is not deemed requisite to set out the prayers of the defendant. To the refusal of the Court to grant the prayers of the defendants, as above enumerated, and to the modifications appended as aforesaid, and to the granting of the plaintiff's prayer with the modification of the Court, the defendants excepted, and the verdict and judgment being against them, they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Liability of Railroad Companies for Injuries done to their Employees -- Province of the Court and of the Jury -- Practice.

When several persons are employed in the same general service, and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employer is not responsible. The liability to injury of one, from the carelessness of his fellows, is but an ordinary risk against which the law furnishes no protection, but by an action against the wrongdoer. And though it is the duty of a railroad company to exercise all reasonable care in procuring, for its operation, sound machinery, and faithful and competent employees, and though it is liable to its servants for the neglect of this duty; yet, after it has procured such machinery and employees, it is not liable to a servant for the injuries occasioned by the neglect of any of its co-servants, employed in the same general business of operating the road.

A Court of original jurisdiction should not submit to the jury the finding of a fact, of which there is no evidence; but if there be any evidence tending to prove it, it would be trenching on the province of the jury to refuse the instruction, because the evidence on which it was founded might not be deemed conclusive by the Court.

The sufficiency of evidence to satisfy a jury, or the circumstance that it is all on one side, does not authorize the Court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the Court should control the exercise of their admitted right to weigh the credibility of evidence.

The Court is justified in refusing an instruction, for the reason that it is too complicated and involved, to furnish a guide to the jury.  

COUNSEL:
George A. Thruston and George W. Dobbin, for the appellant.

The evidence in this case not only exonerates the defendant from all liability to the plaintiff, but proves most extraordinary care and caution on the part of its agents and servants, who selected the cars for use, and who superintended and directed the men and the movement of the cars. It would [**6]  be difficult to find a case in which the co-employees themselves were so little to be blamed, if at all, and yet the accident wholly proceeded from their conduct. This Court has recently had occasion, in the case of O'Connell vs. The Baltimore and Ohio Railroad Company, 20 Md. Rep., 212, to lay down the legal principles for the determination of the responsibilities of Railroad Companies to their employees, when injured in their service, by the negligence or misconduct of co-employees; adopting and approving of the latest English and American authorities.

In addition to the above case, we also beg leave to refer to the following authorities: Hutchinson vs. The York, Newcastle & Berwick Railway Co., 6 Eng. Rail. Cases, 580, (top page 438;) Thorogood vs. Bryan, 8 Mann. Gran. & Scott, 115, (65 Eng. Com. Law Rep., 114;) Farwell vs. Boston and Worcestor R. R. Cor., 4 Met., 49, (1 Amer. Rail. Cases, 339;) Coon vs. The Syracuse and Utica R. R. Co., 1 Selden, 492; Priestley vs. Fowler, 3 Mees. & Welsby, 1; Murray vs. South Carolina R. R. Co., 1 McMullan, 385; Hayes vs. The Western R. R. Cor., 3 Cushing, 270.

The plaintiff's prayer, as originally offered, is objectionable, because [**7]  it submits facts to the jury of which there is no evidence, and which are positively disproved. This prayer assumes, that whilst the plaintiff was employed as a miner by the defendant, he was placed and detailed to work at these repairs. The proof is that at the time of the repairs, no mining was going on; he was not employed at all, so as to be in defendant's power to put him at any work, and that he voluntarily engaged himself on this occasion to work at these repairs. The prayer also submits to the jury to find that the plaintiff was employed to work, or detailed to work, with others, under a foreman, and gang of hands, in the management and conduct of cars on a railroad, not practised in the same, whose directions and orders said hands were required to observe and obey; whereas the proof is positive and uncontradicted, that the plaintiff and others were under the orders and control of Thomas Corcoran solely as foreman, and that he was in all respects fully competent, and no evidence was offered or given of any incompetency of Corcoran. The prayer asks that the jury may be instructed to find for the plaintiff, if his injury were caused by:

1st. Either want of ordinary skill [**8]  and experience on the part of the other hands in charge of said train to manage and conduct the same. Without regard to the care and caution which the Company may have used in employing and selecting the foreman, who directed them, and whether the accident was caused by the fault, negligence or misconduct of such foreman.

2d. "Or by any obvious defect or insufficiency that might have been discovered by ordinary care in said cars or any of them, or in the machinery and appliances for controlling and governing the same, at the time of placing the same on the road, to be worked by the plaintiff and others with him, and which was unknown to the plaintiff, &c., and rendered said cars unsafe for the particular use or employment," then the jury were to find for plaintiff, if the cars when originally provided by the Company, for use on its road, were of sound material and approved construction, their subsequent use by a co-employee of a party injured when out of order, could not make the defendant liable.

3d. Or by the want of a locomotive engine, under the management, &c.

The proof is positive, that the defendant then had four engines ready for use, and one of which the foreman [**9]  could have had, if he thought one necessary for any purpose connected with the work; that the foreman knew this, that it was his business to require one, if he thought one necessary, &c., and there was no evidence contradicting the same; so that such instruction could not have been properly given.

Now how does the modification by the Court affect or correct the errors in this prayer? That portion of the modification, which relates to the selection of cars for use, is in conflict with the principles above announced, because it refers to the time when the cars were taken for use on the day of the accident, as the time when the defendant's care and caution was to be exercised, as to their fitness for use by its employees, when we understand this time of fitness to relate to the period, when the cars are first furnished for such use on its road by the defendant; and not to any period thereafter, when any co-employee may use the same, disregarding their condition of repair, &c., at such last periods, through negligence or misconduct. Again, in the absence of all testimony, other than the accident itself, of incompetence or unskilfulness on the part of the co-employees, when negligence [**10]  caused the accident; and with full evidence proving their competence, skill, and all other requirements of the law, as to habits and character, how could the jury find that the defendant did not use reasonable care in their selection? &c. Walter et al. vs. Alexander and Wife, 2 Gill, 204; Clements vs. Smith's Adm'rs., 9 Gill, 160.

The prayer is also objectionable, because confused and liable to mislead the jury.

The prayer is also exceptionable, because it excludes the cause of the accident, as proven by all parties, from the consideration of the jury.

The modifications to the eighth and fourteenth prayers of the defendant, are objectionable; the prayers should have been granted as offered.

The eighth prayer submits the facts sufficiently, and that the accident occurred by the giving way of the brake, and is in strict compliance with the legal principles heretofore referred to, as determining the defendant's liability, except that it is narrower than could have been asked for its protection. The modification enlarges the defendant's liability, making it responsible for the supposed negligence of the competent co-employee, in case he did not thoroughly perform his [**11]  duty, in performing or undertaking to perform it.

The fourteenth prayer was unnecessary, after the granting of the thirteenth, and was only offered because the defendant had to submit all its prayers to the Court, before it could be informed of the instructions which the Court would give; and as those prayers were all offered together, before the principles of law applicable to such facts had been settled in Maryland, its counsel wished to vary the instructions asked for, so as to meet the views of the Court, if not accordant with the law which they contended for. If the accident were caused by the carelessness of the foreman, and the defendant had used due caution in its selection of an employee, then the jury should have been instructed that the plaintiff could not recover. It matters not what kind of cars were used, unless their condition or want of repair was the cause of the accident, or entered into it. Again, the part of the modification of this prayer, referring to the selection of cars, is indefinite, and would tend to mislead the jury, as it might be argued therefrom, that the Company were responsible for the skill, competence, good habits and character of all persons [**12]  who had anything to do with the use of the cars, or taking the same for use, when in fact, it was only responsible for the foreman superintending the work, and none others in this respect, and as to due care in employment of such foreman.

All that we ask in this case, are instructions equivalent to those pronounced by this Court in the case of O'Connell vs. The Balto. & O. R. R. Co., 20 Md. Rep., 212. The evidence on behalf of the defendant, uncontradicted, shows extraordinary care and caution on its part, not only in the selection of its agents, and the co-employees of the plaintiff, but in the conduct of such co-employees themselves.

Richard H. Alvey, for the appellee.

The instruction, asked by the plaintiff and granted by the Court, is subject to no valid objection. It embraces all the conditions requisite to entitle the plaintiff to recover, first, want of care in selecting hands of ordinary skill and competency with whom the plaintiff was associated; secondly, providing defective and insecure machinery with which to perform dangerous service; thirdly, unduly exposing the plaintiff to unreasonable risks, in requiring the cars to be worked down the heavy grade on [**13]  the road, without the steam locomotive engine that had been used for the purpose. It is conceded that if the defendant had used due diligence in the selection of competent and trusty servants, and furnished them with suitable means to perform the service in which they were employed, it would not be answerable to the plaintiff for an injury received by him in consequence of the carelessness of a fellow servant while both were engaged in the same service. Farwell vs. Boston and Worcester R. R. Cos., 4 Met., 36.

There is a great distinction to be observed, however, between negligence or carelessness, and the want of skill or competency; as the most competent may be guilty of negligence. But "it is the duty of a railroad company to exercise all reasonable care in procuring for its operation, sound machinery, and faithful and competent employees," and "they are liable to their servants for the neglect of this duty. O'Connell vs. Balt. & O. R. R. Co., 20 Md. Rep., 212, 222; Shanck vs. N. C. Railway Co. MS. The servant when he engages to run the risks of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable [**14]  care, at least, to protect him from such risks, by associating him only with persons of ordinary skill and care, and providing secure machinery with which to perform the service. Hutchinson vs. Railway Co., 5 Exch., 343, 353; Patterson vs. Wallace, 2 Macq., 748; The Bartonshill Coal Co. vs. Reid, 3 Macq., 266; Brydon vs. Stewart, 2 Macq., 30.

The cases decided upon this subject establish the following propositions, which, it is contended, embrace this entire case:

1. That the master is bound to exercise due care and diligence in the selection of the agencies with, or instruments upon which he employs his servants; and upon failure in this respect, he will be liable to the servant for any injury to him that may result therefrom.

2. That the master is liable to his servant for injuries resulting from a defect in, or inadequacy of his machinery, although the negligence of a fellow-servant may have contributed to the accident.

3. That the master is bound to take proper care of his servant, and not expose him to danger; and that ordinary care must be measured by the character and risks and exposures of the business; and the degree required is higher where life or limb [**15]  is endangered, than in other cases. Cayzer vs. Taylor, 10 Gray, 274; Snow vs. Housatonic R. R. Co., 8 Allen, 441; Roberts vs. Smith, 2 Hurls. & Nor., 213; Holmes vs. Clarke, 6 Hurls. & Nor., 348; and same case on Appeal, 2 Amer. Law Reg., (N. S.) 107.

The twenty-one prayers of the defendant should all have been refused, if for no other reason, because from their multiplicity, and complicated and involved character, they would have not only embarrassed, instead of instructing the jury, but would have confounded and misled them. And this was sufficient ground for rejecting the whole of them. Whiteford vs. Burckmyer and Adams, 1 Gill, 127; Stockton vs. Frey, 4 Gill, 406; Balt. & O. R. R. Co. vs. Resley, 14 Md. Rep., 424.

In the instructions given, the whole case was placed before the jury in as favorable an aspect as the defendant had right to ask it, and certainly in a sufficient number of its own prayers; and the established rule is, that where a variety of prayers are submitted, as in this case, and the instructions given by the Court cover the whole ground of controversy, the judgment will not be reversed, even though some of the rejected prayers were correct in themselves.  [**16]  Mutual Safety Ins. Co. vs. Cohen, 3 Gill, 459; N. Y. Life Ins. Co. vs. Flack, 3 Md. Rep., 341; Pettigrew vs. Barnum et al., 11 Md. Rep., 434.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*599]  BOWIE, C. J., delivered the opinion of this Court.
At the trial of this cause below the appellee offered but one prayer, which was granted with a modification by the Court; the appellant submitted twenty-one prayers, the first, second, third, ninth and tenth of which were afterwards withdrawn; the fourth, fifth, sixth, seventh, eleventh, twelfth, fifteenth, seventeenth and nineteenth were rejected; the eighth and fourteenth were granted 

 [*600]  with provisos, and the rest as originally offered. The appellant excepted to the rejection and modification of its prayers, and to the granting of the appellees as modified. The gravamen of the narr. is certain injuries sustained by the appellee whilst employed as laborer by the appellant, in the course of which service, in descending a heavy grade of the railroad of the appellant, in a train of gondola or open cars, with other laborers, under the direction of a conductor, the appellee was thrown out [**17]  and severely wounded. The appellee's prayer claimed the right to recover if the "injury were caused by either the want of ordinary skill and experience on the part of the other hands in charge of said train to manage and conduct the same, the plaintiff himself using all the diligence of which he was capable in that behalf; or by any obvious defect or insufficiency that might have been discovered by ordinary care in said cars or any of them, or in the machinery and appliances for controlling and governing the same, at the time of placing the same on the road to be worked by the plaintiff and others with him, and which defect or insufficiency (if any) was unknown to the plaintiff and which rendered the said cars unsafe, for the particular use or employment; or by the want of a locomotive engine under the management of an engineer of competent skill to conduct down said train, if the risk of running said cars down the grade of said road without a locomotive engine was dangerous."
Which prayer was granted with this modification: "Provided he can prove to the satisfaction of the jury by evidence, that the defendant did not use reasonable care in the selection and employment [**18]  of the foreman, who conducted said cars, and that the said cars were not of approved construction and material, and selected by persons who were not of competent skill and judgment for the purpose." The modification of this prayer seems to us substantially to embrace the doctrine announced by 

 [*601]  this Court in the case of O'Connell vs. The Balto. & O. R. R. Co., 20 Md. 212, in which all the most recent cases of liability of employers to employees for injuries resulting from negligence were reviewed, and the following conclusions announced, viz: "When several persons are employed in the same general service, and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employer is not responsible. The liability to injury of one from the carelessness of his fellows, is but an ordinary risk, against which, the law furnishes no protection, but by an action against the wrongdoer. Though it is the duty of railroad companies to exercise all reasonable care in procuring for their operation sound machinery and faithful and competent employees, and, though they are liable to their servants [**19]  for the neglect of this duty, yet after they have procured such machinery and employees, they are not liable to a servant for the injuries occasioned by the neglect of any of their co-servants employed in the same general business of operating the road." 23 Pa. 384, 386, 387; 32 Vt. 473; 4 Metcalf 49.
The granting of the appellee's prayer as modified, is objected to, because, as it is said, it submits facts of which there was no evidence, and which were positively disproved. Several examples of which are enumerated:
1st. That the plaintiff was employed as a miner, and was placed and detailed to work at the repairs.
2d. That he was so employed "under a foreman and gang of hands in the management and conduct of cars, on a railroad, not practised in the same, whose directions he was required to obey.
3d. That the injury was caused by want of ordinary skill, or by any obvious defect in the cars, or want of an engine.
A Court of original jurisdiction should not submit to 

 [*602]  the jury the finding of a fact of which there is no evidence; but if there be any evidence tending to prove it, it would be trenching on the province of the [**20]  jury, to refuse the instruction because the evidence on which it was founded, might not be deemed conclusive by the Court. "The sufficiency of evidence to satisfy a jury, or the circumstance that it is all on one side, does not authorize the Court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the Court should control the exercise of their admitted right to weigh the credibility of evidence." The Charleston Ins. and Trust Co. vs. Corner, 2 Gill 410, 426; Henderson vs. Mayhew, 2 Gill 393, 409. The case of Walter et al. vs. Alexander and Wife, was a case in which the fact to be found was evidenced by a deed, if at all, and the Court said that the deed of lease under which the defendant claimed title, showed she was not entitled to the lot for which the ejectment was brought.
Under these circumstances, it was held the appellee's prayer was erroneous, because, among other reasons, "it called on the Court to submit to the finding of the jury a fact of which there was no testimony, but which was conclusively disproved by the testimony of both parties." 2 Gill 204, 215, 216. [**21]  The issues in this case involved the competency of the conductors and the sufficiency of the cars and machinery. The jury were to find these facts from all the circumstances given in evidence. The opinion of the witnesses was not conclusive on the jury. The conductor and employees were before them. Their management and conduct, at the time of the supposed injury, constituted a part of the testimony from which the jury might draw their own conclusions of the skill and competency of the conductor and the sufficiency of the cars, etc.
The prayer of the appellee, as modified by the Court, required him to prove that the appellant did not use 

 [*603]  reasonable care in the selection and employment of the foreman who conducted said cars, and that said cars were not of approved construction and material, and selected by persons who were not of competent skill and judgment for the purpose, as a condition essential to his recovery.
The prayers of the appellant which were granted by the Court, submitted to the jury all the circumstances which qualified the liability of the appellant, in the amplest manner. The rule laid down by this Court, in 20 Md. 212, 222, does not limit [**22]  the liability of the employer to the selection of his principal agents or officers. It requires he should exercise all reasonable care in procuring for his operations sound machinery and faithful and competent employees or agents. The law of the case having been correctly announced by the Court below, in the appellee's prayer as modified, and in those of the appellant which were granted as originally submitted or with qualifications, the appellant was not prejudiced by the rejection of those which were refused. In such a multiplicity of propositions, in which, after innumerable details of particulars, the conclusion of one was often made to depend upon what was recited in another, it was inevitable that some might have been rejected which would have been proper, but, taken collectively, they could subserve no practical purpose as a guide to the jury. It is difficult, upon patient investigation, to comprehend the difference between many of the propositions, so numerous are the circumstances referred to, and the Court, for this reason alone, was right in refusing them. 1 Gill 153.
Judgment affirmed. 

10 of 120 DOCUMENTS 

JACOB EAKLE vs. GEORGE W. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 467; 1867 Md. LEXIS 60 

July 17, 1867, Decided 

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

This was an action on an injunction bond, instituted by the appellant against the appellee. The declaration after setting forth the bond, which was executed on the 29th of March, 1855, stated that the appellee, as trustee of Amos Eakle, an insolvent debtor, had filed his bill of complaint in the Circuit Court for Washington County, as a Court of Equity, on the 11th of April, 1854, against the said Amos and the appellant, alleging among other things, that the said Amos had purchased from the appellant certain real estate in said county, for which he had paid the purchase money, and was in possession, and had conveyed the same to the appellee; that the appellant, however, retained the legal title, refused to give a deed for the land to the said Amos, and denied to the appellee the right or power to take said land into his possession for the purpose of the trusts conferred upon him by the deed from the said Amos; it prayed that the appellant might be decreed to make a good and sufficient deed to the appellee, subject to the trusts in the deed of the said Amos. At the following November Term, the appellee filed a petition in said [**2]  cause, alleging that since the filing of his bill, the appellant relying upon his legal title, had instituted an action of ejectment in said Circuit Court, on the law side thereof, against the said Amos, to oust him from the possession of said land, which he then held under the appellee--that said ejectment suit then stood for trial on the docket of said Court, and prayed that an injunction might issue to restrain the appellant from further prosecuting the said action of ejectment, until the further order of the Court. Whereupon, the Court passed an order on the 28th of November, 1854, directing the clerk to issue an injunction as prayed for, upon bond being given by the appellee in the usual form; that thereupon the appellee filed his bond, which was duly approved. The declaration further averred that the writ of injunction so ordered, did not in fact issue, but the same was supplied by an agreement of counsel; that the cause proceeded, as if the writ of injunction had issued, and the action of ejectment was regarded and treated as enjoined; that the appellant did institute said action of ejectment, that the same stood for trial at the November Term, 1854, that the order for the injunction,  [**3]  was passed, and that upon the filing and approval of the injunction bond, the ejectment cause to which the said Amos had appeared by counsel, the appellee being one of his attorneys of record, was entered upon the docket as enjoined, and so continued entered, from term to term, until the July Term, 1868, when a judgment by confession was entered therein in favor of the appellant (the plaintiff in the suit;) further, that the appellee did not prosecute the writ of injunction in the recital and condition of said bond, with effect; that in said suit in which the injunction was ordered, upon a final hearing, the Court decided, that a contract for the sale of the land from the appellant to the said Amos, had been made and proved, and passed a decree, directing a sale of the same, by a trustee named therein, and the bringing of the money arising therefrom into Court, to be distributed under its order; that the appellant took an appeal from this decree to the Court of Appeals, where in July, 1858, the same was reversed and the cause remanded for further proceedings in conformity with the opinion of the Court; that in consequence of this decree, at the July Term, 1858, of the Circuit Court,  [**4]  the aforesaid judgment by confession, was entered in favor of the appellant, in said ejectment cause. The appellant further declared that he was kept out of possession and enjoyment of said land and premises, and of its rents, issues and profits, by virtue and reason of the premises, and the stay of the legal proceedings in said action of ejectment, for a long space of time, and thereby sustained damages, wherefore an action accrued to him, to demand the sum of money in the said injunction bond mentioned, together with his damages for the detention thereof. The appellee pleaded the following pleas:

1. That the injunction mentioned in the recital and condition of said writing obligatory, declared on in this cause, never issued against the said plaintiff, and that he never was in any manner restrained thereby from, or delayed in, the prosecution of the said action of ejectment against the said Amos Eakle.

2. That the said plaintiff never was served with any writ of injunction issued out of the Circuit Court for Washington County; nor was the said plaintiff in any manner restrained and kept from recovery, and out of the possession and enjoyment of the said land and premises [**5]  in the said declaration mentioned, nor of the rents, issues and profits thereof, by virtue of any writ of injunction applied for by the said defendant, and ordered by the said Circuit Court.

3. That the defendant did not procure the said writ of injunction mentioned in the recital and condition of the said writing obligatory declared on, to issue against the said plaintiff, nor did he, the said plaintiff, desist from the prosecution of his said action of ejectment against the said Amos Eakle, because of such injunction, but of his own voluntary will and action.

4. That, by no agreement of counsel, did he, (the defendant,) ever agree or consent to become or be bound, or in any manner held liable on the said writing obligatory, declared on in this cause, as if an injunction had in fact issued, and the plaintiff been restrained thereby.

5. That there was no agreement made, dispensing with the issuing of the said injunction, and to stand and be operative in lieu thereof, nor did he, the said defendant, ever agree to become or be rendered liable to the said plaintiff on the said writing obligatory, declared on in this cause, as if an injunction had in fact issued, and the [**6]  plaintiff restrained thereby.

6. That there was no agreement of counsel made dispensing with the issuing of the said injunction as ordered by the said Court, and to stand and be operative in lieu thereof, as if said injunction had in fact issued, and the plaintiff restrained thereby, but the said plaintiff, of his own free will and action, desisted from and failed to prosecute his said action of ejectment against the said Amos Eakle during the time mentioned in said declaration.

7. Plea of non-damnificatus, and issue joined thereon.

8. That since the order granting the writ of injunction, there has been no further order, revoking the said order for the injunction, but the same remains in force.

To the first, second, third, fourth, fifth, sixth and eighth pleas, the plaintiff demurred, and the defendant joined in demurrer; and judgment was entered on the demurrer for the defendant, from which the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Demurrer -- Practice -- Suit on an Injunction bond, where the Writ never issued, not maintainable -- A Court of Equity will punish a party, attempting to evade its Authority.

A general demurrer to pleas, confesses all the facts stated in them, provided such facts be well pleaded; and the Court will consider the entire record, and give judgment for the party, who on the whole appears to be entitled to it.

Pending an action of ejectment, the defendant therein, applied for an injunction to restrain the plaintiff from further prosecuting said action; and an order was passed directing the injunction to issue; the injunction bond was duly filed and approved, but no writ in fact ever issued. The ejectment suit, however, was entered enjoined. The condition of the bond was to prosecute the writ of injunction with effect. HELD:

That it was impossible for the obligor in the bond to prosecute with effect, a writ which never issued -- his responsibility, by the recital and condition of the bond did not commence until the writ issued -- and the obligee before he can maintain an action on the bond, must aver in his declaration, that the writ issued, that he had been restrained by it, that it had been dissolved or disposed of, and he must also assign a breach within the condition of the bond, according to its letter and terms.

Where an order is passed directing an injunction to issue, to restrain further proceedings in an action of ejectment, but no writ issues, but by agreement of parties, the suit is entered enjoined, and regarded and treated as if the writ had issued, the proper remedy for the obligee, for any damage sustained by being restrained from the enjoyment of the premises sued for, is on the agreement and not on the injunction bond.

A Court of Equity in vindication of its power and authority, will have its process respected, and will punish a party attempting to elude or evade it; but for not respecting the power of the Court, it will not impose a forfeiture of a bond conditioned to prosecute a writ of injunction with effect, irrespective of the existence of the writ.  

COUNSEL:
Andrew K. Syester, for the appellant.

The appellee's responsibility on the injunction bond must be determined, in the first place, by his covenants or stipulations as set out in the recitals and condition of the bond. This [**7]  bond recites, that he is about to obtain an injunction to stay certain proceedings at law; and then he stipulates and covenants to "satisfy and pay all damages occasioned by the stay of the legal proceedings."

Did he obtain, &c., "an injunction to stay" the proceedings recited in his bond? By the appellee it is contended that he did not, because no writ of injunction issued. On the contrary, it will be insisted by the appellant, that he did obtain such an injunction, and that the order of the Court, "granting the prayer" for the injunction, and the further order directing the writ to issue upon the appellee's filing a bond, &c., was, in fact and in substance, the injunction; and that the defendant in the injunction case, having full knowledge of all this, (being in Court when the order was pronounced and reduced to writing,) was as much bound to surcease his proceedings at law, as if a formal and technical writ had issued, and had been regularly served upon him. The question as to whether this order and the granting the prayer was, or was not, to all intents and purposes, the injunction, can only be determined by reference to the relations of the party to the Court of Equity.  [**8]  In what light does Chancery view orders such as these? And to what responsibilities does it hold parties who are the objects of such proceedings? These questions are distinctly answered by the following authorities, from which it will very clearly appear, that no writ is necessary to cast upon a defendant to a prayer for an injunction all the consequences and responsibilities of a breach of an injunction, when, after knowledge of the existence of an order, he ventures to disregard it: Osborne vs. Tenant, 14 Ves., 137; Skip vs. Harwood, 3 Atkyns, 564; Anon -----, 3 Atkyns, 567; Vansandau vs. Rose, 2 J. & W., 264; Kimpton vs. Eve, 2 Ves. & Be., 349; Drewry on Injunctions, 399, (36 Law Lib.;) Waterman's Eden on Injunction, p. 102, note 1; p. 96, note 2; Erie & Northeast Railroad Company vs. Casey, 26 Penn. Rep., 296; Endicott vs. Mathis et al., 1 Stockton's Ch. Rep., 114; Lawes vs. Morgan, 5 Price, 518.

But in addition to actual knowledge of all that had been decreed against him in equity, the appellant had appeared to the petition for an injunction without objecting to the irregularity, and thus had put it out of his power, at any subsequent stage of the proceeding, to deny its [**9]  force or take any advantage of the irregularity of the complainant's proceedings in any particular. He could no more have discharged himself of a contempt for breach of injunction, after this appearance and acquiescence, than he could have taken advantage of the want of a subpoena. His appearance had waived all irregularities, and failing to move immediately upon his appearance to dissolve or strike out the order, he is regarded in equity as acquiescing fully in its efficacy to restrain him, and could not be heard afterwards to impugn its power and efficiency in this behalf. Parker vs. Williams, 4 Paige, 439; Seebor vs. Hess et al., 5 Paige, 85; Waterman's Eden, 82, note 1; Patrick vs. Harrison, 3 Brown's Ch. Rep., 476; Attorney General vs. Nichol, 16 Ves., 338.

Again: Orders in Chancery are to be obeyed by all persons having notice of them, and upon whom they are intended to operate; hence restrictive orders, which are equivalent to injunctions, (Burch vs. Scott and Clapman vs. Thomson, in note, 1 Bland, 123,) "are treated as injunctions;" and the reason of this is, that these orders are passed restraining execution of decrees in Chancery, and operating upon persons already in [**10]  Court, and who are therefore charged with notice. The writ of injunction, which did not go in this case, could have performed no other office than to have acquainted the party with the order of the Court. See form and substance of such writ, 2 Harris' Entries, 557; 3 Daniel Ch. Pr., 1817.

And in the case of Summers vs. Farish, which was an action precisely like this, no writ issued; the party, however, having notice through the clerk, it was held that a formal technical writ was unnecessary. The omission to issue the writ may sometimes be invoked by a defendant in the injunction case to protect him against the punishment for contempt, where a complainant has lain by an unreasonable time; (James vs. Downes, 18 Ves., 524;) yet it is believed that no case can be found in which the complainant, after having enjoyed all the benefits of his injunction has been suffered to shield himself, in an action on his bond, under any such plea; he is estopped. Loomis vs. Brown, 16 Bar., 325.

These authorities all show that the order of the Court is not inoperative, or ineffectual to restrain; that it is mandatory and binding on the defendant who has notice, especially where he so far acquiesces [**11]  in its efficiency as to make himself a party to the case, without objection. And they demonstrate that under the facts in this case, the appellant would, in equity, be held and treated as enjoined. The bond recites that "an injunction is about to be obtained," &c., and then stipulates to pay all damages occasioned by this restraint; the pleas rely on the circumstance that no writ issued, and refer to but one of the conditions of the bond, wherein it is stipulated to "prosecute the writ with effect."

But in order to bar the appellant's right of recovery, each and every condition or stipulation in the bond must be shown to have been performed. Morgan vs. Morgan, 4 G. & J., 401.

Here there is no pretence that the damages occasioned by the stay of the action at law have been satisfied. The cases of Morgan vs. Blackiston, 5 H. & J., 61, and of Morgan vs. Morgan, 4 G. & J., 401, are relied on as showing the strictness with which Courts have treated such bonds. They are not cited as having any other bearing on this case. But these cases were fully considered in the case of Wallis et al. vs. Dilley et al., 7 Md. Rep., 237. In that case the obligor in the bond relied on the circumstance,  [**12]  that the bond recited that an injunction had been obtained; that is, that at the time of filing the bond, an injunction was already in existence; when the case showed that the obligee was suing for damages occasioned by a writ of injunction issued subsequent to the execution and filing of the bond. But the Court pronounced such an attempt a mere "burlesque on justice," and held the obligor liable on his bond.

Lastly: The narr. avers, that the writ did not in fact issue, but that the same was supplied by an agreement of counsel. It is submitted that this effectually concludes the appellee. And if that is not sufficient to estop him, certainly his "treating the suit at law as enjoined," his being in Court term after term, as "attorney of record" for the defendant in ejectment, and for over three years consenting, as that case was called, that it was "enjoined," imposes silence now, "when in conscience he should not speak." Van Renselear vs. Kearney et al., 11 How., 297.

Richard H. Alvey, for the appellee.

As to the sufficiency of the declaration on demurrer:

The condition of the bond is, to prosecute with effect a writ of injunction about to be obtained, not one that [**13]  had been obtained. The declaration avers that no injunction issued, and yet, in order to assign a breach of the condition, it was found necessary to allege that the defendant did not prosecute with effect a writ of injunction that never had an existence, and by which the plaintiff was never restrained. The recital and condition had reference to a writ of injunction that was to be obtained, and to give the plaintiff a right of recovery on this bond, he should have alleged and shown in his declaration the issuing of the injunction, the restraint thereby, and the failure of the defendant to prosecute with effect; which means failure to prosecute to a successful termination. The bond not reciting that the writ of injunction had been obtained, as in the case of Burgess vs. Lloyd, 7 Md. Rep., 178, but was about to be obtained, it was incumbent upon the plaintiff, suing upon the bond, to show, in his declaration, that the writ had been obtained, and that he had been restrained by it, and that it had been dissolved; otherwise there could be no breach assigned that would be within the letter and terms of the condition. In the case of Morgan vs. Blackiston, 5 H. & J., 61, it was decided, that [**14]  an injunction bond was only binding with reference to the judgment recited, and not another; and in the case of Morgan vs. Morgan, 4 Gill & John., 401, it was held, that it was no breach of an injunction bond conditioned for the prosecution of a writ of injunction with effect in the Court of Chancery, that it was not so prosecuted on the Equity side of St. Mary's County Court, in which the bond had been filed and approved, and from which the injunction had issued. And if in those cases where writs of injunction were actually issued, and the parties subjected to their restraint, there was no breach of the conditions because of the non-application of the letter of the bonds, a fortiori none where no injunction ever issued, and where the plaintiff was never restrained by the writ contemplated in the bond. The plaintiff therefore has shown no cause of action, and as the sufficiency of the declaration is brought into question by the demurrers, the defendant was entitled to judgment thereon. Morgan vs. Morgan, 4 Gill & John., 395; Burgess vs. Lloyd, 7 Md. Rep., 178; Jackson vs. Hanson, 8 Mees. & Wels., 477; Brackenbury vs. Pell, 12 East., 585, 588.

As to the effect of the demurrers:  [**15]  

It is a primary rule in pleading, that a demurrer admits all such matters of fact as are well pleaded. Washington and Baltimore Turnpike Road, 19 Md. Rep., 239.

And "the meaning of the rule is, that the party having had his option whether to plead or demur, shall be taken, in adopting the latter alternative, to admit that he has no ground for denial or traverse; which is one of the kinds of pleading. A demurrer is consequently an admission that the facts alleged are true; and therefore the only question for the Court is, whether, assuming such facts to be true, they sustain the case of the party by whom they are alleged." Steph. Pl., 143, side page.

As to the sufficiency of the pleas, the facts therein being admitted by the demurrers:

That the writ of injunction never issued, and that the appellant was never in any manner restrained from, or delayed in the prosecution of his action at law, would seem certainly to be a full and complete answer to an action on the bond, the gravamen of which is damnification suffered from the restraint and delay caused by an injunction, in recovering the land sued for in the action of ejectment. That the writ of injunction, contemplated [**16]  by the recital and condition of the bond, was never in fact brought into existence, and the appellant consequently suffering no restraint thereby, is certainly a sufficient answer to an action on the bond that can only be sustained by alleging and showing a failure to prosecute with effect a subsisting writ of injunction, whereby the plaintiff was restrained, and, by reason of such restraint, suffered damage. If for any other cause or reason than the operative restraint of the writ of injunction, the appellant desisted from the prosecution of his action of ejectment, he can clearly have no right of action on the bond, as the bond was intended only as an indemnity for the consequences of the contemplated writ of injunction. If by the allegation in the declaration, that the injunction, though never issued, was supplied by an agreement of counsel, that the cause proceeded as if the writ of injunction had issued, it be intended thereby to assert that the injunction was dispensed with, and that the agreement was to stand in lieu of it, then such allegation is fully traversed and denied in the fourth, fifth and sixth pleas. It is alleged by the appellee, in his sixth plea, that there was [**17]  no agreement of counsel made, dispensing with the issuing of the injunction as ordered by the Court, and to stand and be operative in lieu thereof, as if such injunction had in fact issued, and the plaintiff restrained thereby; but that the appellant, of his own free will and action, desisted from and failed to prosecute his action of ejectment. But how, when, and for what purpose was this injunction supplied? What reference had this supplying of an injunction, that never issued, to the bond, and the liability thereon of principal and surety. While it appears to be retrospective, it does not appear at what stage of the proceedings the agreement referred to was made, nor can it be gathered from the allegation whether it was intended to take the place of the injunction, and, if such was the import of it, the remedy would be upon the agreement, and not upon the bond. Freeman vs. Adams, 9 John., 115.

But any agreement, however, by which the bond could be changed, if it were possible to render it liable by an agreement, especially of a retrospective character, instead of a failure to prosecute an injunction, binding upon the party, to a successful termination, is denied by the pleas.  [**18]  

As to the notion, that because the appellant was aware of the order for the writ of injunction, therefore he could regard himself as injoined:

While this might be proper as a matter of prudence, under certain circumstances that did not exist in this case, to save the party from the consequences of contempt of the Court, the question is, could such prudential conduct of the appellant give him a right to claim a forfeiture of a bond conditioned to prosecute a writ of injunction with effect, irrespective of the existence of the writ? The bond is a pledge for the action of the party obtaining the injunction, not coercive of, or an inducement to the prudence of the party standing in fear of the Court. Until the writ was obtained, and the party actually restrained by it, the bond had no operation or force, for it was only in reference to a writ of injunction to be obtained that it was to be obligatory. But, inasmuch as the writ did not issue, the appellant would not have incurred contempt of Court by proceeding with his action at law. 3 Dan'l Ch. Pra., 1908; 1 Newl. Ch. Pr., 230; James vs. Downes, 18 Ves., 522, 525.

As to the effect of the judgment on the demurrers, sustaining [**19]  the sufficiency of the pleas, or any one of them:

Each of the several pleas is in bar of the action, and if either one of them be good, judgment of nil capiat follows, notwithstanding there may be an issue of fact. "Where," says Sergt. Williams, in note (1,) to 1 Saund., 80, "the defendant's plea goes to bar the action, if the plaintiff demur to it, and the demurrer is determined in favor of the plea, judgment of nil capiat shall be entered, notwithstanding there may be also one or more issues in fact; because, upon the whole, it appears that the plaintiff had no cause of action. So where several pleas are pleaded, all of them going to destroy the action, and one or more issues are joined on some of the pleas, and there are one or more demurrers to the rest, if the Court determine the demurrers in favor of the defendant before the issues are tried, they shall not be tried; and if after the trial, it will make no difference; for in each case judgment of nil capiat shall be given against the plaintiff." So, in Mansell on Demurrer, 93, (26 Law Libr., 62,) it is said, "if the demurrer be to one plea out of several, if they all go to destroy the action, and the demurrer be determined [**20]  for the defendant, judgment of nil capiat shall be entered, notwithstanding there be issues on other pleas." Tidd's Pra., 741, side; Clearwater vs. Meredith et al., 1 Wal. U. S. S. Rep., 25; Thompson vs. State, use of Admr. of Ford, 4 Gill, 163.  

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

OPINIONBY:
CRAIN 

OPINION:

 [*480]  CRAIN, J., delivered the opinion of this Court.
This was an action instituted by the appellant against the appellee on an injunction bond and the breaches are assigned in the narr.; the bond declared on was given on the 29th of March, 1855, and recited "that whereas the said George W. Smith is about to obtain from the Circuit Court for Washington County, sitting as a Court of Equity, an injunction to stay proceedings at law, in an action of ejectment lately exhibited in the said Circuit Court by the said Jacob Eakle against a certain Amos Eakle, and which is now pending in said Court, whereby the said Jacob Eakle seeks to recover certain lands in the declaration filed in said cause, mentioned. Now the condition of the above obligation is such, that if the said George W. Smith shall prosecute the said writ of injunction with effect, &c., then [**21]  the obligation to be null and void;" to this declaration the appellee, the defendant below, pleaded eight pleas, to all of which the appellant demurred generally, except the seventh plea, on which issue was taken--the appellee joined issue on the demurrer, and the Court rendered judgment in his favor.
A general demurrer to the pleas confesses all facts stated in them, provided such facts be well pleaded and the Court will consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it. Stephens on Pleading, 143, 19 Md. 239; 12 East., 385 to 388.
Upon all the facts stated in the declaration and the pleas, was the appellant entitled to maintain his action against the appellee? It is alleged that at the November Term, 1854, of the Circuit Court for Washington County, there was an action of ejectment depending in which Jacob Eakle, the appellant, was plaintiff, and one Amos 

 [*481]  Eakle was defendant, and that the case was entered enjoined at that Term of the Court. The bond on which this suit was instituted was executed on the 29th of March, 1855; after its execution, it is admitted no writ of injunction issued [**22]  and it is so stated in the plaintiff's declaration. The condition is to prosecute the said writ of injunction with effect, and if no writ of injunction issued in virtue of it, it was impossible for the appellee, the obligor in the bond, to prosecute with effect a writ which never issued; his responsibility by the recital and condition of the bond, did not commence until the writ issued.
In Burgess vs. Lloyd, 7 Md. 178, it was held the recital, that the writ of injunction had been obtained, operated as an estoppel, and the obligor could not deny it; in this case the recital is, that he is about to obtain an injunction, and the plaintiff, before he can maintain his action, must aver in his declaration, that the writ had issued, that he had been restrained by it and that it had been dissolved or disposed of.
The condition of the bond is made for the protection of the obligor, and until the obligee can assign a breach within the condition of the bond according to its letter and terms, he cannot maintain an action. The rule of law is, that the obligation is defined and limited by the terms of the condition, and cannot be extended beyond the legal import of the [**23]  words used in the condition. In a bond like this, the protection is extended to the principal as well as the security. It is a legal obligation to be discharged according to its condition, and cannot be enlarged or extended against the principal or sureties by implication or equitable considerations. This Court has very strictly construed injunction bonds. In the case of Morgan against Blackiston, 5 H. & J. 61, it was decided, that an injunction bond was only binding with reference to the judgment recited and not another. And in the case of Morgan vs. Morgan, 4 G. & J. 395, 401, it was held, that it 

 [*482]  was no breach of an injunction bond conditioned for the prosecution of a writ of injunction with effect in the Court of Chancery, that it was not so prosecuted on the Equity side of St. Mary's County Court, in which the bond had been filed and approved and from which the injunction had issued. In both of these cases, writs of injunction actually issued and the parties subjected to their restraint, yet it was held, that there was no breach of the conditions, because of the non application of the letter of the bonds. In this case no injunction ever [**24]  issued in virtue of the bond, and the appellant was never restrained by the writ contemplated in it.
But we are asked to construe this bond as applying to the entry in the ejectment case made at November Term, 1854, but we cannot so apply it, without violating the recital of the bond and its condition. No writ of injunction issued in virtue of the bond, and the appellant never suffered any restraint or damage from it. But it is alleged that this entry was made by the agreement of the counsel and was to stand in lieu of the writ of injunction. This averment was denied by the fourth and fifth pleas of the defendant, and by the demurrer of the plaintiff the facts relied on in them are admitted. But admitting that the agreement was designed to take the place of the writ of injunction, and the parties thought themselves bound by it and so treated it, the remedy of the appellant would be upon the agreement and not upon the bond. Freeman vs. Adams, 9 Johns. 115.
In the argument of this cause, it was earnestly urged by the counsel for the appellant, that as the appellee was aware of the order for the injunction, it was his duty to respect it and save himself from the [**25]  consequences of a contempt of the Court. It is true a Court of Chancery in vindication of the power and authority of the Court, will have its process respected, and will punish a party attempting to elude or evade it, but for not respecting the 

 [*483]  power of the Court, the appellant cannot claim a forfeiture of a bond conditioned to prosecute a writ of injunction with effect irrespective of the writ. In some cases Courts of Equity have granted injunctions without requiring more than a nominal bond, but a bond is given as a pledge for the action of the party obtaining the injunction, not coercive of, or an inducement to the prudence of the party standing in fear of the Court. Until the writ was obtained and the party actually restrained by it, the bond was inoperative and there could be no breach of the condition. 3 Daniels, Ch. Pra. 1908; 18 Ves. 522, 523.
Entertaining these views, we affirm the judgment with costs.
Judgment affirmed. 

11 of 120 DOCUMENTS 

GRORGE SMITH, Executor of JOHN HOYE and others vs. JEREMIAH L. TOWNSHEND and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 368; 1867 Md. LEXIS 55 

July 12, 1867, Decided 

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

Paul Hoye, of Washington county, died in 1816, leaving a will dated 9th of April, 1813, by which he devised and bequeathed to his son John Hoye, and to Leonard M. Deakins, and to the survivor of them, several tracts of land in Allegany county, together with all the stock and farming utensils on the farm whereon his son, William W. Hoye, then resided in said county, and also certain negroes, in trust to permit and allow the children of his son William W. Hoye, to have the use and enjoyment of the said tracts or parcels of land, together with the stock, negroes and farming utensils, and to have, receive and enjoy the rents, issues and profits of the same jointly and for their mutual benefit and support, but no part thereof to be subject to any debts contracted by his said son William. This trust was to continue and be in force until the death of his said son William, and until his youngest child should arrive at lawful age, when it was his will, and direction that the aforesaid land and negroes, with their issue should be equally divided amongst the children of his said son William or their representatives. And [**2]  further, that the said trustees should have the legal possession, management and direction of the aforesaid land and negroes, and the increase thereof, to and for the support and benefit of the children of his said son William, and likewise at their discretion they might allow to his said son William, any part or proportion of the said tracts of land and negroes and the increase thereof aforesaid, as from time to time they might think prudent and proper. And it was his further will and desire that should both the said trustees die before the trust thus reposed in them should be fully and entirely executed and discharged, that the Orphans' Court, for the time being, should appoint a proper person from time to time as the case might require, which said person or persons when so appointed, should have full and complete power and authority to execute and fully discharge the trusts aforesaid. He then appointed John Hoye and Leonard M. Deakins, his executors.

William W. Hoye died in 1836. He had eighteen children, and the youngest attained the age of eighteen on the 23d of July, 1852, and the age of twenty-one on the 23d of July, 1855. John Hoye proved the will of his father Paul Hoye,  [**3]  took out letters testamentary in the Orphans' Court of Washington County, and also entered upon the performance of the above trust on the death of his father in 1816, and continued to act as trustee in reference to the trust property, until his death in 1849, when Edward Hoye was appointed by the Orphans' Court of Allegany County, trustee in his place. Of the children of William W. Hoye, four died under age, intestate and without issue, thus making the trust estate consist of fourteen shares. John Hoye, the trustee, during his life, and whilst in the possession and active management of the trust property, obtained from his several cestuis que trust conveyances of twelve shares of the trust property, and of the real estate of which the said William W. Hoye, died seized in his own right. The two cestuis que trust who did not convey, were minors at the date of John Hoye's death. The main object of the bill in this case was to vacate and annul five of these deeds, viz:

1st. A deed from Catharine Ridgely, one of the daughters of William W. Hoye, to the said John Hoye, dated December 13th, 1848, by which, for the consideration of $ 300, the grantor conveyed absolutely to the grantee [**4]  all of her interest in the real estate of William W. Hoye, her deceased father, as also all of her interest in the trust property under the will of her grandfather.

2d. A deed from Thomas H. Armstrong and Maria Armstrong, his wife, the said Maria being also one of the daughters of the said William W. Hoye, dated August 17, 1848, by which, for the consideration of $ 300, all the interest of the said Maria in the real estate of her father, and all her interest in the trust property under the will of her grandfather, was conveyed to the said John Hoye absolutely.

3d. A deed dated June 3d, 1844, from Jeremiah L. Townshend and Tabitha, his wife, by which, for a like consideration of $ 300, all the interest of said Tabitha, another daughter, in the same property, was conveyed to the said John Hoye.

4th. A deed from Marine Drane and Mary Ann, his wife, dated February 22d, 1845, by which, for the consideration of $ 1,400, all the interest of the said Mary Ann, another daughter, in the same property, together with certain other real and personal estate which belonged to the husband, was conveyed to the said John Hoye absolutely.

5th. A deed dated April 25th, 1837, from George [**5]  W. Drane, by which, for the consideration of $ 500, all the interest of Eliza, another daughter, and of Samuel Hoye, a son, (two shares,) was conveyed to the said John Hoye absolutely.

The bill in this case was filed September 14th, 1850, by the parties, grantors in the above named deeds, and the heirs and representatives of those deceased, against the widow and executor of the trustee, John Hoye, and the devisees of his real estate, and the co-devisees of the complainants, under the will of Paul Hoye. All parties in interest were made parties to the suit.

The bill alleged that these deeds were executed by the cestuis que trust to the trustee during the continuance of the trust; that the consideration for which they were executed was totally inadequate to the value of the interests conveyed; that at the time of their execution the grantors had no proper information as to the extent and value of the property; that from the relations of trust and confidence existing between them and the trustee, the latter had valuable information as to the nature, extent and value of the trust property, which was not in their power or possession, and he was therefore enabled to purchase the [**6]  same at a price greatly less than its real value; that the trustee never gave them any information upon the subject of the said estate, but on the contrary, concealed and carefully kept from them all information as to the amount and value of the estate and the rents, issues and profits thereof. It was also charged that the trustee had received, or ought to have received, large sums of money for the rents and profits of the estate, and the hire of the negroes; that without authority he had sold and disposed of a large part thereof and received large sums of money therefor, which he had applied to his own private use, and had never accounted with the complainants or exhibited any account or statement of such rents, profits, hires, and proceeds of sale. The bill also charged that the said William W. Hoye died seized in his own right of a large and valuable real estate in Allegany county, which had descended to his heirs-at-law, and amongst which was a tract of land called "Western Canal Convention," containing 1,454 3/8 acres, patented to the said William on the 14th of August, 1827, and several other large and valuable tracts, the names of which were unknown to the complainants, and [**7]  the patents or other title papers for which, were in the possession of the executor of the said John Hoye. It further alleged that the youngest child of said William had attained the age of eighteen years, or lawful age, when, by the terms of the will, the trust property was to be divided; that the same, as well as the real estate, of which said William died seized, was incapable of a just and equitable partition amongst those entitled thereto, and the heirs-at-law of said William, and that it would be for the interest and advantage of all parties interested to have the same sold and the proceeds distributed. The prayer of the bill was for an account of the rents, issues and profits of the trust estate, and the proceeds of such as the trustee might have sold; for an exhibition and production of all patents or other title papers which were in the possession of John Hoye for any lands owned by William at the time of his death; for an account from Edward Hoye, the trustee appointed in place of John Hoye, deceased, of the trust property which came to his hands, and of the rents, profits and hires thereof; that the above mentioned deeds might be vacated, set aside and declared null and [**8]  void; that the trust property and the real estate of which the said William died seized might be decreed to be sold for the purpose of partition and for general relief.

The answer of Smith, the executor of John Hoye, admitted the will of Paul Hoye, and that his testator took upon himself the trust; that Wm. W. Hoye died in January, 1836, leaving the children whose names and ages were stated. It then averred that the whole trust property real, consisted of a part of "The Gleanings," and "Locust Thicket," in all 4,942 1/2 acres, and the personalty of a negro man Harry and a woman Rhoda, with her issue, and some farming utensils and stock of small value; that not more than sixty or sixty-five acres of the land were cleared and in cultivation, and in meadow, and the improvements of little or no value compared with those subsequently made by the trustee; that William was an indolent, intemperate and improvident man, and had a large family to support and no means therefor except this trust property; that he and his children lived upon, used and occupied it and enjoyed the use and profits of it up to the time of his death; that the same was totally inadequate for that purpose, and the [**9]  said John Hoye was obliged to furnish large sums of money out of his own funds for the clothing, support, maintenance, board and education of the children; that he also, from time to time, advanced large sums of money to clear and enclose more land for cultivation, to make improvements on the same, and that he paid all the taxes on the trust property. The answer then set out instances of such payments and advances derived from memoranda found among the papers of John Hoye, deceased. The defendant then, from the best information he had been able to obtain, denied that the said John sold any part of the trust property. He denied all knowledge of any fraud committed by the said John Hoye in obtaining the deeds, or either of them, mentioned in the bill, and on the contrary, from the best information he had been able to obtain, he believed and insisted, that said deeds were fairly obtained and were good and valid; that the grantors made them with full knowledge of the situation and value of the property and rights sold and conveyed by them, and that the said John did not withhold, conceal or keep from them any information in his power, as to the amount and value of the estate, and the rents,  [**10]  issues and profits thereof; that the grantors, Catharine, Maria, Tabitha and Mary Ann, were born and raised on the "Gleanings," and thus had personal knowledge of the property, and their husbands also lived in the county for many years before these sales, and had ample opportunities of knowing, and therefore, as he insisted, did know the value of the same, before they executed these deeds; that the husband Armstrong lived in the neighborhood of the property and knew it, and was on terms of long and intimate acquaintance with John Hoye, and had every opportunity of knowing the full value of the interest his wife and himself were about to sell, conferred with friends about the sale, and held the subject for a long time under consideration before it was made; that though the consideration stated in their (the Armstrong's) deed is $ 300, yet in fact the true consideration was a tract of land worth from $ 2,000 to $ 3,000, conveyed by the said John Hoye to trustees for the benefit of Mrs. Armstrong and her children; he therefore insisted that these deeds were good and valid and made upon a full and fair consideration.

In regard to the real estate of William W. Hoye, and particularly [**11]  the tract called "Western Canal Convention," he said it was true that the patent for it, and also for several smaller tracts were granted in the name of William, but that in equity, if not in law, the same belonged to the estate of John, he having taken up the same, surveyed them, paid the composition money, Land Office fees, and all costs and charges necessary to perfect the grants of them by the State; that he claimed them as his own, exercised acts of ownership over them as such, paid the taxes on them in the lifetime of William and ever since, and that William knowing he held all these lands merely in trust for his brother John, and that he was not the bona fide owner thereof, never claimed them as his own, or gave himself any trouble about them; that the reason why John had a number of patents for lands so taken up by him, issued in the name of William, was to facilitate his conveyance of the same, when from time to time he sold them, he, John, having frequently found difficulty in prevailing on his wife to join in the deeds to perfect the title in the purchasers; that he therefore to prevent this inconvenience and trouble, so arranged the matter with William, as to have the surveys [**12]  made and the patents issued in his name, with the understanding and on the trust that he would, whenever required by John, convey them to such person as John might designate, and in no event to hold and claim them as his own, but to hold them for John and subject to his control and as his lands; that frequently when John purchased lands from other persons, he had them conveyed to William for the reason and purpose aforesaid, and when he sold them William always conveyed them as directed by John. The answer then exhibited two bonds of conveyance from William to John, dated March 24th, and Sept. 16th, 1828, by which the former agreed to convey to the latter certain tracts of land therein mentioned, including "Western Canal Convention," whenever required. The answer then stated there were other tracts, subsequently to these bonds, in the same manner taken up and patented to William, which were particularly mentioned, viz: "Western Territory," 239 7/8 acres, "Williamsburg," 355 6-8 acres, "Shepherd's Tent," 656 3/4 acres, "Underdrop," 159 acres, and "Civicus," 100 acres; the patents for all which were then in defendant's possession, who found them among the title papers of John Hoye, who [**13]  held them from the time they were issued to the time of his death; but the answer insisted that these lands were also the bona fide property of John, and were held by William subject to the same trust and confidence on the part of William as those previously mentioned, and that respondent believed William would have conveyed the same to John had he lived a day longer, he having declared on his death-bed his anxiety to make a will directing their conveyance to John as the rightful owner of them; the defendant therefore insisted, that both in law and in equity, these lands formed no part of the real estate of William, and ought not to be divided among his heirs or sold for their benefit, but that they formed part of the real estate of John, and passed under his will to his devisees.

John Hoye and Edward Hoye, two of the sons of William, and cestuis que trust, but also two of the four principal devisees of all the real and personal estate of John Hoye, under his will, filed answers, in which they resisted the bill and insisted that the deeds assailed thereby were valid. The defendant John admitted he executed a deed to his uncle John Hoye, deceased, as stated in the bill, and he [**14]  averred he did the same with full knowledge of the extent and nature of his rights, and of the estate conveyed, and that his uncle never concealed or attempted to conceal from him any knowledge he had of the same. He further stated that so far from his uncle having concealed from him or his brothers and sisters any knowledge he might have of the value of the rents and profits of the trust estate, he always spoke very freely, fully, and as he believed frankly, upon the subject; that such was the nature and extent of the estate and the profits of the same, that it was known to all or nearly all of the parties entitled thereto, they being all born and raised on the real estate, and many of them afterwards living in the neighborhood, and able at any and all times they might desire it fully to inform themselves in relation thereto, he therefore, so far as he had any knowledge of the course and manner of dealing by his uncle with the trust estate and the cestuis que trust, and he was a close and interested observer of the same for many years, denied all concealment of information as alleged, and insisted that the deeds were valid and were made by the grantors respectively, with a full knowledge [**15]  of their rights and the value of these rights, it being in the power of each and all of them to inform themselves fully as to the nature, extent and value of the property so conveyed by them. The defendant Edward, adopted the answer of Smith, the executor, and made substantially the same allegations as to the deeds, as were contained in that of his brother John. Elizabeth Hoye, the widow of David Hoye, a deceased son of William, also filed her answer, which was not of importance.

Elizabeth Hoye, Elijah Bishop, and Ann his wife, and George Pearson, and Eleanor S. his wife, (being three of the cestuis que trust) answered, admitting the facts charged in the bill, and submitted to a decree. Hanson Jordan, and Marian D. his wife, (another cestui que trust,) answered, and admitted the main allegations of the bill, and insisted that they were deeply interested in the property, and were desirous of having the same sold, and submitted to a decree for that purpose. Two of the defendants, Elizabeth and Marian, never conveyed their interests to the trustee. All the infant defendants answered by guardian. An interlocutory decree was passed against Mary Hoye, the widow of the deceased trustee,  [**16]  John Hoye, and against Daniel J. Hoye, another of the cestuis que trust. Mr. Gordon was then appointed special judge in the case, and a commission issued and testimony taken which was directed to several points. In regard to the value of the trust property, the only point in the testimony to which particular reference need be had: according to the witnesses for the appellees (complainants below,) the share of the land owned by each cestui que trust, and conveyed by the deeds assailed, was worth at the lowest valuation $ 1,058.57, and at the highest valuation $ 1,765. According to the highest estimate made by the witnesses for the appellants, a child's share in these lands was worth at the time the deeds in controversy were executed, $ 530, and at the lowest estimate $ 353.

An opinion was delivered in the case by Mr. Gordon, but before decree passed he resigned his position as special judge, and Mr. Walsh was appointed in his place, who delivered an opinion, and on the 21st of September, 1859, passed a decree vacating all the deeds assailed by the bill, requiring an account from the executor of the deceased trustee, and decreeing a sale of all the real and personal estate mentioned [**17]  in the proceedings, and appointing a trustee to make the sale, for the purpose of partition.

On the 23d of November, 1859, after the passage of the decree, Daniel J. Hoye, one of the defendants against whom an interlocutory decree was passed May 13th, 1854, for failure to appear and answer, came in and without leave filed his answer, in which was set up the additional defence, that all the complainants had received pecuniary legacies bequeathed them by the will of John Hoye, and were therefore estopped from disputing the title of John Hoye to these lands, which he had devised for the purpose of raising the money to pay these legacies, &c. By the exhibits accompanying this answer it appeared these legacies were all, save one, paid by Smith, the executor of John Hoye, after the bill in this case had been filed. The defendants on the 22d of May, 1860, appealed from the decree, but the record does not appear to have been made out until the 12th of January, 1864, and was not transmitted to and filed in this Court until the 3d of February, 1865.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

Trustees and Cestuis que trust -- Purchase of Trust property by a Trustee -- Election -- Estoppel -- Vacation of Deeds to a Trustee from his Cestuis que Trust -- Jurisdiction of a Court of Equity to decree a sale of Trust property for the purpose of a Division.

The continuance of a trust is no valid objection to a bill filed by the cestuis que trust to vacate deeds of the trust property, taken from them by the trustee. As soon as the trustee departed from his legal duty by taking the deeds, the equity arose and the right to apply to have them vacated.

Cestuis que trust have at all times the right to call a trustee into a Court of Equity for the purpose of having an account of the trust property.

In order to support a purchase of the trust estate, by a trustee from the cestui que trust, it must appear that the trustee has thoroughly divested himself of that character in the transaction, and entered into a new and distinct contract with the cestui que trust, that person having the fullest information on every subject. There must be no fraud, no concealment, no advantage taken by the trustee of information acquired by him in that character.

A trustee purchased from his cestuis que trust, the trust property, and took conveyances for the same; afterward he died leaving a will, by which he bequeathed to the cestuis que trust, certain legacies. HELD:

That the legacies were not made a charge on the particular property derived under the deeds; that no case of election arose upon the will, and the cestuis que trust were not estopped from impeaching the deeds, by reason of having taken legacies under the will.

Where deeds to a trustee from his cestuis que trust of the trust property, are vacated upon their application, it is just and equitable that they should repay the purchase money with interest thereon, and the trustee be allowed such sums as may have been expended in repairs and improvements of a permanent character.

Upon competent and satisfactory proof that trust property is not susceptible of partition without loss and injury to the parties entitled thereto, and that a sale will be advantageous to them, a Court of Equity has jurisdiction and power, under the provisions of the Act of 1785, ch. 72, and its supplements, to decree a sale thereof, for the purpose of a division among the parties so entitled.  

COUNSEL:
J. H. Gordon and Thomas J. McKaig, for the appellants, contended:

That the deeds from the children of William W.  [**18]  Hoye to John Hoye, were good, notwithstanding the trust was technically continuing.

First. Because the rule of law is not that the trustee cannot buy from the cestui que trust, but only that the Court will scrutinize such sales closely.

Secondly. Because the grantors in those deeds were all of full age, and the daughters were joined by their husbands in the deed. It is not like the case of an infant whose lands have been sold by a trustee and purchased for him.

Thirdly. Because the grantors had lived all their lives upon the land; had been brought up by their father upon those lands. He was a land surveyor in that part of the county, and therefore knew the number of acres in every tract in that part of the county. John Hoye lived in Cumberland, sixty miles distant, and John Armstrong, a witness, says that John Hoye himself did not know the lines of the tract, but he cannot fix the time, but it must have been after the deeds were executed, for he says the patent issued since Hoye's death.

Fourthly. Because there could have been no concealment in relation to this land, as the grantors knew all about them.

Fifthly. Because these complainants knew that their uncle [**19]  had spent more in feeding, clothing and schooling them than the whole property was worth twice told, therefore there was nothing to sell but the land, and they knew its value. The boys were advanced in years, and the girls had their husbands and brothers to advise them.

Sixthly. Because John Hoye had no motive in cheating these grantors; they were his heirs-at-law; were brought up and educated by him, and not only got all this property, but all John Hoye's estate, and this is only a quarrel between the brothers and sisters as to its division.

Eighthly. Because independent of everything else he paid them a fair price, and as much as they could have sold it for.

Ninthly. Because they took their legacies under Hoye's will, and they cannot now be permitted to come in and claim the land which was expressly devised to pay these legacies. McElfresh, Adm'r, vs. Schley & Barr, 2 Gill, 181.

The appellants further insist that the decree for the sale obtained on the testimony of Thomas Devecmon, without notice, should alone be sufficient to set aside the decree. It was an important question whether the lands were capable of division, and the defendants had a right to notice [**20]  and an opportunity to produce their proof.

That the decree must be reversed as erroneous, because the Court did not pursue the mode prescribed by the Act of 1820, chapter 191. Stallings et al. vs. Stallings, 22 Md. Rep., 41, lately decided on appeal from Allegany county; Tomlinson et al. vs. McKaig et al, 5 Gill, 256; Chaney and Wife vs. Tipton et al., 11 Gill & John., 253; Wilhelm vs. Wilhelm, 4 Md. Ch. Dec., 330; Hughes' Case, 1 Bland, 46.

The will of Paul Hoye devises his estate to be held by the trustees for the benefit of the children of William W. Hoye, until their father's death, and until the youngest child should arrive at lawful age, and the bill was filed before the youngest child was eighteen years old, which could not be done.

If the Court should not reverse the decree, it ought to be sent back without affirmance, under the Act of 1832, chapter 302, section 6, for an amendment of the answers, and for additional evidence. Williams vs. The Savage Manufacturing Co., 3 Md. Ch. Dec., 420; White vs. The Okisko Co., 3 Md. Ch. Dec., 214; Buchanan et al. vs. Lorman et al., 3 Gill, 51; Young vs. Frost et al., 1 Md. Rep., 395; Stump et al. vs. Henry et al., 6 Md. Rep.  [**21]  , 201; Watson vs. Bane et al., 7 Md. Rep., 129, 130; Berry vs. The Convention of the Episcopal Church, 7 Md. Rep., 581.

Oliver Miller, for the appellees.

As to that portion of the decree which vacates the deeds. It is clearly settled that a trustee cannot purchase the trust property from himself or his co-trustee, either at public or private sale, and every such contract is voidable absolutely, at the instance of the cestui que trust, without regard to its fairness or any other consideration whatever. The relationship of the parties absolutely forbids the making of any such contracts; they are always set aside upon the proper and reasonable application of the parties interested. Richardson vs. Jones, 3 G. & J., 184; Mason vs. Martin & Kemp et al., 4 Md. Rep., 124.

It has been decided, however, in some cases that the same stringent rule does not apply to the case of a purchase effected by contract or agreement between the trustee and his cestui que trust, who is sui juris, and competent to deal independently of the trustee in respect to the trust estate. In other cases it has been argued with great earnestness and force, and decided, that the governing principle ought [**22]  to be and is the same in both cases. Between these two classes of cases this Court, in Hoffman Steam Coal Co. vs. Cumberland Coal and Iron Co., 16 Md. Rep., 506, declined to decide. They say, however, that the decisions which allow in any case of a purchase by a trustee from his cestui que trust, who is sui juris, hold and decide that the presumption of the law is always against the transaction; that the onus is always on him, to show the perfect bona fides of the transaction and circumstances which relieve it from the censure of the law. There must be the most perfect good faith, and the Courts will scrutinize and watch the transaction with the utmost diligence and vigilance; there must be no unfair advantage taken; no withholding or concealment of information; the dealing must be on equal terms, and at arms length; there must be no advantage taken by the trustee of information acquired by him in the character of trustee; the cestui que trust must be made aware he is dealing with his trustee, and all information possessed by the latter in regard to the extent and value of the trust property, the subject of the sale, must be imparted to the vendee. "It is a difficult case to make out,  [**23]  " (says LORD ELDON,) "whenever it is contended that the exception prevails," and but one or two cases, it is believed, can be found in all the books where, in the absence of laches, acquiescence or confirmation such a contract has been sustained. The authorities are numerous, and uniformly condemnatory of such transactions. Some of them, in addition to these already cited, are: Hill on Trustees, 785, 786; Story's Eq., secs. 321, 322, &c.; Fox vs. Mackreth, 2 Bro. Ch. Cases, 400; Campbell vs. Walker, 5 Ves., 678; Gibson vs. Jeyes, 6 Ves., 266; Ex parte Lacey, 7 Ves., 625; Ex parte James, 8 Ves., 348; Coles vs. Trecothick, 9 Ves., 234; Ex parte Bennett, 10 Ves., 385; Morse vs. Royal, 12 Ves., 373; Lowther vs. Lowther, 13 Ves., 102; Huguenin vs. Baseley, 14 Ves., 299; Lady Ormond vs. Hutchinson, 16 Ves., 106; Farnam vs. Brooks, 9 Pick., 224; Davoue vs. Fanning, 2 Johns. Ch. Rep., 252; 1 Lead. Cases in Eq., (White & Tudor,) 126, et seq.

Testing these deeds by the principles thus fully established, it is respectfully submitted that it is impossible to sustain them; for it is clearly enough proved that the price paid was utterly inadequate to the value of even the trust real estate conveyed [**24]  by them, and "mere inadequacy of price will go a vast way in the mind of the Court towards setting them aside. Morse vs. Royal, 12 Ves., 373; Pugh vs. Bell, 1 J. J. Marshall, 406; Hill on Trustees, 786.

It is also clearly proved that the trustee had information in regard to the extent and value of the trust property, which his cestuis que trust had not, and which he concealed from, or did not impart to them at the time he obtained these deeds. By the terms of the trust, he was to have the possession, direction and management of the trust property, and this alone raises the presumption of superior knowledge on his part. Again, he in fact had possession of all the patents, title papers, &c., showing the outlines and quantity of the land, and actually had it surveyed and laid out, and yet he fails to show that he ever exhibited these title papers, or gave to his cestuis que trust any information they might contain, or that he had gained by the survey as to the location and quantity of the land. The mode and manner of obtaining the deeds, his evidently eager desire to purchase out the interest of all the cestuis que trust, and to get the title to all the land in himself, the absolute [**25]  and entire confidence they reposed in him, and their depending upon him, the advice given them by Devecmon when the deeds were executed, all show that this transaction was not such a dealing between parties on an equal footing, and at arms length, as a Court of Equity in all such cases requires, and imperatively demand that these deeds should be set aside.

Most of these cestuis que trust were at the time of the execution of the deeds assailed, married women, under the disability of coverture, and therefore, not sui juris, within the meaning of that term, in the cases referred to. And in such a case, a trustee can never purchase, except by the authority of a Court of Equity first had, upon a bill filed by him for that purpose. 1 Lead. Cases in Equity, 129; Compbell vs. Walker, 5 Ves., 682; Mulvany vs. Dillon, 1 Ball & Beatty, 418.

The point raised in the answer of Daniel J. Hoye, that the complainants are estopped from claiming these lands, because they have received legacies under the will of John Hoye, even if it can be raised at this stage of the case, is not tenable. The will of John Hoye does not raise an election. It does not attempt or profess to dispose of any property,  [**26]  which these complainants claim in this case. If the "Gleanings," or any other particular piece of property claimed by these complainants, had been disposed of by name, then there might be an inconsistency between the taking of the legacies under the will, and the claiming such property by title paramount to the will. The intention to raise an election, must be clear and manifest from the will itself,--it cannot be proved by evidence dehors the will. And there must appear in the will or instrument itself, a clear intention on the part of the author of it to dispose of that which is not his own. By this will John Hoye does not profess to dispose of any property which is not absolutely his own. 1 White & Tudor's Lead. Cases, 259, 260, 273, 274, 275 and cases there cited; Hall vs. Hall, 1 Bland, 130, 135; Jones vs. Jones, 8 Gill, 203.

The attempt to set up title in John Hoye in the lands, of which William W. Hoye died seized in his own right, cannot be sustained. The legal title to these lands was in William, and there is no case made out to authorize a Court of Equity to interfere with that title. A resulting trust cannot be sustained, nor can it be insisted, that a Court of Equity [**27]  should interfere upon any of the grounds stated in the answers, or proved by the defendant's own witnesses. For if John Hoye had the legal title to these lands placed in William, in order to deprive his wife of her dower interest, in case she should refuse to unite in a conveyance of them, as stated in the answer, or for the purpose of preventing his creditors from reaching them, as proved by the defendant's witnesses; a Court of Equity will not in either case interfere, to aid such a transaction. Parker vs. Sedwick, 4 Gill, 318.

The other matters embraced in the decree, such as directing an account, &c., are all proper, because a cestui que trust has at all times, and as a matter of course, the right to call the trustee into equity, for the purpose of having an account of the trust property. The mode of stating the account, and what allowances are to be made, are all matters to be litigated after the decree passes. The decree for an account is a matter of right, where the relationship of trustee and cestui que trust is once proven to exist.

In support of the motion to dismiss the appeal, it is insisted that the same should be dismissed, because the record was not transmitted [**28]  to this Court within the time required by law, and it is shown that this delay was not occasioned by the omission, neglect or default, of the clerk. Code, Art. 5, secs. 8, 29, 30; Act of 1864, ch. 323; Act of 1842, ch. 288; Hannon's Excr's vs. The State, use of Robey and Wife, 9 Gill, 440; State, use of Farmers' Bank of Maryland, vs. Mackall, 11 G. & J., 456; Glenn vs. Chesapeake Bank, Alexander et al., 3 Md. Rep., 475; Dugan vs. Hollins et al., 11 Md. Rep., 41; Mayor, &c., of Baltimore vs. Reynolds, 18 Md. Rep., 270.

But no appeal lies from so much of the decree, as vacates the deeds, because, in the agreed statement of facts, it was agreed, that in the event that the Court should consider and decree, that any one of these deeds should be set aside, then the same shall be set aside, though the whole of them may not be decreed to be vacated, and there is no reservation of the right to appeal.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*386]  BARTOL, J., delivered the opinion of this Court.
The relief prayed by the bill in this case is, that certain deeds therein mentioned, made to John Hoye in his 

 [*387]  lifetime, shall be vacated [**29]  and set aside; that George Smith, executor of John Hoye, deceased, shall be required to render an account of the trust, which was vested in his testator by the will of Paul Hoye, deceased; and that Edward Hoye, the new trustee, may render an account of his trust, and that the real and personal estate so devised in trust by Paul Hoye, and the real estate of which William W. Hoye died seized, be decreed to be sold, and the proceeds thereof be divided among the complainants and other parties interested; it being alleged in the bill that the same is incapable of a just and equal partition among the parties entitled, and that it will be for their interest and advantage that the same be sold for the purpose of division.
The provisions in the will of Paul Hoye, creating the trust, directed that the trust should continue till the youngest child of William W. Hoye should arrive at lawful age. At the time the bill was filed, Maria D. Hoye, the youngest child, was a minor; and for that reason, the appellants have argued that the bill was prematurely filed, and that to grant the relief prayed would break up and destroy the trust. But the bill charges that John Hoye, the trustee, violated his [**30]  duty in purchasing the trust estate, and taking the deeds from the cestuis que trust; and so far as relief is asked in respect to the deeds, it is no valid objection to the bill that the trust was continuing. So soon as the trustee departed from his legal duty, in taking the deeds, the equity arose, and the right to apply to have them vacated. The bill also prays an account; and cestuis que trust have at all times the right to call a trustee into equity for the purpose of having an account of the trust property.
We concur in the conclusions expressed in the opinions of the special judges, Mr. Gordon and Mr. Walsh, that the deeds to John Hoye mentioned in the bill of complaint, ought to be vacated and set aside, so far as they 

 [*388]  purport to convey to him the interest and estate of the grantors in the lands devised in trust by the will of Paul Hoye.
The principles which govern Courts of Equity in dealing with transactions of this kind are fully stated in Hill on Trustees, 785, 785; 1 Story's Eq. J., secs. 321, 322, &c.; in Fox vs. Mackreth, 2 Bro. Ch. Cases 400; Ex-parte Lacey, 6 Ves. 626; Coles vs. Trecotheck, 9 Ves. 234, [**31]  and Morse vs. Royal, 12 Ves. 373, and by Chancellor Kent in Davoue vs. Fanning, 2 Johns. Ch. 252; and have been repeatedly recognized by this Court.
In order to support a purchase of the trust estate by a trustee from the cestui que trust, it must appear that "the trustee has thoroughly divested himself of that character in the transaction, and entered into a new and distinct contract with the cestui que trust, that person having the fullest information on every subject." "There must be no fraud, no concealment, no advantage taken by the trustee of information acquired by him in that character."
Without recapitulating the facts and circumstances of this case as disclosed by the proof, it is very evident that the grantors were ignorant of the quantity and value of the estate they were selling, no information on this subject appears to have been communicated to them by the trustee, who had possession of the title papers, and must be presumed to have known the extent and value of the property.
They looked upon him as their benefactor, and dealt with him under the influence of the most implicit confidence in his benevolent intentions [**32]  towards them.
According to the evidence the price paid was greatly inadequate to the value of the property conveyed by the deeds; and this is confirmed by the fact that the grantee promised to make other arrangements in satisfaction. Under such circumstances the conveyances to the trustee of the trust property cannot be sustained.

 [*389]  In the opinion of this Court, the complainants are not estopped from impeaching these deeds, by reason of their having taken legacies under the will of John Hoye. This question is not properly presented by the record, being raised by the answer of Daniel J. Hoye, filed irregularly after the passage of the decree, and without leave of the Court. But inasmuch as the case will be remanded for further proceedings, it is proper to express our opinion on this point.
The question of election does not arise upon the will of John Hoye. "The intention to raise an election must be clear and manifest from the will itself." Jones vs. Jones, 8 Gill 197; White & Tudor's L. Cases in Equity, 259, et seq. The legacies are not made a charge on the particular property derived by John Hoye under the deeds.
He devises only the property [**33]  that belonged to himself, and does not profess to devise by name or designation the trust property claimed by the complainants; there is, therefore, no inconsistency in their taking the legacies under the will, and claiming the trust estate conveyed by the deeds.
The deeds in question convey also the interest and estate of the grantors in the lands derived from William W. Hoye, and the decree passed by the Court below declared them to be invalid in that respect also, and set them aside in toto. This, we think, was error.
We agree with the opinion expressed by the Judge below, that there is no sufficient evidence of a resulting trust in John Hoye in these lands, and the appellants have failed to establish his title thereto as against William W. Hoye. But there is no reason why the deeds are not valid and effectual to convey to John Hoye all the estate held by the grantors therein. The deeds are not assailed as fraudulent in fact; there is no charge in the bill which affects their validity, except in so far as they purport to convey the property held in trust.

 [*390]  As to the rest, there was no disability in John Hoye to purchase; as to that property he was a stranger to [**34]  the title, not a trustee; the grantors were sui juris, and capable of executing a valid deed, and in the absence of the allegation and proof of fraud or mala fides in the transaction, the deeds, so far as they purport to convey the property derived from William W. Hoye have not been successfully impeached, and must be declared valid. In respect to that property, therefore, the complainants having no title or interest, have no equity to maintain this bill for the purpose of having a partition or a sale thereof.
We have said that the complainants are entitled to have the deeds cancelled so far as they purport to convey the trust property. In granting this relief, it is equitable that the complainants be required to repay the purchase money with interest thereon, and that the trustee should be allowed such sums as may have been expended in repairs and improvements of a permanent character; and these items, if such be proved, must enter into the account to be taken by the auditor. 1 Wh. & Tudor's L. Cases in Eq., 116, m.
In estimating the amount of purchase money actually paid for the trust property, it will be necessary to take proof of the value of the other property [**35]  conveyed by the deeds, and in respect to which they are valid, and the purchase money to be refunded, will be only the excess, if any, of the price paid beyond the value of the other property which passed by the deeds.
In our opinion the Court of Chancery has jurisdiction and power, under the averments in this bill, to decree a sale of the trust property for the purpose of a division among the parties entitled, upon competent and satisfactory proof that the same is not susceptible of partition without loss and injury to them, and that a sale will be advantageous to them. This question was decided in 

 [*391]  Billingslea vs. Baldwin and Wife et al., 23 Md. 85, and rests upon the construction of the Act of 1785, chapter 72, and its supplement. See also Earle vs. Turton, October Term, 1866.
In the record before us there is no competent and sufficient proof to authorize a decree to sell, the only evidence being that of Mr. Thomas Devecmon, which was taken irregularly under a commission executed without notice. To support the allegations of the bill in this behalf further proof is necessary.
Without affirming or reversing the decree of the Circuit Court, this [**36]  cause will be remanded under the Act of 1832, chapter 302 (Code, Art. 5, sec. 28), for further proceedings, that further proof may be taken, accounts stated and a decree passed in conformity with the opinion of this Court.
Cause remanded. 

12 of 120 DOCUMENTS 

GRAYSON EICHELBERGER vs. JOHN SIFFORD AND HENRY LORENTZ.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 320; 1867 Md. LEXIS 51 

June 28, 1867, Decided 

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

The facts of this case are sufficiently stated in the opinion of the Court.  

DISPOSITION:
Order reversed and procedendo awarded.  

HEADNOTES:

Practice -- Mandamus -- Power of Attorney -- Agents or Attorneys -- Desertion -- State Bounty -- Bounty Commissioner -- Certificate of Justice of the Peace -- Evidence.

Where in an answer to a petition both matter of law and of fact are presented in defence, it is incumbent upon the petitioner to take issue thereon, or to demur thereto.

Mandamus is a proceeding at law, in which matters of fact are decided by the jury, unless submitted by agreement to the Court.

A power of attorney given for a valuable consideration, is not revocable by the party himself.

The words "agents or attorneys," are not necessarily to be interpreted "attorneys in fact;" they may be construed to include assignees.

The desertion of a person who had enlisted and been enrolled in the army of the United States under the call of the President, and who for a valuable consideration assigned the State bounty to which he was entitled, is no bar to the payment of the same to his assignee.

The duty of the commissioner appointed under the Acts of Assembly authorizing the payment of bounties to enlisted men and others, is strictly ministerial, and upon his failure to pay the bounties so authorized a mandamus may issue to compel him to do so.

The certificate of a justice of the peace, of the execution and acknowledgment of a power of attorney, is not evidence per se of the facts certified.

Where a person executed a power of attorney by making his mark, which was tested by two witnesses, and acknowledged the same before a justice of the peace, the testimony of the justice or of one of the subsribing witnesses is requisite to prove the identity of the principal, and the execution of the instrument.  

COUNSEL:
A. Randall, (Attorney General,) for the appellant, argued:

That the Court below erred in issuing the mandamus.

1st. Because there was not sufficient evidence properly before the Court, to show that the power of attorney, under which the appellees claimed this bounty, as the assignees of James Rian, was legally executed by him. Acts of 1865, chaps. 33, 49 and 106.

2d. Because the said James Rian was not entitled to this bounty, having "deserted from the service and army of the United States immediately on and after his said enlistment, and having never rendered any service therein."

3d. Because the appellant is an officer appointed to exercise judgment and discretion in deciding to whom and under what evidence the payment of these bounties is to be made, and not a mere ministerial officer, and therefore he cannot be compelled by mandamus to act, as in this case he is required to do. Thomas vs. Owens, 4 Md. Rep., 189; Harwood vs. Marshall, 9 Md. Rep., 83; State, relation of McClellan vs. Graves [**2]  et al., 19 Md. Rep., 351; Green vs. Purnell, 12 Md. Rep., 329; State vs. Sterling, 20 Md. Rep., 502.

Oliver Miller and William H. Tuck, for the appellees.

The first and main objection made by the Commissioner to the payment of this bounty is, that Rian "deserted from the service and army of the United States immediately on and after his said enlistment, and never rendered any service therein." It is submitted that this is not a valid reason for refusing payment. The bounty laws of the State, under which the Commissioner was acting, (Acts of 1865, chapters 33 and 106,) do not, either in letter or spirit, say that desertion is a good plea in bar to the payment of the bounty. These laws say, that whenever, under the proclamation of the President of December, 1864, or any similar one thereafter to be made, the quota of Maryland shall have been ascertained and promulgated, "a bounty of $ 300 shall be paid to every volunteer or drafted man who may enter or shall have entered the military or naval service of the United States, and to every drafted man who may furnish or shall have furnished a substitute that enters such service in his stead, and to every man liable to draft who [**3]  may furnish or shall have furnished a substitute who so enters said service, or his authorized agent or attorney, and who shall be credited to the quota of the sub-district of the State where such volunteer enlists, or where such drafted men or man liable to service resides, the fact of such person respectively having so entered the service, and being so credited, to be first ascertained and certified as hereinafter directed." The mode of ascertainment of such entry and credit to the State and the agent by whom payment of the bounty is to be made, is then provided for simply thus: One Bounty Commissioner is to be appointed for each county and legislative district of Baltimore, who "shall have the right to draw from time to time upon the Comptroller for such sums as shall be required to pay the bounty therein authorized, to the men or their authorized agents or attorneys, who are credited to the sub-district within which said Bounty Commissioners are situated, the draft of said Bounty Commissioners to be affixed to a roll bearing upon it the names of the persons to whom said bounty is to be paid, and of the sub-districts to which they are credited as aforesaid, with a certificate thereon [**4]  endorsed from the Assistant Provost Marshal General for the State, declaring that the men thereon enrolled have been so credited to the quota of said sub-district, the said roll so certified and with the draft of the Bounty Commissioners thereon shall be retained by the Comptroller, and he, upon its receipt, shall issue the usual warrant to the Treasurer for the payment of the amount of said draft." Is it not too plain for argument, that under this law, the only conditions upon which the faith of the State to pay the bounty is plighted, are enlistment or entry into the service of the United States, and credit to the State on her quota under the President's proclamation? A party who enlists or enters the service and is credited to the State is entitled to the pay; in the words of the law, every such person "shall be paid" a bounty of $ 300. There are no forfeitures or conditions subsequent attached. The record shows that all the conditions entitling Rian to his bounty were complied with. He enlisted in the 3d regiment of the Potomac Home Brigade, under the proclamation of the President of December, 1864, and was credited as part of the quota of Frederick district, in the county of Frederick,  [**5]  under the call or proclamation. His name with others was on the roll of names of persons to whom bounty was to be paid, on which the Commissioner drew his draft upon the Comptroller, and that roll had endorsed thereon the certificate of the Assistant Provost Marshal General for the State, declaring that the men thereon enrolled had been duly credited to the sub-district, and the Commissioner received from the Treasury the money to pay him. With his desertion from service an hour or a day or a week or a year thereafter, the State had nothing to do, and never in the passage of these bounty laws designed to have anything to do, or ever authorized any of its agents in the disbursement of the money to look to or consider it for a single moment. The State performed her duty when she put into the service of the United States her quota of men. It was the duty of the General Government and the officers of the army to keep them in service after they once got hold of them. The Government had abundant power to do this, and if every man from every State had deserted, the power to make new calls and demand new quotas existed still. The State had no power over the enlisted man to keep him in service,  [**6]  and never intended to impose, or at least never has imposed, any penalty for his desertion. If the State had been clothed with the power, or the duty had been devolved upon her to keep her men in service, it is probable the bounty laws would have provided penalties and forfeitures for desertion, and in such cases would have postponed payment of bounties until an honorable discharge or death in service, had entitled the parties thereto. Nothing of the kind is provided for in these laws of 1865. The payment is to be made at once. The Bounty Commissioners are to draw from time to time, make disbursements, and make reports of such disbursements every three weeks, "until the quotas of each county and the city of Baltimore shall have been filled." The exigency at the time upon the citizens of the State was such that any postponement of payment, or the right to payment, would have utterly defeated the object of the law. It is impossible therefore that the Legislature could have contemplated that desertion after enlistment, and credit to the State, should have defeated such payment or right of payment. The language of the laws are clearly against, and the circumstances under which they were [**7]  passed clearly forbid, any such construction being placed upon them.

Another objection to the mandamus is, that the Commissioner was required to give a bond in the penalty of $ 20,000 for the due performance of his duties, and was required to pay to each person named on the rolls, and entitled thereto, or to his duly authorized agent or attorney, the sum of $ 300, and that there is no evidence to satisfy either the Court or the Commissioner that the person who executed the power of attorney filed with the application was James Rian, or the James Rian named in the roll, or that the petitioners are the authorized agents of the James Rian named in said roll, and without such evidence he might pay the money wrongfully, and thus be compelled to pay the same money again to his detriment and loss.

As to the bond of $ 20,000 required by the law to be given, (and which in the case of the particular Commissioner in question might, from his well known responsibility, high character and integrity, have been dispensed with altogether,) the obvious design of the law was to provide a security to the State, as in the case of all other officers having custody of public moneys, such as the [**8]  Treasurer, &c., against the embezzlement or application of it to their own uses, or to uses utterly foreign to the purposes of the law. It is respectfully submitted that if all the men who enlisted or entered the service under this call, in Frederick county, and were credited thereto, had been paid their bounties, and then the day after had deserted, no recovery could have been had by the State on this bond, nor any forfeiture thereof incurred thereby. Having taken the precaution to obtain the certificate, the Assistant Provost Marshal General for the State declaring that the men named on the roll had been credited to the State's quota for his district, he was perfectly safe, so far as suit upon his bond was concerned, in paying them.

As to the fact that under the provisions of the Acts of Assembly, and by giving his bond, and receipt for the money from the Treasury, the Commissioner was required and became liable to pay to each person, or his duly authorized agent or attorney, named on the rolls, (on which the Commissioner had drafted on the Comptroller for the money, and received it from the Treasurer,) and entitled thereto, the sum of $ 300, there is no dispute on the part [**9]  of the appellees; it is just the position they maintain. As to the assertion that there is no evidence to satisfy the Court below or the Commissioner that the person who executed the power of attorney was James Rian, it is submitted respectfully, that whatever evidence may have been required to satisfy the Commissioner's mind on this subject, there was evidence abundantly sufficient to satisfy the Court below, or any other reasonable Court, on the subject. The paper on its face purports to be signed by James Rian, was signed in the presence of two witnesses, one of whom was a justice of the peace of Frederick county, and who states that James Rian was known to him to be the identical person he describes himself to be in the power of attorney, and that he appeared before him personally and acknowledged the said power of attorney to be his act. The same observations are applicable as to the evidence of identity of the Rian who executed the power of attorney with the Rian named in the roll, and that the appellees are his duly authorized attorneys.

As a further objection, the Commissioner insists that he is not a ministerial officer, but by the terms of the Acts of Assembly and of [**10]  his appointment, and of the duties to be performed by him, he must necessarily be vested with a discretion and exercise his judgment for the protection, not only of himself, but also of the State, so that the moneys placed in his hands shall not be paid to any others but those actually entitled thereto under the provisions of said Acts of Assembly, and that, therefore, a writ of mandamus cannot properly issue.

It is submitted that the act, the performance of which is sought to be enforced in this case, is purely ministerial, and does not involve the exercise of any judgment or discretion whatever. The law provides that a specific sum of money shall be paid to certain designated persons, and appoints the officer or agent to make the disbursement, and puts the money in his hands for that specific purpose. He is to affix his draft to a roll bearing the names of the persons to whom the bounty is to be paid, which roll is to have thereon a certificate from the Assistant Provost General for the State, that the men thereon enrolled have been duly credited to the State. All this was done in this case, and the Commissioner obtained the money on his draft. It then became his duty to pay [**11]  the $ 300 to each person, or his authorized agent or attorney, named on said roll so certified. Nothing could be more purely ministerial than the performance of such an act. There is no room left for discretion or the exercise of judgment. He is not clothed with the power of adjusting and settling the accounts of the parties named on the roll, but he is commanded by the law to pay to each of them a specified sum of money. The case clearly comes within the jurisdiction of the Court to grant a mandamus. Thomas vs. Owens, 4 Md. Rep., 189; Green vs. Purnell, 12 Md. Rep., 329; Tapping's Mandamus, 64, 65, (76 Law Lib.) 

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

OPINIONBY:
BOWIE 

OPINION:

 [*327]  BOWIE, C. J., delivered the opinion of this Court.

 [*328]  This appeal is taken from an order of the Court below, passed on the application of the appellees, directing a peremptory writ of mandamus to issue to the appellant, the State Bounty Commissioner for Frederick County, under the Acts of Assembly of 1865, chs. 33 and 106, commanding him to pay to the appellees, the authorized attorneys of James Rian, the State bounty of three hundred dollars, due and owing to him [**12]  as a volunteer duly enlisted, enrolled and mustered into the army of the United States, under the call of the President of the 19th of December, 1864, and credited as part of the quota of the Frederick district, in Frederick County.
The appellant's answer admits that Rian enlisted and was credited as part of the quota of Frederick district, that the appellant drew from the Treasury the sum of $ 300 for each person so enlisted and has the money now in his possession, but the appellant refuses to pay the appellees, first, because Ryan deserted from the army of the United States, immediately on and after his enlistment and never rendered any service therein.
For further defence, the appellant alleges, that he is required to pay to each person named on the rolls, and entitled thereto, or to his "duly authorized agent or attorney," the sum of three hundred dollars, and there is no evidence to satisfy the Court or the respondent of the identity of the said Rian, whose signature purports to be affixed to the power of attorney, or, that the appellees are his authorized agents or attorneys.
And for further cause, the appellant avers he is not a ministerial officer, but by the terms of the [**13]  Act of Assembly, and the nature of his office, he is vested with a discretion, and therefore a writ of mandamus should not issue against him
The appellant's answer presents both matter of law and matter of fact in defence, verified by his affidavit. It was incumbent upon the petitioners to take issue, or 

 [*329]  demur to these several defences. The record does not show either issue joined or demurrer entered. The Court below proceeded to act upon the petition and answer, without evidence, except the power of attorney and justice's certificate filed with the petition. There was no agreement as far as appears of record, that the issue of fact should be determined by the Court.
There being no such submission of the facts to the Court, they could not properly be decided by it; a mandamus, is a proceeding at law, in which matters of fact are decided by the jury, unless submitted by agreement to the Court. Code of Pub. Gen. Laws, Art. 59, sec. 1.
It may be said this objection was not made below; it is evidently presented by the answer. Assuming the fact to be established, the questions of law raised by the answer, which in that respect may be considered a demurrer to the petition,  [**14]  (the fact of desertion not being denied,) recur. The first consideration in this review of the case is, whether the petitioners sue "suo jure" or "alieno jure." They pray for a mandamus, commanding the appellant to pay to them, as "the authorized attorneys of James Rian"-- but they claim it under a power to receive it for their own use and benefit.
This power, if executed by the principal, is not a revocable power, but a power coupled with an interest, which passes all the right, title, and claim of the principal, if given for a valuable consideration--but although not revocable by the party himself, it would seem to be revocable by his death. 2 Kent's Comm., 857, 861, (top paging.)
If the petitioners have a right to claim "suo jure," that right cannot be affected by anything which occurred after the enlistment of the volunteer. The Acts use the words "authorized agents or attorneys," which the appellant contends do not include assignees.
These terms must receive such construction, as is most consonant with reason and policy. The words "agents 

 [*330]  or attorneys" are not necessarily interpreted "attorneys in fact." The verb "attorn" among other meanings,  [**15]  has "to transfer or turn over to another. "Attorney" is one put in place of another. The references before made, show powers of attorney are both revocable and irrevocable. There is nothing either in the policy or letter of the law, which authorizes us to give the word "attorneys" its more limited sense. On the contrary, interpreted by the light of experience, such acts could hardly have been executed, if the bounty were payable only to an attorney "en autre droit."
Regarding the law as warranting the payment of the bounty to attorneys for a valuable consideration, desertion after the assignment, cannot be any defence or reason for non-payment.
The word "bounty" ex vi termini, implies a gratuity, not compensation, an inducement to enlist. It was not paid only to the man who volunteered and served, but to every drafted man who furnished a substitute. However ignominious and disreputable desertion may be, it is not followed by forfeiture of the bounty in such a case as this, and it is not necessary to go further to lay down general rules. The duty of a Bounty Commissioner is as strictly "ministerial" in the legal sense of that word as can well be conceived. Ministerial [**16]  is used in opposition to "discretionary power or authority." The office is that of a clerk acting under provisions of the law of the utmost simplicity.
Like the Treasurer in the case of Thomas vs. Owens, 4 Md. 189, he had only to disburse the public money upon the production of the certificate of the Provost Marshal, or the presentation of a power of attorney duly authenticated.
The Bounty Commissioner must use due caution to prevent fraud or forgeries, but so must every man acting in any official capacity. The Treasurer must be satisfied 

 [*331]  that the warrant of the Comptroller is genuine; yet it was held in the case of Owens, before cited, if a proper warrant were drawn by the Comptroller and presented to the Treasurer, the duty of the latter was purely ministerial, and if payment were refused, a mandamus was the proper remedy.
We have said the issue of fact presented by the answer had not been proved. There is no Act of Assembly in this State, making the certificate of a justice of the peace of the execution and acknowledgment of a power of attorney, evidence per se of the facts certified.
The magistrate or one of the subscribing witnesses,  [**17]  the principal having made his mark, should have been called and examined to prove the identity of the person and the execution of the instrument. In the absence of such proof, the Comptroller was justified in withholding payment. The order granting the mandamus being premature, the same will be reversed and procedendo awarded.
Order reversed and procedendo awarded. 

DISSENTBY:
WEISEL 

DISSENT:

WEISEL, J., delivered the following dissenting opinion:
I am constrained to dissent from some of the views of my brothers expressed in their opinion in this case, agreeing with them, however, in the reversal.
The appellees are the assignees of the bounty, but took a power of attorney to enable them to receive or collect it. The petition and power of attorney both assert this character of the claimants.
In the argument it was contended on the part of the appellant that the bounty, by the express terms of the Acts of Assembly, was to be paid by the Bounty Commissioner to the volunteer or drafted man, or to his substitute, entering the service of the United States under the call of the President mentioned therein, or to his 

 [*332]  authorized agent or attorney; and that there is no authority [**18]  for paying it to an assignee, the letter as well as the spirit of the law designing the soldier entering the service to be the recipient, by himself or his agent or attorney, of the bounty; and that this design of the law would be frustrated, the public service impaired, and the Treasury defrauded by a different construction, or by a payment to any but the persons designated by the Act. This position, I think, is the true one. Whilst on the one hand it secures to the honest soldier the full benefit of the bounty and protects him against designing men and evil practices, it secures to the public the best services when danger calls for them, and gives the proper direction to the funds, raised to reward those who are ready to peril person and life for the public safety. The law is studiously careful throughout in the use of language restricting the payment to the volunteer or drafted man, or his substitute, or his authorized agent or attorney. Public policy forbids such assignments, unless the law which creates them, expressly, or by necessary implication, allows them; and they will not be upheld either in equity or at law. So it has been decided repeatedly in the English Courts with [**19]  regard to the full or half pay of an officer in the army or navy, which is not assignable either by the party or by operation of law. In such cases the object of the Government is to command a right to his future services, and to enable the party to perform the duties with suitable means to support him. And Judge Story thinks that the same principle should be applied to pensions, although they are allowed for past and not future services. It applies with great force to bounties which are given as additional inducements for services to be rendered. They are in the nature of rewards; otherwise they would be a vain and extravagant gratuity, and in such case every consideration would confine the gift to the donor. The want of a consideration would deprive it of 

 [*333]  the main attribute of a contract and divest it of any assignable quality. 2 Story's Eq. Jur., sec. 1040, (d,) and 1040, (e.)
There is an obvious distinction between an assignee, with a power to collect, and an agent or attorney duly authorized to receive. The assignee collects for himself, and may have paid but a small consideration for the bounty. The agent or attorney contemplated by the law collects or [**20]  receives for his principal, who gets the full amount for himself, with only such deductions or commissions as may be allowed the agent for his services. It is true, an assignee may impose himself upon the disbursing officer as an agent with a power of attorney, and succeed in obtaining the money, but where the true character of the applicant is known, that officer is acting strictly within the line of duty and the provisions of the law, by refusing payment.
I concur that a mandamus is the proper remedy. But the applicant must bring himself within the terms of the law. The Commissioner must be satisfied that the person applying, by himself or agent, is on the roll containing the names entitled to the bounty drawn from the Treasury; and in case the application be made by an agent he is to be further satisfied of his appointment or authority as such. But in determining these he acts ministerially. As a public officer and accountable to the Comptroller of the Treasury, (Const., Art. 6, secs. 3 and 14 Md. 369,) it is his duty to pay to the right person, and have the proper voucher.
The words "agent and attorney," in the Acts of Assembly mean, in my judgment,  [**21]  the same thing. An agent who acts with a formal power of attorney is denominated an attorney in fact.
It appears from the answer of the appellant, uncontradicted by anything in the record, that the James Rian who enlisted and assigned his bounty thereupon to the appellees, 

 [*334]  "deserted from the service and army of the United States immediately on and after his said enlistment, and never rendered any service therein." The party himself, or his agent, in the face of this fact, could not have received his bounty after enlistment and after desertion had he applied for it, unless the Legislature of Maryland intended to offer a bounty for desertion and not for service, which can scarcely be pretended. And if the bounty were paid to him and he afterwards deserted, I hold that an action would lie for the recovery of the bounty thus paid, and of which the State was defrauded.  

13 of 120 DOCUMENTS 

HUGH GELSTON AND WOLF M. MEYENBERG vs. ALBERT SIGMUND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 334; 1867 Md. LEXIS 52 

June 28, 1867, Decided 

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

DISPOSITION:
Orders reversed and bill dismissed.  

HEADNOTES:

Specific Performance -- Injunction -- Agreement -- Practice.

Where the object of the bill in equity is to obtain the specific performance of a contract, and the writ of injunction is asked for as ancillary thereto, the writ cannot be maintained unless the case presented by the bill would authorize a Court of Equity to enforce the contract.

Every agreement to merit the interposition of a Court of Equity to enforce it, must be fair, just, reasonable, bona fide, certain in all its parts, mutual, &c., and if any of these ingredients be wanting, Courts of Equity will not decree a specific performance.

An agreement by A. to let B. retain possession of certain property from the 1st of July, 1866, to the 1st of July, 1867, upon his giving the same rent that A. "might be able to obtain from other parties," is not such an agreement as a Court of Equity will enforce. It lacks certainty and mutuality.

In a summary proceeding by a landlord to eject his tenant, the latter is entitled to avail himself by way of defence, before the justice of the peace, and in the Court of Common Pleas on appeal, of whatever equitable right or claim he may possess under a contract for the renewal or extension of his lease; and if the matter be decided against him in that tribunal, he is not entitled to resort to a Court of Equity for relief.  

COUNSEL:
Thales A. Linthicum and P. M'Laughlin, for the appellants.

The object of the original and amended bill filed in the Court below, was to obtain the specific performance of a contract, and an injunction as auxiliary thereto. The contract sought to be enforced was, that the appellant Gelston, during the year 1865, agreed to let the appellee retain possession of certain premises in the city of Baltimore, fronting on Charles and Baltimore streets, from the 1st of July, 1866, to the 1st July, 1867, upon his giving said Gelston the same rent he might be able to obtain from other parties, and that he would give him a memorandum in writing to that effect during the term of the running lease, at the usual time of renewal, in or about the month of April, 1866.

And this being the case made by the bills, no other contract than that set forth can be enforced. Chesapeake & Ohio Canal Co. vs. Young, 3 Md. Rep., 490; Mundorf and wife vs. Kilbourn and Howard, 4 Md. Rep., 459; Stoddert et. al. vs. Bowie's Exc'r, et. al., 5 Md. Rep., 18; Smith vs. Crandall, 20 Md. Rep., 500; and also the case of Carr &  [**2]  wife et. al. vs. Hobbs, Adm'r of Bell, 11 Md. Rep., 285, where the Court recognized the same principle as to bills, to enforce the vendor's lien.

The injunction being merely ancillary to the relief prayed by the bill, if it appear that final relief cannot be granted upon the case made by the bill, the injunction should not be granted. Geiger vs. Green, 4 Gill, 472; Allen vs. Burke, 2 Md. Ch. Dec., 534.

And the injunction will not be maintained or continued, unless the case presented by the bill would authorize the Court to enforce the contract.

The specific execution of a contract is not a matter of right in the party applying for it, and to be demanded ex debito justitiae, but it rests in the sound and reasonable discretion of the Court, to grant or refuse it according to the circumstances of each case. Duvall vs. Myers, 2 Md. Ch. Dec., 401; Seymour vs. Delancey, 6 Johns. Ch. Rep., 222. And the Court may withhold relief where, under the circumstances, the decree would be inequitable, Waters vs. Howard et. al., 8 Gill, 283; or where the decree would produce injustice or litigation; 2 Story's Equity, secs. 750, 769.

The contract to be enforced must be fair, just,  [**3]  reasonable, equal in all its parts, certain, mutual and founded on an adequate consideration, and in cases falling within the Statute of Frauds, must be in writing. And if any one of these ingredients be wanting, Courts of Equity will not decree a specific performance. And it is enough to doubt on any of these points to refuse relief. Geiger vs. Green, 4 Gill, 472; Mundorff &c. vs. Kilbourn & Howard, 4 Md. Rep., 459; Stoddert et. al. vs. Bowie's Ex'r et. al., 5 Md. Rep., 35; Smith vs. Crandall, 20 Md. Rep., 482; Duvall vs. Myers, 2 Md. Ch. Dec., 401.

Applying these rules to the contract stated in the bills, it will be found:

1st. That the alleged contract is without consideration to support it, and is a mere naked proposition and never accepted by the appellee. Geiger vs. Green, 4 Gill, 472.

2d. The alleged contract is not set out with sufficient certainty to enable the Court to decree its execution; or in other words, the bill does not state a contract certain and definite as to its terms or duration, in that it does not show certainly when the renting is to end. Allen vs. Burke, 2 Md. Ch. Dec., 534. It being stated to continue from time to time as long as the appellee [**4]  will pay as much rent as any one else. The terms of the contract as stated are void for want of certainty, the rent to be paid is as much as Gelston might be able to obtain from other parties. Bromley vs. Jefferies, 2 Vernon, 415; Smith vs. Crandall, 20 Md. Rep., 500; Whitelock vs. Duffield, 1 Hoffman, (N. Y.,) 110; Abeel vs. Radcliff, 13 Johns., 297.

3d. It wants the essential ingredient of mutuality. It imposes no obligation and is not compulsory, and contains no mutual or reciprocal engagements. It gives the appellee a mere privilege to be exercised or not at his own pleasure, and he might refuse to continue his renting or pay the rent offered by others, and Gelston has no power or right to enforce or compel him to remain as tenant on any terms. Bromley vs. Jefferies, 2 Vernon, 415; Duvall vs. Myers, 2 Md. Ch. Dec., 401; Allen vs. Burke, 2 Md. Ch. Dec., 534; Smith vs. Crandall, 20 Md. Rep., 500.

And a party not bound by the agreement itself has no right to an enforcement by expressing his willingness to perform his part of the agreement. His rights depend not upon his subsequent offer, but upon his original obligation. Duvall vs. Myers, 2 Md. Ch. Dec., 401.

And the [**5]  claimant does not even state his willingness to pay as much as Meyenburg.

4th. It is such a contract as is required by the Statute of Frauds to be in writing. The bill states the alleged agreement to have been made in the year 1865, (in or about April,) after the signing of the memorandum for the renewal of the lease. This statement then shows a contract not to be performed within one year from the making thereof. It is a contract which could not have begun until after fifteen months from the making of it. Confining the attention then to the case made by the bills, and examining the averments as therein stated, it is apparent that upon the case made, the injunctions should not have been granted. No ground is stated for equity to interfere by injunction. The bills do not allege irreparable damage, or show how the appellee will be injured beyond the power of a Court of law to redress. A mere statement that the injury complained of or apprehended, is or will be irreparable, is not sufficient. Appealing to the conscience of the Court, the party should by averment, set forth the facts which show the apprehension of injury to be well founded. White vs. Flannigan, 1 Md. Rep., 539; Roman [**6]  vs. Strauss, 10 Md. Rep., 96; C. & O. Canal Co. vs. Young, 3 Md. Rep., 480.

And chancery will not interfere where the party's own neglect or default has made an application to equity necessary. Little vs. Price, 1 Md. Ch. Dec., 182; Dilly and Heckrote vs. Barnard, 8 G. & J., 170; Gott and Wilson vs. Carr, 6 G. & J., 312.

The bills show that the appellee's term of renting expired with the first day of July, 1866, that his interest in the premises had determined, that he had been regularly notified to quit the occupation of the same, and his refusal and neglect to do so at the end of the term. That he was made aware shortly after receiving notice to quit, of the agreement between Gelston and Meyenberg, and of the full extent of Meyenberg's interest thereunder. That the Court of Common Pleas had already passed upon and adjudged the contract set forth in the bill, was not a valid legal contract. Upon this state of facts, as presented by the bills, it will be insisted that the injunction ought not to have been granted, and it having been so improvidently granted, that the orders granting the same ought to be overruled or reversed, and the bill dismissed.

1st. Because the [**7]  complainant's claim is without merit, he having no right, title or interest in or to the premises mentioned.

2d. Because he had full notice and ample opportunity to make his defence at law, and to present the same facts stated in his bills as the ground of his defence.

3d. That the facts stated in the bills were in fact presented as a defence by the complainant in the action at law in the Court of Common Pleas, and passed upon by the said Court.

4th. That the Court of Common Pleas being a Court of competent jurisdiction, and having the right to determine such cases on appeal, according to the law and the equity, and the right of the matter, and the facts stated in the bill having been presented for its consideration and judgment, the judgment of that Court thereon is conclusive and final. Lyday vs. Douple et al., 17 Md. Rep., 188; Gott and Wilson vs. Carr, 6 Gill & Johns., 312; Briesch vs. McCauley, 7 Gill, 189; Chappell et al. vs Cox, 18 Md. Rep., 513.

And a Court of Equity cannot interfere by injunction, and is without jurisdiction to review the decision of said Court, as to do so would in effect be to entertain an appeal from the verdict and judgment of that [**8]  Court. Contee vs. Cooke 2 H. & J., 179.

5th. The application for an injunction to restrain the argument of the motion for a new trial, besides being in violation of the Bill of Rights and the Constitution of this State, shows that it was the purpose and intention of the complainant to hinder and delay the appellant Gelston in obtaining a prompt decision upon his rights, and is an evasion of the provisions of the law of this State relating to landlord and tenant.

6th. That the injunction in this case should not have been granted without notice to the appellants, and until they had had an opportunity of being heard. Jones vs. McGill, 1 Bland, 180; Todd vs. Pratt, 1 Harr. & Johns., 465.

The provisions of the law relating to landlord and tenant give a summary mode for the recovery of the possession of lands holden by tenants after the expiration of their terms therein; and the expedition with which these enactments are required to be executed is inconsistent with the power of a Court of Equity to arrest them by injunction, summarily granted on the application of the tenant. The recognition of such a power would for the most part defeat the very object contemplated by the [**9]  Legislature. Crockett vs. Parke, 7 Gill, 237; Alexander and Wilson vs. The Mayor and C. C. of Baltimore, 5 Gill, 383; Glenn and Kennedy vs. Fowler, 8 G. & J., 340; Richardson et al. vs. Mayor and C. C. of Baltimore, 18 Gill, 433.

Especially is this argument to be regarded when the tenant has had his rights determined in the appropriate tribunals designated by the law, having the same powers and jurisdiction claimed by the Court of Equity.

John Stewart, for the appellee.

As this case is before the Court only on the bills, it will be contended that the bills disclose a clear case for the interposition of a Court of Equity. The appellee, through a long series of years, had renewed from year to year a lease of premises, in which he had built up a large and flourishing business; the appellant Gelston, after solemnly promising to renew the lease, to expire July 1st, 1866, in fraud of it, gives notice to the appellee on the --- of February, 1866, to leave the premises; and standing upon the legal technicality that an agreement to renew a lease is not legally or at law a renewal of the same, seeks to obtain and transfer to a rival manufacturer the good will and custom which [**10]  his tenant, by long years of industry, had erected and made. It was not discovered till towards the close of the case in the Court of Common Pleas, on appeal, that Gelston had transferred his reversion after July 1st, 1866, to the appellant Meyenberg, and that the latter claimed possession of the property, so that the appellee was thus deprived of the use of the provision in Article 53, section 5, of the Code of Public General Laws, and is entitled, under all the circumstances, to the aid of a Court of Equity. Mousley vs. Wilson, 1 Md. Ch. Dec., 390; Haight & O'Connell vs. Burr, 19 Md. Rep., 130.  

JUDGES:
BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*341]  BARTOL, J., delivered the opinion of this Court.
This being an appeal from orders of the Circuit Court granting injunctions, it must be determined upon the allegations of the bill.
These are substantially that the appellee, on the 28th day of April, 1864, rented from Hugh Gelston, one of the appellants, two pieces of property in the city of Baltimore, fronting on Baltimore and Charles streets, for the term of one year from the 1st day of July, 1864, at the rate of $ 135 per month, by an agreement which is alleged to be in writing under seal, but [**11]  is not produced or exhibited with the bill.
That the lease was renewed by a written memorandum, not under seal, on the 11th day of April, 1865, for a further term of one year from the 1st day of July, 1865, for the same rent. This memorandum is not exhibited with the bill.
That he has been in possession of the property for ten years at least, under leases from Gelston, and with the understanding that Gelston would from time to time renew the current lease to the complainant, upon his giving him the same rent he might be able to obtain from other parties. That Gelston did, during the year 1865, and after the signing of the memorandum of lease above referred to, agree to let him retain the possession of the property from the 1st day of July, 1866, to the 1st day of July, 1867, upon the same terms as those already set forth, and that he would give him a memorandum to that effect, during the term of the running lease; that is to say, at the usual time of renewal, on or about the month of April, 1866.
The bill further charges that Gelston refused to put in writing a memorandum of this last agreement, upon the ground that he had executed a lease to Wolf M. Meyenberg [**12]  of the same premises, to commence on the 1st day of July, 1866.
That the agreement between Gelston and the complainant 

 [*342]  was known to Meyenberg at the time he procured the lease from Gelston.
The bill charges that after giving notice to the complainant to quit, Gelston, at the instigation of Meyenberg, resorted to a summary proceeding at law to eject the complainant from the premises at the expiration of his term, under the written memorandum of lease. That the cause recently came on for hearing before the Court of Common Pleas of Baltimore city, which Court "decided that there was merely an agreement to lease, and that such agreement was not binding in law, and the judgment of the Court was therefore against the complainant." That he has filed a motion for a new trial in that Court.
The bill prays for a specific performance by Gelston of his said contract, that he may be restrained from enforcing his judgment, and that Meyenberg may be restrained from going into possession of the premises, and may discover and produce his paper title, and for general relief.
Upon this bill the injunction was ordered as prayed on the 26th day of September, 1866; bond was filed and approved,  [**13]  and the writ of injunction issued on the same day.
Afterwards an amended bill was filed by the complainant on the 5th day of October, 1866, charging that Gelston and Meyenberg by their attorneys are now pressing for an argument of the motion for a new trial in the Court of Common Pleas, and have obtained an order of that Court fixing that motion for hearing on Saturday next, the 6th of October; and praying for an injunction to restrain Gelston and Meyenberg from proceeding with the cause in the Court of Common Pleas, on appeal, or attempting to argue, or have disposed of, the motion for a new trial.
On this amended bill an order was passed, on the 5th day of October, granting the injunction as therein prayed.
From these orders the respondents, after filing their answers to the bill and amended bill, have taken this 

 [*343]  appeal, which presents for our consideration the question whether there was sufficient ground for granting relief by injunction.
It is well established, that where the object of a bill in equity is to obtain the specific performance of a contract, and the writ of injunction is asked for as ancillary thereto, the writ cannot be maintained unless the case presented [**14]  by the bill would authorize a Court of Equity to enforce the contract. Geiger & Patterson vs. Green, 4 Gill 472; Allen vs. Burke, 2 Md. Ch. 534.
Here the whole case of the complainant rests upon the alleged contract of Gelston to execute a lease of the premises for the year beginning on the first day of July, 1868.
The contract as alleged in the bill was that Gelston, during the year 1865, "agreed to let him retain the possession of the property from July 1st, 1866, to July 1st, 1867, upon his giving Gelston the same rent he might be able to obtain from other parties."
It has been repeatedly ruled by this Court that "every agreement to merit the interposition of a Court of Equity to enforce it, must be fair, just, reasonable, bona fide, certain in all its parts, mutual, &c., and if any of these ingredients be wanting, Courts of Equity will not decree a specific performance." 6 G. & J., 439; 4 Md. 459; 5 Md. Rep., 35; 20 Md. Rep., 500.
Now the alleged contract as it is stated in the bill seems to us to be wanting in two essential qualities, viz: certainty and  [**15]  mutuality.
The rate of rent to be paid is not certain or definite. It was "as much as any one else would pay." That could not be certainly ascertained; it was not practicable to know how much another would give. In Bromley vs. Jefferies, 2 Vernon 415, it was held that such a stipulation in an agreement rendered it void for uncertainty. See also Abeel vs. Radcliff, 13 Johns. 297.
There was no obligation upon the appellee to continue 

 [*344]  in possession of the premises, or to pay any particular rent; the contract as stated did not bind him to continue as tenant of Gelston, but left him with the option to accept or refuse the lease; it was therefore wanting in mutuality, and cannot be enforced at the option of the party who was not himself bound. In 1 Sch. & Lef. 18, Lord Redesdale said, "this would not be equity, that a party not bound by the agreement itself, should be permitted at his option, and when he finds it to his advantage to do so, to compel the other party to perform, when if the advantage was the other way, he could not himself be coerced to performance on his part." See also Duvall vs. Myers, 2 Md. Ch. 401. [**16]  
It follows from what has been said that in our opinion the appellee was not entitled to the relief prayed, and that the Circuit Court erred in granting the injunctions upon the bill and amended bill.
We deem it proper to add further that in the opinion of this Court, the appellee was entitled to avail himself of whatever equitable right or claim he might possess under a contract for the renewal or extension of his lease, in defence of the summary proceedings instituted against him by his landlord before the Justice of the Peace and in the Court of Common Pleas on appeal, and if determined against him in that tribunal he is not entitled to resort to a Court of Equity for relief. 8 G. & J., 340; 5 Gill, 383; 8 Gill, 433; 17 Md., 188.
A decree will be signed reversing the orders of the Circuit Court appealed from with costs to the appellants and dismissing the bill.
Orders reversed and bill dismissed. 

14 of 120 DOCUMENTS 

HUGH GELSTON vs. ALBERT SIGMUND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 345; 1867 Md. LEXIS 53 

June 28, 1867, Decided 

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

In this case a bill was filed by the appellee asking for the production of certain evidences of title, and for an injunction to restrain the appellant from further proceedings in a case in the Court of Common Pleas in Baltimore city, wherein the appellant was plaintiff and the appellee defendant, and in which a judgment had been obtained by the former in proceedings instituted under the provisions of Article 53 of the Code of Public General Laws, to dispossess the latter of certain premises on Baltimore and Charles streets in the city of Baltimore. The Circuit Court, by order of the 19th of December, 1866, directed the injunction to issue as prayed, and from this order the appellant, having first filed his answer, took this appeal. The ground upon which the interposition of a Court of Equity, by injunction, was sought, is sufficiently set forth in the opinion of the Court.  

DISPOSITION:
Order reversed and bill dismissed.  

HEADNOTES:

Appeal -- Landlord and Tenant -- Code -- Discovery and Injunction.

When an appeal is taken from an order granting an injunction, and an appeal bond is given, the injunction is stayed, and its operation suspended, pending the appeal.

To a proceeding instituted by A., in virtue of the 53d Article of the Code of Public General Laws, against B., his tenant, for a term which ended on the 30th of June, 1866, to obtain restitution of the possession of the premises, it would be no answer or legal defence to show that A. had made a contract of lease of the same to C., to commence on the 1st of July, 1866. Under his contract A. would be bound to give C. possession of the premises, and would therefore be entitled to maintain his proceeding under the Code to oust B., his tenant, wrongfully holding over; such a lease to commence after the termination of B.'s term, was executory merely, and would furnish no legal ground for asserting that there was an outstanding adversary title in C. as against A., such as is mentioned in the 5th section of the 53d Article of the Code.

And B. would not be entitled upon the allegation of such adversary title in C. to a production of the evidences of A.'s title to the premises, and to an injunction to restrain him from proceeding to enforce his judgment, recovered in the proper tribunal, for a restitution of the same.  

COUNSEL:
Thales A. Linthicum and Julian I. Alexander for the appellant, argued:

That the bill in this case being one for discovery, and not for relief, the injunction erroneously issued, unless the complainant showed himself [**2]  entitled to the discovery prayed. It is merely a "fishing bill." The complainant does not allege or pretend any interest or title in the premises in himself, nor does he set forth with certainty and particularity the deeds or evidences of title required to be discovered, nor does he allege that the facts sought to be discovered are indispensable as proof to any case in which he is concerned, and his inability to prove the facts save by answer of the appellant; without which material averments the discovery will not be required. Oliver vs. Palmer and Hamilton, 11 G. & J., 426; Story's Eq. Plead., 318, 319; Gelston vs. Hoyt, 1 John. Chan., 548. The right to a discovery extends only to facts material to the complainant's case, and not to the title of, or to the facts material to the defendant's case, and a demurrer to the bill for these reasons would be sustained. Story's Equity, sect. 1497. Where the application is made to the Court for a discovery and injunction, the Court, before requiring an answer or granting an injunction, is bound to examine the pleadings as they stand at the time of the application, and of its own motion inquire into the materiality or sufficiency of the averments [**3]  to sustain the prayer of the bill, and if the averments o the bill are insufficient and demurrable, neither the discovery nor injunction should be granted. Demurrers not being favored in Maryland, and the defendant having the right to all the advantages of a demurrer by answer aptly drawn, to the same defence as by demurrer, (Alexander's Chancery, p. ,) the Court should see that the averments, if answered affirmatively, are sufficient to maintain the bill, before ordering its process or interfering by injunction.

The complainant's case as it was presented to the Court below by the averments contained in this present bill, and by the proceedings of the cause in the same Court, to which it refers, shows:

1st. That there was a judgment rendered by a justice of the peace against the complainant, (he having waived a trial,) by which it was determined that his interest in the premises in question, determined with the termination of one year from the 1st day of July, 1865, and this judgment was upon his appeal to the Court of Common Pleas affirmed, after verdict and judgment of restitution, &c., rendered against him.

2d. That the complainant filed his motion for a new trial [**4]  in said Court, which motion is still pending.

3d. That the appellant (the defendant in that motion,) was anxious to have that motion argued and determined.

4th. That in order to prevent the hearing and determination of that motion, the complainant filed his original and amended bills in the Circuit Court of Baltimore city, and obtained therefrom an injunction restraining the appellant from arguing that motion, or attempting to have the same heard and determined.

5th. That Gelston, the appellant in this case, and Meyenberg, the defendants to said original and amended bills, filed their answers thereto, and a paper writing (a copy of which is filed in this cause) was produced by Gelston as part of his answer.

6th. That Gelston and Meyenberg then appealed to this Court from the orders granting said injunction, and filed the requisite appeal bond.

7th. That such appeal and bond dissolved the injunction granted.

8th. That the answers of the defendants as above, were full and complete answers to said original and amended bills, and the averments and charges therein stated, were positively and directly denied, and all the pretended equities of the complainant [**5]  sworn away and denied.

9th. That the proceedings in said cause were all in the Circuit Court of Baltimore city.

Such being the state of the case at the time the injunction in this case was granted, it is respectfully submitted, that the Court below erred in granting the injunction, because it should have examined the whole case before granting it, and the proceedings upon the original and amended bills of complaint being in the same Court, to which answers had been filed, denying and flatly contradicting the averments and equities of the complainant--and the complainant having referred to said proceedings, the Court could not disregard the facts set forth in said answers. Bell vs. Purvis et al., 15 Md. Rep., 22. And to do so would simply be acting upon only a part of the case, in violation of law and of the plain rules of evidence. The application for this injunction is similar to an application by motion to reinstate an injunction dissolved on bill and answer; in such instances the case is heard as it stands at the time of the motion--the answer forming a part of the case to be determined. State vs. Northern Central Railway Co., 18 Md. Rep., 193.

And the proceedings [**6]  in the above cause being in the same Court, (and now in this Court likewise on appeal,) and being referred to as a fact or for facts in a case, they are as much a part of that case as if actually transcribed therein. Co. Lit. 4 b.; Phelps vs. Stewart, 17 Md. Rep., 231. But if this Court shall determine that said proceedings are not part of the present appeal, then the Court below should have required the filing of said proceedings as part of this case before granting injunction, and it erred in granting the injunction without it. Where documentary evidence is referred to, it should be produced before injunction is granted. Haight & O'Connell vs. Burr, 19 Md. Rep., 130; Mahany et al. vs. Lazier et al., 16 Md. Rep., 73; Nusbaum & Bowes vs. Stein et al., 12 Md. Rep., 318; Eyler & Matthews vs. Crabbs, 2 Md. Rep., 137; Union Bank of Md. vs. Poultney & Ellicott, 8 G. & J., 324. A contrary rule will have the effect of allowing a party by his mere oath to prove the contents of a paper writing and violate the rule of evidence which requires the writing itself to be produced, and place the Court in the position of acting judicially upon a case or evidence not before it; a Court cannot construe [**7]  a writing without having it before it, and equity requires full and candid disclosures. Canton Co. of Balto. vs. N. C. R. W. Co., 21 Md. Rep., 383; Keighler et al. vs. Savage Munufacturing Co., 12 Md. Rep., 383. The bill further shows, that the alleged equities were presented as a defence in the Court of Common Pleas as an appellate Court--a Court of competent jurisdiction-- which heard and had actually determined the facts stated in the bill, according to the law and the equity, and the right of the matter. And it is submitted that the judgment of that Court is conclusive and final. Lyday vs. Douple et al., 17 Md. Rep., 188; Gott and Wilson vs. Carr, 6 G. & J., 312; Briesch vs. McCauley, 7 Gill, 189; Chappell et al. vs. Cox, 18 Md. Rep., 513. An estoppel bars and concludes parties and privies in pleading and evidence at law and in equity, from impeaching, controverting or denying the facts thereby determined.

And the Court below should not have assumed jurisdiction to review the decision of said Court, or have granted an injunction, as to do so was in effect to entertain an appeal from the verdict and judgment of that Court. Contee vs. Cook, 2 Harr. & Johns., 179; Richardson [**8]  et al. vs. Mayor and City Council of Baltimore, 8 Gill, 433; Alexander and Wilson vs. Mayor and City Council of Baltimore, 5 Gill, 383; Fowler vs. Lee, 10 G. & J., 358; Gardner vs. Jenkins, 14 Md. Rep., 58; Boyd et al. vs. Ches. & Ohio Canal Co., 17 Md. Rep., 195; Withers et al. vs. Denmead, 22 Md. Rep., 135; Reeves vs. Cooper, 1 Beasley, 223.

The cases made by this bill, and the original and amended bills, to which it refers, against Gelston and Meyenberg, are identically the same, and having knowedge of the filing of the original and amended bills and facts in said cause, the Court should have dismissed this last bill summarily, as the application was vexatious and oppressive, and a mockery of justice. Wood vs. Bruce, 9 G. & J., 215; Brown and Wallace vs. Wallace and Mitchell, 4 G. & J., 494; Hoffman's Practice, 89. The appeal from the orders granting the injunction on the original and amended bills against Gelston and Meyenberg, and the filing of their appeal bond dissolved the injunction therein issued, and the Court below had no right to deprive the appellants of the rights secured by that appeal, and the Court was without jurisdiction to stay the effect of that appeal by [**9]  injunction. Blondheim et al. vs. Moore, 11 Md. Rep. 365; McCann vs. Taylor, 10 Md. Rep. 418. And the injunction did so stay the effect of that appeal, and the appeal itself, until answer and appeal in this case. Little vs Price, 1 Md. Ch. Dec., 182.

However inconvenient it may be, the law in Maryland is settled, that an appeal and bond dissolve an injunction, and no Court has the power to suspend laws, or the execution of laws, without the authority of the Legislature. Bill of Rights, Arts. 9 and 19. Independent of these considerations the appeal and bond suspended the jurisdiction of the Court below until the appeal was heard and determined, and the granting of the injunction was an invasion and assumption by the Court below of the jurisdiction of this Court. The right of possession of the premises in question was and is in the appellant Gelston. 5 Bacon's Abr., 631, (M.,) 643, (P.;) Co. Lit., 46 b. 270 b.; and the contract for renting with Meyenberg is merely an executory agreement. The appellee has no equity as against Gelston, by reason of this agreement, with Meyenberg. And at law the person holding the legal title can recover in ejectment. An injunction will not issue against [**10]  one holding the legal title. State vs. Jarrett & Harwood, 17 Md. Rep., 309.

John Stewart and Wm. Pinkney Whyte, for the appellee, contended:

That a Court of Equity had jurisdiction in such a case as this to protect the appellee against the exercise of a statutory remedy to dispossess him of premises, in violation of a provision in the very statute, but of which he could not avail himself, owing to the refusal of the appellant to disclose fully the title of Meyenberg to the premises, and of the absence of the latter in Europe, whereby the appellee was unable to summon him before the Court. Art. 53, sec. 5, Code of Public General Laws; Mousley vs. Wilson, 1 Md. Ch. Dec., 390.

This is a clear case, where no default or neglect occurred in the Court of Common Pleas on the part of the appellee, but where the appellant refused to disclose the title of Meyenberg to the premises fully, so as to show whether he claimed under a transfer made since the commencement of the lease, and where the party, Meyenberg, could not then be reached by the process of the Court. The appellant thus obtaining an advantage improperly gained, seeks to exercise it against conscience.

In such cases,  [**11]  it is well settled by Maryland decisions, that Courts of Equity will control judgments obtained by accident, mistake, fraud or otherwise, which would, therefore, be against conscience. Little vs. Price, 1 Md. Ch. Dec., 182.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*352]  BARTOL, J., delivered the opinion of this Court.
This is an appeal from an order of the Circuit Court of Baltimore City granting an injunction upon a bill filed by the appellee.
In the same Court a similar injunction had before been granted on a bill and amended bill filed by the same complainant against the appellant and one Wolf M. Meyenberg. The respondents in the former case, (ante) after filing their answers and giving bond, had taken their appeal to this Court, whereby the injunction was stayed and its operation was suspended pending the appeal. (Blondheim et al. vs. Moore, 11 Md. 365.)
When this bill was filed that appeal was pending and undecided. The object of this proceeding seems to have been to have the injunction reinstated, upon the alleged ground of newly discovered equity in the complainant, growing out of a disclosure [**12]  made in the answers of the defendants in the former case, to the effect that before the summary proceedings under the Code had been instituted by Gelston against the complainant, to obtain possession of the property occupied by the complainant as his tenant, he, Gelston, had made a contract with Wolf M. Meyenberg leasing the same for two years from the first day of July, 1866. That fact, it is supposed, if it had been known to the appellee, would have furnished him with a good legal defence under the 5th section of the 53d Article of the Code of Public General Laws, to the proceedings at law instituted by Gelston and pending in the Court of Common Pleas.
This idea is altogether erroneous, and proceeds from a misconstruction of the section of the Code above referred to.
If the appellee were tenant of Gelston for a term which ended on the 30th day of June, 1866, it would be no answer or legal defence to a proceeding instituted by Gelston to obtain restitution of the possession of the 

 [*353]  premises, that he had made a contract of lease of the same to Meyenberg to commence on the 1st day of July, 1866. Under his contract Gelston would be bound to Meyenberg to give him possession [**13]  of the premises, and would therefore be entitled to maintain his proceeding under the Code, to oust the tenant wrongfully holding over; such a lease to commence after the termination of the appellee's term was executory merely, and would furnish no legal ground for asserting that there was an outstanding, adversary title in Meyenberg, as against Gelston, such as is mentioned in the 5th section of the 53d Article of the Code. Any claim or right of Meyenberg under his lease is not adversary to Gelston, but under and through him, and the proceedings at law instituted by Gelston to obtain the possession, were in the interest and for the benefit of Meyenberg, and could not be defeated by the appellee, by invoking to his aid the title of Meyenberg.
In our opinion this bill does not present any equitable ground whatever, entitling the appellee to the injunction prayed.
The proceeding is somewhat anomalous; and considering what had been disclosed by the proceedings in the former case, we think the Circuit Court ought summarily to have dismissed this bill, as presenting substantially the same case made by the original and amended bills before exhibited by the appellee in the same Court.  [**14]  
The appeal in the former case of Gelston & Meyenberg vs. Sigmund has been decided at the present term. The opinion of this Court therein pronounced, declared that the complainant was not entitled to the relief prayed, and the injunction was erroneously granted. If the proceedings in the first case be considered as incorporated in, and forming a part of the present, which is the most favorable aspect in which it can be viewed, for the appellee; though we do not decide that it can with propriety be so treated, 

 [*354]  then the decision already pronounced in that, would be conclusive of this; there being, as we have before said, no new ground of equity alleged by the present bill, entitling the complainant to relief. Treating this as an original bill, standing only upon the averments contained in it, there is no ground of equity whatever alleged entitling the appellee to the discovery prayed, or to the injunction. The bill sets out no right or title of the complainant in the property in question, or any right of possession in him as tenant or otherwise. The alleged contract of lease from Gelston to Meyenberg conferred no right upon the complainant, either as ground of defence [**15]  in the proceedings at law or otherwise. In any aspect, therefore, in which this bill may be considered, the appellee is not entitled to relief.
The order granting the injunction must be dissolved and the bill dismissed.
Order reversed and bill dismissed. 

15 of 120 DOCUMENTS 

JAMES C. DOWLER vs. JAMES R. CUSHWA, Insolvent Trustee of JOHN SPRINGER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 354; 1867 Md. LEXIS 54 

June 28, 1867, Decided 

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

This was an action of trover instituted on the 19th of March, 1864, by the appellee, as insolvent trustee of John Springer, against the appellant to recover for the conversion of certain goods and chattels which had belonged to the insolvent, including one-half of the grain growing on the farm of the appellant, and which was occupied by the insolvent as tenant. On the 31st of December, 1859, the insolvent, in consideration of a large indebtedness to the appellant, who was also liable as his security and endorser to a considerable amount, executed to him an absolute bill of sale of his entire personal property. A defeasance was executed on the same day, but not recorded. The property was delivered to the grantee. In March following the grantor applied for the benefit of the insolvent laws, and one Whetstone was appointed trustee. Four years afterward, in March, 1864, the appellee was appointed trustee in the place of Whetstone, and a few days after his appointment instituted this action.

The pleadings and bills of exceptions are sufficiently referred to in the opinion of the Court.  

DISPOSITION:
Judgment reversed and procedendo awarded.  [**2]  

HEADNOTES:

Parol Evidence of the contents of a Bond -- Revenue Stamps -- Restoring the validity of a Bond by affixing a Stamp during the Trial -- Evidence -- Recoupment -- Set-off.

Evidence having been offered showing the execution, approval, and delivery of a Trustee's bond, and that the same was lost, and could not be found, although diligent search therefor had been made by the deputy clerk, and the attorney for the plaintiff, in the Clerk's office, where it should have been, parol evidence is admissible to show the contents of the bond.

Where a revenue stamp is necessary to the validity of a Trustee's bond, which has been lost, but the contents of which have been proven by parol evidence, the affixing to a paper setting forth the loss, &c., during the trial, and with the consent of the Court, the requisite revenue stamp, and cancelling it as the law requires, and then filing said paper among the insolvent papers, where the bond should have been, is a substantial compliance with the provisions of the Acts of Congress, and gives the bond validity ab initio.

In an action of trover by the trustee of an insolvent for the conversion of certain goods and chattels, alleged to have been the property of the insolvent, but claimed by the defendant under an absolute bill of sale to him from the insolvent, executed prior to his application for the benefit of the insolvent laws, it is competent for the defendant to prove that the insolvent was largely indebted to him, and that he was responsible to a considerable amount as surety and endorser for the insolvent, before and at the time of the execution of said bill of sale, and that after the execution, acknowledgment and delivery thereof, and before the application of the insolvent for the benefit of the insolvent laws, all the property embraced in said bill of sale, and the same sued for, passed by delivery into the possession of the defendant, to be held by him as a security to answer for the indebtedness of the insolvent to him; and the exclusion of such evidence is erroneous as depriving the defendant of the benefit of the right of recoupment in the estimation of damages by the jury.

The rule pervades both bankrupt and insolvent laws, founded on general principles of equity, that all cross demands, whether connected or independent, provided they be mutual, as between the bankrupt or the insolvent and the creditor, shall be set-off, and the balance only shall be deemed the indebtedness on one side or the other. The assignees take a bankrupt's property in the same condition and subject to the same burthens as the bankrupt himself held it, on the principle that they are not purchasers for a valuable consideration, but as voluntary assignees and personal representatives, and are therefore distinguished from particular assignees. 

COUNSEL:
Andrew K. Syester and William T. Hamilton, for the appellant.

The third and fifth exceptions present questions in connection with the trustee's bond, all of which resolve themselves primarily into this. Did this bond require a revenue stamp? As sustaining the affirmative, the following considerations are respectfully submitted: That bonds of this description are not within the meaning of the Act of Congress of 1st June, 1862, exempting "bonds required in legal proceedings." "Bonds for the due execution of the duties of any office, and to account for money received by virtue thereof," require stamps. If the term "office," in this connection, should be interpreted to mean only public offices, that is, offices created by law, and constituting part of the machinery of Government, it is evident that a large class of bonds given for the due execution and performance of an office, and to account for money received, would not fall within its terms. Such as cashiers of banks. An office may be either public or private. It is defined to be the exercise of a public or private employment. 2 Bla. Com., 36.

The bond in this case is not required by law of the party instituting the "legal [**3]  proceedings," but is the bond of the appointee of the Court, to an office, with the due performance of the duties of which the party instituting and conducting the proceeding has nothing to do. It is taken to secure the performance of duties that in no manner affect the proceeding instituted by the applicant, who is discharged or not, and whose proceeding is terminated, without the slightest regard to the duties, responsibilities or office of the trustee.

Bonds in legal proceedings are such as the party instituting them is required to give, such as replevin, appeal, injunction bonds, &c., in which proceeding, under another provision, the stamp has already been paid. Without a legal bond the appellee was not, in contemplation of law, a trustee, it is the bond and the perfection of it that gives him authority to sue. Winchester vs. Union Bank of Mary-2 G. & J., 79.

And assuming that this bond ought to have been stamped, it is in proof that it was not stamped at the time of its execution nor afterwards, and being lost, it will be presumed to have continued in the same state, that is, unstamped. Closmadeuc vs. Carrel, 18 Com. B., 44, (86 Eng. Com. Law, 43.) And it was the duty [**4]  of the appellee setting up the bond to have shown that a proper stamp was upon it. Crowther vs. Solomons, 6 Man. Gran. & Scott, 763, (60 Eng. Com. Law, 762.)

The fourth exception was taken to the rejection of evidence. The defendant below offered to prove that before, and at the time of the execution of the bill of sale, Springer was largely indebted to him, and that he (defendant) was responsible to a large amount as surety, &c., for Springer, and also offered to prove the amount of such indebtedness, as also the extent and amount of such responsibility as surety, &c. And in connection with such offer, proffered further proof to show that before his application, Springer actually delivered to him all the property sued for, to be held by him as security to answer such indebtedness, &c. And that this property was in defendant's possession, under that agreement, before and at the time of Springer's application. The offer to show this state of facts was rejected. We insist that it was admissible. The property delivered (the same sued for) was under the agreement, a pledge.

At common law this pledge could not be removed on sale for the pledgor's debt. Nothing but his right to [**5]  redeem could be sold, the pledge remained with the pledgee. Edwards on Bailments, 205.

In an action brought for the conversion of the pledge, the pledgee shall have the amount of his debt recouped in the damages. Edwards on Bailments, 213, citing Bac. Abr., Bailment B; Jarvis, Adm'r, vs. Rogers, 15 Mass., 389; Stearns vs. Marsh, 4 Denio, 227.

There is nothing in the insolvent system of this State that contravenes this right of the pledge.

For although a trustee may take and sell the pledge, he nevertheless takes it, and must sell it encumbered with the pledgee's demand. Alexander vs. Ghiselin, 5 Gill, 138; Bank of Westminster vs. Whyte, 3 Md. Ch. Dec., 513.

But here he has laid by for four years, and suffered the property to be consumed. It was not only the privilege, but the duty of the trustee to have taken this property, sold it and administered the proceeds with reference, in the first place, to the pledgee's claim; and this should have been done forthwith, (Code, Art. 48.) He now sues, not for the property, but its value, and this value is to go into his hands unmarked by our demand, but generally to creditors. By this means all the substantial rights of the [**6]  pledgee are nullified, without any default on his part. The defendant had a right to recoup his demand in the damages. Baldwin vs. Porter, 12 Conn., 473-487; Curtis vs. Ward, 20 Conn., 204; Pierce vs. Benjamin, 14 Pick, 356; Whitehall vs. Squire, Carthew, 104; Ewing vs. Blount, 20 Alab., 694; McEmory vs. Dyer, 4 L. R., New Series, 167, 168; Ward vs. Fellers, 3 Mich., 286, 287, 288.

Richard H. Alvey, for the appellee.

On the second, third and fifth exceptions, there being no question as to the sufficiency of the parol evidence of the contents of the bond, it will be contended:

1st. That the proof offered of the execution, approval, filing and loss of the bond, was ample to let in the secondary evidence of its contents; and the defendant, in order to let in evidence of the non-stamping of the bond, having proved the making, approval, filing and loss of said bond, cannot be permitted to raise a question as to the admissibility or sufficiency of the evidence offered by the plaintiff of these facts; for by his own proof, and the assumption upon which he proceeded, he admitted and conceded their truth, and thus established the conditions under which the secondary evidence [**7]  was admissible. Waters' Lessee vs. Riggin, 19 Md. Rep., 551, 552.

2d. That the parol evidence of the contents of the bond was immaterial, and therefore not injurious to the defendant; for while it is true that an insolvent trustee has no right to sue, or maintain an action, without first executing and filing an approved bond, yet it is only necessary to show that such bond has been filed and approved; and the sufficiency of the contents being matter of law, is not for the consideration of the jury, and therefore immaterial as evidence to them. Winchester, Trustee, vs. The Union Bank of Maryland, 2 Gill & John., 78.

In this case, it being proved by both parties that such bond had been executed, approved and filed, and that it was lost at the time of trial, nothing more was required as evidence to the jury. But the bond having been since found and certified in this record, whereby it is shown that there was such bond, and that it was duly approved and filed, and remains part of a proceeding in a Court of Record; and it thus appearing that no injury could have been done the defendant by the absence of such bond at the trial; this Court would not reverse even if there were error [**8]  in regard to admitting evidence of the contents of the bond; for if the bond be sufficient, the contents could in no way have influenced the finding of the jury.

3d. That the bond being required in legal proceedings, was not required to be stamped. Act of Cong. of June 1, 1862, schedule B.

But, even if it had been subject to the stamp, by the 163 sec. of the Act of June 30th, 1864, it was made valid and effective by applying the stamp in Court, which was done in this instance from abundant caution. Cooke vs. England, ante, 14.

On the fourth exception it is respectfully urged, that the appellant having previously offered in evidence the bill of sale to sustain the issue on his part, and in the proffer of the proof rejected, referred to such bill of sale as an existing muniment of title that had been accepted by him, of the property therein mentioned, being the same sued for, it was not competent for him, in order to evade the effect of the unrecorded writing in the nature of a defeasance, to pretend that after the making and acceptance of the bill of sale, he took the property by delivery as a pledge, rather than by the bill of sale itself. Having accepted and produced [**9]  it, he can set up no title subsequently acquired by delivery, and of a different character from that conveyed by the bill of sale; for, as between the parties, the instrument was perfectly good, and conveyed an absolute and unconditional title, and any subsequent delivery and acceptance of the property was a ceremony equally destitute of sense as of legal effect.

But suppose it to be the case, that Springer was indebted to the appellant, and that the latter was responsible as surety, endorser and otherwise, according to the proffer, and that the property mentioned in the bill of sale, was, after the execution and acceptance of that instrument, delivered to the appellant, to be held by him as a security to answer for such indebtedness and responsibility; the property thus remaining in pledge would be, by the law, devolved upon the insolvent trustee, and he could recover it, or its value. As pledgee the appellant would hold only a special property in the goods with a lien thereon, as collateral security, subject to the right of redemption. Story on Bailm., secs. 286, 287, 300, 308, 309, 310; 2 Kent's Com., 578, 581, 582.

And the case differs nothing from that of a mortgagee [**10]  in possession of the mortgaged chattels, or that of a sheriff in possession of goods seized under execution; and yet in such cases the law is undoubted, that the property devolves on the trustee, and that it is his duty to dispose of it, and out of the proceeds to discharge any lien that may be existing thereon; the policy of the law being to bring all claimants and others interested before one tribunal. In Alexander vs. Ghiselin, 5 Gill, 178, the Court, in refuting the position taken in that case, that the trustee took nothing but what was found in the possession of the insolvent, said: "If this be so, then the property in the hands of a tenant, a bailee, or a trespasser, belonging to an insolvent, is not to be sold--nor a mortgaged estate in possession of a mortgagee, although the mortgaged premises might be worth, in a fair market, tenfold the amount of the debt; a construction which results in such conclusion cannot be adopted."

And in the case of The Bank of Westminster vs. Whyte, 3 Md. Ch. Dec., 512, 513, Chancellor Johnson said: "It is conceded, and indeed could not be disputed, since the decision of the case of Alexander vs. Ghiselin, 5 Gill, 138, that if the transfer [**11]  of this property is to be regarded as a mortgage or a pledge for the security of a debt, that it would be the right and the duty of the insolvent trustee to sell it, and pay off the liens and incumbrances thereon, the opinion of the Court of Appeals in that case being explicit to that effect." And such must be the case to carry out the design and policy of the insolvent law; for otherwise, "by allowing sheriffs and mortgagees to participate in the administration of the trust, adverse interests are created, delay endangered, if not insured, and probably different and possibly conflicting tribunals consulted." Zeigler vs. King, 9 Md. Rep., 335.

Nor can the case of Lucas vs. Latour, 6 H. & J., 100, relied on by the appellant, be regarded as an authority to the contrary; for, in the first place, it is not apparent upon what grounds the Court decided, there being no reasons assigned; and, in the second place, it was a case of usury, the contract being void by the Act of 1704, and where the only opportunity or chance of recovering the amount actually due, was by virtue of an equity, sometimes allowed to be availed of in defence, and where there is no other way of preventing an entire [**12]  sacrifice of the party's rights; and, in the third place, if the case be regarded as going beyond its particular and peculiar circumstances, it is in manifest conflict with more recent decisions.

Indeed, the case of Fitzroy vs. Gwillim, 1 T. R., 153, which seems to have been the authority for Lucas vs. Latour, has been repeatedly repudiated in Westminister Hall, and especially in its application to an action of trover, which, Chief Justice Tindal says, "is an action of strict law." Tregoning, Assignee, vs. Attenborough, 7 Bing., 97; Hargreaves vs. Hutchinson, 2 Adol. & Ell., 12.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*363]  BOWIE, C. J., delivered the opinion of this Court.
The appellee, as trustee under the insolvent laws, sued the appellant in trover for the conversion of certain goods and chattels, including wheat and oats and other perishable articles. The nar. contained two counts: in the first, the conversion was laid before the appellee's appointment as trustee, but after the petition; in the second, the conversion was charged to have been after the appellee's appointment. The appellant pleaded not guilty, on which [**13]  issue was joined. Five bills of exceptions were taken by the appellant--four to the rulings of the Court excluding or admitting testimony, and the fifth to the rejection of a series of prayers renewing in another form the objection to the evidence raised in the third exception.
No point is presented on the first bill of exceptions by the appellant in his brief, and it is therefore unnecessary to notice it. The second bill of exceptions was taken to the sufficiency of evidence offered by the plaintiff and admitted by the Court below as secondary evidence of the execution, approval, and delivery of the bond of the plaintiff as trustee, and of the contents of this bond. The circumstances given in evidence, raised the presumption that the bond, if it required a stamp, had been executed and stamped, and diligent search having been made by the deputy clerk in the clerk's office without finding the same, parol evidence was properly admitted of its contents. The fact that the bond has since been found without a stamp, does not in any manner impeach the propriety of the admission of parol proof, but shows only the fallibility of the best devised maxims of presumptive evidence.
The third and [**14]  fifth bills of exception relate to the necessity of a revenue stamp, to the legal validity of the bond of the trustee in insolvency, and, consequently, to his capacity to sue, the appellant insisting the bond in 

 [*364]  question is not within the exception "of bonds required in legal proceedings" under the Act of Congress of the 1st June, 1862. In whatsoever view we regard these exceptions, we cannot find any ground for reversing the action of the Court upon them. If, as interpreted by the Court below, the bond is within the exception referred to, the ruling was right; if not, the affixing to a paper, setting forth the loss, &c., of the bond, during the trial, with the consent of the Court, the requisite revenue stamp, and cancelling it as the law required, and then filing said paper among the insolvent papers, where the bond should have been, was a substantial compliance with the provisions of the Acts of Congress, and gave the bond validity "ab initio."
The evidence embraced in the fourth bill of exceptions was offered to prove that Springer, the insolvent, was, prior to his application for the benefit of the insolvent laws, indebted to the defendant, who was also liable [**15]  as surety for him to a large amount, and that after the execution of the bill of sale, and before his application, all the property mentioned in the bill of sale and sued for by the plaintiff, was actually delivered to the defendant, to be held by him as security for the indebtedness of the insolvent to the defendant, and his liability as surety, and that before, and at the time of the insolvent's application, the defendant was in possession of the property, exercising control over the same, by virtue of the said delivery.
This testimony established the relation of bailor and bailee between the insolvent and defendant, whose rights as such bailee were necessarily involved in the issue joined in the cause.
The liability of a defendant receiving property under such circumstances is modified by law. He is not absolutely responsible for its value. "If the pawn be lost by casualty or unavoidable accident, or superior force, or 

 [*365]  perishes from intrinsic defect or infirmity, the pawnee is not answerable, if the loss from such causes be duly made to appear, and no act was done or omitted to be done inconsistent with the pawnee's duty, for he was only bound to bestow ordinary care [**16]  and diligence. 2d Kent's Com., 579. "The pawnee may also sell without judicial process upon giving reasonable notice to the debtor to redeem. Ibid, 583. The pledge covers not only the debt, but the interest upon it and all necessary expenses that may have attended the possession of the pledge, and the lien may, by agreement, be created to extend to subsequent advances.
The appellee relying upon certain general expressions of this Court, in the case of Alexander vs. Ghiselin, 5 Gill 138, 178, and others cited by Chancellor Johnson, in 3 Md. Ch. 508, resists the admission of the evidence as incompetent for the purpose of showing a right to the possession of the property. The language used in those cases is to be construed in connection with the object of the suits and the condition of the property. In both, the property existed in specie, and the contest was chiefly about the distribution of the proceeds when sold; the right to make the sale was incidentally, but necessarily involved.
These cases should not be stretched beyond their proper bounds to control others dissimilar in circumstance and varying in principle.
The present is an action [**17]  of trover for damages for the conversion of property. If the right of possession was immediately involved, there would still be room to doubt what, in that aspect was the meaning of the Court, in the case referred to, in using this language. "The true construction, then, of the Act of 1805, and the supplementary Acts relating to insolvent debtors, requires the trustee to take into his possession all the estate and effects to which the insolvent had the right of possession at the 

 [*366]  time of his application, and to sell, etc., and to pay off the liens and encumbrances thereon.
These goods were not in the custody of the law at the time the bailee's rights attached; they were delivered to him several months prior to the insolvent's petition, and were in the bailee's possession at the time of the petition. This case is not within the rule laid down in Buckey vs. Snouffer, 10 Md. 149, 155. The "custodia legis" commences with the petition; all bona fide liens for a valuable consideration antecedently attached, must be respected in an action for the value of the property.
At common law goods pawned or pledged are not liable to be taken in [**18]  execution in an action against the pledgor. The possession of the pledgee could not be disturbed, because the officer could acquire no greater interest in or control over the property than that possessed by the defendant, against whom he held the process of the Court. Marsh vs. Laurence, 4 Cow. 461; Scott vs. Scholey et al., 8 East., 467; Metcalf et al. vs. Scholey et al., 5 Bos. & Pull 461.
In consequence of this, statutes have been passed in some of the States giving a right of execution against the pledgor's interest, subject to the lien of the pledgee. Edwards on Bailments, 205. But this sale does not in any manner impair the right of the pledgee. The purchaser's right of redemption is the same exactly, and dependent upon the same terms and conditions as that of the pledgor. "He is entitled to the possession of the goods on complying with the terms and conditions of the pledge; and when these cannot be complied with until some future event has occurred, the pledge must of course be redelivered to the hands of the pledgee." Ibid, 207. Thus the law stands, whilst the pledge remains "in statu quo." Where the property has [**19]  been unlawfully detained, or withheld, or converted or changed by the pledgee, corresponding rights and liabilities ensue. Although there is 

 [*367]  a remedy in equity in certain cases, the usual recourse is to an action of replevin or trover. "If the goods pledged have been wrongfully sold by the pledgee, a recovery may be had against him in a suit in the nature of an action on the case, or in assumpsit to recover the value of the property, and if the debt for which the pledge is deposited in security has not been paid, the pledgee may recover the amount by way of reduction of damages." Stearns vs. Marsh, 4 Denio 232; Jarvis, Adm'r, vs. Rogers, 15 Mass. 389; Bac. Abrid. Bailment.
The right of a pawnee creditor to the deduction of the amount of his claim against the trustee of an insolvent pawnor is demonstrated with great force of illustration and authority in the case of Receivers vs. The Patterson Gas Light Company, 3 Zabriskie 291.
The general conclusion is thus announced: "The rule pervades both bankrupt and insolvent laws founded on general principles of equity, that all cross demands, whether connected [**20]  or independent, provided they be mutual, as between the bankrupt or the insolvent, and the creditor, shall be set-off, and the balance only shall be deemed the indebtedness on one side or the other. The assignees take a bankrupt's property in the same condition, and subject to the same burthens, as the bankrupt himself held it. On the principle that they are not purchasers for a valuable consideration, but as voluntary assignees and personal representatives, and are therefore distinguished from particular assignees."
This Court, in the late case of The Baltimore Marine Insurance Company vs. Dalrymple, (April Term, 1866, M.S.,) which was an action of trover by bailor vs. bailee, for the conversion of stock, said:
"We consider it perfectly clear that the view taken by the Court below on the question of recoupment was correct; and that in ascertaining the damages, the amount of the debt due the defendant, to secure which the stock 

 [*368]  and other collaterals were pledged, ought to be deducted. The law is so expressly stated by Story in his work on Bailments, secs. 315, 349. It is supported by the authorities cited by him; and is consistent with the general doctrine of [**21]  recoupment established in modern cases and recognised by this Court in Abbott vs. Gatch, 13 Md. 314; Stewart vs. Rogers, &c., 19 Md. 98, 117, 118."
The exclusion of the evidence offered in the appellant's fourth bill of exceptions, deprived him of the benefit of the right of recoupment in the estimation of damages by the jury, and was therefore erroneous. The judgment of the Court below must therefore be reversed, and procedendo awarded.
Judgment reversed and procedendo awarded. 

16 of 120 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. GEORGE D. BLOCHER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 277; 1867 Md. LEXIS 49 

June 27, 1867, Decided 

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

The facts in this case, as also the exceptions which were taken at the trial below, are set out with sufficient fullness in the opinion of the Court.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Principal and Agent -- Railroad Companies as Carriers of Passengers -- Exemplary damages -- Instructions to the Jury.

In an action against a Railroad Company by a passenger to recover damages for injuries sustained by him, while travelling over their road, it is not competent for the defendants to exonerate themselves in whole or in part, by proving mistakes committed by their own agents.

A Railroad Company has the right to require a passenger to purchase his ticket, and present it when demanded, as evidence of his title to a seat, and the conductor is justified in compelling him to leave the cars whenever he refuses so to do.

Passengers being obliged to conform to the regulations prescribed by carriers, so far as to enable them to avoid imposition, a corresponding duty is imposed upon the latter, to show all becoming courtesy towards the former, in demanding the evidence of their compliance with such rules.

The conductors and employees of a Railroad Company, being in the line of their duty in collecting the fare, or taking up tickets from passengers, represent the Company, and the Company is therefore liable for any abuse of their authority, whether of omission or commission.

Where the injury for which compensation in damages is sought, is accompanied with force or malice, the injured party is entitled to recover exemplary damages.

In an action to recover compensation for an injury, the jury are authorized to give such damages as are warranted by the immediate consequences of the wrong, and such as necessarily result from the act complained of.

The granting of an instruction on the part of the plaintiff, and another on the part of the defendant, which are inconsistent with each other, is erroneous, as calculated to mislead the jury -- leaving them in doubt as to which should control.  

COUNSEL:
Thomas J. McKaig, Jr., and Thomas J. McKaig, for the appellant, contended:

That the appellee's prayer ought not to have been granted:

1st. Because the appellee by purchasing a ticket, and taking his seat as a passenger, subjected himself to the rules of the road, and of all railroads, that he would produce the ticket when called for by the conductor, as evidence of his having paid his fare. The prayer does not leave it to the jury to find whether the appellee did so produce and give up the ticket he received at Cumberland, to the conductor, for he may have exchanged tickets with the party who held the Baltimore ticket, and taken from him a Martinsburg ticket.

2d. Because if the plaintiff failed to produce a Baltimore ticket, he was therefore bound to pay the fare from Martinsburg to Baltimore, and in that event the measure of his damages would have been, and ought to have been, only the $ 3.70. Bosley vs. The Chesapeake [**2]  Ins. Co., 3 G. & J., 450; Chew's Adm'rs vs. Beall, 13 Md. Rep., 348; Md. & Del. R. R. Co. vs. Porter, 19 Md. Rep., 458; Adams vs. Capron et al., 21 Md. Rep., 186.

The appellant's first, second and third prayers ought to have been granted:

1st. Because, by the ticket system adopted on all railroads, the duties of the passenger and the road are mutual; first, that the passenger shall ask for and pay for the ticket he wants, and that the agent of the road shall give him the proper ticket; if, therefore, the appellee received a Martinsburg ticket instead of a Baltimore ticket, or if he had lost his ticket, or exchanged it for another and a differet ticket, he could not recover because he was forced to pay the additional fare. His remedy would have been for the deception or mistake in giving him the wrong ticket.

2d. Because when a party is bound to procure the evidence of his right to a seat, and accepts that evidence, he is bound by the evidence.

3d. Because if the third prayer cannot be granted, the whole ticket system is of no service to the Company, and of no use to the passenger. If the passenger is not bound by the ticket while on the journey, the Company has [**3]  no protection from fraud. Redfield on Railways, page 24, secs. 26, 27 and 28; The People vs. Caryl, 3 Parker, Crim. Rep., (N. Y.,) 326; Hibbard vs. N. Y. and Erie R. R. Co., 15 N. Y. Rep., (1 Smith,) 455; The Northern Railroad Company vs. Page, 22 Barbour, 130; Beebe vs. Ayres, 28 Barbour, 275.

The appellant's sixth prayer ought to have been granted, because if the jury believed that the appellee had not a ticket from Cumberland to Baltimore, and had not delivered such a ticket to the conductor, then the appellee could only recover for the unncessary force used in compelling payment of the fare. Redfield on Railways, 25, sec. 26, sub-sec. 4.

The appellant's seventh and eighth prayers ought to have been granted, because if the conductor committed an assault on the appellee, such assault was not within the line of his duty, and he was personally responsible to the appellee for said assault.

And even if the conductor did compel him to pay the fare from Martinsburg to Baltimore, if he used no more compulsion that the conduct of the appellee made it necessary to use, and there is no evidence to show that unnecessary force was used, there was no reason why the jury should [**4]  be instructed to allow vindictive damages.

J. H. Gordon, for the appellee.

On the Third Exception:--The appellee's prayer states the law of the case correctly and favorably to the appellants. 1 Parsons on Contracts, 696 to 700, (2d Edition); Stockton vs. Frey, 4 Gill, 406; Stokes vs. Saltonstall, 13 Peters, 181; Story on Bailments, secs. 592, 593, 598, 600, (4th Edition); Bretherton vs. Wood, 3 Brod. & Bing., 54.

The first, second, third, sixth, seventh and eighth prayers of the appellants were properly rejected. They all go on the erroneous idea that the appellee was not responsible unless the wrong complained of was done by the conductor of the train, or that the conductor or ticket agent designed to wrong the appellee, or were incompetent, or that the wrong was sanctioned or adopted by the appellants.

The responsibility of the Company covers the conduct of all its agents. It makes no difference to the rights of the appellee whether the wrong done him, resulted from the negligence of the conductor, or ticket agent, or any other agent of the Company. If he had the right ticket the conductor should not have put him off; if he had not the right ticket, the ticket [**5]  agent should have given him the right one. The corporation exists and acts only by its agents, and by putting them in their various places it consents to be bound by their acts. Even if the corporation had forbidden the particular act, it would be responsible for it. The competency of the agent is no protection, if he did not act properly in the particular case. Story on Agency, sec. 452; Angell & Ames on Corporations, sec. 382; Redfield on Railways, page 381, sec. 169, sub-secs. 6, 7, 8, 9 and notes, (2d Edition); Philadelphia & Reading R. R. Co. vs. Derby, 14 Howard, 468; McElroy and wife vs. Nashua & Lowell R. R. Co., 4 Cushing, 400; Rex vs. Medley and others, 6 Car. & Payne, 292; Sleath vs. Wilson, 9 Car. & Payne, 607.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*281]  BOWIE, C. J., delivered the opinion of this Court.
This appeal presents an action for damages, brought by the appellee against the appellants for injuries sustained by him as a passenger. The nar. avers, in substance, that the appellants, being a corporation owning a railroad between Cumberland and Baltimore for the transportation of passengers, the appellee was received [**6]  as a passenger, to be conveyed from Cumberland to Baltimore, and paid the regular compensation established therefor by the appellants; by reason whereof the appellants were bound to convey the appellee safely, etc., and to treat him civilly and properly, but the appellants had rude and incompetent 

 [*282]  servants on the train, who abused and injured the appellee, dragged him from his seat and extorted from him money beyond the established compensation, and other wrongs.
The defendants pleaded not guilty, on which issue was joined. Three exceptions were taken by the appellants, the first of which was abandoned at the argument in this Court. The second was taken to the exclusion of evidence offered by the appellants; and the third, to the granting of the appellee's prayer, and the rejection of certain enumerated prayers of the appellants.
At the trial, among other things, the appellee proved the purchase of a ticket from Cumberland to Baltimore, at the office of the appellants in the former place. That after travelling five or ten miles on the way, the conductor asked for his ticket, which was then delivered to him. After passing Martinsburg, it was again demanded by the conductor, [**7]  and on being told he had delivered it to him, a difficulty ensued, when, under threat of expulsion, he was compelled to pay the additional fare from Martinsburg to Baltimore; the conductor giving him a certificate of such payment.
The appellee further proved that the attention of those in the car and around, was called to the dispute, and some of them got up on their feet and stood around.
The appellants proved by the conductor, that on that evening, he went through the train, and took up all tickets to Martinsburg inclusive. There were very few on the express train, not more than half a dozen. After leaving Martinsburg, he went through the train to take up the tickets to Harpers Ferry; he came to the appellee, who said his ticket was to Baltimore, and that he, the conductor, had taken it up. A controversy then ensued, the result of which was the payment of the additional sum, upon the conductor's giving a certificate of its payment. The appellants then proved the mode of keeping and distributing the tickets at the Cumberland office.

 [*283]  It was proposed by the appellants to ask the witness what was the system adopted at all other stations on the road, and whether, in the [**8]  working of this system, mistakes had or had not frequently occurred by giving the wrong ticket, but the appellee objected, and the Court refused to permit the question to be answered, to which the appellants excepted. This constituted their second bill of exceptions.
The ruling of the Court in this bill of exceptions, seems entirely correct. No objection is made to it in the appellants' brief; it appears to have been tacitly, if not expressly conceded to be right. It was not competent for the defendants to exonerate themselves in whole, or in part, by proving mistakes on the part of their own agents.
The appellee's prayer affirms, that if he paid the usual fare for a seat in the cars from Cumberland to Baltimore, and took his seat, and was interrupted by any of the agents of the appellants without any fault on his part, and was required, and under threat of expulsion, compelled to pay extra compensation, he was entitled to recover such damages as were reasonable and proper under all the circumstances of the case; in estimating which, the jury were not limited by the actual amount of pecuniary damages sustained by him, but might give damages for the injured feelings, and degradation [**9]  of character, which might have resulted from his exposure, to the observation of the persons around him, or from his treatment by the agents of the defendants.
The propositions of the appellants' prayers were substantially as follows: 1st. If the appellee had not a ticket for Baltimore, but only to Martinsburg, he was not entitled to recover. 2d. If owing to his own mistake or negligence, or the mistake or negligence of the ticket agent at Cumberland, the appellee accepted a ticket to Martinsburg only, he was not entitled to recover, unless the jury believed the agent was an incompetent officer, or designedly and wilfully 

 [*284]  gave the ticket to Martinsburg, with intent to injure and defraud the appellee.
3d. That if the conductor did not behave wantonly or violently towards the appellee, and was neither rude nor incompetent, and the ticket presented by the appellee to the conductor, was a ticket for Martinsburg, and not to Baltimore, and the conductor used no more force than was necessary to compel or induce the appellee to pay the fare or leave the cars, the appellee was not entitled to recover, unless the jury believe that the ticket agent at Cumberland acted fraudulently,  [**10]  knowingly and designedly, in selling the ticket, and the appellants sanctioned it at the time or since.
4th. If the jury believe the appellee had not a ticket from Cumberland to Baltimore, but only to Martinsburg, the conductor had a right to require him to pay the regular fare from Martinsburg to Baltimore, or to leave the cars, and to use whatever force was necessary to compel him to leave the cars in case he refused to pay the regular fare.
5th. If the jury believe the appellants charged and received from the appellee more than a reasonable reward and established compensation for passenger fare from Baltimore to Cumberland, there being no proof in the cause to show what was the fare from Baltimore to Cumberland, the appellee was not entitled to recover the said sum of three dollars and seventy cents in that form of action, unless the jury shall also believe that unnecessary force was used by the conductor in exacting the fare from the appellee.
6th. That under the pleadings in the cause, the appellee was only entitled to recover damages for the unnecessary force used or injury suffered by the appellee personally, in compelling him to pay the additional fare; unless they believe [**11]  that the appellee had and delivered to the conductor a passenger ticket from Cumberland to Baltimore, and not a ticket from Cumberland to Martinsburg.

 [*285]  7th. If the jury believe the conductor caught the appellee violently, etc., by the collar, and dragged him from his seat while a passenger in the train, the appellee is not entitled to recover for the same in this action against the appellants, unless they believe the appellants authorized the act or adopted and justified it, since its committal.
8th. That if the jury believe, that the conductor wrongfully extorted from the appellee the fare from Martinsburg to Baltimore, after the appellee had surrendered his ticket, etc., the appellee was not entitled to recover vindictive or punitive damages from the appellants, unless they expressly or impliedly participated in the tortious act, authorizing it before, or approving it after it was committed.
Although there was no averment in the nar. of the purchase of a ticket, to entitle the plaintiff to his seat in the cars, and to transportation on the railroad, from Cumberland to Baltimore, or averment of rules or regulations requiring the same, and compliance therewith, yet [**12]  the evidence offered on both sides, established the existence of such a system; and the plaintiff, to support the issue joined on his part, proved the purchase of a ticket at Cumberland for Baltimore. Under these circumstances, the prayers submitted, must be supposed to be based on the rights and obligations growing out of that system. The appellee's prayer omits all reference to the ticket system, (unless the words "without any fault on his part" imply as much,) and relies entirely upon the payment of the fare, as entitling him to transportation, without molestation. This defect is supposed to be cured by the fourth prayer of the appellants, which was granted. The right of the appellants to require the passenger to purchase his ticket and present it when demanded, as evidence of his title to a seat, and of the conductor, to compel the passenger to leave the cars in case he refused, is fully recognized in that instruction; but the discrepancy between 

 [*286]  this proposition and that contained in the plaintiffs' prayer is so broad, as to be hardly reconcilable.
The words "and without any fault on his part," in the appellee's prayer, are too general, vague, and indefinite, to be [**13]  regarded, as a recognition of the same right. The theories of these prayers were prima facie, directly opposed. The jury could not, without disregarding one or the other, come to any correct conclusion. According to the ruling of this Court in Adams vs. Capron et. al., 21 Md. 186, and in Haney vs. Marshall, 9 Md. 194, 215, this conflict between the prayers is error, as it was calculated to mislead the jury--leaving them in doubt which should control. The passenger being obliged to conform to the regulations prescribed by the carriers, so far as to enable them to avoid imposition, a corresponding duty is imposed upon the latter, to show all becoming courtesy towards passengers, in demanding the evidence of their compliance with such rules.
The conductors and employees of the corporation represent them in the discharge of these functions, and being in the line of their duty in collecting the fare or taking up tickets, the corporation is liable for any abuse of their authority whether of omission or commission--vide Redfield on Railways, 381, note 6, and authorities there cited. The Court was therefore right in rejecting so much of [**14]  the defendants' prayers as limited their liability to such tortious acts of their agents as they had either previously authorized or subsequently approved.
The first and second prayers of the appellants omit all reference to the behavior of the conductor, in using force and violence more than necessary for the occasion, and were therefore properly refused.
The third prayer of the appellants was correct in its general theory, but they were not prejudiced by its refusal, as the fourth prayer, which was granted, contained the same law, without the qualifications attached.

 [*287]  The sixth prayer of the appellants was erroneous, in omitting to include in the estimate of damages, the sum extorted from the plaintiff, if the jury should find the plaintiff had and delivered to the conductor the proper ticket.
The seventh and eighth prayers, requiring the plaintiff to prove either previous authority or subsequent approval, of the acts of the conductor, to render the appellants liable, were properly rejected for reasons before assigned.
The prayer of the appellee claims compensation for injury to his feelings and degradation of character. The appellants' eighth prayer affirms he is [**15]  not entitled to recover vindictive or punitive damages against the Company, unless they expressly or impliedly participated in the tort, by authorizing it before, or approving it after.
We have already declared our opinion on the latter branch of this proposition. This Court, in the case of Gaither vs. Blowers, 11 Md. 536, 552, said, that where the injury was accompanied with force or malice, the injured party might recover exemplary damages. The action being trespass vi et armis or in that character, the jury were authorized to give whatever damages the evidence showed the immediate consequences of the wrong warranted, and which necessarily resulted from the act complained of. 2 Greenleaf's Ev., sec. 89; McNamara vs. King, 2 Gilm. 432; 2 Greenleaf Evid. 254; McTavish vs. Carroll, 13 Md. 429.
It results from the preceding review of the prayers of the appellants and appellee, that the Court below erred in granting the prayer of the latter, in the particulars mentioned, and in refusing the third prayer of the appellants; in consequence of which, the judgment below must be reversed and procedendo awarded.
Judgment  [**16]   reversed and procedendo awarded. 

17 of 120 DOCUMENTS 

THE CUMBERLAND COAL AND IRON COMPANY vs. THOMAS J. MCKAIG AND J. H. GORDON, Receivers, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 258; 1867 Md. LEXIS 47 

June 21, 1867, Decided 

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

In this case a petition was filed on the 19th day of November, 1863, by William Long and others, who sued for themselves, as well as for all other persons, employees of, or furnishers of raw material to Allen M. Sherman, and entitled to the lien provided by the first Article of the Code of Public Local Laws, sections ninety-nine to one hundred and three inclusive, who would contribute to the expense of the suit. The petition stated that the said Sherman had been engaged in mining coal in Allegany county from the first of January to the first of November, 1863, and the petitioners had been in his employ during that time, and he had become indebted to them in the several amounts particularly set forth in the petition; that said indebtedness, which amounted in the aggregate to more than twenty-five dollars, had existed for more than thirty days, and was still due and owing to the petitioners, and they therefore claimed to be entitled to the benefits in such case provided by the said Article of the Code of Public Local Laws. The petition asked for the appointment of a receiver or receivers to take charge of the affairs [**2]  of said Sherman, with a view to their liquidation and settlement, under the authority of the Court, and that said receiver or receivers might be ordered to take possession of all the personal property of said Sherman, liable to said lien, to sell the same, and to bring the proceeds into Court for distribution under its order, and for general relief. In accordance with the prayer of the petition, on the 24th of November, 1863, the Court (WEISEL, J.,) passed an order appointing the appellees, McKaig and Gordon, receivers, who, having given bond as required, and the same being duly approved, took possession of the property of Sherman and advertised the same for sale. At this stage of the proceedings the appellants filed their petition, stating that the property so advertised, except a small part, belonged to them, and asked the Court to pass an order to suspend the sale until they could have an opportunity of establishing their full and complete ownership thereof. The Court accordingly passed the order as prayed. The receivers answered the petition, denied all its equities, and prayed the Court to revoke the order suspending the sale. On the 27th day of April, 1864, the Court passed a [**3]  further order, setting the case down for hearing on the second Monday of July following, and authorizing the parties to take testimony by affidavits or under commissions to be issued for the purpose, on ten days' notice, said proof to be returned and filed by the first Monday of the said July. No proof was taken under this order, nor any excuse given for not taking it; on the contrary, the appellants gave notice that they did not intend to take any testimony under the commission, but would offer it at the trial. The condition of the country, then in a state of war, prevented the session of the Court at the July Term, and the case was called for trial at the October Term following, when the appellants filed a petition asking for a continuance, which was resisted. On this application the Court delivered the following opinion:

In this case an order was passed on the 15th of March, 1864, on the petition of the Cumberland Coal and Iron Company, upon the receivers, to suspend the sale advertised by them until the further order of the Court, assigning the first day of April following for the receivers to answer said petition, and show cause why said sale should proceed.

This proceeding [**4]  by a third party claiming the property in the receivers' hands against the defendant and his creditors, is not provided for by the law under which this whole proceeding is had. But the Court in its discretion, and as much to gratify the petitioner as to protect the receivers, over whom the Court, in equity proceedings (to which these are assimilated) has control, passed that order restraining the sale until further order, as well as the subsequent order of the 27th of April, 1864, providing for the taking of proof, and for the hearing of the matters in controversy under the petition of the Cumberland Coal and Iron Company. By the terms of the last named order either party had liberty to take proof by affidavits or commissions after ten days' notice to the opposite party or his solicitor, to be returned and filed on or before the first Monday of July, 1864; the said matters were by said orders set down for hearing on the second Monday of said month; and the former order suspending said sale was continued until said hearing and the further order of Court. The day for said hearing has passed, and the Cumberland Coal and Iron Company now appears and asks by its petition filed this day [**5]  for further time, and another day to be fixed for said hearing. This is resisted on the ground that no steps were taken by the petitioner or his counsel to comply with the terms of the order of the 27th of April last, and no cause is shown for the omission.

The petition of to-day asking for further time certainly assigns no good reason for the delay. The cause was set down for hearing on the second Monday of last July; the proof to be then used should have been taken in the manner prescribed in said order and returned and filed on or before the day therein named, for that purpose. No evidence was taken and filed, and no cause is shown why it was not done. The absence of the Judge on or after the day for the hearing and until the present term of Court, is no reason why the evidence should not have been taken and the cause put in readiness to be heard on the day fixed by the order or any day subsequent to it. And likewise the absence of other counsel, who may be associated with the present counsel of record for the petitioner, could only be urged for temporary and brief delay in case the evidence were in under the order. The solicitor for the petitioners claims in the argument to [**6]  be heard upon oral testimony or documentary proof now to be adduced, though the petition alleges that the witness he desires to produce is beyond the jurisdiction of the Court. Such testimony if present and offered would not be in compliance with the previous order of this Court, under which the opposite party has rights which cannot be interfered with, without proper cause shown, and without the benefit of the notice which it secures to him. Such proof therefore the Court could not now admit and entertain, without the consent of the opposite party, waiving his rights under said previous order. As ample time has been furnished for the production of the proof to sustain the allegations of claim by the Cumberland Coal and Iron Company, and the privilege accorded to it has not been complied with, and no good reason shown for the omission, the Court considers that the sale which it had suspended ought no longer to be deferred under the circumstances and law of this case. The purpose of the Act of Assembly would be defeated, if unusual delays were countenanced, by the depreciation of the species of property subjected to the lien, and the injury thereby both to creditors and the debtor.  [**7]  

In accordance with the views expressed in this opinion the Court denied the prayer for a continuance, and passed an order requiring the receivers to proceed to sell the property. Subsequently the Court (SMITH, J.,) passed a further order requiring the appellants to pay costs. From these two orders this appeal was taken.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

Appeal -- Practice.

The question of the continuance of a cause is one addressed to the discretion of the inferior Court, and its decision thereon is not subject to review or appeal.

The rejection of evidence, the character of which is not stated in the record, or in any bill of exceptions, is no cause for reversal. 

COUNSEL:
George A. Thruston and George W. Dobbin, for the appellant.

The sole question for this Court under this appeal is, whether the order of the Court below, setting the case down for a hearing on a particular day, and authorizing parties to take testimony by affidavits or under commissions to be issued for the purpose, on ten days' notice, excluded all evidence on behalf of the appellants which was not taken in the modes stated in the order?

This question has become of graver importance since this appeal was taken, because the receivers have construed the determination of the Circut Court in this cause, (intended simply, as the appellants contend, as a dismissal of the petition,) to decide the title of the engine (part of the property taken possession of by them as belonging to Sherman) to be in them, and have since [**8]  brought a suit in favor of one Barchus, a purchaser from them of said engine, and wheels, against the appellants, claiming fifteen or twenty thousand dollars damages, for the refusal of the appellants to sever said engine from the soil, and deliver the same to said Barchus, or to allow said Barchus to do so, maintaining that the decision of the Circuit Court in this cause estopped the appellants from denying said Barchus' title to said property, as purchased by him for only $ 1,000, not yet paid, under a sale made by them under the order of said Circuit Court, passed in this cause subsequently to the order, intended as a dismissal of said petition; claiming that said last order adjudicated as between the receivers and the appellants, the property aforesaid to belong solely to the former.

To deprive the appellants of the right to offer evidence, material, competent and proper in suits at law or in equity, and such as had been frequently admitted in similar lien cases, both by witnesses, orally in open Court, at the trial, and by record evidence, the said order should at least have positively, in terms, excluded all testimony, of any kind whatsoever, not taken by affidavits or under [**9]  commissions; and even then such restriction would have been illegal and improper; whereas, the order permits evidence to be offered under commissions, without stating that such shall be the only mode in which the same can be offered.

The practice in these lien cases has never been settled, evidence having been frequently received by the Court, from witnesses examined orally before it in open Court, in such cases, as well as parol and record evidence; and in others, it has been taken under commissions, sometimes by agreement, and sometimes under orders of the Court, passed for the purpose, as evidence usually is given either at law or in equity. No rule has been adopted by which either party is governed in the offering of his evidence in these cases. To deprive a party of so valuable a right, recognized by all Courts of law as the ordinary mode in which testimony is received in all cases, without a previous rule establishing the modes in which the same may be offered, and laying down some invariable practice, would be fraught with the greatest injustice.

In this case, the learned Judge who decided this cause below seems to have regarded the permission given to the appellants [**10]  as an indulgence, and granted from the desire of the Court to protect the receivers, and that it was in the power of the Court to restrict the manner in every respect in which it would dispose of the petition. To allow a petitioner the opportunity to prove the case made by his petition, is not an act of grace.

After the Court had entertained the petition, it was obliged to proceed with and decide the matters of it, as if the appellants had been proper original parties to the cause.

The learned Judge seems further to have disposed of it, in the mode taken by him, because in so doing the rights of the parties were left undisturbed. But it is deemed and construed far otherwise, it being affirmed that such disposition by him has fully determined the ownership of the property to be in the receivers, though no evidence of title was offered by them, and though the Court would not allow the appellants to offer any evidence in their behalf, because the same was not taken in the modes prescribed in and by said order.

Even if the cause had been in equity, where the usual mode of taking all evidence is under a commission, and reducing it to writing, the records of the Court, at [**11]  law and in equity, may be, on notice given, proven "viva voce" at the hearing, or offered in evidence, without being proved under or contained in the evidence taken under a commission. 2 Daniell's Chancery Practice, (American Edition of 1865,) 877, 878; Alexander's Chancery Practice, 76, 77.

The appellants had given notice to the receivers and counsel for the plaintiffs in the cause that they would offer, besides oral testimony, the decrees and proceedings in No. 1286, on the docket of the Circuit Court for Allegany County, sitting in equity; and also in the cause wherein the appellants were complainants and the said Allen M. Sherman and others defendants, in which cases, particularly in the former, the title and complete ownership of said stationary engine and three wheels was adjudged to be the property of the complainants, the appellants here, as against said Allen M. Sherman, and all claiming under him; and in which the said Sherman, and all claiming under him, were perpetually enjoined from touching or intermeddling with, or assigning or disposing of the same; and in which cause, also, it was distinctly and clearly proven that the appellants had alone paid for the same property,  [**12]  and for its fixation to the soil belonging to them, and had never been paid one cent therefor by any person, in any manner. But the Court refused to listen to said evidence, or permit the appellants even to offer it.

The order refusing a continuance, being in the discretion of the Court below, is not complained of; the objection made by the appellants is to the refusal on the part of the Court to receive any evidence; they therefore claim a reversal of the decision of the Court, disposing of said petition, and requiring them to pay the costs; and respectfully submit that this cause should be sent back, with permission to them to prove the subject matters of their petition in the usual mode in which evidence is admitted, either at law or in equity, and that they should be allowed the costs of this appeal.

J. H. Gordon and Thomas J. McKaig, for the appellees.

The learned Judge below properly assimilated this proceeding to a proceeding in equity. The appointment of a receiver, which the law requires, and the nature of his duties, support this view. Edwards on Receivers, 7. If this proceeding had been actually in equity, it would be considered in all respects regular and [**13]  proper--the notice would be treated as sufficient. It will be presumed that the proceedings were in conformity with the rules of the Court. There is nothing in the record to show that the Court erred in its order, and the presumption is, the ruling of the Court below was correct, and unless there be error disclosed on the record, its action will be affirmed. Clemens vs. Mayor & C. C. of Baltimore, use of Volkmar & Wild, 16 Md. Rep., 208.

The petition for a continuance did not show a proper case for a continuance; and even if it did, that was a matter in the discretion of the Court, from which no appeal will lie; and the same may be likewise affirmed of the order requiring the appellants to pay costs. Owings vs. Worthington, 10 G. & J., 283; Randall vs. Glenn, 2 Gill, 430; Calvert vs. Carter, 18 Md. Rep., 73.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*266]  BARTOL, J., delivered the opinion of this Court.
The decision of this appeal has been delayed in consequence of the unfortunate illness of our brother Goldsborough, whose co-operation in the decision has been necessary, as the cause was heard by three Judges only, and unanimity [**14]  is required.
The result of our examination of the record is, that we are all of opinion there was no error in the action of the Circuit Court for which the appellants can properly claim a reversal. It is unnecessary to state at length the facts of the case, inasmuch as we concur in the views expressed by the Judge of the Circuit Court in his opinion sent up with the record.

 [*267]  The supposed error in his ruling consists in his refusal to continue the cause on the application of the appellants, to afford them an opportunity to adduce evidence in support of their claim to the property, after they had failed to avail themselves of the opportunity afforded them to take their testimony under tho Court's order of the 27th of April, 1864. The question of a continuance was one depending upon the discretion of the inferior Court, and its decision thereon is not subject to review or appeal. But the appellant complains that the Circuit Court refused to allow the evidence to be given orally, or produced in writing at the hearing.
What the evidence was which was thus rejected is not stated in the record, or in any bill of exceptions, so that the appellate Court can determine upon its [**15]  pertinency or materiality. Its rejection is therefore no cause for reversal. See Clemens vs. Mayor & C. C. of Baltimore, 16 Md. 208, and cases there cited.
The appellees, under the order appealed from, will be entitled to sell only the interest of Sherman in the property in question, without concluding the rights of the appellants, if any they have to the same, leaving them free to assert that right against the purchaser, inasmuch as the question of right has not been heard and determined in this cause.
Order affirmed and cause remanded. 

18 of 120 DOCUMENTS 

MARGARET TAYLOR AND JAMES TAYLOR vs. THOMAS BRUSCUP AND MARY HENRY, Administrators of Joseph Henry.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 219; 1867 Md. LEXIS 44 

June 18, 1867, Decided 

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

Joseph Henry died in September, 1866. In June previous he, with his sister, Margaret Taylor, with whom he was then living, went to the Eutaw Savings Bank and had her name inserted in his bank-book as the joint owner of a deposit he had to his credit in that bank, the same to be subject to the order of either of them. Shortly after the death of the said Joseph, letters of administration upon his estate were granted by the Orphans' Court of Baltimore City to the appellees. On the 27th of September the appellee Thomas, acting administrator, filed his petition in the said Orphans' Court, alleging that the appellant Margaret, after the death of her aforesaid brother, had taken his bank-book, and praying for an order requiring her and her husband, James Taylor, to produce the same, or any moneys which they might have drawn on account of said bank-book belonging to said deceased. On the 6th of October following the appellants appeared and asserted the ownership in Margaret of the money deposited in the Eutaw Savings Bank by title paramount to the claim of the appellees; denied that it was assets of the estate of her deceased brother, and [**2]  pleaded to the jurisdiction of the Court. Plenary proceedings were then had, and a great deal of testimony was taken relative, in a great measure, to an alleged will of the deceased Joseph. After hearing, the Court passed an order requiring the appellants to appear and to deposit in Court the sum of $ 1,818.13, being the amount withdrawn by the appellant Margaret from the Eutaw Savings Bank. From this order the present appeal was taken.  

DISPOSITION:
Decree reversed with costs to the appellants.  

HEADNOTES:

Orphans' Court -- Administrator -- Concealment, its definition -- Jurisdiction.

On an application by an administrator to the Orphans' Court, invoking its authority to require the production of any part of the personal estate of his intestate, he must allege in his application, in express or equivalent terms, that the same is concealed in order to give the Court jurisdiction.

The simple withholding of property is not concealment, secrecy being an essential ingredient of the act of concealment.

Courts of special limited jurisdiction must be confined to the express letter of their authority.

The Orphans' Court has no jurisdiction over matters of trust and confidence. 

COUNSEL:
Joseph L. Brent, for the appellants.

The Orphans' Court had no jurisdiction over the controversy. It is claimed by virtue of the 238th section of Article 93 of the Code of Public General Laws. The basis of the jurisdiction under this Article is concealment, and this section requires that such concealment should be alleged in the petition filed by the administrator. This allegation was not made in this case, and therefore the plea to the jurisdiction should have been sustained. The section also requires that the Court should be satisfied that there has been a concealment; but the Court does not affirm that such proof had been adduced. And throughout the voluminous testimony there is not one word [**3]  bearing on the concealment of property. Everything was done openly. Margaret Taylor drew out the money on the advice of Mr. Sterling, her attorney, and the Savings Bank paid it over, after notice, on the advice of Mr. J. Mason Campbell, its attorney. The section of the Code invoked to sustain the jurisdiction of the Orphans' Court is only intended to apply to specific property, capable of identification and delivery. Here the money was loaned to the bank, which is the legal effect of the deposit, particularly as it was drawing interest. Story on Bailments, sec. 88. Hence, there was only a right of action against the bank existing at the time of the death of Joseph Henry, and that right of action survived to Margaret Taylor and not to the administrators. How can a party conceal a right of action? That the Orphans' Court had no jurisdiction is settled conclusively by the decisions of Spencer, Exc'r of Ragan, vs. Ragan, 9 Gill, 482, and Waring's Adm'r vs. Edmonds, 11 Md. Rep., 433. An adverse claim, based on title, ousts the Orphans' Court of jurisdiction, except by consent. Art. 7, sec. 7, of Code of Pub. Gen. Laws.

Even if there had been a concealment, the money which the appellants [**4]  were required to bring into Court was not assets of the estate. By the terms of the deposit it was the joint property of the decedent and Margaret Taylor, with the right of survivorship. Upon the death of Joseph Henry, instead of vesting in his legal representatives, it vested in Margaret. In order to vest the Orphans' Court with jurisdiction, the money itself must be assets; not a right of action to the money, but the money itself.

Now, by right derived from the decedent, the title of the money vested at his death in Margaret; and even if she took, as trustee, which is denied, yet the only right of the administrator was to make her properly administer or discharge the trust, or to sue for money had and received, &c. The money then was lawfully in the possession of Margaret Taylor; and being thus lawfully possessed by her, the Orphans' Court could not assume fraudulent conduct to consist merely in the possession of what it was lawful for her to possess. If she held as a mere trustee, then the rights of the estate are to be enforced in another forum.

John H. Ing, for the appellees.

The Code of Pub. Gen. Laws, Article 93, section 238, provides: "If an administrator shall [**5]  believe that any person conceals any part of his decedent's estate, he may file a petition in the Orphans' Court of the county in which he obtained administration, alleging such concealment," and the Court may, "if satisfied, upon examination of the whole case, that the party charged has concealed any part of the personal estate of the deceased, order the delivery thereof to the administrator." Does this terminate the prerogative of the Court? By no means. The same section empowers the Court to enforce obedience to such order by attachment, imprisonment or sequestration. What means this word "Conceal?" Manifestly it is the synonym of withholding. Proverbs 12, v. 23; Act of 1719, ch. 14, sec. 7. Conversion is concealment. When administration is granted, the property of the deceased is vested in the administrator, by "relation," from the time of the death of the intestate. Winchester, Trustee of Gooding, vs. The Union Bank of Maryland, 2 G. & J., 80; Cecil, Adm'r of Owens, vs. Negro Rose et al., 17 Md. Rep., 102. The moment the debtor dies the law asserts the rights of creditors, and takes the property into its hands, and makes or directs the distribution of it according to their legal [**6]  priority. This rule a testator cannot defeat by his will. The State of Maryland vs. The Bank of Maryland, 6 G. & J., 230.

Do the appellants claim the Bank-book as a gift? If so, was it a donatio mortis causa, or a donatio inter vivos? Is there any evidence in this case showing an intention on the part of Joseph Henry to give to his sister, Mrs. Taylor, the whole of his estate, to the exclusion of his aged mother, towards whom he had shown a proper filial regard, and to the exclusion of his other sisters and his brothers? The reason why he gave Margaret the authority to draw the money was, that she could write and send it to him as he needed it. The alleged gift to Mrs. Taylor cannot be sustained as a donation mortis causa or as a donation inter vivos; such a gift cannot be by mere parol. The rule of law in either case is, that a delivery of the thing intended to be given is essential to the perfection of the gift. The gift should be full and complete at the time; there must be a parting by the donor with the legal power and dominion over the thing intended to be given, and leaving nothing to be done by him, or his executor, to perfect it. Pennington, Adm'r of Patterson, vs. Gittings'  [**7]  Ex'r, 2 G. & J., 216; Bradley and Wife vs. Hunt, Adm'r of Jack, 5 G. & J., 58. Supposing the entry in the bank-book authorized Mrs. Taylor to draw out the whole deposit in the Savings Bank, and to transfer it to herself during her brother's life-time, yet inasmuch as she did not do so, it was not a valid gift either in law or equity, for want of delivery. Was the bank-book which Margaret Taylor took from the trunk of the deceased, part of his estate? We think it was; and as such the administrator was entitled to claim it.

The jurisdiction of the Orphans' Court as defined by the 230th section of Article 93 of the Code of Pub. Genl. Laws, is very broad: "To administer justice in all matters relative to the affairs of deceased persons." And by the following section, it may enforce obedience to, and execution of its decrees in the same ample manner as the Courts of equity in this State. If such language do not confer upon the Orphans' Court full jurisdiction, what words will give it? It is complained on the part of the appellants, in respect to jurisdiction, that the Orphans' Court does not, in its order, recite a case of concealment.

What does the Court do when it states it [**8]  has read and considered the petition, and answer, heard evidence, and the arguments of counsel, and therefore orders and decrees to be deposited in Court the sum of money withdrawn by the appellant from the Eutaw Savings Bank? Does it not grant the prayer for relief by an apt judgment and decree, under full consideration of the entire merits of the whole case, upon petition, answer, evidence and argument of counsel? Was the Orphans' Court obliged to set out in totidem verbis, the Code under which it was proceeding?

There was in this case no pretext of incidental power or constructive authority--no exercise of jurisdiction not expressly conferred by law, but the true, just and faithful administration of justice in a matter relative to the affairs of a deceased person.

[Other points were discussed by Counsel, which are omitted as unnecessary to be reported, inasmuch as this Court has decided the Orphans' Court had no jurisdiction.] 

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

OPINIONBY:
BOWIE 

OPINION:

 [*224]  BOWIE, C. J., delivered the opinion of this Court:
In a case between the same parties, decided by this Court on the 2d of March, 1867, an order [**9]  in the nature of a supersedeas was issued by this Court, suspending proceedings pending this appeal. The question now arises on the appeal taken the 26th October, 1866, from the original decree of the Orphans' Court, requiring the appellants to appear and bring into that Court the sum of $ 1,818.33, alleged to have been withdrawn by the appellant Margaret, on the 28th of September, ult., from the Eutaw Savings Bank, by virtue of a certificate of Deposit, of which the following is a copy:

14,096. Joseph Henry, Margaret Taylor, and the survivor of them, subject to the order of either of them.

________________________________________________________________________________

1866.	
April 20--Rec'd eighteen hundred and fifty	
 dollars	$ 1,850 00	
E. T. OWENS.	
June 2--Paid fifty dollars	50 00	
Balance	1,800 00	
April 20--Interest to June 1st, '66	33	
Sept. 28--Interest	18 00	
	$ 1,818 33	
________________________________________________________________________________

Paid to Margaret Taylor, Sept. 28th, 1866.

 [*225]  The power of the Court to pass this order, is said to be derived from the 238th section of the 93d Article of the Code of Public General Laws. This section authorizes an administrator, if he shall believe any person conceals any part of the decedent's estate, to file a petition in the Orphans' Court [**10]  alleging such concealment, and the Court shall compel an answer on oath, and if satisfied upon an examination of the whole case, that the party charged has concealed any part of the personal estate of the deceased, may order the delivery thereof to the administrator, and may enforce obedience to such order by attachment, imprisonment, or sequestration of property. This section is, "pro tanto," a transcript of sec. 12, ch. 115, of the Act of 1831, to which was annexed a proviso to the effect, that in case either party, after answer put in on oath, shall require it, the Court shall direct an issue or issues to be made up and sent to any Court of law which may be most convenient under all circumstances for trying the same, as provided in the Act of 1798, ch. 101, to which it was a supplement.
A similar provision, applying to all issues raised before the Orphans' Court by petition and answer, is embodied in the Code. If the parties to this controversy had desired to avail themselves of the benefit of issues, to be tried by a jury, could any issue involving the fact of concealment have been properly framed upon the petition and answer filed in this case? If not, the power of the Court [**11]  must be found in some other section of the Code. Concealment is the ground of jurisdiction in such cases in the Orphans' Court as essentially as accident, fraud or mistake are grounds of jurisdiction in a Court of Equity; and in both Courts the facts giving jurisdiction must be alleged in express or equivalent terms.
The Code, Article 93, Section 252, declares: "The Orphans' Court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction 

 [*226]  not expressly conferred by law." This is but a statutory recognition of a principle of the common law, that Courts of special limited jurisdiction must be confined to the express letter of their authority.
The petition of the appellees does not impute any concealment to the parties. There is an allegation that the trunk of the deceased was opened after his death and the bank-book taken out, which allegation is traversed and facts alleged to show the subject matter in dispute was not the property of the deceased, but of the respondents; and when the certificate of deposit is examined "per se," it certainly shows a prima facie right of possession, if not of property, in one of the appellants.  [**12]  
The argument of the appellee, that the word "conceal" is manifestly the synonym of withholding, is not sustained by any lexicographer we have consulted, or the popular sense of the term. Secrecy is an essential ingredient of the act of concealment. "To hide or withhold from observation, to cover or keep from sight," are the meanings technically and popularly conveyed by the word "conceal." It can scarcely be imagined that the extraordinary power of requiring an answer upon oath, with the summary process of attachment, sequestration and commitment, were to be exercised by a Court of special limited jurisdiction in every case, in which the administrator or executor should allege a third person withheld property which belonged to the estate of the deceased.
It was only in cases where concealment rendered the act quasi criminal, and the usual remedies at law or in equity, difficult or impossible, that this peculiar jurisdiction was granted to the Orphans' Courts. A different interpretation would revive the pretensions of the spiritual Courts, which by entertaining suits "pro laesione fidei," attempted to exercise the powers and jurisdiction of Courts of Equity, "until finally [**13]  prohibited by the 

 [*227]  unanimous concurrence of all the Judges." 3 Chitty's Black., 52.
In the language of Lord Coke, "these particular jurisdictions, derogating from the general jurisdiction of the Courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges will most explicitly warrant." 2 Inst., 543, cited in 3 Black. Com., 85, in margin.
The evidence tending to show that Mrs. Taylor was the trustee of the fund, for the benefit of the deceased or his next of kin or devisees, concedes the question of concealment. If she occupies this relation to the fund, she is legally entitled to its possession, and accountable in a Court of Equity for the faithful administration of it.
The Orphans' Court has no jurisdiction over matters of trust and confidence. The decree of the Orphans' Court being erroneous for want of jurisdiction, it is unnecessary to examine the testimony introduced by the parties to support their several pretensions.
Decree reversed with costs to the appellants. 

19 of 120 DOCUMENTS 

MICHAEL TREIBER vs. CHARLES BURROWS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 130; 1867 Md. LEXIS 37 

May 29, 1867, Decided 

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

This action was brought by the appellee to recover the value of a trunk and its contents, and a chest of tea, alleged to have been lost while he was stopping, as a guest, at the Revere House, a public hotel in Cumberland, of which the appellant was the proprietor. The trunk, besides clothing, contained $ 1,500 in ten-dollar bills of the Bank of Upper Canada.

1st Exception: The appellee (plaintiff below,) after having introduced evidence to maintain the issue joined on his part, offered in evidence a commission executed in Upper Canada, by which he proved that in July, August and September, 1861, he lived in Stratford, Canada West, and that in July of that year he had on deposit, in the Bank of Upper Canada, at that place, the sum of $ 2,200; that on the 29th of August following, he drew out of said bank $ 2,000, and on the 6th of September following he drew out the balance, and that said sums were paid in bills of the bank of Upper Canada, which were equivalent to gold, dollar for dollar. The defendant objected to the admissibility of this evidence, but the Court (SMITH, J.) overruled the objection, and permitted the evidence [**2]  to be read to the jury; and to this ruling the defendant excepted.

2d Exception: Both parties having closed their case, the plaintiff asked the following instruction: That if the jury shall find from the evidence in the cause, that the defendant kept a hotel at Cumberland, and that the plaintiff, with his family, stopped at said hotel as a guest, and brought the trunk and contents, and tea chest and contents, in controversy, to said hotel with him, and that they were there lost to the plaintiff while he was such guest, then the plaintiff is entitled to recover the value of the same, even though they may believe that the plaintiff did not deliver them to, or acquaint the defendant with them. Which instruction the Court gave. The defendant offered five prayers, the first and fourth of which the Court granted; the others were as follows:

2d. That if the jury find, from the evidence in the cause, that the plaintiff was a guest of the defendant, as alleged in the declaration in this cause; that the trunk of the plaintiff was brought by him into the hotel of the defendant, while the plaintiff was a guest in said hotel; that the said trunk contained the bank notes testified to by [**3]  the plaintiff, and that said trunk and its contents were lost while so in said hotel, the plaintiff cannot recover for said bank notes in this action, unless they shall also find that the said bank notes were designed by the plaintiff for his use, while on his journey or while a guest in said hotel, or unless they shall find that they were lost by the fraud or negligence of the defendant.

3d. That if the jury find the facts stated in the above prayer, and also find that the plaintiff had on his person at the time of his arrival at the hotel of defendant four or five hundred dollars in money of this country, and that the money in the trunk was in Canada money, they may find that the money of this country was intended by him for use on his journey, and was sufficient for that purpose, and if they do so find, then the plaintiff cannot recover for the money in the trunk, unless they find it was lost by the fraud or negligence of the defendant.

5th. That if the jury find that the plaintiff left Upper Canada and came to Cumberland, and brought the caddy or box of tea in controversy with him, and that said caddy or box had not been opened when he arrived at Cumberland, and that [**4]  he intended renting a house and going to housekeeping in Cumberland, they may find that said tea was not intended for use while on his journey or while he was a guest in the hotel of the defendant, (if they find he was such guest,) and if they do so find, then the plaintiff cannot recover for said tea in this action, unless they shall also find that it was lost by the fraud or negligence of the defendant.

These prayers the Court rejected; and to the ruling of the Court in granting the prayer of the plaintiff and rejecting the prayers of the defendant, the defendant excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Liability of Innkeepers for Money and Goods lost or stolen -- Evidence.

An innkeeper, at common law, is bound to take more than ordinary care of the goods, money and baggage, of his guest, brought within his inn, and is responsible for loss or damage to the same by his servants, domestics, other guests, or persons unknown; and whether delivered into the custody of the innkeeper or not, so that they be brought within the inn, actually or constructively, according to the character of the articles to be kept.

The rigor of this rule has, however, been materially relaxed in this State by decisions of this Court. Money in the trunk of a guest at an inn, to constitute a part of his baggage for which the innkeeper is responsible, should be of such an amount only as would be convenient to meet his traveling expenses; and to arrive at this, the condition of the guest, his mode of life, his habits, tastes, the nature, character and objects of his journey, must be taken into consideration by the jury; for it is the province of the jury in such a case to determine the question of sufficiency under such directions and limitations as the Court may prescribe. And the same observations will apply to a chest of tea, as an article necessary and suitable, or not, for the journey, under the circumstances.

Innkeepers, in relation to the baggage of their guests, stand on the same footing with carriers of passengers.

In a suit brought by a guest to recover from the landlord of the hotel where he was stopping, for the loss of a trunk and its contents, including $ 1,500 in bank notes, it being sought to be shown that the plaintiff had said his means were very limited, and that he was a very poor man, it was competent for him to show that some months previous to his loss he had money, in Canada bank notes, to an amount greater than the sum alleged to have been lost.  

COUNSEL:
J. H. Gordon for appellant.

The points for the decision of this Court are presented by the ruling of the Court below, in granting the prayer of the plaintiff, and in rejecting the second, third and fifth prayers of the defendant, and are simply these:

Does a large sum of money which a traveller or guest brings with him in his trunk into an inn, and which is not necessary for his comfort or convenience while on his journey, or while a guest in the inn, constitute part of his baggage, for which [**5]  the innkeeper is responsible as such? And does a chest of tea which is not used or intended for use on his journey, or while a guest at the inn, constitute part of the baggage, for which the innkeeper is so responsible?

It appears from Calye's case, 8 Coke, 32, that this is one of the cases for which a writ was provided under the Statute of Westminster 2, 13 Ed. 1, Stat. 1, chap. 24, Stat. at large, page 95.

The writ is found in Fitzherbert's Nat. Brev. 94, B., where the rule is laid down as follows: "If a man be lodged at any inn, and any of his goods be taken or stolen from thence by a stranger, he should have an action upon the case against the innkeeper, and the writ shall be such."

By the civil law, innkeepers were held to a responsibility similar to that of the common law. And by both systems it was based on the principles of public policy and necessity, which placed the traveller or guest, who was generally a stranger, with his goods, under the control and protection of the innkeeper. Story on Bail., secs. 464, 471.

And as the extraordinary liability of the innkeeper arose from necessity, it can only be binding to the extent of the necessity which induced [**6]  its adoption, and the liability must cease when the reason of it ceases to have force. In going back to the time of Edward 1st, a period of nearly 600 years, to inquire into the relations then existing between innkeeper and guest, at that early period, when wayfarers and travellers passed from one part of England to another on foot, or on horseback, carrying with them only sufficient clothing and money to supply their necessary wants, while on the journey, we can easily understand why the early authorities speak of the responsibility of the innkeeper, for the goods of his guest generally, without distinguishing between the character of goods that would probably be necessary for the convenience or comfort of a traveller or guest, and those which would not; or the quantity of such goods as were necessary, and that might be required during his journey, or while at the inn as a guest.

Suppose a merchant from one of the inland towns of the State, should go to Baltimore, and purchase five thousand dollars worth of dry goods, load them into his six-horse wagon, and start homeward with them; and should stop at one of the country inns on his way, to stay over night, and receive entertainment [**7]  for himself and his horses during the night. He would be a guest, and his goods would all be infra hospitium. Can it be said, that the innkeeper would be held to the strict rule in that case, that is insisted upon here? I think no Court at this day would hold him responsible for the loss of the goods, unless he was guilty of some other misconduct than would make him liable for the necessary baggage of a guest.

The Court of Appeals has therefore established a very reasonable and proper distinction between baggage, that is necessary for the convenience and comfort of a traveller, while on his journey as a guest at an inn, and other articles which he might have with him, but which could not rightly be regarded as such. Pettigrew vs. Barnum et al., 11 Md. Rep., 434, 449; see, also, Clark & Co. vs. Spence, 10 Watts, 335; Pardee vs. Drew, 25 Wend., 459; Story on Bailments, sec. 499; Johnson et al. vs. Stone, 11 Hump., 419; Dibble vs. Brown and another, 12 Georgia, 224; Orange County Bank vs. Brown, 9 Wend., 115; Hawkins vs. Hoffman, 6 Hill, 589; Giles vs. Fauntleroy, 13 Md. Rep., 126.

William Walsh for the appellee:

The appellant objected to the evidence taken under a commission [**8]  to Canada, for the purpose of proving that in the summer of 1861 the plaintiff had money in Canada bank notes to an amount greater than the amount alleged and proved by his own evidence to have been lost when his trunk was lost at the defendant's hotel. This evidence was admissible not only as confirmatory of the testimony of the appellee, but also as rebutting the testimony subsequently offered by the appellant, to show that the appellee had said his means were very limited, and that he was a very poor man. The evidence was also admissible, because it proved the value of the lost money to have been equal to gold. The defendant objected to the whole of the evidence taken under the commission; and if any part were admissible the objection was not sustainable.

The question presented by the second bill of exceptions, and raised by the prayers in the case, involves the responsibility of innkeepers for the money and other property of a guest taken within the inn.

In this case fifteen hundred dollars in bank notes were in the appellee's trunk, and were lost to him after he became a guest, and the trunk was taken within the inn. The appellee will contend that the liability of the [**9]  innkeeper extends to all the property lost in this case, including the money as well as the small chest of tea. The care of the goods is a part of the contract of the innkeeper. 2 Kent's Comm., 592; Story on Bailments, sec. 470; Towson vs. The Havre-de-Grace Bank, 6 H. & J., 47.

An attempt is made to limit the liability of the innkeeper to "baggage," or such wearing apparel necessary for the use of a traveller while on his journey.

The innkeeper is responsible for all the moveable goods of the guest regardless of their character, kind or quantity, or the purposes for which the guest carries the goods with him; and for money as well as any other property, whether the money is for his use as a traveller or not. The appellee in this case had broken up his residence in Canada, and intended to go even further south than Maryland, and when he arrived at Cumberland had not made up his mind to remain there. He was therefore a traveller, who was moving to a new home; consequently he was taking his effects and money with him. His destination was Virginia or Georgia. The rebellion was then flagrant. Draft exchanges were not to be had on the banks in the South. The appellee was moving [**10]  to the South, and was therefore obliged to take his money with him. It was in the most compact shape, in Canada bank notes, equal to gold. He was not carrying money unnecessarily, or in larger amounts than his "circumstances" justified or required.

The words of the writ are: "eorum bona et catalla infra hospitium," and bona et catalla include deeds, charters, bonds and evidences of debt. 5 Resolution in Calye's Case, 8 Coke's Rep., 32; Story on Bailments, sec. 481; Bennet vs. Mellor, 5 Term. Rep., 273; Richmond vs. Smith, 8 Barn. & Cress., 9; Burgess vs. Clements, 4 Maule & Selwyn, 306; Kent vs. Shuckard, 2 Barn. & Adolp., 303; Armistead vs. Wilde, 17 Adolp. & Ellis, N. S., 261.

This last case, decided in 1851, fully covers the present case. It, in effect, decides that if a traveller leaves several hundred pounds in a box in the common traveller's room, and it is stolen, the landlord is responsible for the loss.

In our case the proof is by the appellee, that he pointed his trunk out to the appellant, told him it was valuable, and requested him to have it sent to his room; no display of money before strangers. The landlord replied that it was as safe there as in his bed-room.  [**11]  Clute vs. Wiggins, 14 Johnson, 175; Berkshire Woolen Company vs. Proctor, 7 Cushing's Rep., 417.

The cases of Pettigrew vs. Barnum, 11 Md. Rep., 434, and Giles vs. Fauntleroy, 13 Md. Rep., 127, are relied on by the appellant. In these cases the Court has decided that knives, forks and spoons, pistols or surgical instruments, unless the owner were a surgeon or a student of surgery, were not such articles as an innkeeper would be responsible for. In the first of these cases a fancy purse, valued at forty dollars, containing money, constituted a part of the contents of the robbed trunk, and neither was excluded by the Court from the liability of the innkeeper.

In the latter case it is to be inferred that the innkeeper would have been held responsible for the care of surgical instruments if the plaintiff had been a surgeon, or even one studying surgery. This was not upon the ground that he would have use for such things while travelling, but because when at home, if a surgeon, he would need them, or if a student of surgery would need them at some future day; and therefore had a right to provide himself with them, and to take them in his trunk.

Is not the case of a traveller [**12]  moving from Canada to the South during the rebellion, when no more convenient mode existed of carrying his funds with him, indeed, no other mode whatever, within the principle of the surgeon, as put by the Court Appeals? If the plaintiff in this case had gotten to the South in January, 1862, would his sum of fifteen hundred or two thousand dollars have been more than sufficient to have kept him and his family until the surrender of Lee, in April, 1865, a period of over three years? He may have designed to purchase property, or have gone into business.

All the cases cited by the Court of Appeals in the case of Pettigrew vs. Barnum, 11 Md. Rep., 450, are cases against carriers of passengers, and not one of them against an innkeeper. Although the responsibility of common carriers and innkeepers are very analogous, yet the carriers of passengers are not common carriers; only carriers of goods are common carriers. They were not liable, therefore, for an injury to a passenger, unless there was some negligence or defect of means on their part. Camden, &c. Co., vs. Burke, 13 Wendell, 611; Hollister vs. Nolen, 19 Wendell, 234; Cole vs. Goodwin & Story, 19 Wendell, 251; Stokes vs. Saltonstall,  [**13]  13 Peters, 181; Stockton vs. Frey, 4 Gill, 406.

This last case shows that the liability of carriers of passengers is entirely different from that of common carriers or carriers of goods.

Originally, "the proprietors of stage coaches were not liable for the traveller's baggage, unless a distinct price had been paid, on the ground that the carrier is liable only in respect of his reward, and the compensation should be in proportion to the risk; latterly a reasonable amount of baggage, by common usage, was deemed to be included in the fare of the passenger, but the Courts should not allow this custom to be abused, and under pretence of baggage include articles not within the scope of the term or intent of the parties, thereby defrauding the carrier of his just compensation, besides subjecting him to unknown hazards." Pardee vs. Drew, 25 Wendell, 459.

This is the case relied on by this Court in Barnum vs. Pettigrew; and was the case of a carrier of passengers, who, by the common law, was not originally responsible for "baggage" at all, but by usage lately adopted, was held responsible for what was known as "baggage," as contradistinguished from merchandize or money.

The [**14]  original immunity of the passenger carriers for any kind of goods was subsequently converted into liability for personal baggage proper.

See the cases of Hawley vs. Smith, 25 Wendell, 642, and Peet vs. McGraw, 25 Wendell, 653; cases against innkeepers.

The distinction between a common carrier and a carrier of passengers is given in the notes to the case of Coggs vs. Barnard, 1 Smith's Leading Cases, English notes, page 101, mar. 174, top. "A common carrier is a person who undertakes to transport from place to place for hire the goods of such persons as think fit to employ him."

"A person who conveys passengers only, is not a common carrier." Story on Bailments, secs. 495, 590.

Common carriers of goods were by the common law in England liable for money, coin, bank notes and all other valuables, although the value of the package was not disclosed to the carrier. This was changed by 11 Geo. 4, and 1 Wm. 4, cited in 1 Smith's Leading Cases, English notes, 102, mar. 175, top. The liability of an innkeeper was the same; both are insurers of property committed to their care. Mason vs. Thompson, 9 Pickering, 280.

It is an error to undertake to deduce from cases against [**15]  carriers of passengers, for loss of "baggage," principles, and apply them to cases against innkeepers. The analogy only exists between innkeepers and common carriers or carriers of goods.

We venture to say, that no case can be found in which the liability of an innkeeper has been limited, so as not to embrace all goods brought into the inn, except the two cases in Maryland, and in deciding these cases, we respectfully submit, that our Court was led into error by failing to note the distinction between the liability of carriers of passengers and common carriers; and by an application to innkeepers, of principles decided as to carriers of passengers and not common carriers; when the two classes of cases were wholly distinct, and rest upon different principles. The liability of passenger carriers for "baggage" of passengers, as common carriers thereof, was never extended beyond "baggage" as such; and even that only in modern times. Story on Bailments, sec. 499. But the liability of innkeepers for all goods brought within the inn by the guest, was an original common law liability, and never was confined to "baggage," which has a definite meaning in the law, and applies to wearing [**16]  apparel, including jewels, ornaments, &c., necessary for a party's use. We assume that this Court will not extend the two cases above mentioned, further than they now go. Neither of them embraces a case of money in the trunk of a moving traveller.

An innkeeper is one who keeps a common inn for the accommodation of guests, and their goods and chattels, and this, though he gets no payment for his care of the goods. Story on Bailments, sec. 470.

The distinction between the liabilities of innkeepers and carriers of passengers for money, is clearly taken and strongly stated in the cases of Berkshire Woolen Co. vs. Proctor, 7 Cushing, 417, and Jordan vs. The Fall River Railroad Company, 5 Cushing, 69.

It is submitted, with great confidence, that the present case is entirely covered by the case of Towson vs. The Havre-de-Grace Bank, 6 H. & J., 47, where the innkeeper was held liable for the money. The circumstance, that the money in that case was delivered to the landlord, is not in any manner made the ground of the decision; but the case is decided upon the general liability of the landlord.

On the former appeal in this case, this Court said that a delivery of the goods [**17]  of a guest into the custody of the innkeeper, was not necessary to charge him with them, for although the guest did not deliver them, or acquaint the innkeeper with them, still the latter was bound to pay for them if they were stolen or carried away. This shows that the liability is the same, whether the property is intrusted to the innkeeper or not. This view of the case is sustained by the Act of 1854, chapter 323.

The third section of that Act exempted innkeepers from liability for money or plate not deposited by the guest with them for safe keeping.

Now, if the liability of the innkeeper for money, did not exist by the common law, where no safe was provided, and the money not put into the custody of the landlord, why was the statute passed? The statute assumes the existence of the common law liability; and its object was to exempt innkeepers in cities and towns, containing a population over five hundred, from liability, for money and plate, if they provided a safe, and gave the notice provided by the Act. It was not deemed necessary to extend this conditional exemption to smaller towns, because rogues were not so likely to congregate there, as in the hotels of the large [**18]  cities, where, from the great crowds who assemble, the innkeepers cannot distinguish their guests from other persons. Even the policy of this Act was not deemed good, as it was not codified, and was repealed.

The principle for which the appellant contends that innkeepers are liable for such sums only as are necessary and designed for the ordinary travelling expenses of the guest, is unsupported by authority, and wholly inconsistent with the principle upon which the liability of an innkeeper rests.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*142]  WEISEL, J., delivered the opinion of this Court.
This case came before this Court on a former appeal, in which the present appellee was then the appellant, and which was sustained upon an error in the only ruling of the Court below then under examination, and that was the want of evidence to support the instruction relative to the neglect and carelessness of the guest himself by which the trunk was lost. That being an appeal by the present appellee, no objection was of course taken by him to the fact that the prayer covered the trunk and all its contents set out in the declaration, and consequently [**19]  the particular question which has been raised and discussed in the present appeal was not brought to the notice of the Court in that case or passed upon. See Burrows vs. Trieber, 21 Md. 320. What constitutes in Maryland the baggage of the guest of an inn is distinctly presented by the prayers in this appeal, and this Court is called upon in this examination to review its own decisions upon this somewhat difficult and yet practically important branch of the law.
The verdict of the jury in the present case was for the sum of $ 1,980.25, which included the sum of $ 1,500 in the notes of the Bank of Upper Canada in the trunk, and the value of a separate chest of tea.
The prayer of the appellee, which was granted by the Court below, contained the instruction that the innkeeper, Treiber, was answerable for the value of the trunk and all 

 [*143]  its contents, including the money or bank notes, and the tea chest and its contents, if they found that the appellee was his guest, and brought the same with him into his hotel, and that they were there lost to him while such guest. The defendant's second and fifth prayers exempt the defendant from responsibility [**20]  for the loss of these articles, unless the jury should find that they were designed by the plaintiff for his use while on his journey, or while a guest in the hotel, or unless they should find that they were lost by the fraud or negligence of the defendant. His third prayer claimed exemption from responsibility for the money in the trunk, if the jury should find that the plaintiff had four or five hundred dollars in money of this country on his person, which was intended by him for use on his journey, and was sufficient for that purpose, unless they found it was lost by the fraud or negligence of the defendant. These three prayers of the defendant were rejected by the Court below.
The defendant took two exceptions; the first, to the admissibility of certain proof taken in Canada under a commission; the second, to the ruling of the Court in granting the prayer of the plaintiff, and rejecting the second, third and fifth prayers of the defendant as noticed above.
An innkeeper at common law is bound to take more than ordinary care of the goods, money and baggage of his guest brought within his inn, (infra hospitium,) and is responsible for loss or damage to the same by his servants,  [**21]  domestics, other guests or persons unknown; and whether delivered into the custody of the innkeeper or not, so that they be brought within the inn, actually or constructively, according to the character of the articles to be kept. This is the law established by Calye's Case, in the time of Elizabeth, 8 Coke, 32, and adhered to in England and in this country, until departed from more 

 [*144]  recently in this State. Bennet vs. Mellor, 5 Term. 273; Burgess vs. Clements, 4 Mau. & Selw. 306; Kent vs. Shuckard, 2 Bar. & Ad. 803; Richmond vs. Smith, 8 Bar. & Cress. 9; Armistead vs. Wilde, 17 Ad. & Ellis, N. S. 261; Clute vs. Wiggins, 14 John. 175; Berkshire Woolen Company vs. Proctor and another, 7 Cush. 417; Towson vs. Havre-de-Grace Bank, 6 Har. & John. 46; Story on Bailments, secs. 470 to 487; 2 Kent's Comm., 592-596, side, and cases there referred to. The ground of this responsibility is the profit which the landlord, or, more technically, the innkeeper receives for entertaining his guest, and its rigor is justified and maintained, as observed by Sir William Jones "on the great [**22]  principle of public utility, to which all private considerations ought to yield."
The rigor of this rule has, however, been materially relaxed in Maryland by the decision of this Court in the case of Pettigrew vs. Barnum, 11 Md. 434, and subsequent cases. That was a suit by a guest of Barnum's City Hotel against its proprietors for the loss of various articles from the trunks of the plaintiff whilst such guest, and this Court, in full bench, unanimously determined (TUCK, J., delivering the opinion) that the defendants were not responsible for silver knives, forks and spoons, which were among the missing or stolen articles. These were wedding presents received whilst on a bridal tour abroad, from which the plaintiff had returned, and was then on his way home in South Carolina. The Court in this case departed from the rigor of the common law, and incorporated the principle which governs carriers of passengers in reference to their baggage, limiting or restricting the responsibility of the innkeeper for the baggage of his guest to that of the carrier of a passenger--putting both, indeed, upon the same ground in this respect. "It is not within the implied contract [**23]  of the landlord," said the learned Judge, "that he will be 

 [*145]  responsible for all the goods which may be brought to his house, merely because they happen to be in a trunk." (p. 449.) And the citations made by the Court (p. 450) in support of the position taken and enunciated in that case, are all, without exception, cases of carriers of passengers, and of American authority. This case was decided at December Term, 1857, but originated in the inferior Court on the 15th of February, 1854, a few days prior to the passage of the Act of 1854, chapter 323, to the introduction and enactment of which this occurrence at Barnum's Hotel most probably led. The same question arose in the case of Giles vs. Fauntleroy, heard and again decided by a full Court at December Term, 1858, 13 Md. 126, when, upon the ruling in the case of Pettigrew vs. Barnum, the landlord was held not to be responsible for silver teaspoons and a Colt's revolver, part of the contents of a rifled trunk, and also for a case of surgical instruments and a tonsil cutter, inasmuch as there was no proof in that case that the plaintiff was either a physician, surgeon or student of medicine, (p. 139.)  [**24]  
In this view of the law it is no easy matter to determine what constitutes the baggage proper of a traveller or the guest of an inn. All the authorities agree in pronouncing it difficult. Yet their definitions and explanations must furnish us with the proper idea conveyed by that term. The opinion of this Court, in Pettigrew vs. Barnum, states that "the baggage of a traveller depends so much on circumstances, such as his position, habits, taste and mode of travelling and living, that it is easier to say, in a given instance, whether an article is embraced, than to lay down a general rule that will apply to all cases. We do not think (adds the Court) the term embraces merchandize or other valuables not designed for use or personal convenience on the journey." 11 Md. 434, 449. What is usually carried as baggage, is said by BRONSON, J., to be a good test for determining what things 

 [*146]  fall within the rule. He was not for extending it beyond what a traveller usually carries with him for his personal convenience in the journey, and said it neither included money nor merchandize, and doubted even whether money to pay travelling expenses was embraced, as that [**25]  was generally carried about the person and not in trunks or boxes. Still he would not confine the rule to wearing apparel, brushes, razors, writing apparatus and the like, deemed indispensable by most persons, but would extend it to books for instruction or amusement by the way, a gun or fishing tackle. 6 Hill 589, 590, Hawkins vs. Hoffman. And NELSON, J., endeavoring to define the same subject, observes, "it may be safely asserted that money, except what may be carried for the expenses of travelling, is not included in the word baggage." Orange County Bank vs. Brown, 9 Wend. 117. In the case of 10 Watts 335, Clarke & Co. vs. Spence, the Court, in determining to what extent the plaintiff should be allowed to prove the contents of a lost trunk, would not extend the privilege beyond its legitimate limits, applying it with great force to wearing apparel and every article necessary or convenient to the traveller, a lady's jewelry and other articles more easy to conceive than enumerate. "Nor is it proper," remarked the Judge delivering the opinion, "to restrict the articles which the plaintiff can thus prove within narrow limits.  [**26]  Much is left to the jury in judging of the witness' credibility to prevent injury to the defendant."
In Tennessee the term baggage has been defined as including articles of necessity and personal convenience, usually carried by passengers for their personal use; and what these may be will very much depend upon the habits, taste and resources of the passenger; it also includes money to that extent which may be convenient to meet the travelling expenses. 30 Tenn. 419, 11 Hum. 419, Johnson vs. Stone.
The various examples from these and other cases are 

 [*147]  well grouped and subjected to much critical observation in the case of Dibble vs. Brown, 12 Ga. 217, 224, 227. The conclusion arrived at in that case is, that "the quantity and character of baggage must depend very much upon the condition in life of the traveller, his calling, his habits, his tastes, the length or shortness of his journey, and whether he travels alone or with a family." And then the Court adds: "If we agree further with Judge STORY, and say the articles of necessity or convenience must be such as are usually carried by travellers for their personal use, we are [**27]  still at fault, because there is in no State of this Union, nor in any part of any one State, any settled usage as to the baggage which travellers carry with them for their personal use. The quantity and character of baggage found to accompany passengers are as various as are the countenances of the travellers." Judge STORY'S deduction from all the cases, and commented on in the case cited from the Georgia Reports, is that "by baggage we are to understand such articles of necessity or personal convenience as are usually carried by passengers for their personal use, and not merchandize or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as a sale and the like." Story on Bail., sec. 499; and see also 25 Wend. 459, Pardee vs. Drew.
Upon these authorities this Court based their decisions in the cases of Pettigrew vs. Barnum and Giles vs. Fauntleroy; and with their aid we are of opinion that money in the trunk of a guest at an inn, to constitute a part of his baggage for which the innkeeper is responsible, should be of such an amount only as would be convenient to meet his [**28]  travelling expenses; and to arrive at this the condition of the guest, his mode of life, his habits, tastes, the nature, character and objects of his journey, must be taken into consideration by the jury; for it is the province of the jury, in such a case, to determine the question of sufficiency, 

 [*148]  under such directions and limitations as the Court can prescribe. And the same observations will apply to the chest of tea, as an article necessary and suitable, or not, for the journey under the circumstances. That such an inquiry is for the jury, under proper limitations to be explained by the Court, this Court has more recently determined in the case of Maltby vs. Chapman, decided in June, 1866, and which was a case in which the landlord claimed exemption under the 5th and 6th Sections of Article 70 of the Code of Public General Laws.
In applying the law as thus settled in Maryland to the case now before us, we think the Court below erred in granting the plaintiff's prayer, and the defendant's second, third and fifth prayers, which were rejected, were correct and ought to have been granted.
Whatever inconvenience or loss the travelling community may be subjected to in [**29]  Maryland, by these adjudications, as not furnishing the strict protection to the moveables which they may carry with them as baggage, afforded by the rule of the common law applicable to the relation of innkeeper and guest, may be obviated by an observance of the 5th and 6th sections of the 70th Article of the Code, which is a codification, and in some particulars, an enlargement of the Act of 1854, chapter 323.
The first exception taken to the admissibility of testimony returned with the commission to Canada was not relied upon by the appellant in his brief or in the argument. We can see no objection to that proof, and think it was properly admissible.
It may be proper to state that a member of this Court, as now constituted, presided in the Court below when the case between these litigants was first tried, and he was then governed in his rulings by the common law, as understood before the decision of Pettigrew vs. Barnum. Upon a more full examination of the law as declared in 

 [*149]  Maryland by that decision, and since followed, he now concurs with his brethren on the bench, that it is the duty of this Court to adhere to these decisions, and place innkeepers, in relation [**30]  to the baggage of their guests, on the same footing with the carriers of passengers. The travelling public will be subject to the same law at hotels and in the public conveyances, affording the same protection in both cases, and operating hardship to none. He, who has valuables beyond ordinary baggage, always has it in his power, by special contract or arrangement, and for a suitable compensation, to secure their safety, if he is unwilling to take the risk upon himself.
Judgment reversed and procedendo awarded. 

20 of 120 DOCUMENTS 

CHARLES E. MYERS vs. JOHN SMITH OF M., AND JOHN W. BARRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 91; 1867 Md. LEXIS 35 

May 24, 1867, Decided 

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

In the trial of this case below, the following exceptions were taken by the appellant:

1st Exception: The plaintiffs proved by James M. Harding, that he was present on an occasion when the plaintiffs and defendant were together, and then asked witness whether he saw money paid by the plaintiffs to defendant; the defendant here interposed and asked witness whether the money which he saw paid, if any such thing occurred, was paid on account of or in pursuance of a written contract between the plaintiffs and defendant, but the plaintiffs objected to the admissibility of said question by the defendant at the time it was asked, and objected to the same being answered before the question in chief, put by them, was answered; and the Court (NELSON, J.) sustained the objection and refused to allow said question to be put and answered at such time. To this ruling the defendant excepted.

2d Exception: The plaintiffs further proved by said Harding, that he saw them pay the defendant $ 420, on or about 31st of May, 1864; they then asked witness for what purpose said money was paid? The defendant here asked witness whether the money [**2]  was paid on account of or in pursuance of a written paper? The witness said it was not; witness answered that there was a written paper prepared in or about that time; in reply to a question from the Court, witness said he was not certain whether the money was paid before or after the paper was prepared; to the best of his recollection the paper was prepared before the money was paid, but was not signed until after the money was paid, and the paper was prepared and signed all on the same occasion. The plaintiffs then asked witness whether the money which he saw paid by them to defendant was paid in pursuance of or on account of that written paper? The defendant objected to said question being put and answered without the production of the written paper; but the Court overruled the objection, and allowed said question to be asked, and said testimony to be given. To this ruling the defendant excepted.

3d Exception: The plaintiffs further proved by said Harding, that the $ 420 mentioned, was paid on account of the wheat crop growing on the farm of Col. Kunkel, purchased by them from Myers; said witness proved on cross-examination, that on the 31st May, 1864, the parties appeared [**3]  before him, the $ 420 was paid and a paper writing was entered into, both were in one transaction, both were for the purchase by plaintiffs from defendant of his interest in the grain crop mentioned; they contracted to give Myers $ 840 for it; the paper entered into was the same now shown to witness:

"$ 420.00.   FREDERICK COUNTY, May 31st, 1864.

"Ninety days after date, we or either of us promise to pay Charles E. Myers, four hundred and twenty dollars, being the balance due on the crop of wheat purchased by us from said Myers with this express understanding and agreement, that should loss or difficulties occur from any cause whatever by any person or persons claiming an interest or portion of the share of said Myers' interest in the wheat crop aforesaid, on the farm of Col. Jacob M. Kunkel, on which Myers lately resided, then and in that event such loss or deduction to be taken from the amount to be paid by this note.

"JOHN SMITH of M.,

"JOHN W. BARRICK."

The $ 420 was paid in part of said $ 840, and the paper now shown was given; that was the whole contract,--all that was done--the payment of the money and this paper given, and a written receipt given [**4]  by Myers to the plaintiffs for the $ 420. On re-examination by plaintiffs, they proved that said paper was prepared in connection with the contract for the sale of the grain; $ 420, the half of the purchase money, was paid in cash, and the paper shown was given for the balance, that there was a written receipt given by plaintiffs for the $ 420 paid, that witness wrote the receipt and had no other connection with the $ 420 paid, to his recollection, than writing the receipt, the receipt was signed by the defendant and delivered by him to the plaintiffs. They proved by John A. Steiner, that he was sheriff of Frederick county in 1864. The plaintiff's counsel then asked witness whether a distress warrant against the defendant was placed in his hands at any time in 1864, and if so, by whom and at what time? But the defendant objected to said question on the ground that it was not competent for the witness to characterize a paper as a distress warrant, but that the same must be first produced, and after the Court had determined whether or not the paper was a distress warrant then show it to the witness; and that only then it would be competent for the witness to speak of the paper; but the [**5]  Court overruled the objection and allowed said question to be asked and answered. To this ruling the defendant excepted.

4th Exception: The plaintiffs further proved by said witness, Steiner, that on the 23d day of June, 1864, Col. Kunkel came to his office and handed him a distress warrant against the personal property of the defendant. The plaintiffs' counsel then proposed to prove by said witness, by parol, that Col. Kunkel placed in his hands a distress warrant against the defendant for rent claimed to be due to him, Kunkel, from the defendant, and that the witness, acting under said warrant, on the 6th day of July, 1864, seized certain wheat which had been cut and was standing in shocks on the Surry farm of said Kunkel, as the property of the defendant, and sold the same on the 11th day of July, 1864, to satisfy said claim for rent due; but the defendant objected to the admissibility of said proof without the production of the distress warrant referred to, or accounting for the non-production thereof; but the Court overruled the objection, and allowed the testimony offered to be given. To this ruling the defendant excepted.

5th Exception: The plaintiffs further proved [**6]  by said Steiner, that on the 5th day of July, 1864, he went on the Surry farm; on the 6th day of July, 1864, he levied a distress on four fields of wheat in the shock; thinks that was all the wheat standing on the farm at that time; in making the levy he was acting as Col. Kunkel's bailiff; he was sheriff at the time he levied the distress for rent against the defendant in this suit; he did not sell the wheat himself; H. F. Steiner (his deputy, as sheriff of Frederick county,) sold the wheat for him; he was not present at the sale; he was not in the county at the time; he received the purchase money for the wheat and paid it over to Ezra Houch, agent of Col. Kunkel; when he levied the distress he notified the plaintiffs that the property was in his possession and they could not remove it. On cross-examination, said witness testified that the distress warrant spoken of in his testimony in chief was in writing; the defendant then by his counsel moved the Court to strike out from this cause all the evidence of the said Steiner, relating to the distress warrant spoken of, and of the proceedings of the witness under and in pursuance of said distress warrant, and to instruct the jury that [**7]  the same could not be considered by them, because the said distress warrant was in writing, and parol evidence relating thereto, and to proceedings thereunder, is not admissible unless said distress warrant shall be offered in evidence; but the Court overruled the motion, and declared that said evidence was admissible. To this ruling the defendant excepted.

6th Exception: On further cross-examination of said witness, Steiner, he proved that the rent spoken of in his testimony-in-chief, for which he levied said distress, and the wheat mentioned was sold, was in the form of a claim or account for rent in writing, when the said distress warrant was handed to him by said Kunkel, and was on the same sheet of paper with the distress warrant. Whereupon the defendant, by his counsel, moved the Court to strike out, and to withdraw from the jury, all the evidence of said witness relating to said claim for rent, because the same is not competent evidence without the production of said written claim for rent, or accounting by the plaintiffs for its non-production; but the Court overruled the motion and refused to withdraw said evidence from the jury. To this ruling the defendant excepted.  [**8]  

7th Exception: After the aforegoing bills of exception had been signed and sealed, the plaintiffs closed and rested their case; the defendant then proved by Martin Snyder that the defendant was not on the farm in question at the time when the distress warrant spoken of by the witness Steiner was levied, or when the wheat mentioned was sold, but that said wheat was in possession of the plaintiffs on said farm when said distress was levied, and that at the sale made by H. F. Steiner, they purchased said wheat and remained in possession of the same afterwards, and finally disposed of it, and that at the time when said distress was levied the said wheat was standing in shocks on said farm, and had been cut and placed in said shocks by them, and that the said wheat remained in exactly the same condition in said shocks at the time when the sale thereof was made by the said H. F. Steiner, and continued in the same shocks in the same fields on said farm after said sale until the same was threshed and hauled away from said farm by the plaintiffs, who purchased the same at said sale. And further proved by H. F. Steiner, that he is the same person mentioned in the testimony of John A. Steiner;  [**9]  that on the 11th day of July, 1864, he sold at public sale the wheat in question; that he announced for sale and sold all the interest of the defendant in the wheat standing in shocks in the four fields on the Surry farm of Col. Kunkel, and that the plaintiffs in this cause became the purchasers thereof at said sale. And offered to prove by Edward A. Shriver that at the time when said distress for rent spoken of by the witness Steiner was levied on the wheat in question, and also at the time when the said wheat was sold by said H. F. Steiner, and also on the 31st day of May, 1864, the defendant did not owe the said Kunkel any rent, or any amount whatever for rent, and that the defendant had fully paid and satisfied to said Kunkel, all moneys and produce due to him from the defendant for rent; but the plaintiffs by their counsel objected to the admissibility of said proof offered by said witness, Shriver, and the Court sustained the objection and refused to permit the testimony offered to be given to the jury. To this ruling the defendant excepted.

8th Exception: The testimony on both sides being closed, the plaintiffs offered the following prayers:

1st. If the jury find from [**10]  all the evidence in this cause that the defendant agreed with the plaintiffs to sell them his interest in the crop of wheat growing upon the farm of Col. J. M. Kunkel, called the "Surry farm," and put out on said farm in the year 1863, for the sum of $ 840, and shall further find from the evidence aforesaid, that on or about the 31st of May, 1864, the said defendant and plaintiffs met in the City of Frederick, when, in pursuance of the said agreement to sell said crop of wheat aforesaid, the said plaintiffs paid to the said defendant the sum of $ 420 as part payment for his interest in said crop of wheat; and shall further find as aforesaid, that said interest of the defendant in said crop of wheat was seized upon said farm by John A. Steiner, under a distress warrant, placed in his hands by said Kunkel, for rent claimed to be due from said defendant to said Kunkel as rent of said farm, and that the interest of said defendant in said crop was sold to satisfy the claim for the rent aforesaid, that then the consideration for which the said $ 420 was paid by said plaintiffs to said defendant has failed, and the said plaintiffs are entitled to recover in this action.

2d. That the [**11]  measure of damages in this case is the sum of money which the jury shall find, from all the evidence in this case, to have been paid by the plaintiffs to the defendant for his interest in said wheat crop, with interest from the day of such payment to the finding of the verdict in this case.

And the defendant offered the following prayer:

That there is no sufficient legal evidence in this cause from which the jury can find all the facts stated and set forth in plaintiffs' first prayer. And the Court granted both the plaintiffs' prayers and instructed the jury accordingly, and rejected the defendant's prayer. To this ruling the defendant excepted.

9th Exception: The defendant offered the following prayers:

1st. That under the pleadings and the evidence in this cause the plaintiffs are not entitled to recover, because they have offered no sufficient evidence from which the jury can find that any sum of money is due and owing to them from the defendant under any count in the declaration.

2d. That the plaintiffs have offered no sufficient evidence of any cause of action in this case to entitle them to a verdict under the pleadings and the evidence in the cause.  [**12]  

3d. That the plaintiffs have offered no evidence tending to show that the title of the defendant to the wheat sold to them on or prior to the 31st May, 1864, was defective at the time of said sale, and no evidence of a breach of an implied warranty of said title, and cannot recover in this case under the pleadings and evidence.

4th. That the plaintiffs have offered no sufficient evidence to prove that the title to the wheat in question transferred to them by the defendant was invalid at any time subsequent to said sale on or prior to the 31st May, 1864, so as to entitle them to charge the defendant and to recover in this action.

5th. That no legal and sufficient evidence has been offered to the jury from which they can find that a legal and valid distress for rent due from the defendant was levied on said wheat sold to the plaintiffs at any time after said sale, so as to entitle them to recover under the pleadings and evidence in this case.

6th. That no sufficient evidence has been offered to the jury from which they can find that the title of the plaintiffs to the wheat in question, derived from the defendant, was defected or impaired by any legal and valid claim [**13]  to said wheat by any other person, after the sale thereof by the defendant to the plaintiffs, so as to entitle them to recover under the pleadings and evidence in this case.

7th. That no sufficient evidence has been offered to the jury from which they can find that the enjoyment by the plaintiffs of the title to the wheat in question, derived from the defendant, was hindered or interrupted by any legal and valid claim to said wheat by any other person, so as to entitle them to recover in this action under the pleadings and evidence.

8th. That no sufficient evidence has been offered to the jury from which the jury can find that the title of the plaintiffs to the wheat in question, derived from the defendant, was impaired or defected or divested by any legal and valid process or proceeding, so as to entitle them to recover under the pleadings and evidence in this case.

9th, That the said distress for rent, testified to by the witness John A. Steiner, was void for any purpose of divesting the plaintiffs' title to the wheat in question, because there is no proof that the landlord or his agent who may have been authorized to distrain for rent due to said landlord, did, previous [**14]  to making the distress, make oath before some justice of the peace of the county where the premises lay, or where the said landlord or his said agent resided, that the tenant of said landlord was justly and bona fide indebted to him in the sum of ----- dollars and ----- cents, specifying the amount which the said landlord claimed to be due in dollars and cents, if the said distress were for a certain money rent, or that the said landlord was justly and bona fide entitled to the quantity or proportion of the produce claimed by said landlord, if the said distress were for grain or produce, for rent in arrear and already due to him, and that he, the said landlord, had not received, directly or indirectly, any part or parcel of said rent claimed to be due and in arrear, except (if any) the credits given, to the best of his knowledge and belief, and that the plaintiffs are not entitled to recover in this action on the ground that said alleged distress for rent, defected, impaired or interfered with their title to said wheat acquired from the defendant.

10th. If the jury shall believe from the evidence that the distress in question was for grain or produce, then the plaintiffs are not [**15]  entitled to recover in this action, because no sufficient proof has been offered that the bailiff of the landlord, or person authorized to levy said distress, did summon and cause to be sworn two disinterested persons, who did under oath estimate the money value of the specific amount or quantity of grain, or other produce or proportion of the crops agreed upon as rent, between the said landlord and the defendant as tenant.

11th. That there was no sale of the wheat in question under or in pursuance of the said pretended levy of a distress for rent by the said John A. Steiner, and it was not competent for said Steiner, acting as bailiff, to deputize H. F. Steiner or any other person to sell said wheat, so as to interrupt or divest the plaintiffs' title to said wheat, and to entitle them to recover in this action under the pleadings and evidence.

12th. That if any legal sale were made of the wheat in question under said distress, such sale was of the interest of the defendant therein only, and that the defendant having long prior to said distress and sale, sold his interest in said wheat to the plaintiffs, had no interest therein at the time of said distress levied and sale [**16]  made, and that the said pretended sale, under said distress, cannot operate to charge the defendant so as to entitle the plaintiffs to recover under the pleadings and evidence in this case.

13th. That the plaintiffs cannot recover under the pleadings in this cause, because no evidence has been offered to prove that they rescinded or offered to rescind their contract or purchase from the defendant of the wheat in question, at any time before this suit was brought.

14th. That even if the distress for rent testified to in this cause had been in all respects valid and legal, and if the wheat in question had been duly and legally sold under a valid distress for rent, and the title of the plaintiffs thereto acquired from the defendant had been divested by such seizure and sale under said distress for rent; yet the plaintiffs are not entitled to recover in this case under the pleadings and evidence, because they have offered no proof that before, or at the time of such seizure or levy of said distress, or before or at the time of such sale, or at any other time before this action was brought, they rescinded or offered to rescind the contract for the purchase and sale of said wheat [**17]  made between the plaintiffs and defendant on or prior to the 31st May, 1864.

15th. That the plaintiffs are not entitled to recover in this action the whole sum of $ 420, paid by them to the defendant on the 31st May, 1864, because they have offered no sufficient evidence from which the jury can find that they have been divested of all their title to and interest in the wheat in question by any proceedings or sale had under the distress for rent offered in evidence by them; that if the jury find from all the evidence that the wheat in question was sold by the defendant to the plaintiffs on the 31st day of May, 1864, or prior thereto, and that the plaintiffs on said day paid to the defendant $ 420, on account of the purchase money of said wheat, and gave him a written note or agreement which provided for the payment of the remainder of the purchase money, and that they went into possession of said wheat, and cut the same and put it in shocks on the farm in question, and that whilst it remained in said condition John A. Steiner, as bailiff of Col. J. M. Kunkel, levied a distress thereon for rent, and afterwards that H. F. Steiner sold all the interest of the defendant in said wheat,  [**18]  the said wheat still remaining in the same condition, and that the plaintiffs became the purchasers of all the interest of said defendant at said sale, and removed and threshed the same and finally sold and disposed thereof, then they are not entitled to recover in this action the amount paid on the 31st May, 1864, in cash by them to the defendant on account of the purchase money of said wheat.

16th. If the jury shall believe from the evidence that the contract between the plaintiffs and defendant for the purchase and sale of the defendant's interest in the wheat in question, was made on the 31st day of May, 1864, and was as testified to by the witness Harding, then they are not entitled to recover under the pleadings and evidence in this case the money paid in cash on said 31st of May, 1864, by them to the defendant, because the said contract contained an express written provision for any loss they might sustain by reason of any claim which might be made on said interest of defendant in said wheat by any person, or any loss which they might sustain from any cause, and they cannot recover on the ground of an implied warranty.

17th. That if the jury shall believe from the [**19]  evidence that the contract of purchase and sale of the defendant's interest in the wheat in question was made or consummated between the plaintiffs and defendant on the 31st May, 1864, and that the same was not rescinded or offered to be rescinded by the plaintiffs at any time before this suit was brought, then they are not entitled to recover in this action under the pleadings and evidence.

The Court rejected all of these prayers, and the defendant excepted, and the verdict and judgment being in favor of the plaintiffs, he appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Vendor of Personal Property -- Implied Warranty of Title -- Measure of Damages -- Evidence -- Who may Levy a Distress.

The vendor of personal property is bound to protect the vendee from all actions arising from circumstances anterior to the sale, of which the cause or the germ existed at the time of the sale: as debts chargeable on the thing sold, revenue duties to which the goods are liable, or such defects in the vendor's title as form a labes realis.

If rent be due and in arrear at the time of sale, the vendor is liable on his implied warranty of title, if the property sold be afterwards lawfully seized and taken by the landlord to pay such rent. And the measure of damages would be the amount of the purchase money, with interest from the day of payment to the finding of the verdict.

A party may maintain an action for money paid for another who is a stranger to him, provided such payment be compulsory: that is, if it be paid for the purpose of emancipating the person or property from an actual and existing duress imposed upon it.

A sold to B his interest in a crop of wheat, growing upon the farm of C, the landlord of A; one-half of the purchase money was paid in cash, and a written obligation was given for the balance. After the wheat had been reaped, and while it remained in the field, it was seized and sold by the bailiff of C, under a distress for rent in arrear, due by A. Subsequently B instituted suit to recover back from A the cash payment. HELD:

That it was essential for B, whether he claimed under the implied warranty of title, or sought to recover for money paid in satisfaction of the debt of A, to establish the fact of a lawful seizure under the distress -- and the only legal evidence of this were the papers showing the proceedings in conformity with the requirements of the Code: parol testimony being inadmissible for this purpose, without laying a proper foundation to justify the introduction of secondary proof.

And that it was competent for A to show that at the date of the original sale of his interest in the crop of wheat, and at the date of the levying of the distress, and also at the date of the sale under the distress, there was no rent in arrear.

That it would not be necessary for B to rescind or offer to rescind the contract, in order to enable him to recover, provided there existed no other objection to his suit.

The existence of the contract, evidenced by the written obligation given by B to secure the balance of the purchase money, whereby he was expressly entitled to retain out of such balance any loss he might incur by reason of any person claiming the property purchased, constitutes no defence to this action, except in so far as the question of damages is concerned; the said balance, if it remain unpaid, being first applicable to the reduction of B's demand.

Though a distress for rent is a remedy by the act of the party, and a landlord may constitute any person as his bailiff to make it; yet when he causes the warrant to be directed to the Sheriff, that officer may execute it by his deputy, whose acts must be regarded as those of the Sheriff himself.  

COUNSEL:
Wm. B. Nelson, Oliver Miller and Wm. P. Maulsby, for the appellant:

1st. The object of the suit on the part of the appellees was to recover back the sum of $ 420, paid by them to the appellant on account of his interest in a crop of wheat growing on land of which he was tenant, and sold by him to them on the 31st May, 1864, for $ 840. The ground on which this recovery is sought, is a failure of consideration, for which the $ 420 was paid; the said wheat having been afterwards sold by the sheriff, under a distress for rent, claimed to be due and owing from the appellant to Col. Kunkel. In order [**20]  to make out a failure of consideration entitling them to recover back the $ 420 paid in cash, it was requisite to show that the claim for rent under which the distress was levied, was equal to the whole $ 840, or at least exceeded the amount of the note given for the balance. If it were less than the amount of the note, then, by the express terms of their contract, it was to be deducted from the amount of that note. But they have not shown any thing of the kind. They have merely shown that a distress warrant was levied on the wheat for rent in arrear to Kunkel, and that the wheat was sold thereunder on the 11th of July, 1864. They have not shown what amount of rent was in arrear, nor for what price the wheat was sold. Under their contract it was their duty to have paid the rent in arrear if less than the amount of the note, and then have deducted the same from the note. To make out a case of total failure of consideration, so as to enable them to recover back the whole $ 420 cash payment, they should have proved that the rent in arrear was $ 840, or that the wheat sold for that sum. Parsons on Cont., 385, 386.

2d. The appellant at the time of sale undoubtedly had an interest in [**21]  the wheat crop, which he could sell, though that interest may have been subject to the claim of the landlord for rent. The plaintiffs purchased with their eyes open, and in the contract made express provision for the contingency of such a claim being asserted. They bought what the appellant had a clear right to sell, and the fact that they paid too high a price for it in the absence of fraud, is no ground for relief either in equity or at law, and certainly does not make out a case of total failure of consideration. Parsons on Cont., 341, 342.

3d. But the fact that any distress warrant was ever issued, and any sale ever made thereunder, has not been established in this case by any legal and competent evidence. The warrant to distrain, and the account are both required by the Statute to be in writing, and in the absence of proof that they have been lost or destroyed, parol proof of them is entirely inadmissible. The Court below was therefore wrong in its rulings in the 3d, 4th, 5th and 6th exceptions. Code Pub. Gen. Laws, Art. 53, secs. 8, 9; Starkie on Evidence, (Sharswood Ed.,) 581.

4th. The ruling in the 7th exception, excluding evidence that no rent was due from the appellant [**22]  to Kunkel, either at the time the appellees purchased the wheat from the appellant, or at the time the same was sold by the sheriff under the alleged distraint for rent, was erroneous. There was no proof as to the amount of rent claimed, or of the amount for which it was sold by the sheriff, and it was proved that the appellees themselves became purchasers of the wheat at the sheriff's sale. Now evidence that no rent was at that time due, was clearly admissible to show collusion between the landlord and the appellees to deprive the appellant of the benefit of his sale, and if this could be established, surely the appellees could not be allowed to take advantage of their own wrong, in order to make out a failure of consideration of their own contract with the appellant.

5th. The whole effort on the part of the appellees was to make out a sale under a "distress warrant" for rent in arrear due to the landlord:--in other words, to make out a failure of consideration by showing eviction under a paramount title. Now the Code of Pub. Gen. Laws, Art. 53, Sec. 16, declares, that every distress for rent made contrary to the provisions of that Article, and every sale made under and by virtue [**23]  of such distress, shall be absolutely illegal and void. The appellees surely could not set up an illegal or void sale to make out their case of eviction by paramount title, and consequently, a failure of consideration for their contract. To make out their case they must prove a distress levied, and a sale thereunder in pursuance of the provisions of the Code. This they have utterly failed to do, for:--

1st. They offered no proof of the affidavit required by Sec. 8, Art. 53. Giles vs. Ebsworth & Hays, 10 Md. Rep., 333; Cross vs. Tome, 14 Md. Rep., 247.

2d. There was no proof that the wheat distrained on was appraised by two disinterested persons as required by Sec. 11.

3d. The sale was not made at the time or in the mode required by the Statute of 2 W. & M., ch. 5.

That statute authorises the sale of goods distrained for rent after five days from the making of the distress and notice thereof, as required thereby. Here the distress was levied on the 6th, and the sale was made on the 11th of July, 1864, and there is no proof that any notice was given to the appellant or left on the premises. It was not therefore made after five days from the making of the distress [**24]  and notice.

4th. The sale was not made by the proper party. The sheriff was not acting in this matter as sheriff, so as to authorise his deputy to act for him, but simply as bailiff of the landlord. The landlord could have authorised any other party to levy the distress. The sheriff was acting by virtue of a special delegation of authority, which he could not delegate to any one else.

Grayson Eichelberger for the appellees:

In the sale of personal property there is an implied warranty of title, and where the consideration fails, the vendee may recover of the vendor, on the implied warranty, any purchase money he may have paid the vendor. Mockbee's Adm'r vs. Gardner, 2 H. & G., 176; Story on Contracts, sec. 833; Story on Sales, sec. 367; Parsons on Contracts, 458, n; Defreeze vs. Trumper, 1 Johns. Rep., 274; McCoy vs. Artcher, 3 Barbour Sup. C. Rep., 323; Robinson vs. Anderton, Peake's Nisi Prius, 94.

The validity of Col. Kunkel's claim for rent could not be controverted nor inquired into in this case. If the appellant desired to controvert either the claim for rent, or the regularity of the mode of asserting it, he should have done so in another way, and by another [**25]  proceeding initiated by himself. Neither can be attacked in this collateral way. It is sufficient for the appellees to show a failure of the consideration, and a breach of the implied warranty of title.

The sale as made by deputy was within the provisions of the Statute of 2 W. & M., ch. 5, both as to time of sale and as to the officers by whom made. Wallace and others vs. King, 1 H. Black. Rep., 13; Giles vs. Ebsworth & Hays, 10 Md. Rep., 333.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*107]  BARTOL, J., delivered the opinion of this Court.
This suit was instituted by the appellees. The declaration contains the common money counts, and issues were joined on the pleas "that the defendant was never indebted as alleged" and "never promised as alleged.' 

 [*108]  In the course of the trial below, the appellant took nine bills of exceptions, seven of them to the ruling of the Circuit Court on questions of evidence; the eighth to the granting of two prayers of the appellees and the rejection of one offered by the appellant; and the ninth to the rejection of seventeen prayers offered by the appellant.
In disposing of this [**26]  appeal it will not be necessary to pass upon the several exceptions, and the prayers separately, as many of them present the same questions of law.
The proof shows that in May, 1864, the appellant sold to the appellees his interest in a crop of wheat then growing upon the farm of Col. Kunkel. The appellant had been tenant of Kunkel, and claimed to be entitled to the growing crop, subject to the claim of the landlord for rent, which we infer was payable in kind, though the terms of the tenancy are not distinctly proved.
The whole price agreed on for the appellants' interest or share was $ 840, of which $ 420 was paid in cash, and for the residue the following note or contract was given:
"$ 420.00.   FREDERICK COUNTY, May 31st, 1864.
"Ninety days after date, we or either of us promise to pay to Charles E. Myers, four hundred and twenty dollars, being the balance due on the crop of wheat purchased by us from said Myers, with this express understanding and agreement, that should loss or difficulties occur from any cause whatever, by any person or persons claiming an interest or portion of the share of said Myers' interest in the wheat crop aforesaid, on the farm of Col. Jacob [**27]  M. Kunkel, on which Myers lately resided, then and in that event, such loss or deduction to be taken from the amount to be paid by this note.
"JOHN SMITH, of M.
"JOHN W. BARRICK."
In July, 1864, after the wheat had been reaped by the appellees, and while it remained in the field, the appellees 

 [*109]  allege that it was seized and sold by the bailiff of Kunkel under a distress for rent in arrear, due by the appellant. Exception was taken to the character of the evidence offered to prove the distress and the proceedings thereunder, which will be noticed hereafter; assuming, however, for the present, that the seizure and sale under the distress were proved by competent evidence, we shall first consider whether the two prayers of the appellees ought to have been granted.
The plaintiffs state the ground of their action to be a breach of the implied warranty of title of the vendor, and the consequent failure of consideration for which the money was paid, and they seek to recover back the purchase money so paid. Accordingly, the hypothesis of their first prayer is that if they purchased in May, 1864, from the defendant, his interest in the crop of wheat, and paid him $ 420 as part [**28]  of the purchase money; and afterwards, in July, 1864, the interest of the defendant in the crop was seized by the landlord for rent in arrear due by the defendant; that this constitutes a breach of the implied warranty of title, and shows a failure of the consideration for which the money was paid, which entitles the plaintiffs to recover.
By the second prayer the measure of damages is declared to be the sum of money originally paid, in part of the price, with interest from the time of payment. It is perfectly manifest that this theory of the case cannot be supported consistently with well established rules of law.
It by no means follows that because the property sold in May, was afterwards, in July, seized and sold under a distress for rent due by the defendant, the implied warranty of title was broken. The breach of that warranty depends upon the title of the vendor at the time of sale, and not upon matters arising subsequently. The prayer does not state, nor is there any evidence to show that the 

 [*110]  rent, or any part of it, for which the distress was levied, was due and in arrear at the time of the sale. If it became due afterwards, then there existed at the time of the [**29]  sale nothing to impair the right of the defendant to sell his interest; and a seizure and sale by the landlord afterwards for rent in arrear subsequently becoming due, does not in any sense constitute a breach of the implied warranty of title, for which the vendees could recover in an action on the warranty. See Giese vs. Thomas, 7 H. & J. 458; Buckey vs. Snouffer, 10 Md. 149. The ground of such action is always an eviction by one having a superior title to the vendor, or some lien existing at the time of the sale.
In the excellent treatise of the late Professor Bell "on the Contract of Sale of Goods and Merchandise," 50 Law Lib. 50, (95 marg.) the law is clearly and concisely stated thus:
"The seller is bound to protect the buyer from all evictions arising from circumstances anterior to the sale, of which the cause or the germ existed at the time of the sale; as debts chargeable on the thing sold, revenue duties to which the goods are liable, or such defects in the seller's title as form a labes realis."
If rent were actually due and in arrear at the time of the sale in this case, and the property sold was afterwards lawfully seized and taken by [**30]  the landlord to pay such rent, then the appellant would be liable on his implied warranty of title; this was decided in Dunlop vs. Earl of Dalhousie, in Scotland, in 1828, affirmed by the House of Lords, 4 W. & S. 420. Though that decision was under the Scottish Law, we are of opinion that the same principle must be recognized in Maryland, as it is within the general rule above cited. The rights of the landlord to distrain existing at the time of the sale, would constitute a liability in the nature of a lien upon the property, although as settled in Buckey vs. Snouffer, not an actual 

 [*111]  or consummate lien, yet an inchoate claim or right which might afterwards be enforced; and therefore a labes realis against which the purchasers would be entitled to protection under the implied warranty, and in this aspect of the case the measure of damages would be as stated in the appellees' second prayer. But as we have said, the appellees' first prayer does not state that the rent for which the property was seized was due and in arrear at the time of the sale, and was therefore erroneously granted. If it became due afterwards, the seizure and sale by the landlord [**31]  did not constitute a breach of warranty for which the appellees would be entitled to recover upon the warranty; although if these facts were established by legal and competent evidence, the present suit might be maintained on other grounds; not for a breach of the implied warranty of title, but for money paid, laid out and expended by the plaintiffs for the use of the defendant. It is very clear that if the property of the appellees were lawfully seized and taken to pay the appellant's debt, they would be entitled to maintain this action, without reference to the fact whether the property had been purchased from the appellant or not; and in such case the measure of damages would be the value of the property so taken, with interest thereon, or the amount which they were compelled to pay in order to emancipate it from the lawful claim of the landlord, with interest from the time of payment. In this case, however, the damages to be recovered, whether brought within the warranty or otherwise, would be diminished by first deducting the sum or balance of the purchase money secured by the note, if the same remain unpaid, which by the terms of the contract is first to be applied to such a [**32]  demand. The law is well settled that a party may maintain an action for money paid for another who is a stranger to him, provided such payment be compulsory; that is, when it is paid for the purpose of "emancipating 

 [*112]  the person or property from an actual and existing duress imposed upon it." In Mayor, &c., of Baltimore vs. Lefferman, 4 Gill 425, the doctrine on this subject is fully considered and the cases collected. See also Dorsey vs. Smith, 7 H. & J. 345, 366; Turner vs. Egerton, 1 G. & J. 430. Under the rulings in those cases we are of opinion that the appellees would be entitled to recover in this action upon the facts stated in their first prayer, if established by legal and competent evidence; and that the measure of damages would be as we have before stated.
Having made these general observations on the law governing this action, we shall proceed to notice the questions presented by the bills of exceptions so far as they are material to the decision of this appeal.
The first and second exceptions are not material, as the written paper therein referred to was afterwards produced, and contains nothing to show that [**33]  the evidence of the witness Harding was inadmissible. The ruling of the Circuit Court as stated in these exceptions is affirmed.
The 3d, 4th, 5th and 6th exceptions all relate to the evidence offered by the appellees to prove the seizure and sale under the distress, and the objection is taken that the same could not be proved by parol.
In the opinion of this Court, this objection to the evidence is well taken. Whether the appellees claim under the implied warranty, or seek to recover for money paid in satisfaction of the appellant's debt, it is essential for them to establish the fact of a lawful seizure under the distress; and the only legal evidence of this are the papers showing the proceedings in conformity with the requirements of the Code: parol testimony is inadmissible for this purpose, without laying a proper foundation to justify the introduction of secondary proof. See Giese vs. Thomas, 7 H. & J. 458; Sanderson's Ex'rs vs. Marks, 1 H. & G. 252; McKee's Adm'rs vs. McKee's Adm'rs, 16 Md. 516.

 [*113]  Here the ground of the action is that the appellees were deprived of the property purchased, by a party having a lawful [**34]  right to seize it, upon a claim or lien existing at the time of the purchase; or that they were compelled, in order to emancipate their property from a legal claim thereon against the appellant, to pay a sum of money to such claimant; in either case the onus is on them to show that such claim existed and was enforced according to law. The mere fact of the seizure and sale by the landlord is not sufficient; being made under color of a distress for rent in arrear, in which the proceedings are required to be in writing, and in conformity with law; it cannot be proved by parol.
For the same reason the proof offered by the appellant in the 7th exception, that there was no rent in arrear at the time of the alleged distress, was competent and ought to have been admitted.
The same question is presented by the appellant's prayer in the eighth exception, and his 1st, 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th and 10th prayers in the ninth exception, and the Court below erred in rejecting them.
The eleventh prayer raises the question of the power of the deputy sheriff, acting under the sheriff's authority, to make sale of property seized by the sheriff under a distress warrant to him directed.  [**35]  On this point we think the appellant's counsel are in error. Though a distress for rent is a remedy by the act of the party, and a landlord may constitute any person as his bailiff to make it; yet where he causes the warrant to be directed to the sheriff, that officer may execute the warrant by his deputy, whose acts must be regarded as those of the sheriff himself.
The general observations we have already made with regard to the principles governing this action, renders it unnecessary to express an opinion upon the other prayers of the appellant.

 [*114]  We have said that the appellees failed to adduce competent and sufficient proof to entitle them to recover in either aspect of the case; but as that proof may be supplied upon a new trial, and thus the other questions raised by these prayers may become material, we deem it proper to state the opinion of this Court thereon.
1st. It would not be necessary for the plaintiffs to rescind or offer to rescind the contract, in order to enable them to recover, provided there existed no other objection to their suit.
2d. The existence of the contract, evidenced by the note given by the appellees to secure the balance of the purchase [**36]  money, whereby they are expressly entitled to retain, out of such balance, any loss they may incur by reason of any person claiming the property purchased, constitutes in itself no defence to this action, except so far as the question of damages is concerned. The said balance, if it remain unpaid, being first applicable in reduction of the plaintiffs' demand.
Judgment reversed and procedendo ordered. 

21 of 120 DOCUMENTS 

JOHN B. KRONE vs. MARIA KRONE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 77; 1867 Md. LEXIS 33 

May 16, 1867, Decided 

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

The bill filed in this case on the 11th of February, 1867, alleged in explicit terms, that an ante-nuptial contract had been entered into between the appellant and the appellee, whereby it was agreed in consideration of marriage that the latter would convey to the former, in fee, a house in the City of Baltimore, known as No. 95 Saratoga street, and would also give him ten thousand dollars in money; that on the faith of this agreement the appellant was duly married to the appellee, and with her consent he took possession of the house in pursuance of the said ante-nuptial contract; that the appellee on her part refused to convey the house and pay the money as she had agreed to do. The bill further alleged, that the appellee had caused the house to be advertised for sale, and was endeavoring to dispose of it; and, that encouraged and aided by her children by a former marriage, she was seeking to dispose of her property, both real and personal, being of large value, in derogation of the marital rights of the appellant. The prayer of the bill was for a specific performance of the ante-nuptial contract, for an injunction to restrain the [**2]  appellee from disposing of, or attempting to dispose of any part of her property, real, personal, or mixed, without the consent of the appellant, and particularly of the said house and lot in Saratoga street; and for the appointment of a receiver.

On the same day of the filing of the bill, the Court (ALEXANDER, J.) passed an order assigning the 18th instant for the hearing of the application for an injunction and the appointment of a receiver. But before the same was actually heard, the appellee filed her answer under oath, in which, among other things, she positively denied ever having entered into any such contract as charged by the appellant. The appellant filed a written objection to the consideration of the answer by the Court.

The application for an injunction was refused, and from this refusal the present appeal was taken. The original papers were transmitted to this Court.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

Code -- Appeal -- Injunction -- Equity Practice.

Under Section 25, Article 5, of the Code of Public General Laws, no appeal lies from an order refusing an injunction, in a case where such order was passed after answer filed.

On an application for an injunction, the defendant may instantly put in his answer, so as to prevent the imposition of the threatened restriction; and the Court is bound to consider and give proper effect to it, if filed before the application is disposed of.  

COUNSEL:
Wm. Shepard Bryan, for the appellant, argued:

1st. That it was not competent for the Court to consider the answer. Before the adoption of the Code, the rule of practice was different. Bell vs. Purvis et al., 15 Md. Rep., 22. By the 25th section of Article 5 of the Code [**3]  of Public General Laws, a right is given to a complainant to demand a decision on his bill, and to appeal directly from an adverse decision thereon. If this right could be taken from him against his will, it would be no right at all. He of course may waive his rights in this regard, as in any other; but how can they be taken from him by the act of the opposite party, or even of the Court? Steigerwald vs. Winans et al., 17 Md. Rep., 62, is in point, although in that case the party lost his appeal by his own act.

2d. The bill states a valid ante-nuptial contract, and acts of part performance, sufficient to take the case out of the Statute of Frauds. Dugan et al. vs. Gittings et al., 3 Gill, 157; Crane vs. Gough, 4 Md. Rep., 316.

3d. The husband, notwithstanding recent legislation, has the right to the possession and custody of his wife's personal property. Schindel vs. Schindel, 12 Md. Rep., 108. The Code gives her no right to dispose of it without his consent. Art. 45, sec. 2, of Code of Pub. Gen. Laws.

4th. The acts charged in the bill will cause irreparable injury; they will necessitate suits on the part of the complainant to recover his rightful possession. On these [**4]  grounds they make a proper case for an injunction and receiver. Holland vs. Mayor and City Council of Baltimore et al., 11 Md. Rep., 197; Drury vs. Roberts, 2 Md. Ch. Dec., 157.

5th. In the view of a Court of equity, husband and wife being distinct persons, (as far as her separate property is concerned,) they may sue and be sued by each other.

Milton Whitney for the appellee.

1st. The appeal in this case must be dismissed; the party not claiming his right under the Code, of an immediate decision by the Court, either to grant or refuse the injunction upon the bill and exhibits, but acquiescing in the action of the Court, in setting the case down for a hearing at a future day; the postponement of the hearing; the filing of an answer and the subsequent argument of the case. This case is not such an one as is provided for by the 25th section of the 5th Article of the Code of Public General Laws. The party upon filing his bill and exhibits was entitled to the immediate decision of the Court below. If the Court refused to decide, or decided against him by refusing the injunction prayed for, he had his right of immediate appeal; but not claiming or exercising that right, but [**5]  allowing, without opposition, the case to proceed, it is now too late to claim the right under the Code. The right not having been refused till after answer filed, the right of immediate appeal under the Code does not exist. Bell vs. Purvis et al., 15 Md. Rep., 22; Steigerwald vs. Winans et al., 17 Md. Rep., 62.

2d. The answer having been filed some eight days after the filing of the bill and before the hearing of the case, must be considered by the Court. The Court is to determine the questions according to the record before it. The judgment of a Court at any stage of the cause must be upon the record as it then stands. (Same cases as referred to on the first point.)

3d. The answer being considered, the injunction was properly refused, as it negatived all of the material allegations of the bill, and swore away the whole equity of the same.

4th. The injunction was properly refused upon the face of the bill itself. The bill set forth a parol ante-nuptial contract. It contained no allegations of such part performance as, upon their face, would take the case out of the Statute of Frauds. The contract alleged, is to give ten thousand dollars in money, and make a conveyance [**6]  in fee of a certain house and lot in Saratoga street. No act is alleged as a part performance of any such contract. In Dugan et al. vs. Gittings et al., the property had been delivered up by the father, and the change of possession had taken place, and the Court held merely that the marriage was a sufficient consideration. In this case not even a change of possession is alleged, and the contract charged is a conveyance in fee. In Crane vs. Gough, the parol contract in consideration of marriage had been executed, and the Court held that the party could defend his possession under such an executed contract on the question of part performance. Fink vs. Fink, 10 Ohio, N. S., 501.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*81]  WEISEL, J., delivered the opinion of this Court.
The appeal in this case is from an order refusing an injunction. Before the order was filed or the application considered, though after it was set down for a hearing, the defendant, now appellee, had filed her answer to the bill. And afterwards, and before the actual hearing of the case, the complainant filed a suggestion that the prayer for the [**7]  injunction, according to the rule and practice of equity, should be heard and decided exclusively upon consideration of the bill and exhibit, and that it was not competent for the Court to read or consider the answer or any part of it, and so prayed the Court to hear and decide the application for the injunction without reference to the answer or anything therein contained. Whether the Court heeded this suggestion does not distinctly appear from the order of refusal. But it must be assumed that the answer was considered and permitted to have its proper effect, inasmuch as it was the duty of the Court to regard it. Hall vs. McPherson, 3 Bland 529, 532; Bell vs. Purvis et al., 15 Md. 22. The Code, Article 5, sec. 25, has not changed this rule of practice. By that section, as construed in Steigerwald vs. Winans et al., 17 Md. 62, 66, and very recently in the case of Rogers and others vs. Thompson and others, decided at the present term, if an answer has been filed before the application has been heard and disposed of, no appeal lies from an order refusing the injunction. Such a proceeding is not within the remedy provided [**8]  by that section. So a majority of this Court has determined in both the cases 

 [*82]  last referred to, and that decision must govern this case and sustain the point urged by the appellee for the dismissal of the appeal.
An order setting down the application for a hearing, whether on motion or otherwise, before the coming in of the answer, makes no difference in a case like this. There is no principle or practice which prohibits a defendant from answering immediately or speedily any complaint; and, as observed by Chancellor Bland, in the case referred to, there is no sound regulation which should hinder the defendant from instantly presenting his answer so as to prevent the imposition of the threatened restriction. He is by that means the more promptly obeying the mandate of the Court. On an application for an injunction the Court is bound to look to and give proper effect to the answer, if in before the application is considered and disposed of. To grant an injunction with an answer before the eyes of the Judge or Chancellor which would have the effect of dissolving it upon motion afterwards, would be an act of supererogation as well as vexatious. Hence, in such cases, we regard [**9]  the practice as settled in this State by the authorities above cited. The answer being in and the Court required to consider it at the time of passing upon the application and refusing the injunction, it is, in the opinion of a majority of this Court, not a case for an appeal under the section of the Code and the decisions upon it above referred to.
Appeal dismissed. 

22 of 120 DOCUMENTS 

JOSEPH C. BAUGHER, JAMES C. GOLDER, GEORGE A. SUTHERLAND, AND WILLIAM WROTH, vs. THOMAS R. CRANE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 36; 1867 Md. LEXIS 30 

May 14, 1867, Decided 

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

This appeal is from an order of the Court below granting an injunction, upon a bill filed by the appellee against the appellants. The facts of the case are sufficiently stated in the opinion of the Court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

Injunction to prevent waste -- Irreparable injury -- What constitutes waste.

An injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction by an action at law.

The mere allegation of a complainant, that irremediable damage or irreparable mischief will ensue is not sufficient. To satisfy the conscience of the Court, the facts must be stated, to shew that the apprehension of injury is well founded.

The appellee, owner of a lot of ground on north Charles street, in the city of Baltimore, which was improved by a four-story brick warehouse, leased the same to A., who was to leave the premises, at the expiration of his lease, in as good order and condition as when demised, unavoidable wear and tear excepted. A. afterward subleased it to B., who, according to the allegations in the bill filed by the appellee, asking for an injunction, had commenced to tear away the whole of the front of the first story of said warehouse, and was about to alter and change the arrangement of the doors and windows, and to reduce the width of the front of the said warehouse, on the first floor, by putting a side door with stairway leading to the second story, had cut away various parts of the joists and beams and ceiling of the first and main story, and had taken away various braces, and other portions of the building, which weakened the whole structure, and was about to make many other alterations and changes, which would completely change the character and appearance of the said warehouse, and greatly impair the same. HELD:

That such acts and doings constituted waste by materially injuring the building; and which were not susceptible of adequate compensation at law, such compensation being too remote and contingent, and not equal to the urgency of the case; and injunction was the appropriate remedy as alone furnishing full and adequate relief.

The absence of an allegation in the bill, that the alterations in the house were attempted to be made for the purpose of converting the demised premises to uses inconsistent with the terms of the lease, was not in itself sufficient to justify the refusing of an injunction. 

COUNSEL:
Oliver Miller for the appellants.

1st. The mere allegation of irreparable injury from the acts complained of is insufficient to authorize the granting of an injunction; the facts must be stated to show that the apprehension of the injury is well founded. Roman vs. Strauss, 10 Md. Rep., 89; Carlisle vs. Stevenson, 3 Md. Ch. Dec., 499; Cherry vs. Stein et al., 11 Md. Rep., 1.

It is submitted that the allegation of the bill as to irreparable damage, is not sustained by the facts stated. There is no averment that the lessees, Baugher and Golder, were insolvent, and there is a plain and adequate remedy at law under the covenant in the lease, to leave the premises in as good order and condition as at the date of the lease. If this, therefore, were a case between strangers, the bill would not authorize an injunction.

2d. Does the fact, that the relation of landlord and tenant exists [**2]  between these parties, strengthen the case for an injunction? It is true that where the lessee attempts to convert the demised premises to uses inconsistent with the terms of the contract, and to make material alterations for such purpose, or commits waste, he may be restrained by injunction at the suit of his landlord. Maddox and Aur vs. White, 4 Md. Rep., 72; Douglass vs. Wiggins, 1 Johns. Ch. Rep., 435; Steward vs. Winters, 4 Sandf. Ch. Rep., 587; Barret vs. Blagrave, 5 Vesey, 555.

But it is submitted that this case is not within the principles decided in those authorities. There is no allegation or pretence that the alterations were attempted to be made for the purpose of converting the premises to uses inconsistent with the terms of the lease. It is not charged or pretended that the purpose of the alterations was to change this warehouse or store into a dwelling, a brewery, a stable, or anything else. And the allegations and facts stated, utterly fail to make out a case of voluntary or permissive waste. Taylor's Landlord & Tenant, secs. 345, 348, &c.

Levin Gale for the appellee.

1st. The injunction was properly granted, because the allegations of the bill charge [**3]  acts and doings which go to the destruction of the building, as it had been held and enjoyed. Shipley vs. Ritter et al., 7 Md. Rep., 408, and the cases there cited; Hiss vs. McCabe, not yet reported.

2d. That the bill shows a case of waste by parties who claim under the tenants; and the landlord has a right to an injunction to restrain such waste. 2 Story's Eq. Jur., secs. 909-913; Maddox and Aur vs. White, 4 Md. Rep., 72.  

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

OPINIONBY:
CRAIN 

OPINION:

 [*39]  CRAIN, J., delivered the opinion of this Court.
This is an appeal taken from the Circuit Court of Baltimore City, granting an injunction, on the bill of the appellee to restrain the appellants from committing waste, by the destruction of a building or store-house owned by the appellee. The propriety of this order is to be determined by the bill alone, without looking to the answer subsequently filed.
The principles of law applicable to bills of injunction for waste have been repeatedly adjudicated by this Court, and it has been held, that an injunction is not granted to restrain a mere trespass, when the injury is not irreparable and destructive to the plaintiff's [**4]  estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law; and Justice Dorsey, in the case of Amelung and others vs. Seekamp, 9 Gill & John. 468, 474, said:--"The mere allegation of a complainant that irremediable damage or irreparable mischief will ensue, is not sufficient. To satisfy the conscience of the Court the facts must be stated, to show that the apprehension of injury is well founded." Since that decision it has been uniformly held, that the averment of the commission of waste, and that the mischief is irreparable, will not be sufficient to justify a Court of Equity to interfere by injunction. Green vs. Keen, 4 Md. 98. Recognizing these principles to control us 

 [*40]  in deciding this case, we will examine the facts, as averred and set forth in the bill, to ascertain if they show a case of waste and apprehended danger, which justified the Court in granting the injunction. The appellee charges, that being the owner of a lot of ground, situate on the west side of North Charles street, in the city of Baltimore, which was improved by a four-story [**5]  brick warehouse or store, designated No. 12 North Charles street, he leased the same, by writing, on the 7th day of February, 1866, to Joseph C. Baugher and James C. Golder for five years; that after the execution of the lease, the said Joseph C. Baugher and James C. Golder, being in the possession of the premises, delivered the possession of the same to George A. Sutherland and William Wroth, who took possession of the same, under some contract or sub-lease, the particulars of which were unknown to the appellee, and that the same was done without his knowledge or consent. The bill then charges, that the said Sutherland and Wroth have retained possession of the premises ever since, and have recently commenced to "tear away the whole of the front of the first story of said warehouse, and are about to alter and change the arrangement of the doors and windows, and to reduce the width of the front of the said store on the first floor, by putting a side-door with stair-way, leading to the second story, and have cut away various parts of the joists and beams and ceiling of the first and main story, and have taken away various braces and other portions of the building, which weakens the whole [**6]  building, and are about to make many other alterations and changes, which will completely change the character and appearance of the said store, and greatly impair the same." Admitting this statement of facts to be true, (and they cannot, in this attitude of the case, be controverted,) do they constitute such material alterations of the house and acts of waste, as to justify the interference of a Court of Equity to prevent further threatened destruction of the 

 [*41]  house? At common law such acts would be considered voluntary waste, as it was deemed incompatible with the interests of a landlord, for a tenant to make any such alterations, unless he was justified by the express permission of the landlord; but Mr. Taylor, in his treatise on the Law of Landlord and Tenant, says "this strictness of the common law has been essentially modified in this country, and, as now understood, it is no waste for the tenant to erect a new edifice upon the demised premises, if it can be done without destroying or materially injuring the buildings or other improvements already existing there." Taylor's Landlord and Tenant, secs. 345 to 348.
The lessees, in virtue of their lease, insist [**7]  that they had a right to do all they had done, for the purpose of improving the store-house, adapting it to modern taste, and benefiting their business, and that the improvements made, and contemplated to be made, were beneficial to the landlord and enhanced the value of his property. On the final hearing of this case on its merits, the benefits and advantages accruing to the landlord will be a proper subject for consideration. On this appeal we can only examine the bill and exhibit of the appellee, and determine whether the facts charged in the bill make a case for the interference of a Court of Equity. From a recital of them the Court is judicially informed of the nature and consequences of the acts of the appellants, and enough is shown to justify the allegation that they were committing waste, by materially injuring the building. We think such wrongs and injuries are not susceptible of adequate compensation at law; for such compensation is too remote and contingent, and does not meet the urgency of the case. To prevent such waste and further destruction of his property, the lessor had a right to ask the aid of a Court of Chancery for an injunction. It was the appropriate remedy [**8]  to meet the case, and afford the appellee full and adequate 

 [*42]  relief. See Shipley vs. Ritter, 7 Md. 408; Maddox and Aur vs. White, 4 Md. 72; Douglass vs. Wiggins, 1 Johns. Ch. 435; Steward vs. Winters, 4 Sandf. Ch. 587; Barret vs. Blagrave, 5 Vesey 555; and Hiss vs. McCabe, decided in 1865, and not yet reported.
In the argument of this case the learned counsel for the appellants earnestly contended that, as there was no allegation or pretence that the alterations in the house were attempted to be made for the purpose of converting the premises to uses inconsistent with the lease, it did not come within the principles decided in the case of Maddox and Aur vs. White, 4 Md. 72. We cannot consent to give such a restricted meaning to the language used by the learned Judge who delivered the opinion of the Court in that case. He certainly did not intend to limit the remedy by injunction only to cases where the lessees attempted to convert the demised premises to uses inconsistent with the terms of the contract. In that opinion he says, "It was conceded [**9]  by the appellants' counsel that a landlord, by injunction, could restrain injuries to his property committed, or about to be committed, by his tenant," and he subsequently adds "that a lessor may, by injunction, prevent his lessee, or those claiming or holding under him or acting by his authority, from converting the demised premises to uses inconsistent with the terms of the contract, and for making material alterations for such purposes, as also from committing other kinds of waste."
Believing that our view of this case is fully sustained by this decision, we will sign a decree affirming the order of the Circuit Court, with costs, and remanding the cause for further proceedings.
Order affirmed and cause remanded. 

23 of 120 DOCUMENTS 

ELEANORA NILLER, by her next friend, GEORGE HIRSCHMAN vs. JAMES H. JOHNSON, AND JOHN J. DANNEKER, Sheriff of Baltimore City.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 6; 1867 Md. LEXIS 28 

April 18, 1867, Decided 

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

The facts in the case are sufficiently set forth in the opinion of the Court.  

DISPOSITION:
Decree reversed and injunction made perpetual.  

HEADNOTES:

Jurisdiction -- Separate property of a married woman -- When a judgment offered in evidence is conclusive -- Evidence -- Witnesses.

A married woman holding property to her sole and separate use, bona fide, is entitled to have the same protected by injunction, from execution levied thereon by creditors of her husband.

Property conveyed by a husband to his wife, as a gift, cannot be reached by a subsequent creditor, unless there is evidence of fraud in fact.

The judgment of a Court of competent jurisdiction, when offered in evidence, is conclusive only when the same subject is in issue, and between the same parties, or privies.

The evidence of a witness as to the signature of a person, whose handwriting he was not acquainted with, had never seen him write, and spoke only from a comparison of the handwriting, is not admissible.

Courts of justice will not assume that witnesses have perjured themselves and are not entitled to credit. If testimony be not rebutted, and the character and credibility of the witnesses be not impeached, it will have its due weight and influence with the Court.  

COUNSEL:
Charles H. Wyatt and Wm. Sheppard Bryan for the appellant, contended:

1st. That the appellant was the bona fide owner of the property levied upon, and was entitled to have the same protected by injunction. Bridges & Wood vs. McKenna, 14 Md. Rep., 258; Lewis et al. vs. Levy, 16 Md. Rep., 85.

2d. Even if the property could be considered as the gift of her husband, (which is not the case,) it was vested in her long prior to the cause of action on which judgment was rendered; and no fraud existing, it could not be reached by a subsequent creditor. Code of Pub. Gen. Laws, Art. 45, sec. 1; Atkinson vs. Phillips, 1 Md. Ch. Dec., 507; Unger and Wife vs. Price, 9 Md. Rep., 557; Mayor and City Council of Baltimore vs. Williams, 6 Md. Rep., 235; Williams et al. vs. Banks et al., 11 Md. Rep., 198.

3d. The judgment is evidence of the cause of action stated in the declaration, but of no other. The appellee's alleged cause of action filed under the commission, sets forth a contract variant from that [**2]  stated in the declaration. It is not proven by the judgment; and on the trial at law, or on the execution of the inquisition, it would not have been competent for the respondent to offer such a contract in evidence. Clarke vs. Gray, 6 East., 564; Sheehy vs. Mandeville, 7 Cranch, 208; 1 Greenl. on Evd., secs. 66, 67, 68, 528.

4th. The declaration states no time when the liability of Conrad Niller accrued. An attempt is made to supply this defect by evidence aliunde. If the appellee, Johnson, can go into evidence for this purpose, and thus set up an indebtedness long antecedent to the suit, the enquiry is equally open to the appellant, and she may show that the indebtedness thus sought to be established, did not in point of fact exist. If it were otherwise, she would be bound by evidence which she was denied the opportunity of contradicting. Hughes vs. Jones, 2 Md. Ch. Dec., 178; Thrasher vs. Haines, 2 N. H., 443; Vose vs. Morton, 4 Cush., 27, 31; Groshon, garn. of McPherson & Thomas vs. Thomas, 20 Md. Rep., 234.

5th. The evidence shows that the contract filed under the commission, as the cause of action, on which the judgment was obtained was a forgery, and therefore it could [**3]  not be the foundation of Niller's indebtedness to the appellee, Johnson.

6th. In point of fact there is no evidence, except the judgment, to shew when the indebtedness did accrue. No one shows when the appellee, Johnson, released the mortgage; and until he did this, he had no right of action. Nor is there any evidence to shew that the mortgage was released at all, except so far as that fact is inferred from the judgment.

7th. The judgment, as against the complainant, is only evidence of the fact that the judgment was rendered, and of nothing more; the complainant being neither a party nor privy to the case. 2 Smith's Leading Cases, 821, 825; 1 Greenl. Evd. ss., 528, 535, 588; 1 Starkie Evd., 61; Cecil vs. Cecil et al., 19 Md. Rep., 72; Thrasher vs. Haines, 2 N. H., 443; Vose vs. Morton, 4 Cush., 27, 31; Garrett vs. Johnson, 11 G. & J., 173.

Edward Duffy for the appellees.

1st. The appellant cannot set up a defence of forgery, even if it were true,--that defence should have been made in the proceedings at law, and equity cannot now interfere. The evidence upon that subject, therefore, is inadmissible. Gott and Wilson vs. Carr, 6 G. & J., 309; Richardson et al. vs.  [**4]  Mayor and City Council of Baltimore, 8 Gill, 433. And the judgment is conclusive, and cannot be impeached, even by third parties, when coming incidentally in question. Powles et al. vs. Dilley et al. 9 Gill, 222; Ranoul vs. Griffie, 3 Md. Rep., 54.

2d. The contract on which the judgment was obtained, not being dated, it is competent to shew its date, and evidence for that purpose may be rebutted; but no enquiry can be made into those matters which were concluded by the judgment. There was no variance, but if there were, the judgment would cure it.

3d. The Statute of Elizabeth applies to contracts as well as debts, if the contract were made before the deed to appellant,--therefore it makes no difference whether the appellee's right of action had accrued or not. 1 Amer. Lead. Cases, 42, note to Sexton vs. Wheaton.

4th. The proof shows, that the contract was not a forgery, that it was made more than two years before the bills of sale, and that they were mere shams to evade the appellee's claim. For these reasons the decree should be affirmed.  

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

OPINIONBY:
CRAIN 

OPINION:

 [*9]  CRAIN, J., delivered the opinion [**5]  of this Court.
The appellant in this case filed her bill in the Circuit Court of Baltimore city, praying for an injunction to protect her separate property, which had been levied upon to satisfy a judgment against Conrad Niller, her husband, in favor of the appellee, James H. Johnson. The appellant alleged in her bill that the goods and property levied upon were her separate property, and did not belong to her husband, Conrad Niller, and was not answerable for the payment of his debts. The appellees answered her bill, denied the jurisdiction of the Court, but admitted that the property in controversy had been levied upon for the payment of a judgment of the appellee, Johnson, recovered against Conrad Niller in the 

 [*10]  Court of Common Pleas of the City of Baltimore; that said judgment was a bona fide judgment against Conrad Niller, the husband, and that the property levied upon was the property of Conrad Niller, and denied that the appellant had any interest whatever in the same, and asked for the injunction to be dissolved and the bill dismissed. Issue was joined and a commission issued, under which a variety of testimony, both written and oral, was taken. The Judge of [**6]  the Circuit Court, on the final hearing of the case, dissolved the injunction and dismissed the bill.
The view which the Judge of the Circuit Court took of the case, dispensed with the necessity of his deciding the question of jurisdiction, but as the want of jurisdiction was relied on in the answer of the appellees, we deem it our duty to declare the question of jurisdiction to be res judicata, since the decision in this Court in the case of Bridges and Woods vs. McKenna, 14 Md. 258, recognized and affirmed in Lewis et al. vs. Levy, 16 Md. 85.
After these decisions, if we shall decide, upon examination of this case, that Eleanora Niller, the wife of Conrad, was the bona fide owner of the property levied upon, she was entitled to be relieved in equity, and have her property protected by a bill of injunction.
Having thus summarily disposed of the question of jurisdiction, we will consider the claim of the appellant to the goods and property in controversy, as her separate property. From an examination of the evidence, we find she claims the property in virtue of two bills of sale. The first is a bill of sale from Conrad Niller, her [**7]  husband, to William M. Willis, conveying the property therein mentioned, for the sum of three hundred dollars, and dated the 1st of November, 1862; this bill of sale was duly executed; the bona fides of it was supported by the affidavit required by law; the second is a conveyance of 

 [*11]  the same property by Willis to Eleanora Niller, the wife of Conrad; this bill of sale is dated the 4th of November, 1862, for the consideration of five dollars. These bills of sale were duly acknowledged and recorded. By virtue of these bills of sale, the property vested in the appellant as her separate property, protected from the subsequent debts of the husband. Art. 45, sec. 1, of Code of Pub. Gen. Laws. These conveyances are valid between the parties to them, and we find no sufficient evidence to impeach the bona fides of the bill of sale from Niller to Willis or from Willis to Eleanora, the wife of Conrad. But admitting that they were voluntary conveyances, and that it was a gift from the husband to the wife, unless there is evidence of fraud in fact, the property cannot be reached by a subsequent creditor. This question was decided by this Court in the case of Williams et al. vs. Banks et al., 11 Md. 198. [**8]  See also, Atkinson vs. Phillips, 1 Md. Ch. 507; Unger and Wife vs. Price, 9 Md. 552; Mayor and City Council of Baltimore vs. Williams, 6 Md. 235.
Conceding this to be the law, the appellee cannot impeach and set aside this conveyance unless he can show that his claim was prior to the conveyance, and he a subsisting creditor at the time. For this purpose he has relied on the record of a judgment in the Court of Common Pleas of Baltimore in his favor against Conrad Niller, the husband of the appellant, at May Term, 1864. The appellee, Johnson, claims for that judgment a conclusive effect on the question in issue. The principle is well settled that the judgment of a court of competent jurisdiction, when offered in evidence, is conclusive upon the subject matter decided; but a judgment is conclusive only against parties and privies, on the question adjudicated by it. Does the record of that judgment establish the fact that the appellee, Johnson, was a subsisting creditor of Conrad Niller on the 4th of November, 1862?

 [*12]  Let us examine the record of that judgment to see what was decided, and how far the appellant,  [**9]  a stranger to it, was affected thereby.
The suit was instituted on the 16th of November, 1863; in May, 1864, judgment was obtained against Conrad Niller; no cause of action was filed, and the declaration does not disclose and state the time when the cause of action accrued. The judgment therefore was only evidence of the indebtedness of Conrad Niller to the appellee, Johnson, on the 16th of November, 1863, more than one year after the conveyance to appellant; but no question affecting the rights of the appellant was determined by that suit, as she was neither a party nor privy to it. 2 Smith's Leading Cases, 821, 825; Thrasher vs. Haines, 2 N.H. 443; Cecil vs. Cecil et al., 19 Md. 72; Vose vs. Morton, 4 Cushing 27. It appears from the evidence in this case that the appellee, Johnson, was not satisfied to rest his case on this judgment; it will be found that he produced before the Commissioner a paper purporting to be signed and sealed by Conrad Niller, and attested by W. M. Willis. It was exhibited as the foundation of the appellee's claim against Conrad Niller; it is not dated, but by the terms of it the agreement [**10]  was to be performed before the     day of June, 1860; it purports to be "a covenant or undertaking on the part of Conrad Niller to indemnify Johnson against loss, in consideration that Johnson would release a mortgage claim against a certain house of Willis', also to indemnify and save the said Johnson from all liability, either personally or in his property, to and for the lien claim of Cyrus Gault." This paper was introduced to show, as the appellees' counsel stated, the date of the contract, and the Judge of the Circuit Court assumed in his opinion that this contract was established by the record of the judgment of the appellee, Johnson, against Conrad Niller. We cannot give our assent to any such proposition. No such covenant 

 [*13]  was filed in the case and declared on. The first notice that the appellant had of it was its production before the Commissioner to be filed as evidence in the cause. We think the appellant had a right to rebut it as evidence affecting her rights, and exercising that right she assailed it as a forgery, and it becomes our duty to examine the evidence and determine whether her allegation is sustained. It is our duty to reject the evidence of [**11]  N. S. Rogers, one of the witnesses for the appellant, because it is inadmissible to prove the signature of Conrad Niller; he admitted he was not acquainted with his hand-writing, never saw him write, and only spoke from a comparison of hand-writing; nor do we give much weight to the evidence of Conrad Niller; but three other witnesses declared that it was not the signature of Conrad Niller.
Courts of justice will not assume that witnesses have perjured themselves and are not entitled to credit; if the testimony is not rebutted by other witnesses, nor the character and credibility of the witnesses impeached, it will have its due weight and influence with the Court. The appellees did not attempt to impeach these witnesses or rebut their evidence; and although it appears that W. M. Willis, the attesting witness, was present during the time the evidence was taken, they omitted or declined to call him. On this evidence we must find that the appellee, Johnson, has failed to prove that Conrad Niller signed the covenant, or that he was a subsisting creditor of Conrad at the time his wife acquired the property in controversy, and he has no right as a subsequent creditor to impeach and set [**12]  aside this conveyance as fraudulent.
Entertaining these views, we reverse the decree of the Circuit Court, with costs, and order the injunction to be made perpetual.
Decree reversed and injunction made perpetual. 

24 of 120 DOCUMENTS 

ISRAEL COOKE vs. SAMUEL ENGLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

27 Md. 14; 1867 Md. LEXIS 29 

April 18, 1867, Decided 

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

While this case is very clearly and fully stated in the opinion of the Court, it is deemed proper to present substantially the very numerous exceptions in the order in which they were taken in the Court below, omitting, however, the extended argument of counsel, and merely giving the authorities on which they relied:

1st Exception, (by appellant.) The plaintiff offered in evidence the cause of action, being the agreement to lease, the execution of which was admitted. The defendant objected to the admissibility of this paper in evidence, under the pleadings, but the Court (NELSON, J.) overruled the objection and permitted it to go to the jury; and to this ruling the defendant excepted.

2d Exception, (by appellant.) The defendant objected to the admissibility in evidence of the cause of action, on the ground that it had not been duly and legally stamped, and the stamp thereon cancelled according to the provisions of the Acts of Congress imposing duties for internal revenue. But the Court overruled the objection, and permitted the paper to go to the jury; and to this ruling the defendant excepted.

Exception, (by appellee.  [**2]  ) Having given evidence that the bolting cloths in the mill, (which was a flour or grist mill,) were very much eaten by bugs and out of order, the plaintiff proposed to prove that there was a saw mill appurtenant to said grist mill, and run by the same stream of water, and that by a usage in the neighborhood in which this contract was entered into, wherever a grist mill was rented to which there was a saw mill so appurtenant, the renting always included the saw mill. To the admissibility of this evidence under the pleadings, the defendant objected, and the Court sustained the objection and refused to allow such testimony to go to the jury. To this ruling the plaintiff excepted.

3d Exception, (by appellant.) The plaintiff proposed to prove by a practical miller that in the condition of the bolting cloth as it was when he examined it in September, 1863, a new bolting cloth was a necessary repair. The defendant objected to the admissibility of this proof, but the Court allowed it to go to the jury, and the defendant excepted.

4th Exception, (by appellant.) The plaintiff then asked the witness: What in his judgment, as an experienced miller, was the effect upon the quality and [**3]  value per barrel of the flour manufactured in that mill during the plaintiff's lease, whilst the bolting cloths were in the impaired and worn out condition as described by him, and because of want of the necessary repairs to that part of the machinery of the mill? The defendant objected to the competency and admissibility of this question and of the testimony in response thereto. The Court overruled the objection and permitted the question to be asked and answered; and to this ruling the defendant excepted.

5th Exception, (by appellant.) It had been proved in the preceding exceptions, that Foutz and Groff had made an examination of the mill in September, 1863, and in this exception it was proved by Gartrell, that he was at the mill at the time Foutz was there, and from the mill he, Gartrell, went over to Cooke's store, and Cooke asked him what they were doing at the mill, and he told Cooke they were examining the mill. The plaintiff's counsel then asked, what did Cooke say in that conversation about the mill? The defendant objected to the admissibility of this proof to establish a demand by the plaintiff on defendant to repair the mill, and a refusal by the latter to do so, unless [**4]  the plaintiff should show that the witness was authorized by the plaintiff to hold said conversation with the defendant, or to demand of the defendant that he should make repairs to the mill. The Court overruled the objection and permitted the evidence to go to the jury, and to this ruling the defendant excepted.

6th Exception, (by appellant.) It was proved by Mercer that he was hired by the plaintiff as a miller in this mill for three weeks in April, 1863, and that James England, a young man 18 or 21 years of age, was employed by the plaintiff as head miller. The defendant then proposed to ask this witness whether during these three weeks he had an opportunity to ascertain and determine whether or not James England was a competent miller to conduct a mill, and if yea, was he such competent miller or not? The plaintiff objected to this question and to the proposed proof, and the Court sustained the objection and refused to permit the question to be asked, and to this ruling the defendant excepted.

7th Exception, (by appellant.) The defendant offered to prove in mitigation of damages, that in September, 1843, Henry S. Deihl offered to rent from the plaintiff the mill from [**5]  the 1st of October, 1863, to 1st of April, 1864, and pay him $ 237.50, half the year's rent, and $ 50 in addition, and to buy at a fair cash valuation all the grain, tools and other property which the plaintiff had in and about the mill, and that the plaintiff refused to accept this offer. On the plaintiff's objection the Court refused to permit this evidence to go to the jury, and the defendant excepted.

8th Exception (by appellant) abandoned.

9th Exception, (by appellant.) It had been proved on the part of the plaintiff by Davis, that in the latter part of July, 1863, James England (now dead) read a notice in writing to Cooke, who after reading it became excited and refused to take it, and said he would not repair the mill and would sue any man who came there to repair it. In the present exception the defendant proposed to prove by the witness, A. W. Cooke, that he was present at the time spoken of by Davis, and the only paper then delivered by Jas. England, to defendant, was a notice from the plaintiff warning the defendant and his family to keep out of the plaintiff's yard, under a threat of prosecution. On objection by the plaintiff to the admissibility of this proof,  [**6]  the Court rejected it, and to this ruling the defendant excepted.

10th Exception, (by appellant.) The defendant proved by Zumbrum, that he had carried on this mill for 8 or 9 years, and left it on the 31st of March, 1863. The defendant then proposed to ask him how long would the bolting cloths in use in the mill when he left it, and the plaintiff took possession, have lasted, and made good flour, with proper care and attention on the part of the miller carrying on the mill? The Court refused to allow this proof to be offered, because there was no issue raised by the pleadings to which such testimony was applicable, and to this ruling the defendant excepted.

11th Exception, (by appellant.) The defendant then proposed to ask this witness what was the condition of the wheat and flour elevators in the mill when the plaintiff went into possession in April, 1863? This evidence the Court also rejected, and the defendant excepted.

12th Exception, (by appellant.) The defendant then proposed to ask this witness whether the mill was not repaired by the defendant in February, 1863, whilst witness occupied the mill as tenant of the defendant. The Court refused to permit said question [**7]  to be asked, and to this refusal the defendant excepted.

13th Exception, (by appellant.) The defendant then proposed to ask the witness whether the mill had been put in good repair at any time by the defendant prior to the 1st of April, 1863, and, if so, when, and was it on the 1st of April, 1863, when the plaintiff took possession, in as good repair as it had been so placed in by defendant? The Court refused to permit the question to be asked, and to this refusal the defendant excepted.

14th Exception, (by appellant.) The defendant proposed to prove by Zumbrum that the condition of the bolting cloth in use on the 1st of April, 1863, was such that if a competent and careful miller had been in charge of the mill from that time forward, and if the owner of the mill had procured and delivered to him a new bolting cloth on the 1st of April, 1863, with authority to have the same put in by a mechanic competent to do so, at the owner's expense, whenever the miller might think proper, such competent and careful miller would not, in the exercise of proper care and skill, have caused the same to be put in earlier than October or November, 1863, because the old cloth then on was sufficient [**8]  to manufacture good flour with reasonable care and attention until that time, and because during the season of warm weather the bolting cloth in use is peculiarly liable to injury by worms and bugs, and new cloths are usually kept by prudent and careful millers to put on during the season of cold weather, in cases where the bolting cloth in use is sufficient to manufacture good flour during the summer months. This evidence the Court would not allow to be given to the jury, and to this ruling the defendant excepted.

15th Exception, (by appellant.) The plaintiff had in order to swell the damages proved, in the preceding exceptions, that the defect in the bolting cloths was such as to prevent the making of flour that would pass the necessary inspection as extra or superfine in the Baltimore market. In this exception the defendant proposed to prove by the witness Zumbrum, that the country work at this mill was large; that during the summer months it was the usual custom of witness whilst conducting this mill, to supply the neighborhood with flour, and to do chopping for the neighborhood, and whilst such chopping was being done, and whilst the water was low, the miller was exclusively [**9]  or to a great extent engaged in that work, and flour could not be made at the same time; that the power of the mill during the summer months was small, occasioned by the drought usually prevalent at that season; that it was only when he had a large stock of wheat on hand and the waters were flush that he ground flour for the Baltimore market during the summer months, and that was only occasional. The Court refused to permit the question to be asked, and to this refusal the defendant excepted.

16th Exception, (by appellant.) Upon all the evidence in the cause the defendant submitted the following prayers:

1st. That the plaintiff, if he can recover at all, is entitled to recover only such damages as he may have offered proof to shew, that he sustained in consequence of the want of repair of the mill in question, between the date of a demand, made by him on the defendant, to repair said mill, if the jury shall find from the evidence, that such demand was in fact made at any time, and the 30th day of September, 1863, and that the damages which he can recover, are only the actual loss sustained by him, and shewn by proof to have been so sustained, between said dates, on account [**10]  of the refusal of the defendant to make the repairs demanded.

2d. If the jury shall find from all the evidence, that the plaintiff did not at any time between the first day of April, and the 30th day of September, 1863, demand of the defendant, that he should make repairs to said mill, then the plaintiff cannot recover in this action.

3d. That there is not sufficient evidence, from which the jury can find, that from the first day of April to the 30th day of September, 1863, the plaintiff demanded of the defendant, that the defendant should make repairs to said mill.

4th. That there is no sufficient evidence in the cause, from which the jury can find any amount of damage sustained by the plaintiff, prior to the 30th day of September, 1863, in consequence of the failure or refusal of the defendant to make repairs to said mill.

5th. That the plaintiff cannot recover, because the covenant or agreement offered in evidence by the plaintiff, was not duly stamped, according to the Act of Congress in such case made and provided, provided the jury shall believe the evidence of Henry S. Davis, that no stamp whatever was put on said covenant, at the time when the same was entered [**11]  into, and executed by the plaintiff and defendant, and that, at that time, no stamp was on or attached to said paper or covenant.

6th. That the plaintiff cannot recover, because the stamp or stamps put on said covenant, and now appearing thereon, even if the same were duly placed thereon, have not been cancelled according to law.

7th. That the plaintiff cannot recover, because the covenant offered in evidence by the plaintiff was not duly stamped, or had not a stamp attached thereto or thereon, according to law, when the same was entered into and executed by plaintiff and defendant; and because the stamps of fifty cents each appearing on the face thereof, to have been placed thereon on the 14th day of November, 1865, were so placed thereon, without authority, and did not in law give legal validity to said covenant.

8th. That to enable the plaintiff to recover in this cause, the jury must find that he made a demand on the defendant, to repair the mill in question, and that he designated the required repairs, and that defendant failed or refused to make the repairs so designated by the plaintiff. And if the jury shall so find, then the plaintiff is entitled to recover [**12]  only such damages as the jury shall find from the evidence that the plaintiff sustained in consequence of the failure or refusal of defendant to make such designated repairs, between the date of said demand and designation of requisite repairs, and the day of the institution of this suit, to wit: the 30th day of September, 1863.

9th. That the plaintiff is not entitled to recover in this cause, because there is no sufficient evidence from which the jury can find the facts stated and mentioned in the plaintiff's prayer.

10th. That if the jury shall believe from the evidence that the defendant rented the mill to the plaintiff with a general covenant to repair, and that the said mill had been operated for several years prior to said renting, and that said mill was in the same condition of repair during the continuance of the lease to the plaintiff, as it was at the date of the lease, then the plaintiff is not entitled to recover.

11th. That if the jury shall believe from all the evidence, that the defendant covenanted with the plaintiff to repair the mill in question, and that said mill had been in use for many years, then the defendant was not bound under his covenant to [**13]  repair, to put the said mill in an improved condition, but, that keeping the same in the same condition of repair in which it was at the time of the renting by defendant to plaintiff was a compliance by defendant with his covenant to repair.

12th. That if the jury shall find from all the evidence, that at any time during the continuance of the plaintiff's leasing and occupancy of said mill, the said mill became out of repair in any particular or respect, and required repair in said particulars or respects so found, because of the carelessness, negligence, unskilfulness, or other like default of the plaintiff, then the plaintiff is not entitled to recover in this cause, for any thing which the jury shall find to have been caused by, or resulted from his said negligence, carelessness, unskilfulness, or other like default.

13th. That if the jury believe that the defendant leased the mill in question to plaintiff, and covenanted to repair the same, and that the defendant failed to repair the same upon demand made by plaintiff; and shall further believe from the evidence, that such demand was made; then, and in that case the plaintiff is only entitled to recover such damages as [**14]  naturally flowed from the neglect of the defendant to repair the mill in the particulars designated by plaintiff, and which resulted from the neglect to repair the mill in the particulars designated, from the time of demand until the institution of this suit, and that the plaintiff is not entitled to recover speculative damages, based on calculations as to the profits arising from the sale of flour which plaintiff might have manufactured, and sold between the date of such demand to repair, and the date of the institution of this suit.

14th. That the plaintiff cannot recover in this cause for, or on account of any damages whatsoever, subsequent to the 30th day of September, 1863, the day of suit brought.

15th. That upon all the pleadings and evidence in this cause, the plaintiff is not entitled to recover, because the plaintiff's declaration is radically defective, as there are no good and sufficient breaches assigned in said declaration, to entitle the plaintiff to recover under the pleadings and evidence.

16th. That the plaintiff has not given to the jury any good and sufficient evidence, to entitle him to recover in this form of action, under the declaration in this [**15]  cause.

17th. That under the pleadings in this cause the plaintiff is not entitled to recover, unless the jury shall believe from all the evidence in the cause, that the plaintiff made a demand on the defendant to make repairs on the mill in question.

The Court rejected each and all of said prayers, and the defendant excepted.

17th Exception, (by appellant.) The plaintiff submitted the following prayer:

If the jury shall find that the defendant leased to the plaintiff the mill mentioned in the declaration in this case, from the first day of April, 1863, to the first day of April, 1864, and covenanted in said lease to keep the mill in necessary repairs, at the defendant's expense, and shall further believe from the evidence that the defendant knew of the want of, and refused and neglected to make the necessary repairs in said mill during the said lease, and was not hindered or prevented from making said repairs by the plaintiff, then the plaintiff is entitled to recover such damages caused, during the continuance of said lease, by the want of said repairs or by said neglect and refusal of the defendant to make the same, as the jury shall find from the evidence he [**16]  is entitled to. Which prayer the Court granted, and to the granting of which the defendant excepted. The verdict and judgment being in favor of the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Pleading -- Covenant -- United States Internal Revenue Laws -- Affixing and Cancelling of Stamps -- Necessary Repairs -- Measure of Damages.

An action was brought in covenant, and the declaration simply averred that the defendant covenanted with the plaintiff, without saying under seal, or using any technical word or phrase, which in legal acceptation would import a seal. The defendant did not demur, but pleaded to the declaration. The cause of action was a sealed instrument. HELD:

That under the mode of pleading observed in this State, the defect, if such, in not alleging that the contract was under seal, was waived by pleading over, and it was not error in the Court below to allow said contract to go before the jury.

An agreement for a lease, which under the Acts of Congress imposing duties for internal revenue, required a stamp, was not stamped at the time of its execution; subsequently the proper stamp was affixed to it and cancelled by the Collector of Internal Revenue, at the time it was offered in evidence, and the penalty paid to him, and so noted by him on the margin of the instrument. HELD:

That such instrument is thereby rendered valid and admissible in evidence.

Under a covenant in a lease, to keep a mill in necessary repairs, the covenantor is not bound to add improvements or make additions, but he is required to renew existing machinery when too old and worn to answer its purpose in the mill.

Damages arising subsequent to action brought, or even to the date of the verdict, may be taken into consideration, where they are the natural and necessary result of the act complained of, and where they do not themselves constitute a new cause of action; and general evidence of matter accruing subsequent to the action may be used for the purpose of showing what was the natural and probable result of the defendant's conduct; but particular facts are not admissible as a specific ground of damage, to be atoned for on their own account. Where the act complained of, or the breach assigned, is one and complete in itself, and the damages flow naturally and necessarily from it, the jury can include all to the date of the verdict. This principle would not apply to nuisances and continued trespasses upon land.

In a lease for a year, the lessor covenanted to repair; suit was instituted against him during the lease, and the trial took place after the term had expired. The breach assigned was a refusal to repair. All the consequences of this refusal could be considered by the jury, those subsequent as well as those prior to the institution of the suit, thus terminating the controversy arising from the breach of the covenant assigned in the declaration.

In assessing damages, certainty, as far as the nature of the case will admit of, is to be aimed at and ascertained; mere speculative injuries, depending on uncertain future contingencies, afford no ground for damages.  

COUNSEL:
Oliver Miller for the appellant.

Upon the appellant's first exception, the following authorities were referred to: Van Santwood vs. Sandford, 12 Johns., 197; Macomb vs. Thompson, 14 Johns., 207; Hays et al. vs. Lasater et al., 3 Ark., 568; Stanton vs. Camp, 4 Barb., 274; Cabell vs. Vaughan, 1 Saund., 291, note (1).

Upon the second exception of the appellant, reference was made to the following Acts of Congress: 1862, ch. 119, secs. 94, 95, 99, and Schedule B, in 12 U.S. Stat. at Large, 475, 476, 482; 1862, ch. 163, sec. 24, in 12 U.S. Stat. at Large, 560, 561; 1863, ch. 4, sec. 5, in 12 U.S. Stat. at Large, 632, 633; 1863, ch. 74, secs. 6, 7, 16, in 12 U.S. Stat. at Large, 720, 721, 724, 725; 1864, ch. 173, secs. 151, 152, 156, 157, 158, 163. and Schedule B, in 13 U.S. Stat. at Large, 291, 292, 293, 294, 295, 300; 1865, ch. 78, sec. 1, in 13 U.S. Stat. at Large, 481, 482.

Upon the third, seventh, eleventh, twelfth and thirteenth exceptions [**17]  of the appellant the following authorities were cited: Middlekauff vs. Smith, 1 Md. Rep., 339, 340; Arch. Land. and Ten., 173.

And on the seventeenth exception the following authorities were relied on: Mayne's Law of Damages, 52, 59, 61, 62; Middlekauff vs. Smith, 1 Md. Rep., 339, 340; Sedgwick on Damages, 203, 204; Arch. Land. and Ten., 177; Thompson vs. Shattuck, 2 Metcalf, 615; Abbott vs. Gatch, 13 Md. Rep., 314; Eisenlohr vs. Swain et al., 35 Penn. Rep., 107; Marriott vs. Cotton, 61 Eng. Com. Law Rep., 553.

Grayson Eichelberger for the appellee.

Upon the appellant's first exception the following authorities were relied on: Platt on Covenants, 3; Dodd vs. Atkinson, Hardwick's Cases, 342; Gould's Plead., 190; Sheppard's Touchstone, 160; 1 Chitty's Plead., 131, (Title Covenant); Bouvier's Law Dict., "Covenant;" Miles vs. Sheward, 8 East. Rep., 7; Code of Pub. Genl. Laws, Art. 75, secs. 2, 3; Stirling et al. vs. Garrittee, 18 Md. Rep., 468; Borden Mining Co. vs. Barry, 17 Md. Rep., 431.

Upon the appellant's third exception the following authority was referred to: 1 Greenl. Ev., sec. 440.

Upon the appellant's sixth and tenth exceptions reference was made to [**18]  1 Chitty's Plead., 137.

Upon the appellant's sixteenth exception the following authorities were relied on: Arch. Land. and Ten., 35, 100 (marginal paging); Roe vs. Paine, 2 Campb., 520; 2 Platt on Leases, 216, and cased cited; Mayne's Law of Damages, 37 (marginal page); Shortridge vs. Lamplugh, 2 Ld. Raymond, 803; 2 Greenl. Ev., sec. 268, a; Ingram vs. Lawson, 9 Carr & Payne, 326; Slater vs. Magraw, 12 G. & J., 265.

Upon the appellant's seventeenth exception the following authorities were cited: Mayne's Law of Damages, 37 (top page); Abbott vs. Gatch, 13 Md. Rep., 314; Middlekauff vs. Smith, 1 Md. Rep., 341; Masterton vs. Mayor of Brooklyn, 7 Hill, 62; Sedgwick on Damages, 65, 81, 82, 83, 84, 85.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*26]  WEISEL, J., delivered the opinion of this Court.
The action in this case was brought in covenant on the 30th September, 1863, by the appellee, plaintiff below. The declaration averred that the defendant covenanted with the plaintiff to rent to him, the plaintiff, for a certain annual rent, a mill and premises in Carroll county, and that he, the defendant, would, at his [**19]  expense, keep said mill in the necessary repairs. The breach assigned was that the defendant did not keep the said mill in the necessary repairs, at his, the defendant's expense, according to said stipulation, and that he did not perform his said covenant.
The defendant pleaded four pleas: 1st, that he was not indebted as alleged; 2d, that he never promised as alleged; 3d, that he was always ready to make repairs to the mill when thereto requested by the plaintiff, and that the plaintiff never notified him that such repairs were needed, and never requested him to make such repairs as alleged in the declaration; and 4th, that the plaintiff hindered and prevented the defendant from making repairs on the mill.
Issues were taken on the pleas, and on the trial of them a verdict was rendered for the plaintiff.
In the course of the trial several exceptions were taken to the admissibility of proof. The first was by the defendant to the admissibility of the lease itself under the 

 [*27]  pleadings in the cause. The lease was offered by the plaintiff, and was found to be under the seals of the parties; but the Court overruled the objection and allowed the paper to be offered in evidence.  [**20]  The point of the exception was that as the lease was under the seals of the parties, it could not be offered in evidence under a declaration which simply averred that the defendant had covenanted, without adding under seal; that the word covenant does not per se import that the instrument declared on was sealed; that word being frequently used in contracts not under seal; and that the rule of pleading is imperative that where a sealed instrument is the cause of action the declaration must aver it to be under seal, or use some word that legally imports a seal; otherwise the variance is fatal.
In Maryland, since the adoption of the Code, forms of action are again observed, and the declaration must so far correspond with the writ or summons as to show the party entitled to the action brought. Otherwise it would be liable to a demurrer. Under the Act of 1856, ch. 112, which abolished forms of action, this Court, on more than one occasion, could not disregard the substantial principles which underlie our system of jurisprudence, and to some extent govern the forms of action, though changed or simplified. Stirling et al. vs. Garritee, 18 Md. 468. [**21]  
The case before us was in covenant. The defendant did not demur, but pleaded to the declaration. The objection arose to the proof as not admissible under the nar. The contract offered was a sealed instrument. So far as the form of action was concerned, no objection could be taken to it. The want of a seal would present a more tenable ground of objection. But inasmuch as the declaration avers simply that the defendant covenanted with the plaintiff, without saying under seal, or using some technical word or phrase which in legal acceptation imports a seal, the instrument offered, it is insisted, presents an 

 [*28]  instance of fatal variance, and should be excluded by the rules of evidence.
If a demurrer had been interposed the Court would be called upon to say whether under our present simplified mode of pleading, the declaration could be maintained. The cases cited by the appellant, from New York and Arkansas, and supported by the English authorities, would sustain the demurrer, though the distinction stated by Judge Gould in his treatise on Pleading, pp. 189, 191, between averments on contracts valid at common law only by deed, and those which by statute are required [**22]  to be in writing, ought in such a presentation of the question to be properly considered. But we are not called on now to decide, and do not decide this question. In this case, and under our mode of pleading, we think that the defect, if any, was waived by the pleading over. It is one of form at best. A covenant is by all the authorities a contract under seal, Miles vs. Sheward, 8 East., 8, Pratt on Cov., 3, and what fell from Lord Hardwick and Justice Lee in the case of Dodd vs. Atkinson, Hard. Cases, 342, is applicable to a case like this. This and other cases furnish to Mr. Platt in his treatise on Covenants (p. 6) the authority for his text in these words: "So much does the word covenant imply a deed that there is no occasion to allege in a declaration that the deed containing the covenant was under the defendant's seal; the circumstance of sealing must be inferred, and even if it be stated that the defendant covenanted, and the instrument declared on be not sufficiently shown to be a deed, the defect is cured by pleading over."
We therefore think there was no error in the ruling of the Court below in allowing the contract to go before the jury on this ground.  [**23]  
The defendant then objected to the admissibility of the paper, because it had not been duly and legally stamped, and the stamp thereon cancelled, according to the provisions 

 [*29]  of the Acts of Congress. It was an agreement for a lease, and bore date the 28th day of February, 1863, with a certificate thereto in these words:
"$ 1.00 stamp. 1865, Nov. 14th, stamped and cancelled, "and penalty of fifty dollars paid me this day.
"FREDERICK SCHLEY, Collector."
This certificate was dated, and the stamp and penalty paid on the day of the trial, and before it was offered in evidence. The Court overruled the objection and permitted the contract to be read. The defendant excepted.
The various Acts of Congress imposing duties for internal revenue, and applicable to this case, have been examined, and all provide for restoring the validity of the paper by affixing the stamp and cancelling the same before offered in evidence. The provisions in the several Acts authorizing this to be done in the presence of the Court, are not exclusive of the provisions elsewhere in said Acts for affixing the stamp at any other place or any other prior time, unless in cases arising under the Act hereinafter [**24]  mentioned. The mere authority to stamp in the presence of the Court, under the former Acts, we do not construe as the only mode of restoring validity to the instrument. In this case the Act of Congress of 1865, ch. 78, was passed on the 3d of March, 1865, pending and before the trial, and by sec. 1, (p. 481, 482, 13 U.S. Statutes at Large,) the very mode adopted in this case of paying the stamp and penalty to the Collector, and having it affixed and so noted by him on the margin of the instrument, was legalised as the proper mode in all cases of previous omission, the said section declaring that "such instrument shall thereupon be deemed and held to be as valid to all intents and purposes as if stamped when made or issued." And if the paper should not fall under the curing provision of this Act, it does under the others, and having been stamped before trial was admissible.

 [*30]  We therefore determine that the contract offered in evidence could not be excluded on this ground, and that the Court below did not err in admitting it; and that it was also right in rejecting the 5th, 6th and 7th prayers of the defendant in his 16th Exception, which were predicated on this objection.  [**25]  
This being an action for damages for a breach of a covenant for necessary repairs, we are to be governed by the law, as to what constitutes such repairs, as it was recognized and announced by this Court in the case of Middlekauff vs. Smith, 1 Md. 329, 340; and passing by for the present the plaintiff's first exception, we will proceed to examine and dispose of in their order the other exceptions of the defendant, bearing in mind the nature of the third and fourth plea, to which issues were taken, viz: that the defendant was not notified of repairs, and that he was hindered and prevented by the plaintiff from making them.
The plaintiff, proceeding in the trial, proved by several witnesses the condition of the bolting cloth, in September, 1863, also of the water wheel and elevators, and then proposed to prove by Joseph Lowe, a miller, "that in the condition of the bolting cloth, as it was when he examined it, (September, 1863,) a new bolting cloth was a necessary repair." The defendant objected, but the objection was overruled and the proof allowed. This constitutes his third exception. The order of proof is not to be observed. On the hypothesis that the defendant [**26]  was notified or not prevented, the proof was admissible as showing a state for repairs after the beginning of the lease and during its continuance. If the bolting cloth was so defective and worn as not to admit of being mended by the miller as tenant, a new one became a necessary repair. The covenantor was not bound to add improvements or make additions under his covenant to repair, but he was bound to renew existing machinery, when too old 

 [*31]  and worn to answer its purpose in the mill. If, for instance, a strap gave way and the material was too rotten and decayed to be mended, a new one to take its place became necessary as a repair. To show that a new cloth was necessary, the judgment of the witness, as a miller, was admissible. This would be proper proof, in connection with other facts, under the issues. The Court committed no error in permitting it to go in.
The fourth exception arose to the admission of proof and to the question which elicited it, by the same witness, as to the effect, in his judgment as an experienced miller, upon the quality and value per barrel of the flour manufactured in the mill during the lease whilst the bolting cloths were in the impaired [**27]  and worn out condition as described by him, and because of the want of necessary repairs to them. The witness examined the cloths at one point of time during the lease, and could only speak of the difference in value between flour manufactured then through them, and flour run through cloths in the condition in which they should be, leaving it to the jury to apply his answer, upon the question of damages, to the state of facts arising in the case and to be proved by other witnesses. The question, as propounded, took too broad a scope, extending over the entire lease, and in this respect it was erroneous, and was properly objected to.
Solomon Gartrell, a witness for the plaintiff, met with the defendant, Cooke, at his store, in September, 1863, when Foutz and Groff had been examining the mill. Cooke asked him what they were doing at the mill. He told him they were examining it. The plaintiff's counsel then asked him, "what did Cooke say in that conversation about the mill?" The defendant objected to it and the proof as inadmissible to prove a demand by the plaintiff on the defendant to repair the mill, and his refusal, unless the plaintiff should show that he authorized the [**28]  witness to hold the conversation or to demand of 

 [*32]  him the making of repairs to the mill. The Court overruled the objection. Without proof of authority, the evidence sought would be no proof of demand to repair, and if offered for that purpose would be inadmissible. But as there was evidence of some notice having been read to Cooke, in the latter part of July, 1863, the plaintiff was entitled to the benefit of any declaration by Cooke touching it, or his refusal to repair; and whether the witness was authorized or not to hold the conversation, the declarations of Cooke to him about the mill, if relating to its repairs, or his refusal to repair, could not properly have been excluded, when asked for by the plaintiff. The Court in admitting the proof did not err. This was the 5th exception.
We think the Court was also right in refusing the question and proof under the 6th exception. The competency of James England as a miller, and at the beginning of the lease, could not enlighten the jury on the question of damages, or the issues in the case.
The testimony ruled out under the 7th exception was offered in mitigation of damages. We do not see how an offer by another to relieve [**29]  the plaintiff from six months of the lease at the same rent, with other favorable terms, could legitimately bear upon the question of damages. His contract was with the defendant, and that could not be affected by propositions from other quarters, to be accepted or not, from considerations that might have no relation to the controversy. We think the ruling of the Court in this exception was correct.
The 8th exception was abandoned in the argument.
We think the Court erred in refusing the testimony of Alonzo W. Cooke, in the 9th exception, as that testimony appears to us to relate to the same time and occasion, and was properly rebutting. It was for the jury, at all events, to determine, from a comparison of the time and other circumstances, whether the notice spoken of by the different witnesses was the same and the occasion the same.

 [*33]  The 10th exception. Jacob Zumbrum, who had been the preceding tenant of the mill, and a miller, was asked "how long would the bolting cloths in use in said mill, when he left it and when the plaintiff took possession, have lasted and manufactured good flour, with proper care and attention on the part of the miller carrying on the mill?" [**30]  The question and the evidence offered were ruled out. If the necessity of repairs were produced by the carelessness or unskilfulness of the miller, that circumstance would go to mitigate the damages. No evidence of unskilfulness had yet been offered, nor could such be fairly inferred from an opinion of an expert how long the bolting cloths might last with proper care. The question seems to have had a double aspect: that no repairs were needed, or, if needed, it was the fault of the miller; and this prospectively and by inference, from the opinion of a miller, who judged from the appearance of the cloths at the beginning of the lease. We think the proof was properly excluded.
The testimony offered under the 14th exception is of the same character and liable to the same objection, and we think was properly ruled out.
By the proof in the 11th exception the defendant sought to show the condition of the wheat and flour elevators in the mill on or about the first of April, 1863, when the plaintiff went into possession. This we think it was competent for him to do. If the defendant were notified to repair, and these were subjects for repair, it was competent to show their condition at the [**31]  commencement of the lease, in order to compare it with what may have been proved afterwards, either to show no repairs were necessary, or to what extent, and to govern in the damages. We think the Court erred in excluding this proof.
We concur with the Court in its rulings on the 12th and 13th exceptions. They looked to a condition of things anterior to the lease, which had no bearing upon the issues.

 [*34]  We also think that the evidence offered in the 15th exception was inadmissible and for a like reason.
The 16th exception of the defendant is to the rejection of all the prayers offered by him, seventeen in number. The 5th, 6th, and 7th, have been disposed of already in considering the 2d exception.
We consider that the 2d, 10th, 11th, and 17th prayers, embrace true legal propositions in the case, and ought to have been granted.
The 12th was properly rejected, because as we conceive there was no evidence in the cause of carelessness, negligence, unskilfulness, or other like default of the plaintiff, and the prayer is based on such a state of facts. Had there been proof of such in the case the prayer would be maintainable.
The 3d, 4th, 9th, 15th, and 16th prayers were properly [**32]  rejected.
The 1st, 8th, 13th, and 14th prayers present the questions of the necessity of demand for, and a specification of repairs, and also of the proper measure of damages in a case like this. We have already passed upon the requisite of a previous demand, in disposing of the second prayer. It is one of the issues in the cause; and we add here that we concur in this branch of the prayers. What is the proper measure of damages, or whether the jury, in assessing them, can embrace damages subsequent to the institution of the suit and to the date of the verdict, is a question that has produced much difficulty. The decisions upon it are collated and reviewed by Mr. Mayne in his work on the Law of Damages, more fully than elsewhere, and he states the result to be "that damages arising subsequent to action brought, or even to the date of the verdict, may be taken into consideration, where they are the natural and necessary result of the act complained of, and where they do not themselves constitute a new cause of action:" and "that general evidence of 

 [*35]  matter accruing subsequent to the action may be used for the purpose of showing what was the natural and probable result [**33]  of the defendant's conduct; but that particular facts are not admissible, as a specific ground of damage, to be atoned for on their own account." Mayne on Dams., 33, 35. Where the act complained of, or the breach assigned, is one and complete in itself, and the damages flow naturally and necessarily from it, the jury can include all to the date of the verdict. This principle would not apply to nuisances and continued trespasses upon land. The rule of damages is at all times difficult, and every case may present features which would vary the best defined rule upon the subject. In the case now before us, there was a lease for one year, the lessor covenanting to repair; suit was instituted against him during the lease and the trial took place after the term had expired. The breach assigned was a refusal to repair. All the consequences of this refusal could be considered by the jury, those subsequent as well as those prior to the institution of the suit, thus terminating the controversy arising from the breach of the covenant assigned in the declaration. See 2 Greenl. Ev., sec. 268, a.; Shortridge vs. Lamplugh, 2 Ld. Raym. 802, 803; Hodson vs. Stallbrass, 9 Car. & P. 63; [**34]  Ingram vs. Lawson, 9 Car. & P. 326. And as to what would be legitimate damages flowing from the act complained of and the mode of assessing them, this Court has heretofore expressed its conclusions. Middlekauff vs. Smith, 1 Md. 329, 341, &c. Certainty, as far as the nature of the case will admit of, is to be aimed at and ascertained. Therefore, merely speculative injuries, depending on remote, uncertain, or contingent events, afford no ground for damages.
With these views, the first, eighth, thirteenth, and fourteenth prayers of the defendant did not present the proper rule for damages in this case, and were properly rejected. And whilst in this respect the prayer of the 

 [*36]  plaintiff was correct, it was faulty in the requisite of a demand and designation of repairs. This was one of the issues in the cause, which the jury was sworn to try and the prayer or instruction could not ignore it.
The plaintiff's first exception, in reference to the saw mill, invokes a usage in the neighborhood in the construction of the lease. This was inadmissible. The lease, as to its subject matter and terms and provisions, must speak for itself. We [**35]  affirm the ruling of the Court on this exception.
The result is that the Court below erred in its rulings on the fourth, ninth, and eleventh exceptions, and in rejecting the second, tenth, eleventh, and seventeenth prayers in the sixteenth exception of the defendant. It also erred in granting the plaintiff's prayer in the defendant's seventeenth exception. The judgment must therefore be reversed and a procedendo awarded.
Judgment reversed and procedendo awarded. 

25 of 120 DOCUMENTS 

MILLER, MAYHEW & CO. vs. THE CUMBERLAND COTTON FACTORY, SAMUEL M. SEMMES, THOMAS J. MCKAIG, ALPHEUS BEALL & OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 478; 1867 Md. LEXIS 21 

March 12, 1867, Decided 

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

This appeal was taken by the petitioners in the Court below, from an order of said Court, (WEISEL, J.,) dismissing their petition, which prayed for the appointment of a receiver under the Acts of 1847, ch. 228, and 1852, ch. 229, to take charge of the affairs of the Cumberland Cotton Factory, and to enforce the lien to which they claimed to be entitled under said Acts, against certain personal property, which, at the time said lien attached, was the property of said factory, but had been since sold to the codefendants of said Cotton Factory, at sheriff's sale, under executions upon certain judgments. The allegations of the petition and answers, and all the facts of the case are fully set out in the opinion of this Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

ACT OF 1847, CH. 228; LIEN OF MINERS, MECHANICS, &c., IN ALLEGANY COUNTY. -- Upon a proper construction of the several sections of the Act of 1847, ch. 228, entitled, "An Act for the protection of miners, mechanics, laborers and others employed in mines and manufactories in the county of Allegany, and for other purposes," and considering the said several sections collectively, it is apparent that the creditors entitled to a lien under the said Act, must not only be of the particular classes enumerated in the Act, but that they must also have a residence for the time being in Allegany county.  

COUNSEL:
Geo. A. Thruston for the appellants.

The petition of the complainants in this case was dismissed, solely because the receiver was not appointed at the January term, 1858; the petition having been filed on the 19th of December, 1857, between it and the preceding October term, 1857; the learned judge, who decided this case below, being of opinion, that the jurisdiction of the Circuit [**2]  Court ceased with the January term, 1858.

To confine the jurisdiction of the Court to so limited a period, is not consonant with the spirit of these Acts of 1847 and 1852, and would operate in many cases with the greatest harshness, or frequently fail to effect their object.

Such construction would frequently deprive parties of the benefit of amendments, as the laws then stood; and as the same is codified, it is sufficiently, if not exactly similar to the practice at law and in equity; for illustration, see New Code Public General Laws, Art. 16, secs. 16 and 17; Article 75, secs. 23, 24, &c.

The rules for the construction of statutes are also in direct opposition to the construction put on this statute by the order dismissing this petition.

One governing rule for such construction will be found in a decision of this Court, not originating with this Court, but fully approved by it, viz: "Acts of Assembly made relative to the administration of justice are to be liberally construed for the attainment of that important object." Mitchell vs. Mitchell, 1 Gill, 66.

The power given to the creditors to insist on the action of the Court, in so brief a period, conceding [**3]  the word "shall," as used in the 4th section of the Act of 1847, requires the construction given to it, is a power given to be exercised for their benefit, and if so, can be waived, if such plainly appears not to be for their benefit. In this case, the appointment of a receiver at the instance of these complainants was useless, and could be of no avail, until it was determined that the personal property so sold and purchased by the other defendants, was first liable to the lien of the complainants. The cotton factory had no other property but this; the statute provides for no summary mode of proceeding between one set of creditors and another. The appointment of a receiver, so far from being beneficial and remedial, would have been an useless expense, if this personal property could not be made first liable in the hands of the other defendants, to the payment of the complainants' claim for raw cotton.

"In construing statutes, the real intent when ascertained, will always prevail over the literal sense of the terms." The occasion and necessity of the law is to be looked to; to give the construction here sought, would defeat the very object of the law, as applicable to this law.  [**4]  May and shall are frequently convertible terms; and when used in statutes conferring power, are sometimes used for each other. The object here was not only to get a receiver appointed under the law, but, in the same suit, to determine what the receiver could take, when and before his appointment. The Court will not appoint a receiver unless satisfied that there are special and peculiar circumstances requiring summary relief, and against the legal title, only in cases of fraud, clearly proven, and of imminent danger. Farleng & Miller vs. Edwards, 3 Md. Rep., 99. Clark vs. Ridgely, 1 Md. Ch. Dec., 90.

Here it might be said, the statute fixes the nescessary summary relief; but not against the parties, against whom the real relief is sought, and there are no circumstances alleged of imminent danger or fraud.

These cases are properly cognizable on the equity side of the Court. This has not been the practice, though such may have sometimes occurred. The necessary steps to be taken, the peculiar relief sought, and the mode in which it is to be sought, are peculiarly according to the jurisdiction and practice in equity, viz: the appointment of a receiver, an officer known only to [**5]  Courts of Equity. The duties and services to be performed and rendered by him, and the security he is to give, are similar to the duties and services of trustees and receivers, as known to Courts of Equity, as remediable and punishable there, and inquirable into there.

Again, the submission of the whole case is to the Court, or a judge in vacation, and it ought to be borne in mind, that when this law of 1847 was passed, and up to the term succeeding the Constitution of 1850, our present Circuit Courts were County Courts presided over by three judges.

The proceeding is commenced by petition, and the defence brought to the notice of the Court, in and by an answer thereto, and this, too, when our old system of pleading was in full use and practice. When an issue is made, the Court is to do what? Exercise a jurisdiction peculiarly belonging to equity; i. e., consider whether a receiver should not be appointed.

The issue thus made, as provided by the fourth section, 1847, "should be tried by the Court of the county, or by any judge in vacation," excluding the submission to a jury to try the issues; whilst in all cases at law, as a general rule, either party has a right to [**6]  insist upon a jury, to try issues of fact, where his life, liberty or property are jeopardized.

Although, all the cotton (raw) was sold and delivered before October 1st, 1856, and the executions were not issued until November 5th, 1856, by reason of credits on which the cotton was sold, it only became payable for a short time before March 1st, 1857. All the personal property which, alone, the complainants could pursue under their statutory lien thereon, was sold under said executions on December 20th, 1857, and taken possession of by the defendants, and remained in their possession until, and long after this petition was filed; indeed, as the record shows, until now.

To have confined the petition solely to the appointment of a receiver for the Cumberland Cotton Factory, would have been fruitless; and yet, the lien was perfect under the Acts of Assembly. There was no mode of reaping any benefit from it, except by combining with the application for the appointment of a receiver, an application also requiring these defendants and purchasers to recognize and yield to the lien. No other proceeding, involving so little litigation and but one suit, could be devised.

The Court [**7]  should not have dismissed the petition, even though it had refused to appoint the receiver. The defendants and purchasers were regularly summoned into the Court, they appeared and answered, evidence was taken establishing the right of the complainants to be first paid out of the cotton under the statutes; and if the Court had even refused to appoint a receiver, it had power and jurisdiction to grant other relief than the statutory relief. No objections were made to the proceeding, to the evidence or mode of taking it, &c. There was nothing which could interfere with another application for a receiver. But we contend, that to appoint a receiver, until it was ascertained that the only effects he could receive, were held by other parties defendants, and until the conflicting claims between complainants and these other defendants were determined, would have been useless.

The statute gives the lien clearly by sections 2 and 3, (1847,) irrespective of the statutory mode of realizing it, by the appointment of a receiver. Lien is a matter of general equity jurisdiction. 1 Sto. Eq. Jur., 506. The proceeding is entirely in rem. against other parties, as well as against the Cumberland Cotton [**8]  Factory. These other parties had to be made parties defendants in the proceedings, before their rights and possession under the sheriff's sale could be affected; and in making them parties, a mode of proceeding had to be used which could properly bring them into Court. They were in possession, claiming title to all the personal property which the complainants had a lien on. See 2 Sto. Eq. Jur., sec. 1526, and 1 Dan. Ch. Pr., 276, 249.

We claim a reversal of the decision, and a judgment of the Court of Appeals against the defendants, and such other relief as this Court may deem within its power to grant in the way of relief to the complainants.

Thomas J. McKaig, Jr., for the appellees, argued:

That the appeal in this case must be dismissed, because the Act of 1847, ch. 288, and its supplement, confers a special and limited jurisdiction upon the Circuit Court, and makes no provision for an appeal to this Court.

By the statute law of this State, the present mode of appeal was substituted for the more expensive and inconvenient proceeding by writ of error, and unless by express provision of some Act of Assembly an appeal will not lie in any case upon the law or equity [**9]  side of the Circuit Court in which a writ of error would not lie. Although the proceedings under this Act of Assembly assimilate in their character to a case in equity, still, as the whole proceeding is made returnable to the law term of the Court, to be there disposed of, this is neither a case of law nor equity, but a special and limited jurisdiction, and the Act conferring the jurisdiction not having given the right of appeal, no appeal lies. Savage Man. Co. vs. Owings, 3 Gill, 497. Wilmington & Sus. R. R. Co. vs. Condon, 8 G. & J., 443. Swann et al. vs. Mayor & C. C. of Cumberland, 8 Gill, 152. Lammott vs. Maulsby, 8 Md. Rep., 5. The old proceeding in insolvency was very analogous to this, both commencing with a petition to the law side of the Court, yet this Court, in Chase vs. Glenn, 1 Harris & Gill, 160, and Williams vs. Williams, 5 Gill, 88, held that there was no appeal from any action of the Court below in reference to proceedings in insolvency, and the Legislature, in view of these decisions, amended the law by incorporating in it the right of appeal.

2nd. Because that portion of the 4th section of the Act of 1847, ch. 228, which requires that the issue between the [**10]  parties shall be tried and finally disposed of by the Court at the term to which such petition shall be presented, or at the next term of the Court, if the petition be filed in vacation, expressly negatives the idea of any appeal to this Court.

This was a local law for Allegany county, and that county, in the geological condition of its soil, and the character and pursuits of a large portion of its inhabitants, differs materially from that of any other county in the State. The vast majority of this large class of its inhabitants are daily laborers, employed in the mines, workshops, furnaces and rolling mills in operation throughout the mineral region of this county, and are dependent upon their daily wages for the support and maintenance of themselves and families. And the Legislature in passing this Act, which provides that if any individual, association, or body corporate engaged in mining or manufacturing, shall neglect or refuse, for the space of thirty days, to pay any indebtedness due their employees or furnishers of raw material, the proceeding marked out in the Act may be instituted, and further requiring that it should be finally disposed of at the first available term [**11]  of the Court, intended chiefly to secure and compel, in the most summary manner, the prompt payment of all debts of the character just specified. To have given the right of appeal would have simply been to defeat the chief and principal object of the law, since before a decision could be reached in this Court, all possible injury to the claimants consequent upon this negligence or refusal to pay them, would have passed and gone.

3rd. Another significant fact evidencing that the Legislature did not intend that there should be an appeal under this law, is that the Act gives jurisdiction to the Circuit Court in all instances thereunder when the amount involved is over twenty-five dollars. This Court ordinarily takes no cognizance of any suit involving less than one hundred dollars,--such suits being instituted under the jurisdiction granted to Justices of the Peace, and in reference to which the Circuit Court is the final appellate tribunal.

Upon the merits it was contended:

1st. That the appellants, in making the vendees at the sheriff's sale parties to this action, made a false step in the very inauguration of this proceeding, which is a fatal objection to their right [**12]  to any decree whatever. The claim upon which the proceeding is founded, purports to be against the Cumberland Cotton Factory. The Act of Assembly simply empowers the Court below to appoint a receiver to take charge of the personal property of the corporation neglecting or failing to pay, &c., and by the most liberal construction, nothing can be found in the Act to authorize the Court to decide in this summary manner, the rights of conflicting claimants to said property. If the Cumberland Cotton Factory neither owned nor possessed any personal property, then it would have been useless to appoint a receiver; and even under the assumption that the property belonging to the company was in the possession of and claimed by others, the only thing the Court was authorized to do, was to appoint the receiver, and then of course it would have devolved upon such receiver to test and decide the title to this property in accordance with the just and known forms of the laws of this State. The Cumberland Cotton Factory alone should have been made defendant, and any order or decree by the Circuit Court against the other defendants, vendees at the sheriff's sale, would have been simply coram non.

2nd.  [**13]  Upon a proper construction of this Act of Assembly Miller, Mayhew & Co., being merchants in the city of Baltimore, and having furnished at that place the raw cotton upon which this claim is based, cannot claim any benefit from its provisions. To arrive at a correct construction of a statute, we must look to the original intent and meaning of the law-makers, and that intention may best be collected from the cause and necessity of making the Act, or from foreign circumstances. Canal Co. vs. Railroad Co., 4 G. & J., 152. Dwarris on Statutes, 726. At the time of the passage of this Act, a large number of the corporations and associations engaged in manufacturing and mining in the county of Allegany, were mere speculative bubbles, sustained solely by credit, and not owning in point of fact the very land upon which their operations were carried on. The vendors held mortgages upon all the property, real and personal, of these companies, which were liable to be foreclosed at any time, sweeping everything away, and not leaving a dollar to pay the just claims of the unfortunate operatives who were thereby thrown out employment and reduced to abject penury and want. In addition to this evil,  [**14]  these corporations were constantly in the habit of making sudden assignments for the benefit of creditors, whereby their operatives lost everything, or at most received a few cents on the dollar as their pro rata share. It was to remedy these evils and protect this helpless class of citizens that the Legislature passed this law, and not to give the merchants in the markets overt of the world, like Miller, Mayhew & Co., rights in derogation of the common law against these corporations. The terms of an Act are always understood as having regard to the subject matter; (Dwarris on Stat., 755;) and the title of this law, "For the protection of miners, mechanics, laborers and others employed in mines and manufactories in the county of Allegany," and the additional fact that in the supplement to the Act, which in several particulars materially changes the original law, the word "employees" is used alone without mentioning furnishers of raw material, conclusively demonstrates that the enlarged application sought to be given to this statute is erroneous, and should not be allowed. It is an accepted canon of law, that a thing which is not in the letter of a statute is not within the statute,  [**15]  unless it be within the intention of the law makers. Dwarris on Stats., 755.

3rd. The raw material for which this debt was contracted, was not of the kind and character intended or meant by the Act of Assembly. There never had been, nor was there at the time of the passage of this Act, a cotton factory in operation in the county of Allegany; but even if there had been, the significant fact that the only raw materials specified in the Act were coal, iron ore and clay, products indigenous to the soil of the county, necessarily excludes everything else, even of a similar nature, and a fortiori, all things different in genus and description from those which are enumerated. (Dwarris on Stats., 713. Rex vs. Cunningham, 5 East., 478.) Expressio unius est exclusio alterius.

4th. The negligence and laches of the appellants, as evidenced by the lateness of their application for the appointment of a receiver under this Act, and in the subsequent proceedings thereunder, were such as to destroy their right, if they had any, under said Act.

Although this was a summary proceeding which they might have instituted within thirty days after this indebtedness became due, yet, by their own [**16]  showing, they delayed nine months before commencing it, notwithstanding more than three months before their right accrued, all this property had been regularly sold under execution by the sheriff of Allegany county. And then, although, it is admitted that they had the right to have the issue tried and finally disposed of at the ensuing term of the Court, and there is no proof in the record that the Court was not ready and willing so to try and dispose of it, yet they suffered a period of nearly seven years to elapse before they asked a final disposition of the proceeding. In Hanson & Wife et al. vs. Worthington et al., 12 Md. Rep., 420, and 17 Md. Rep., 260, this Court held that in equity the question of laches and negligence must depend, and be decided by the circumstances of each case, and in 13 Ohio, 585, it was decided that where by the laches of the complainant, a sufficient time had been suffered to pass to render the Court unable to do justice between the parties, then that such laches constituted a bar to any recovery. That is the exact state of affairs presented by this record.

5th. The amount claimed in the petition not being due until March, 1857, and the appellees [**17]  having on the 20th of December, 1856, three months previous, obtained a good and legal title, without notice of such indebtedness, it was too late then, within the meaning and intention of the statute, to proceed against these appellees, as purchasers at said sheriff's sale, simply because the lien could not attach until the amount was due, and at that time this property was neither owned or in possession of the Cumberland Cotton Factory.

6th. But even admitting that this lien existed prior to the sheriff's sale in December, 1856, non obstante it is not that character of lien which would warrant the Court below, or this Court, in disturbing or setting aside a judicial sale, in every respect regular and valid. Elliott & Wife's Lessee vs. Knott, 14 Md. Rep., 134. Jackson vs. Robinson, 16 Johnson, 582. 23 Miss., 496. 18 Md. Rep., 513. Neale vs. Clautice, 7 H. & J., 373. Fowler vs. Lee, 10 G. & J., 385. 8 Md. Rep., 321.

7th. The 3rd section of this Act, which requires the sheriff to exempt from execution and levy a sufficiency of property to pay any indebtedness of the character specified in the Act, making it his duty to enquire diligently relative to such indebtedness, and [**18]  expressly declaring that if the employees or furnishers of raw material shall in any way suffer, be prejudiced or injured by refusal to comply with, or negligence in executing the requirements hereof, the sheriff, together with his sureties, shall be bound and held liable for whatever of injury or damage shall be done in the premises, in consequence of such refusal or negligence, conclusively establishes the fact that the appellants have, in this case, in attempting to follow this property, entirely mistaken their remedy, and that the only proper remedy that was left them, at the very inception of this litigation, was to have proceeded against the sheriff and his sureties. At the time of the filing of this petition, the lien either did or did not exist. If it did not, then the petition must have been dismissed. If it did, then by express provision of law, they were compelled to look to the sheriff and his sureties for indemnity.

8th. The 4th sec. of the Act requiring that the issue between the parties should be tried and finally disposed of at the ensuing term of the Court, and nearly seven years having elapsed since that time, the Circuit Court was at the time of passing the [**19]  decree appealed from, totally divested of all jurisdiction to appoint a receiver under said Act as applied for. Shivers vs. Wilson, 5 H. & J., 130. Yerby vs. Lackland, 6 H. & J., 446. 20 Md. Rep., 248. Brice & Fisher vs. Cook, Gar. of Scarborough, 6 G. & J., 346. Dwarris on Stats., 748, 757.

9th. The account filed with the petition does not set forth with sufficient clearness and distinctness the amount and nature of the indebtedness. It cannot be pretended for a moment that the appellants can claim any right to recover in this proceeding for anything except raw cotton, yet a part of this account is made up of various charges for dyeing, and the account itself commences with a balance against the cotton factory of over $ 3,000, and it is left to conjecture whether a part or the whole of this large balance is for dyeing also.

Thos. J. McKaig, also, for the appellees, argued:

1st. That the case made by the appellants is not within the provisions of the Act of 1847, ch. 228, and cited 8 Md. Rep., 5. 1 H. & J., 154 and 160. 5 Gill, 88.

2nd. That the provisions of the said Act are against common right, and will be construed strictly, as are our attachment laws.

3rd.  [**20]  That the petition was properly dismissed; the time at which the Court could have acted in the appointment of a receiver had passed, and the Court was without jurisdiction.

4th. That the sale by the sheriff was good as to the purchaser. If the sheriff failed to do his duty, the Act gives a remedy against the sheriff and his bond, but no right to follow the property in the hands of an innocent purchaser, otherwise there would be no safety in judicial sales; they would be a source of fraud.

On the question of laches, he cited 12 Md. Rep., 420. 17 Id., 260. 13 Ohio, 585. 14 Md. Rep., 134. 18 Md. Rep., 518. He also cited Shivers vs. Wilson, 5 H. & J., 230. 6 Id., 446. 20 Id., 248. Dwarris on Stat., 748, and 3 Gill, 497.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*490]  BOWIE, C. J., delivered the opinion of this Court.
This appeal presents the question, whether the appellants are entitled to a lien, and the remedies for its satisfaction, prescribed by the Act of 1847, ch. 228, and its supplements.
The appellants, merchants of the city of Baltimore, furnished cotton in bales to the appellees, "The Cumberland Cotton Factory,  [**21]  " in the year 1856, amounting to $ 1,269.34, which being unpaid, they filed their petition in the Court below claiming a lien, and praying the appointment of a receiver. They charge that at the time they furnished the cotton, the company was the owner of, and in possession of 

 [*491]  certain personal property, which is, and always was liable, since said raw cotton was furnished, to be sold for the benefit of the appellants, but that two executions were issued on November 5th, 1856, by certain stockholders therein named, against the Cumberland Cotton Factory, on two judgments, and that at sheriff's sale under those executions, the property was purchased by the co-defendants of the company, and is now in their possession. They pray the proceeds of the property may be applied to the payment of their claim.
On the 28th of December, 1857, an order was passed requiring the defendants to show cause why a receiver should not be appointed and summons issued. The individual respondents, neither admitting nor denying the indebtedness of the Company to the petitioners, in their answers insist that the sale to them by the sheriff, under the executions mentioned in the petition, was legal and [**22]  valid, and aver, that if the petitioners have been injured by the negligence or action of the sheriff, their remedy is against him. They aver that the third section of the Act of 1847, ch. 228, made it the duty of the sheriff to ascertain all outstanding liens, and exempt from levy a sufficiency of property to cover such indebtedness. But they deny that the petitioners have any right to the benefit of said Act, which was passed for the protection of miners, mechanics, laborers and others, employed in mines and manufactories in the county of Allegany, and the petitioners, being merchants in the city of Baltimore, are not within the purview of the Act, &c.
The Court below, waiving other objections, relied upon in argument, held that the Act of 1847, ch. 228, and its supplements, conferred upon it a special limited jurisdiction, which must be strictly pursued, and the time prescribed by the law for the trial of the issues and appointment of a receiver having expired, the jurisdiction of the Court had ceased, wherefore the petition was dismissed. Whence this appeal.

 [*492]  The appellants insist that the proceeding is one in equity, the appointment of a receiver being the peculiar [**23]  province of that Court, and that the restrictions as to the time of trying the issues and appointment of a receiver, were for the benefit of the creditors and directors, to promote dispatch, not to be literally enforced, as such a construction would enable defendants to defeat the purposes of the law or deprive parties of the means of proof.
It was further insisted, that although the law created a lien and pointed out a mode in which it might be enforced, yet it was a general lien and might be executed through the usual forms of a Court of Equity, in which liens were properly cognizable.
All these questions, although highly important and interesting, are posterior in order to the inquiry whether the petitioners are within the provisions of the law which creates a lien in behalf of certain classes of creditors. The intention of the Legislature is to be gathered from a consideration of every part of the Act. 2 Cranch 386.
For the purpose of ascertaining this intent, "the cause or necessity of making the Act or foreign circumstances may be considered." Frazier vs. Warfield, 13 Md. 279, 301. 4 G. & J., 152.
The object of the Act [**24]  of 1847, ch. 228, is indicated by its title, viz. "An Act for the protection of miners, mechanics, laborers and others, employed in mines and manufactories in the county of Allegany, and for other purposes."
The first section enacts, that if any individual, association or body corporate, engaged in mining or manufacturing within the county of Allegany, shall, for the space of ninety days, refuse to pay the daily, weekly or monthly wages, as the same may be due, of the persons in his or their employ, whether miners, mechanics, laborers, etc., or shall refuse for the period aforesaid, to pay the furnisher or furnishers of any ore, clay, coal "or other raw material generally 

 [*493]  used in manufacturing establishments," whether mills, workshops, brick-yards or furnaces, the amount contracted to be paid for such ore or other raw material, it shall be lawful upon petition of said miners, or of said furnishers of ore, clay, coal or "other raw material," for the Court, or judge of the proper judicial district in vacation, in which such mines or manufactories are situated, to appoint a receiver to take charge of the affairs of such individual or body corporate, that shall or may have [**25]  refused to pay as aforesaid, with a view to their liquidation and settlement under and by authority of the Court.
Section 2nd prescribes the duty of the receiver, authorizes him to take charge of all property of the defaulting debtors of every description whatever, other than real estate, to sell the same and pay off the debts due to the persons in his or their employ, thereinbefore designated and included, and to the furnishers of ore, clay, coal or other raw material as aforesaid, provided that no attachment or execution, nor any mortgage, bond or deed, or bill of sale or deed of trust, nor other lien in the law, except such as had been theretofore provided, prior to the passage of that Act for the benefit of mechanics, shall reach, hold, bind or operate as a lien on the goods and chattels, property or effects of the debtor, to the prejudice of the persons in their employ, etc.
The third section requiring every sheriff having any attachment or execution in his hands, against the goods, etc., of any individual or corporation engaged in mining or manufacturing as aforesaid, carefully to examine and inquire whether the said individual or body corporate be indebted as aforesaid, and [**26]  if so, to exempt from levy a sufficiency of the property of the character and kind therein mentioned, to discharge all such indebtedness in any event whatever, and if the persons in the employ of said individual or body corporate, or the furnisher or furnishers of 

 [*494]  ore, clay or other raw material, shall in any way suffer, be prejudiced or injured by refusal to comply with the requirements of the Act, then the sheriff with their sureties, shall be liable for whatever injury or damage shall be done in consequence of such negligence.
It is apparent from these sections, taken collectively, the creditors entitled to a lien under the Act of 1847, must not only be of the particular classes enumerated, but that those must have a residence in the county, for the time being.
The injunction upon the sheriff, carefully to examine and inquire whether such individuals or corporations engaged in mining or manufacturing, be indebted to such persons as thereinbefore described, could not be complied with, if it embraced non-resident furnishers of raw material.
The liens commenced by operation of law, as soon as the indebtedness accrued. No registry of such claims was required, and difficult [**27]  as it might be to conform to the law, in cases of resident creditors, it would be impossible as to non-resident.
If the petitioners in this case, instead of proceeding against the corporation, had sued the sheriff and his sureties for non-compliance with the provisions of the third section, they could not have recovered, because the law requires impossibilities of no one.
The petitioners being beyond the perview of the third section, we must presume the intention of the Legislature, in framing the preceding sections, was to include only the same classes of creditors, unless we attach a different meaning to the same words, when used in other parts of the Act. The context, however, of the preceding sections, as well as the title of the law, shows it was designed to be confined to creditors resident in the county of the enumerated classes.

 [*495]  As the petitioners are not among those entitled to the lien intended by the Acts referred to, it is unnecessary to inquire whether the proceedings were on the equity or law side of the Court, or might be enforced under its general or special jurisdiction. The record describes the proceedings as of the equity side of the Court, but if [**28]  there was no lien, there was nothing for either jurisdiction to operate upon.
Decree affirmed. 

26 of 120 DOCUMENTS 

THOMAS PICKING vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 499; 1867 Md. LEXIS 23 

March 12, 1867, Decided 

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

This action was brought by the State of Maryland against the appellant, to recover the sum of six hundred and sixty-six dollars and sixty-two cents, claimed to be an excess of fees received by him as one of the flour inspectors of the city of Baltimore over and above the ratable proportion of the annual salary of his office, for the fraction of the unexpired year of his predecessor in office. The facts of the case are more fully stated in the opinion of this Court. The judgment of the Court below, (NELSON, J.,) was for the State, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

SALARIES OF CERTAIN STATE OFFICERS LIMITED TO $ 3,000 PER ANNUM; ART. 10, SEC 1, OF THE CONSTITUTION OF 1851, -- was designed to fix the rate of compensation of the officers mentioned at a maximum of $ 3,000 a year, and to limit them to a ratable part of that "yearly sum" according to the period or portion of the year during which they may hold the office; and to require them to pay into the treasury the excess received beyond such rate of compensation. 

COUNSEL:
G. Eichelberger for the appellant.

The appellant asks for a reversal of the judgment for the following reasons:

By the provisions of the 14th section of Article 2 of the late (section 16 of Article 2 of the present) Constitution, the official year of all civil officers appointed by the Governor, commences with the first Monday of May ensuing their appointment, and must terminate on the first Monday of the following May.

The provision of section 1 of Article 10 of the late (section 1, Article 12 of the present) Constitution, that every [**2]  officer of the State, the entire amount of whose pay or compensation received for the discharge of his official duties shall exceed the yearly sum of three thousand dollars, shall keep and render to the treasurer a yearly account of the moneys so received by him, and shall yearly pay over to the treasurer such excess over the sum of three thousand dollars as he may receive, has reference to the official year of the several officers, and, it is submitted, can have reference to no other. If otherwise, and the reference be to the year from the day the officer enters on the discharge of his duties, then, it is submitted, that in this case, the account does not embrace and cover the receipts for the year from the qualification of the appellant, and that this action cannot be maintained, and the judgment must be reversed. If, however, the view be correct, that the reference is to the official year, then it is submitted that, as the appellant's official year expired on the first Monday of May, 1864, he had not received more than $ 3,000 during the official year, and there was no surplus in his hands to be paid to the treasurer.

The provision of the Constitution is, that the pay or compensation [**3]  of the officer shall not exceed the yearly sum of $ 3,000, not the monthly sum of $ 250, not the quarterly sum of $ 750, but the yearly sum of $ 3,000, referring to the official year, as suggested above. And we submit that this view is not without authority to sustain it. Wentworth vs. The United States, 2 Story Rep., 452. Brightly's Digest, 327, 329, Acts of Congress. United States vs. McCarty, 1 McLean's Rep., 306. United States vs. Edwards, 1 McLean's Rep., 467.

A. Randall, Attorney General, for the State, argued that the judgment should be affirmed, because:

1st. That as by the 1st section of the 20th Article of the Constitution of 1850, [the same substantially as section 1 of Article 12 of the present Constitution,] every officer of this State, the Governor excepted, the amount of whose pay or compensation received for the discharge of his official duties shall exceed the yearly sum of three thousand dollars, shall pay over to the treasurer the amount of such excess; so, also, if the pay or compensation received while in the discharge of their duties, for any part of the year, shall exceed the proportion of $ 3,000, which that part of the year bears to the entire year,  [**4]  the officer so receiving it shall pay over to the treasurer the amount of such proportional excess.

2nd. The appellant was appointed an assistant inspector of flour for the city of Baltimore, and qualified and entered on the duties of his office on the 17th August 1863, to fill a vacancy until the 1st of May, 1864, by Art. 2, sec. 14, of the Constitution of 1850, (new Constitution, Art. 2, sec. 16.) He received, while rendering service in his office, fees to the amount of $ 2,791.60; whereas, his pay and compensation for that period of time, at the rate of $ 3,000 per annum, was only $ 2,125, leaving him in debt to the State the sum of $ 666.60, for which the judgment of the Court was rightfully rendered against him. Public Local Code, Art. 4, sec. 330, and seq., page 216. Public Local Code, Art. 4, sec. 340.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*501]  BARTOL, J., delivered the opinion of this Court.
The question for decision in this case, arises upon an agreed statement of facts, which shows that the appellant was appointed assistant flour inspector in Baltimore city, (vice S. D. Walker, deceased,) on [**5]  the 31st day of July, 1863; that he qualified and entered on the discharge of his duties on the 17th day of August, 1863; that between that day and the 1st day of May, 1864, he received from the fees of his office the sum of $ 2,791.62; and that he has paid no part of that sum into the treasury.
The object of the suit is to recover the excess received by 

 [*502]  the appellant, beyond the rate of $ 3,000 per annum, amounting, according to the account filed with the declaration, to the sum of $ 666.62, for which the judgment was rendered below. The decision of the case turns upon the true construction of sec. 1, Article 10 of the Constitution of 1851, which is in these words.
"Section 1. Every officer of this State, the Governor excepted, the entire amount of whose pay or compensation received for the discharge of his official duties shall exceed the yearly sum of three thousand dollars, shall keep a book, in which shall be entered every sum or sums of money received by him or on his account as a payment or compensation for his performance of official duties, a copy of which entries in said book, verified by the oath of the officer by whom it is directed to be kept, shall be [**6]  returned yearly to the Treasurer of the State for his inspection and that of the General Assembly of Maryland; and each of such officers, when the amount received by him for the year shall exceed the sum of three thousand dollars, shall yearly pay over to the treasurer the amount of such excess by him received, subject to such disposition thereof as the Legislature may deem just and equitable. And any such officer failing to comply with the said requisition, shall be deemed to have vacated his office, and be subject to suit by the State for the amount that ought to have been paid into the treasury."
The appellant was an officer embraced within this provision; the mode of his appointment and the tenure of his office were regulated by the 14th section of the 2d Article of the Constitution. And his duties and mode of compensation were prescribed by the 4th Article of the Code of Public Local Laws, secs. 330 to 353. By sec. 343, his compensation was secured by allowing one cent for each barrel or half barrel of flour inspected.
The primary object and design of these provisions of the Code was to secure the public against imposition, by providing 

 [*503]  competent officers to [**7]  inspect, and mark the quality of flour before it is offered for sale. In providing the mode of compensation to the inspector, the Legislature intended to impose the expense of inspection upon the consumer, for whose benefit the law was passed.
Inasmuch as the amounts received for inspection might exceed what would be a fair and reasonable compensation to the officer, section 1, Article 10 of the Constitution was adopted, the design of which was to fix the maximum of his compensation, at the yearly sum of $ 3,000, and to increase the public revenue, by requiring the excess to be paid into the treasury.
In a case where an officer holds for a whole official year, that is from the first of May. No doubt could exist as to the meaning of the constitutional provision. But in a case like the present, where the incumbent holds the office for a part of the year only, the question arises whether there must be an apportionment of the whole yearly compensation fixed by the Constitution; so as to limit the officer to a pro rata sum, or allowance which would be equivalent to $ 3,000 per annum.
This is not provided for in express terms; nothing is said about an apportionment or ratable compensation [**8]  to the officer who holds for less than a year. And the appellant contends that without such express provision, there is no legal right to make an appointment; that if the officer has in fact received from the fees of his office no more than $ 3,000, he is entitled to retain it, no matter how small a part of the year he may have held the office.
The effect of such a construction to defeat the objects of the constitutional provision, and deprive the State of the revenue intended to be secured, is very well stated by the judge of the Circuit Court in his opinion sent up with the record.
The counsel for the appellant has referred in his argument 

 [*504]  to several decisions by the Courts of the United States, which seem at first view to warrant the construction, he puts upon the constitutional provision. They are the cases of Wentworth vs. The United States, 2 Story 452. United States vs. McCarty, 1 McLean's Rep., 306. United States vs. Edwards, 1 Idem. 467. United States vs. Pearce, 27 F. Cas. 482, 2 Sumn. 575. United States vs. Dixon, 15 Peters 141. We have given those cases a most careful examination,  [**9]  and consider that besides the weight and authority they are justly entitled to by reason of the great learning and ability of the Courts pronouncing them, the decisions are supported by good reason and sound principles of construction. They involved the construction of several acts of Congress regulating the fees, and limiting the compensation of officers of the United States. In comparing however the provisions of the Acts of Congress with those of our Constitution now in question, we find they are not identical in the language employed. The former were construed to vest in the officer the absolute right to all fees and emoluments actually received by him, until it reached the maximum amount of compensation allowed by the law, and to make him a trustee of the public only, as to the excess received by him beyond that amount. The clause of our constitution, when carefully examined and taken in connexion with the several provisions of the Code, before referred to, we think does not bear such a construction. Besides the rules for construing a statute, are not the same as those by which the Courts are bound, when they come to interpret the meaning of a constitutional provision. The technical [**10]  rules applicable to the former, have no application to the latter. "The Constitution unlike the acts of our Legislature, owes its whole force and authority to its ratification by the people, and they judged of it by the meaning apparent upon its face, according to the general use of the words employed, where they do not appear to 

 [*505]  have been used in a legal or technical sense. Manly vs. State, 7 Md. 135, 147. State vs. Mace, 5 Md. 337, 348.
Applying this mode of construction, it seems to us clear that the 1st section of Art. 10, was designed to fix the rate of compensation of the officers mentioned, at a maximum of $ 3,000 a year, and to limit them to a ratable part of that "yearly sum," according to the period or portion of the year, during which they may hold the office; and to require them to pay into the treasury the excess received by them beyond such rate of compensation; and consequently that the judgment of the Circuit Court is correct, and ought to be affirmed.
In expressing this judgment, we consider it due to the appellant to say, that his failure to pay into the Treasury the sum claimed, by no means justifies any imputation [**11]  upon his official honor or integrity. The question was one by no means free from doubt; and though we think he was in error in the construction he put upon the Constitution, its language was not so explicit and free from ambiguity as it might have been.
Judgment affirmed. 

27 of 120 DOCUMENTS 

THE SCHOOL COMMISSIONERS OF BALTIMORE CITY vs. THE STATE BOARD OF EDUCATION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 505; 1867 Md. LEXIS 24 

March 12, 1867, Decided 

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

This was a petition filed by the appellees praying for a mandamus against the appellants, commanding them to use in the public schools and high schools of Baltimore city, such text-books as had been or might be prescribed by the State Board of Education, as the uniform series of text-books to be used in the schools of the State.

The allegations of the petition and answer are briefly stated in the opinion of this Court.

There was no dispute as to the facts of the case. And after final hearing of the cause the Court below, (MARTIN, J.,) filed the following opinion and order.

"In this case I will sign an order making absolute the rule to show cause why a mandamus should not issue, as prayed for in the petition, on the ground that upon the true construction of the Act of Assembly of 1865, ch. 160, the Legislature of Maryland, in the exercise of its paramount police power over all the municipal corporations of the State, in connection with the high purpose of establishing in each county, and in all the cities, a system of Free Public Schools, is to be considered as having confided to the State Board of Education the important [**2]  duty of selecting and prescribing the kind of text-books to be used in all the public schools, and in the high schools of the State, including the city of Baltimore; and having determined on the character of the books proper to be adopted as textbooks, then to impart to the series uniformity; and that the constitutional right of the Legislature to pass an Act conferring the authority on the State Board of Education, belongs to that department of the government as the parent power from which all the political corporations of State derive their existence, and is recognized and retained under the grant of power to be found in the 3rd section of the 8th Article of the Constitution of 1864.  15 Md. Rep., 380. Assuming that the allegations contained in the petition are true, and they are not controverted by the answer of the defendants, then it is clear, on the cases of Rex vs. Barker, 3 Burr., 1268; Kunkel and Winemiller, 4 H. & McH., 429; and Harwood vs. Marshall, 9 Md. Rep., 83; that the petitioners are entitled to the writ of mandamus, as affording the only specific and adequate remedy through the instrumentality of which they can be placed in a position to discharge the duties and perform [**3]  the services imposed upon them by the Act of Assembly to which I have referred.

"It is thereupon this 2nd day of January, 1867, by the Superior Court of Baltimore city, adjudged and ordered, that no sufficient cause having been shewn, nor any reason appearing why a mandamus should not issue as prayed, that the rule be made absolute, and that a mandamus issue as prayed."

From this order the respondents appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

CONSTITUTIONAL LAW: MANDAMUS; PUBLIC SCHOOLS OF BALTO. CITY. -- THE 8TH ARTICLE OF THE CONSTITUTION OF 1854, evidently contemplates a system of Public School Education throughout the State, not excluding the city of Baltimore.

The last clause of the 3rd section of said Article cannot be construed to mean that the system itself as established in Baltimore city prior to the adoption of the Constitution, was re-enacted as part of the Constitution of the State, and placed beyond legislative control; it simply acknowledges the existing mode of organization of School Commissioners in that city and their appointment, and provides for changes in this respect only to be made from time to time by the General Assembly and the Mayor & City Council of Baltimore.

But whether the organization or mode of appointment of the City Commissioners only was meant, or that the system itself was intended to be carried into and made a part of the Constitution, the reservation of the power to alter and amend was equally necessary where legislative control was to be preserved.

Whatever room there might be for doubt as to the true construction of the said 3rd Art. there can be none as to the power of the Legislature to pass a law or laws altering or changing what is there enacted in reference to the public schools of the city of Baltimore, whether regarding it as pertaining to the mode of appointment of the commissioners or to the system of education and the conduct of its schools. The Act of 1865, ch. 160, may therefore lawfully embrace terms and provisions affecting the public schools of the city of Baltimore, established there prior to, and in existence at the time of the adoption of the Constitution of the State.

THE ACT OF 1865, CH. 160, by its letter and in its spirit, and looking to the design of the Constitution upon the subject of public education is applicable to and operative in the city of Baltimore, and vests in the State Board of Education the exclusive power and authority of selecting and prescribing the text-books to be used in the public schools of that city.  

COUNSEL:
Wm. Price, City Counsellor, and C. L. L. Leary, City Solicitor of Baltimore city, for the appellants, argued:

1st. That the Act of Assembly of 1865, ch. 160, entitled "An Act to add a new Article to the Code of Public General Laws, to be entitled 'Public Instruction,' providing a uniform system of free public schools," &c., so far as the same may conflict with the Acts of the General Assembly of the State, and the ordinances of the city of Baltimore existing and in force at the time of the adoption of the new Constitution of the State, is repugnant thereto, and therefore null and void.

Under the last clause of the 3d section, of Article 8, of the new Constitution, the School Commissioners of Baltimore city, irrespective of the Act of [**4]  1865, ch. 160, "remain" as they were "constituted" when the Constitution was adopted. The School Commissioners of Baltimore city and the system of public instruction administered by them, were organized and their powers defined by the ordinances of the Mayor and City Council of Baltimore, passed in pursuance of the following Acts of Assembly: Acts of 1825, ch. 162, sec. 21; 1827, ch. 183; 1836, ch. 220; 1837, ch. 285; 1845, ch. 120; 1849, ch. 146; 1852, ch. 287; 1858, ch. 295.

Ordinance No. 40, of revised ordinances of 1858, provides for the organization of the Board of School Commissioners of Baltimore city, and by section 6, of said ordinance, it is made the duty of said Board "to employ teachers and determine their salaries; to prescribe the courses of study, and the books to be used, to make all such by-laws for their own government, and all such rules and regulations for the management of the schools, as they may deem expedient," &c.

Under the last clause of the 3d section, of the 8th Article of the Constitution above referred to, these Acts of Assembly and the above mentioned city ordinances, under and by virtue of which the Board of School Commissioners of Baltimore [**5]  city were "constituted" and "appointed," remain in full force, and are intended to operate as constitutional provisions. The system of public instruction administered by said board, is designed to "remain" as it was organized under said laws and ordinances, and as a separate and distinct system; and the Legislature, in providing by law for a uniform system of free public schools, at its first session after the adoption of the Constitution as required by section 4, of Article 8, is bound to recognize the separate existence of the school system of the city of Baltimore, and is prohibited from interfering with it.

The last clause of the 3d section, of Article 8, by which the Constitution of the Board of School Commissioners of Baltimore city, is made subject to such alterations and amendments as may be made from time to time by the General Assembly, &c., confers authority on the Legislature to make such alterations and amendments, only after a general system shall have been established for the State as required by the 4th section, of Article 8. It was the intention of the framers of the Constitution, that the city system of public instruction, as it existed when the Constitution [**6]  was adopted, should be incorporated into the State system, and its efficiency or inefficiency tested and determined, and that the Legislature afterwards should be at liberty to alter or amend it, as circumstances might require. See 2 Debates in Maryland Convention of 1864, pp. 1227, 1228.

For the rules of construction of the Constitution, we refer to Bandel vs. Isaac, 13 Md. Rep., 223. State vs. Mace, 5 Md. Rep., 351. Manly vs. State, 7 Md. Rep., 147.

2nd. Even if the above construction of the present Constitution be not affirmed by the Court, we contend that the provisions of the Act of 1865, ch. 160, in relation to the use and selection of text-books are inapplicable to the public schools of Baltimore city, and they are excluded from its operation. Act, 1865, ch. 160; title 1, sub-chap. 2, sec. 2, p. 270; title 1, sub-chap. 3, sec. 7, p. 273; title 2, sub-chap. 7, sec. 1, p. 285.

Wm. Schley and John M. Frazier for the appellee.

The petitioner is a public body, created by the second section of the 8th Article of the Constitution. The defendant is a public body, recognized by the third section of the same Article of the Constitution.

By the Act of 1865, chapter [**7]  160, it was enacted, that there shall be a uniform system of free public schools, in each county of the State, and in every incorporated city; and that the supervision and control of public instruction should be in the State Board of Education, in the State Superintendent of Public Instruction, and in Boards of School Commissioners for the city of Baltimore and for each county; and that the State Board of Education should select a uniform series of text-books, for use in every public school and high school established or aided under said Act, &c., secs. 2, 3, 4 and 5.

The petition states, that the State Board of Education established a uniform series of text-books, and notified the several Boards of City and County School Commissioners that they had done so; but the Board of School Commissioners of Baltimore city declined and refused to recognize the right of the State Board of Education to prescribe a uniform series of text-books, to be used in the public schools and the high schools of Baltimore city; and claim the right to use, in the public schools and in the high schools of Baltimore city, such books as they consider proper to be used in said schools, and have adopted for [**8]  use, and are using in said public schools and in the high schools of Baltimore city, certain books, not included or embraced in the uniform series of text-books, selected by the State Board of Education; and have not introduced, and are not using in said schools, certain of the text-books selected by the State Board of Education, as part of the uniform series of text-books, &c.

The petitioner prayed for a rule requiring the defendant to shew cause why a mandamus should not issue, commanding the defendant to use in the public schools and in the high schools of Baltimore city, such text-books only as have been, or may be prescribed by the State Board of Education, as the uniform series of text-books to be used in the schools of the State.

An answer was filed to said petition on the 18th of May, 1866, admitting the allegations of the petition; but insisting that, upon the true construction of the Constitution and the Act of 1865, the State Board of Education has no control over the School Commissioners of Baltimore city. And the answer further insists, that defendant is not a corporation.

There being no controversy as to facts, the inquiry is limited to the true construction [**9]  of the Constitution, said Act of 1865, and the ordinances of the city of Baltimore.

On the part of the appellees it is insisted that:

1st. "The Board of School Commissioners of Baltimore city" is a corporate body.

2nd. But if not technically so, the board is a public body, charged with the performance, as a board, of public duties, and may therefore be controlled in a matter public in its nature, in which said board has no discretion, by the writ of mandamus. Moses on Mandamus, 102, ch. 17, and cases there cited. People vs. Supervisors of Columbia County, 10 Wend., 363. McCollough vs. Mayor of Brooklyn, 23 Wend., 458. Tapping on Mandamus, 12, and cases cited in the opinion of the judge below. 15 Md. Rep., 376, 378, 380.

3rd. The powers of the State Board of Education are coextensive with the territorial limits of the State. The provisions of the Constitution in relation to the manner of appointing the School Commissioners of Baltimore city, do not exempt the said Commissioners from the control of the State Board of Education. The Constitution and the Act of 1865, ch. 160, upon just construction, admit of no other interpretation than that given by the learned Judge [**10]  of the Superior Court.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*512]  WEISEL, J., delivered the opinion of this Court.
We have had no difficulty in coming to a conclusion upon the questions presented by the record in this case.
It is an appeal from an order of the Superior Court of Baltimore city directing a mandamus to issue, on the application of the State Board of Education, against the School Commissioners of Baltimore city, commanding them to use in the public schools and in the high schools of Baltimore city, such text-books as have been or may be prescribed by the State Board of Education, as the uniform series of text-books to be used in the schools of the State.
The petition of the State Board of Education states that they claiming the right, have adopted certain books as text-books, for use in the public schools and high schools of Maryland, including the city of Baltimore, and charges that the School Commissioners of Baltimore city have refused to recognize this right of the petitioner, to prescribe a uniform system of text-books to be used in the schools of that city, and have introduced [**11]  into said schools of the city certain other text-books not adopted by the State Board to be used in the public schools of the State. This is not denied but admitted by the appellants, and is claimed as a right independently of the authority of the State Board of Education, 

 [*513]  and regardless of the demands, in that behalf, of the State Superintendent of Instruction to use in the public high schools of Baltimore city, such books only as the said board consider proper to be used therein.
This conflict of claim and authority is to be determined by the true construction of the 3rd section of the 8th Article of the Constitution of the State; and this is, as was truly remarked by the learned counsel of the appellants in his concluding argument, the only question for our consideration.
The General Assembly of this State, at its session in 1825, (chap. 162,) passed an Act to provide for the public instruction of the youth throughout the State in primary schools, but to take effect and be valid only in those counties which, by a majority of their voters respectively at the next election of delegates to the General Assembly after its passage, should declare in its favour. But with [**12]  regard to Baltimore city, it provided, in the 21st section, as follows:
"That the establishment and regulation of public or primary schools within the city of Baltimore, shall be vested in the Mayor and City Council of Baltimore; provided, that if the said Mayor and City Council shall not, within the space of five years after the passage of this Act, establish a system of public education within said city, then this Act to be in full effect within the city of Baltimore."
The city of Baltimore exercised the power vested in its authorities by this Act, and established a system of common school education which was in full and successful operation, (as it is now,) when the present Constitution of the State was framed and adopted. It grew up and matured under various laws of the State and ordinances of the city, which it is not necessary for us to notice. By an ordinance in 1858, (Revised Ordinances of that year, No. 40,) it was provided, among other things, that the Board of Commissioners 

 [*514]  of the public schools of the city, created by that ordinance, should have charge of said schools, employ teachers, determine their salaries, prescribe the courses of study, and the books [**13]  to be used, &c., &c.
In 1864, when the Convention assembled to remodel the Constitution of the State, the subject of public instruction was made a distinct Article of the organic law. That Article provides for the appointment of a State Superintendent of Public Instruction, and imposes on him the duty of reporting to the General Assembly within thirty days after the commencement of its first session under the Constitution, a uniform system of free public schools. It created a State Board of Education, consisting of the Governor, Lieutenant-Governor, the Speaker of the House of Delegates, and the State Superintendent of Public Instruction, with such duties as the General Assembly might direct. It then, in the 3rd section, provides for the appointment in each county of the State, by the State Board of Education, of such number of School Commissioners as the State Superintendent should deem necessary, to perform such duties as the General Assembly or the State Superintendent might direct; and then proceeds in immediate connexion, in these words: "The School Commissioners of Baltimore city shall remain as at present constituted, and shall be appointed, as at present, by the Mayor and [**14]  City Council, subject to such alterations and amendments as may be made from time to time by the General Assembly, or the said Mayor and City Council."
The next section required the General Assembly at its first session after the adoption of the Constitution, to provide a uniform system of free public schools, by which a school shall be kept open and supported free of expense for tuition in each school district, for at least six months in the year, said system to be subject to such alterations, conformable to this Article, as the General Assembly may from time to time enact.

 [*515]  At the session of the General Assembly in January, 1865, (which was the first after the adoption of the Constitution,) an Act, (chap. 160,) was passed, entitled, "An Act to add a new Article to the Code of Public General Laws to be entitled, 'Public Instruction,' providing a uniform system of free public schools for the State of Maryland, and to repeal all existing laws inconsistent therewith."
Under various sections and clauses of this law, the State Board of Education (the appellees in this cause) claim the exercise of the right and power to supervise and control the public instruction in the city [**15]  of Baltimore, to contract for and prescribe the text-books for the use of the schools therein, to be uniform with those used in all the schools of the State, and to perform other duties imposed upon them.
On the part of the appellants, the School Commissioners of Baltimore city, it is contended, that by the last clause of the 3rd section of the 8th Article of the Constitution, (quoted above,) the system of public instruction in the city of Baltimore, as it existed at the time of the adoption of the Constitution, and all the laws of the State and ordinances of the city by which it was established and sustained, became a part of the Constitution itself, and that system was declared a separate and distinct one, not to be affected by the law which the General Assembly was to pass at its first session after the adoption of the Constitution, but only by such laws or ordinances as the General Assembly or the Mayor and City Council of Baltimore should afterwards pass in relation to that system itself.
This Court has carefully examined all the sections of this Article of the Constitution, and regarding the object in view, and noting the phraseology of all its parts, we cannot embrace the [**16]  construction put upon the clause of the 3rd section referred to by the counsel of the appellants and supported by the zeal and ability exhibited in the argument. 

 [*516]  The Article contemplates a system of public school instruction throughout the State, and it does not except the city of Baltimore from its operation in express terms. On the contrary, it refers to the city of Baltimore in more places than one, and if these references do not satisfy the mind that they necessarily exclude that city from its operation, such a conclusion cannot reasonably be adopted. The object of the constitutional provision is a uniform system of free public schools; to effect this a State Superintendent and a State Board of Education, consisting of him and the principal official personages of the State, are created, and a law of the State required to be passed, by which a school shall be kept open and supported in each school district, for at least six months in the year. The third section is taken up with the appointment of the School Commissioners throughout the State, directing their number, tenure of office, duties, compensation and mode of appointment in the several counties of the State; but [**17]  as to Baltimore city, the School Commissioners there shall remain as at present constituted, and shall be appointed, as at present, by the Mayor and City Council. This language, we think, cannot be so construed as to mean that the system itself, as established in Baltimore, was re-enacted as a part of the Constitution of the State, and placed beyond legislative control, but it simply acknowledges the existing mode of organization of School Commissioners in that city, and their appointment, and provides for changes in this respect, and none other, from time to time by the General Assembly or the Mayor and City Council of Baltimore. Convenience and expediency both recommended this as judicious in regard to an existing organization in a part of the State, whilst the entire machinery elsewhere was to be put into motion, and in a matter in which there would be no necessary or even probable conflict with it when in full operation. And whether the organization or mode of appointment 

 [*517]  of the City Commissioners only was meant, or the system itself was intended to be carried into and made a part of the Constitution, the reservation of the power to alter and amend was equally necessary,  [**18]  where legislative control was to be preserved. No argument, therefore, can be based upon this peculiarity in the structure of the clause in favor of the construction given by the appellants.
The design of the Constitution to include the city of Baltimore in the State system of education, is also apparent from the provisions of the 5th section, for levying an equal annual tax, by the General Assembly, on all the taxable property throughout the State, for the support of the Free Public Schools, to be distributed among the counties and the city of Baltimore in proportion to their respective population between the ages of five and twenty years. The same view is supported by the language and purposes of the 6th section, which, though now repealed, can be consulted in the interpretation of other provisions of the Article.
If, however, there should be room for doubt as to the true construction of the 3rd section, there can be none as to the power of the Legislature to pass a law or laws altering or changing what is there enacted in reference to the public schools of the city of Baltimore, whether regarding it as pertaining to the mode of appointment of the commissioners or to the system [**19]  of education and the conduct of its schools. This is expressly provided for by the 3rd section, as already shown, and therefore the law of 1865, ch. 160, may lawfully embrace terms and provisions affecting the public schools of the city of Baltimore established there prior to and in existence at the time of the adoption of the Constitution of the State.
To meet this construction and yet to maintain the action and course of proceeding of the school commissioners of Baltimore city, charged and complained of in the petition 

 [*518]  for a mandamus against them, it is contended on their behalf, that the provisions of the Act of 1865, ch. 160, in relation to the selection and use of text-books, apply exclusively to the several counties of the State, and not to the public schools of Baltimore city, and are inoperative there.
We turn to the Act itself to see how far this point is maintainable.
The title and first general section of the Act declare, that there shall be a new Article of Public Instruction added to the Code of Public General Laws, and that according to the provisions of the Act, there shall be a uniform system of free public schools in each county of the State, and [**20]  in every city now incorporated, or which may hereafter be incorporated in it. No section or clause, in express terms, excepts Baltimore city from the general operations of the Act. The few particular exceptions in reference to that city only conform their provisions to that of the Constitution of the State, already noticed, touching the organization of the schools in that city. These exceptions only prove the rule, that in all other respects the system itself is applicable to that city, and this is distinctly shown by the various provisions which connect the schools in that city with those in the counties. For instance, the counties and the city of Baltimore are to be divided into school districts, except that the mode of dividing the city into districts and locating school houses therein, shall be fixed by the Mayor and City Council of Baltimore. Title 1, ch. 4, sec. 5. The two following sections 6 and 7, direct how the teachers in each district shall be employed under the bylaws adopted by the State Board of Education, and prescribe the shortest period in the year in which instruction shall be given in each school district. These and the sections which follow in the same [**21]  chapter, are all general in their character, not excepting Baltimore from their operations, as does the 5th section, in the mode of districting the 

 [*519]  city. Passing on to the next title, we find chap. 2, sec. 6, providing that the location of school houses in Baltimore city, and all matters connected with the building and furnishing of them, are to be decided by or under the directions of the Mayor and City Council. This conforms to sec. 5, ch. 4, above, and to the provision in the Constitution, but sec. 4 of the same chap. prescribes the same punishment for injuring school houses in the counties and in Baltimore city. A reference to other sections in the Act will show conclusively that Baltimore city is embraced in the system. See Title 2, ch. 4, secs. 1, 2, 8. Title 2, ch. 5, secs. 4 & 5. The last expressly provides, that the salaries of teachers in the city of Baltimore and each county, shall be fixed by the Board of School Commissioners of the city and the several counties. Title 2, ch. 6, sec. 1. Title 2, ch. 8, secs. 1 & 9. Title 2, ch. 9, secs. 6, 7, 8. Title 3, ch. 1, sec. 2, Title 3, ch.  [**22]   4, secs. 1, 5, 11. Title Miscellaneous, ch. 1, secs. 1 & 2. Title Miscellaneous, ch. 2, sec. 1.
And then in the title, Sources of Income, ch. 1, secs. 1, 2, 6, 7 & 8, provisions are made for the levy of an equal State tax on the taxable property throughout the State for the support of the Free Public Schools, to be paid into the Treasury, and to be reported by the Comptroller of the State to the State Superintendent of Instruction, who is to apportion the same among the counties and the city of Baltimore. The school fund is distributed among the counties and the city as heretofore, and all other local tax laws for school purposes in the counties and the cities of the State are repealed.
This examination satisfies the mind that Baltimore city is embraced within the system of public schools established by that Act.
Upon the particular subject of text-books, we entertain no doubt. Baltimore city being included in the system, the Act is still more specific upon this particular branch of 

 [*520]  the inquiry. The supervision and control of Public Instruction are vested in the State Board of Education, the State Superintendent of Public Instruction, and [**23]  in School Commissioners for the city of Baltimore and each county. Title 1, ch. 1, secs. 1, 2, 3. The Board of Education "shall select a uniform series of text-books for use in every public school and high school established or aided under this Act." Same Title, ch. 2, sec. 2. "The State Superintendent shall have the supervision of all the public schools in the State." He shall report annually to the Governor, "all such plans and suggestions for the improvement of the schools and the advancement of Public Instruction in the State as he shall deem expedient." "The State Board of Education shall make such contracts for text-books, for the use of the schools established by this Act, as in their judgment they may deem advisable, and the State Superintendent shall superintend the issuing of the books so contracted for, to the several Boards of City and County School Commissioners, as they may require them." Same Title, ch. 3, secs. 2, 4, (sub-sec. 4,) & 7. The same subject is specifically provided for in chap. 7, entitled, "Text-Books." It is to be noted that this and the other chapters under this first title of the law, embrace the various subjects [**24]  of supervision, and to secure harmony, uniformity, virtue, and efficiency in the system of public instruction, are the declared objects and purposes, as well required in the city of Baltimore as in the other portions of the State.
The law also repeals all sections of the several Articles of the Codes of Public General and Local Laws relating to schools, and all Acts of Assembly passed since the adoption of said Codes relating to schools, inconsistent with its provisions. 3rd general section, 300.
We are, therefore, of opinion, from this examination of the law, by its letter and its spirit, and looking to the design of the Constitution upon the subject of public education, 

 [*521]  that the Act of 1865, ch. 160, is applicable and operative in the city of Baltimore, and that it vests in the State Board of Education the exclusive power and authority of selecting and prescribing the text-books to be used in the public schools of that city.
The point in the appellants' brief, that a mandamus could not lie against the School Commissioners of Baltimore city, was abandoned in the argument in this Court.
The order of the Superior Court of Baltimore city, directing a peremptory [**25]  mandamus to issue as prayed by the petition of the appellee, will therefore be affirmed with costs.
Order affirmed. 

28 of 120 DOCUMENTS 

THE PRESIDENT, DIRECTORS & COMPANY OF THE PEOPLES' BANK OF BALTIMORE vs. C. SMITH KEECH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 521; 1867 Md. LEXIS 25 

March 12, 1867, Decided 

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

This was an action of assumpsit, instituted by the appellants against the appellee, to recover the sum of two thousand four hundred dollars, on a promissory note drawn by Hall & Anderson, to the order of the defendant, and one R. D. Hall, dated Upper Marlboro', February 16th, 1861, for value received, payable at the People's Bank of Baltimore, four months after date, and by them jointly endorsed to the plaintiffs, the holders thereof.

1st Exception. At the trial below, the plaintiffs proved the handwriting of the makers of said note, and also, that of all the endorsers thereon. And also, that Upper Marlboro' was the proper post office of the defendant, and that Beltsville was the proper post office of the other co-endorser, R. D. Hall, who it was admitted was dead. They also proved by Dr. Gurley, the cashier of said bank, that at the time of the maturity of the said note the plaintiffs were the holders of said note, and that the same was at the bank on the day of its maturity, and that the drawers thereof had no funds in the bank to pay the same at its maturity; also that the said note was, on the day of its maturity,  [**2]  delivered to D. Ridgely, a Notary Public of the State, for protest, and that a demand of payment of said note, at the said bank, was made by the said notary and payment refused. The plaintiffs then offered in evidence to the Court and jury, the protest and notarial certificate of the said notary public, as sufficient evidence to bind the defendant as one of the endorsers of said note.

The defendant then proved by the cross-examination of said cashier, that by the custom and usage of said bank, a note intended to be made payable at said bank, would be drawn in this form. "Four months after date, I promise to pay to A. & B., or order, $ 4,000, for value received, payable at the People's Bank of Baltimore." And further proved by the same witness, "that a note drawn payable to A. & B., or order, for value received, at the People's Bank of Baltimore, would not, according to the custom and usage of said bank, be a note payable at said bank." But the Court at the instance of the defendant's counsel, rejected the said notarial protest, and instructed the jury that said evidence was insufficient to bind the defendant as endorser in this case, and that they must find a verdict for the defendant.  [**3]  To which opinion of the Court, and to their said instruction to the jury, the plaintiffs excepted.

2nd Exception. The defendant then to maintain the issues on his part joined, offered in evidence to the Court the record of a judgment of non pross., in a suit brought by the plaintiffs against the defendant, and the said R. D. Hall, in his lifetime, which said R. D. Hall, it is admitted, was a joint endorser on said note with the said defendant, in favour of John G. Hall and James T. Perkins, as the administrators of R. D. Hall. And on the production of said record, the defendant prayed the opinion of the Court, "that the discharge of the said R. D. Hall, the co-endorser with the defendant on said note, by the failure of the plaintiffs to give due and proper notice to the said R. D. Hall, was in law a discharge of the defendant in this cause;" of which opinion the Court were, and so instructed the jury, and directed them to find a verdict for the defendant; to which opinion of the Court, and to their said instruction to the jury, the plaintiffs excepted.

The verdict and judgment being for the defendant, the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

PROMISSORY NOTES: DEMAND AND NOTICE: JOINT PAYEES AND ENDORSERS, -- NOTICE TO BOTH NECESSARY TO BIND EITHER. -- In an action by the holder of a promissory note against K., one of two joint payees and endorsers, H. being the other payee and endorser, after evidence of the handwriting of the various parties to the note, it was proved that the post office of H. was at B., and that of K. at U. M., and further proved by the notarial certificate that the notice of demand and non-payment of the note to both endorsers, was sent by mail to U. M. -- HELD:

That the notice not having been given to H., he could not be held liable as endorser, and as a necessary legal consequence, K. cannot remain bound, because their engagement being joint, if one is discharged by the act or default of the plaintiff, it operates to discharge the other also.

Where a promissory note on its face was payable "at the People's Bank of Baltimore," in express terms, a demand at that bank was sufficient, and no parol evidence of any custom at the bank, giving the note a different construction, could be allowed to alter the contract.  

COUNSEL:
Thomas F. Bowie for [**4]  the appellants.

I. On the first exception it is contended, that the Court below were in error in rejecting the protest and certificate of the notary public, and in instructing the jury that said evidence was insufficient to bind the defendant as endorser in this case, and in directing them to find a verdict for the defendant, for the following reasons:

1st. Because the said protest and notarial certificate, were sufficient prima facie evidence per se of due notice to the defendant as endorser, so as to bind him in this case. Act of 1837, ch. 253. 1 Code, Article 67, sections 4, 5 and 7. Whiteford vs. Burckmyer & Adams, 1 Gill, 127.

2nd. The note being payable at the People's Bank on its face, who were the holders of the same, and being there at its maturity, and the makers not being there in person, or having funds there to pay it, it was dishonored, and no other demand was necessary. Graham vs. Sangston, 1 Md. Rep., 68. Hunter vs. Van Bomhorst & Co., 1 Md. Rep., 611. Sasscer vs. Farmer's Bank, 4 Md. Rep., 409.

This, it is true, does not dispense with notice of such dishonor to the endorser; but the protest, in this case, goes even further than it was necessary [**5]  for the notary to state. A simple notice informing the endorsers "that the note had not been paid, and that they would be held responsible for the same," would have been sufficient in a case like this, where the note is made payable at a bank. Same authorities as above. But the protest in this case goes further. After stating that the note was presented, &c., it says: "I addressed written notice to the endorsers of said promissory note, informing them that it had not been paid, payment therefor having been demanded and refused, and that they would be held responsible for the payment thereof." It is therefore immaterial whether this note be considered as a note payable at the People's Bank of Baltimore, or not; in either aspect of the case, the protest and certificate of the notary in this case, is sufficient evidence to bind the defendant as endorser. The defendant having had actual notice of "the demand and non-payment." Orear & Berkley vs. McDonald & Others, 9 Gill, 354.

But the Court also erred in instructing the jury "to find a verdict for the defendant," because the evidence of Dr. Gurley, the cashier of the bank, as contained in this exception, which went to the jury without [**6]  objection, and on which no exception is reserved, shews that the plaintiffs were the bona fide holders of said note on the day of its maturity; that the note was at the bank on the day of its maturity; that the drawers had no funds there to pay it, and that a demand for its payment was made by the notary at the said bank on that day. This being so, the presentation of the note and demand of payment of the makers at the bank on the day of its maturity, and its non-payment, as proved by this witness, was all that was necessary, so far, at least, as proof of demand and non-payment was concerned. The proof of notice of that demand and non-payment to the endorsers, was another matter, but this was proved by the protest itself, for it is quite clear and explicit on that point. The protest is in no wise contradicted or contravened by this parol proof. On the whole proof, therefore, as contained in this bill of exceptions, the plaintiffs were entitled to a verdict, and the peremptory instruction to the jury that their verdict must be for the defendant, was erroneous. It is error in the Circuit Court to instruct the jury absolutely, though they might have been authorized to grant the same instruction [**7]  hypothetically. Calvert vs. Coxe, 1 Gill, 95. Leopold vs. Chesapeake & Ohio Canal Company, 1 Gill, 22.

4th. But the prayer itself, as well as the instructions of the Court, are too general. They do not disclose a specific proposition of law to which the attention of the Court was invited, and the decision of which would appear by the record on appeal, and since the Act of 1825, ch. 117, this is not allowable. Wheeler vs. The State, 7 Gill, 344. Cook vs. Duvall, 9 Gill, 461.

The evidence elicited on the cross-examination of Dr. Gurley, the cashier, as contained in this bill of exceptions, forms no part of the exception itself, and is not before the Court on this appeal. Whether the note sued on was, in point of fact, payable at the People's Bank of Baltimore, or not, was a question of fact to be determined by inspection simply, and could not have been affected by the impressions or opinions of the witness as to any supposed usage of the bank. The note on its face, and by its language, professes to be a note payable "for value received at People's Bank of Baltimore." This means, philologically, payable at the People's Bank of Baltimore, for value received, But be this as it [**8]  may, as no question or exception is reserved on this point, it is not now before the Court for review on this appeal.

II. The second bill of exceptions presents an entirely different question. The defendant offered in evidence to the Court, the record of a judgment of non pross. in an action brought on this same note, against R. D. Hall, the joint endorser of the defendant, by the plaintiffs in this cause.

Pending the suit, and after a return of "Summoned" to the process, the said R. D. Hall died, and his administrators were made parties defendants. The record does not disclose the grounds on which the plaintiffs were non pross'd. The protest and notarial certificate are not in the record, nor does it appear on what grounds the case went "off." The bill of exceptions, however, in this case states, that "Beltsville" was the proper post office of R. D. Hall, the co-endorser with the defendant, and that "Upper Malbro'" was the proper post office of the defendant.

The protest states that "written notice for C. S. Keech and R. D. Hall was addressed to them at Upper Marlbro', Prince George's county, Maryland." It then appears that notice in fact was not given to R. D. Hall,  [**9]  the joint payee and the joint endorser with the defendant, whilst due notice was given to the defendant in this action, the other joint endorser and joint payee, and the sole question presented by this exception is, whether the failure of the plaintiffs to give notice to the said R. D. Hall, the joint endorser, is in law a discharge of the defendant in this cause. The Court below were of that opinion, and so instructed the jury.

The appellants contend that this opinion is erroneous on principle and authority.

1st. Because notice to the defendant, the surviving joint endorser in this case with the said R. D. Hall, was sufficient notice to the said R. D. Hall so as to bind his estate in the action against his administrators. Dabney vs. Stidger, 4 Smeades & Marshall, 749. Collyer on Part., sec. 443. Cayuga Bank vs. Hunt, 2 Hill, 635. And it not appearing in the record offered in evidence on what grounds the plaintiffs suffered a non pross., it is not the case of a release, either in fact or by operation of law, of one co-endorser which would release the other co-endorser.

2nd. Because the release of one joint endorser does not release or discharge the other, where the latter [**10]  has received due and proper notice. Notice to one joint endorser is notice to the other. Porthouse vs. Parker, 1 Camp., 83. Bignold vs. Waterhouse, 1 Maule & Sel., 259. Alderson vs. Pope, 1 Camp., 404; (Chitty, Jr., 755.) Jacaud vs. French, 12 East., 317, 322, 323; (Chitty, Jr., 789.) Dabney vs. Stidger, 4 Smeades & Marshall, 749. Montgomery County vs. Marsh, 11 Barbour, 645. Dodge vs. Bank of Kentucky, 2 Marsh, 616.

If reasonable notice of dishonor is given to one of several joint endorsers all are bound by it. Higgins vs. Morrison, 4 Dana, 105. Magee vs. Dunbar, 10 Louis., 546. Wood vs. Wood, 1 Harrison, 429. Goddard vs. Lyman, 14 Pick., 268. Cockey vs. Bank of Tennessee, 6 Hamp., 51.

Every endorser is regarded in the light of a new maker or drawer as to all subsequent endorsers, and when the action is against an endorser, the endorsee is not put to prove the hand of the first drawer. Ross on Bills and Promissory Notes, 273, 266. Law Library, Vol. 9th, Sixth Series.

Notice to one of the joint makers of a bill of exchange of its dishonor by the acceptor is sufficient to bind both; so of a promissory note. The promissors are to be deemed quoad hoc, as partners, and notice [**11]  and a demand upon one is a demand on all. Harris vs. Clarke, 10 Ohio, 5. Baugher vs. Duphorn, 9 Gill, 314.

For these reasons the appellants submit that the opinion and instructions of the Court below ought to be reversed on both exceptions.

Thos. G. Pratt and Daniel Clarke for the appellee.

The judgment should be affirmed: Because by the concessum of the appellants, as established by the testimony of their cashier, the note in suit was not made payable at said bank, and because the demand upon the drawers, by letter directed to Upper Marlbro', (the only demand which is alleged in the protest to have been made,) was insufficient to bind the endorsers, and thedemand at the bank was insufficient, as the note was not payable there. Although the note was held by the appellants at its maturity, the cashier proves that the bank did not recognize it as a note payable at the bank, and by the consent of the bank the note is to be regarded as a note payable generally, and not at the bank. There was consequently no demand or notice of dishonor of the note as will bind the endorsers. Graham vs. Sangston, 1 Md. Rep., 68.

The evidence in the first exception, made a part of the [**12]  second exception, shows that the defendant was one of two joint payees and endorsers of the note in suit;--that R. D. Hall, his co-endorser and payee, resided at Beltsville, where there was a post office, and that the notice of the non-payment of the note was directed to him at Marlbro', and not to Beltsville, by which he was released from liability as joint endorser with the defendant. Besides this, the proof in the second exception shows, that the appellant brought suit in the Circuit Court for Prince George's county on the said note, against the administrators of the said R. D. Hall, as the joint payee and endorser thereof with the appellee, and that at the trial, the appellant refused to answer when called, and suffered a non-suit, thereby releasing the said joint payee from all legal liability as joint endorser with the defendant.

It is insisted, that the release by the holder of one joint endorser, will discharge the other joint endorsers. Story on Bills, secs. 431, 299. 5 Md. Rep., 389. Shepherd vs. Hawkey, 1 Conn. R., 367. Sayer vs. Frick, 7 Watts & Seargt. R., 383.  

JUDGES:
The cause was submitted on printed arguments to BOWIE, C. J., and BARTOL, GOLDSBOROUGH and WEISEL, J.  [**13]  

OPINIONBY:
BARTOL 

OPINION:

 [*529]  BARTOL, J., delivered the opinion of this Court.
The promissory note sued on this case was drawn by Hall & Anderson, payable to the order of C. S. Keech and R. D. Hall, and by them endorsed; the note afterwards, by successive endorsements, came to the possession of the appellant, who held it at its maturity, and the note being dishonored, brought this suit against the endorsers, Keech and Hall; during the progress of the cause, Hall, one of the defendants, died, and the suit was continued against the survivor, the present appellee.
The questions before us arise upon two bills of exceptions taken at the trial, and these resolve themselves into the single inquiry, whether the notice of the demand and non-payment 

 [*530]  of the note was sufficient to bind the defendants, Keech and Hall, or either of them.
We lay out of view all consideration of the record offered in evidence in the second exception, showing that in a suit upon the note instituted by the appellants against the administrators of Richard D. Hall, deceased, (one of the joint endorsers,) the plaintiff suffered judgment of non pros., because such a judgment could not conclude the rights [**14]  of the parties or operate in law to discharge the appellee. Nor can there be any question upon the bills of exceptions as to the sufficiency of the demand of payment. The note was on its face payable "at People's Bank of Baltimore," in express terms, and a demand at the bank was therefore sufficient; such is the legal construction of the writing, and no parol evidence of any custom at the bank, giving the note a different construction, could be allowed to alter the contract.
The evidence in the first bill of exceptions shows, that the proper post office of R. D. Hall was Beltsville, and that of C. S. Keech was Upper Marlborough; the notarial certificate shows, that the notice to both the endorsers was sent to Upper Marlborough. According to all the authorities, that was not legal notice to Hall, and would not bind him, unless it can be held, that being joint payees and endorsers, notice to one is sufficient. Unquestionably such would be its effect if they were partners; upon that point the authorities all agree, it has been so held in Maryland. See Baugher vs. Duphorn, 9 Gill 314.
In a case of partnership, one partner is the general agent of the firm and may [**15]  bind his co-partners in any matter within the general scope of the partnership. It is upon this ground the principle of law has been established, that notice to one member of the firm, of the dishonor of a note endorsed by the firm, will bind all the partners.
In this case, Keech and Hall were not partners, they 

 [*531]  were simply joint payees and endorsers, and the question arises whether the same rule applies as in the case of partners, or whether each must have notice. This question does not appear, from any reported case, to have been decided in Maryland. It arose before the King's Bench in Cawick vs. Vickery, 2 Doug. 653, note, in which the precise question was as to the validity of an endorsement of a note by one of two joint payees who were not partners. The judges expressed the opinion that the joint payees must be considered as partners quoad the particular transaction. But afterwards, at the trial of the same case before Lord MANSFIELD, when evidence was offered to prove "that by the universal usage and understanding of all the bankers and merchants in London, the endorsement was bad, because not signed by both payees" his Lordship, whose [**16]  opinion upon a question like this is entitled to very great weight, said, "he did not think the question was so decided as to preclude the evidence offered." And upon the usage which appeared to be so well known to all the jury that they required no evidence to support it, the verdict was given for the defendant.
The question does not appear to have arisen afterwards in England, and it may be inferred that the rule of commercial law, in conformity with the usage settled by the verdict in that case, has remained there undisturbed.
It will be observed, that the precise point settled in Cawick vs. Vickery is not identical with the one now presented; there the question was as to the sufficiency of an endorsement by one, here the question is as to the effect of a notice of the dishonor of the note given to one of the endorsers only. But it is obvious, that the questions depend upon the same principles, and must be decided in the same way.
There is some conflict in the decisions on this point by the Courts of this country. But the weight of authority, 

 [*532]  as well as of reason, appears to us to be in accordance with the judgment finally pronounced in Cawick vs. Vickery, [**17]  and the established commercial usage in England.
The cases in which the contrary doctrine has been decided or intimated by the Courts in this country, are Dodge & Others vs. Bank of Kentucky, 2 Marsh. 615. Higgins vs. Morrison's Ex'cr, 4 Dana 100; and Goddard vs. Lyman, 31 Mass. 268, 31 Pick. 268. (The cases of Cocke vs. Bank of Tennessee, 25 Tenn. 51, 6 Hum. 51, and Harris vs. Clarke, 10 Ohio 5, cited by appellees' counsel on this point, we have not had an opportunity to examine.)
The cases in Kentucky, above referred to, appear to have been decided without much consideration of this point; in the opinions pronounced, the question is not discussed nor are any authorities cited, the Court simply declaring that joint payees of a note are to be considered as partners quoad hoc.
In Goddard vs. Lyman, 31 Mass. 268, 14 Pick. 268, the note which was sued on, was drawn by the defendant payable to E. Warren, J. J. Cutler and A. Fleming, (who were not partners,) two of them endorsed it to E. Warren and H. A. Green, a stranger; afterwards E. Warren endorsed it [**18]  as follows: "I order the contents of this note, so far as I am interested therein, to be paid to H. A. Green, or order,--E. Warren," then H. A. Green endorsed it to the plaintiff; and the question was whether these endorsements were sufficient to vest the title in the plaintiff, and enable him to sue thereon.
The Court held that the endorsement of two of the joint payees to the other payee and a stranger, was a legal transfer of the note; or if this be doubtful, the further endorsement by the third payee to the stranger would pass the property upon the plain principle that "by such endorsements the assent of all the payees to the transfer is manifested."

 [*533]  In pronouncing the opinion of the Court in that case, Mr. Justice WILDE states, that joint payees of a note, though not general partners, make themselves partners as to the transaction, and refers to Cawick vs. Vickery, in support of the proposition. So far as this expression is concerned, the opinion of the learned judge was clearly obiter, that point not being involved in the case.
This question arose in Shepard vs. Hawley & Loomis, 1 Conn. 367. State Bank vs. Slaughter, 7 Blackf. 133. [**19]  Sayer vs. Frick, 7 Watts & Sergt. 383, and Willis vs. Green, 5 Hill, (N. Y.,) Rep., 232; and in all of them it was held that cases of partners and those of mere joint payees stand upon different principles. In the former the firm is bound by notice to one of the co-partners; because each represents the firm and is general agent of all; but in the latter, the rights and interests of the parties are distinct; though jointly entitled, they are mere tenants in common, neither can legally represent the other without being specially authorized, and therefore notice to one is not sufficient to bind the other.
Without quoting at length from the cases above cited, we refer to the very full and elaborate opinions of SWIFT, C. J., and GODDARD, J., in Shepard vs. Hawley; of Chief Justice GIBSON, in Sayer vs. Frick; and of NELSON, C. J., in Willis vs. Green, which we think place the question upon correct principles. See, also, Story on Bills, sec. 299. Chitty on Bills, 496, m. 4 Cowen 126. 12 Barbour 251.
It follows from what has been said that notice of the dishonor of the note in this case, not having been given to Hall,  [**20]  he could not be held liable as endorser, and as a necessary legal consequence, Keech, the appellee, cannot remain bound; because their engagement being joint, if one is discharged by the act or default of the appellant, it operates to discharge the other also. This principle is 

 [*534]  well settled. See the cases before cited, also Yates vs. Donaldson, 5 Md. 389.
Judgment affirmed. 

29 of 120 DOCUMENTS 

JOHN SIX vs. JEREMIAH SHANER, MARTHA A. SHANER, THOMAS SHAW and PETER BAUMGARDNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 415; 1867 Md. LEXIS 17 

March 5, 1867, Decided 

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

The bill in this case, filed November 20th, 1858, by the appellant, charges that Martha Ann Shaner, a married woman and the wife of Jeremiah Shaner, purchased at public sale, from a trustee in equity, a tract of land for $ 3,440.07; that this sale and purchase took place March 28th, 1857, was duly reported and finally ratified September 7th, 1857, and on the 17th of October of that year, the land was conveyed to the said Martha by the trustee, by deed duly executed and recorded; that about the 1st of May, 1857, the said Martha, not being able to raise the entire amount of the purchase money, applied, in company with her husband, to the complainant, and requested him to pay to the trustee $ 850, part of said purchase money, she having, as she stated, raised and paid the remainder, and your orator did accordingly pay to the said trustee the said sum of $ 850 on account of said purchase money; that Martha and her husband were both present at the time this payment was made, and it was then and there solemnly promised by Martha, and also by her husband, that your orator should be fully secured by a lien on the said [**2]  land for the purchase money so paid by him, and should have a lien on the land for the same, and it was then and there promised by the said Martha and her husband, and each of them, that they would execute a mortgage to your orator on said land, to secure him said sum of money, so soon as the trustee should execute a deed to Martha therefor, if your orator should desire to be secured in that mode; and it was distinctly and solemnly agreed by Martha and her husband, that your orator should be secured on said land for said sum of money, in whatever form such security could be most valid and effectual. That afterwards, on the 13th of November, 1857, Martha agreed to sell the land to your orator for $ 3,000, and he agreed to purchase it at that price solely in order to secure said sum of $ 850, no part thereof having been paid or secured to him, as he did not desire to become the purchaser of the property, and was urged to do so by said Martha, who represented she had no means of paying him except by a sale of the land to him, and that on that day he executed to her his four promissory notes for the sum of $ 500 each, and it was agreed that the said $ 850 was to be considered as paid by [**3]  your orator as so much of the purchase money, and the said Martha, on that day, executed and delivered to your orator a deed for the land, a copy of which is filed with the bill, she being then about to go to the State of Illinois; that having returned in a short time, she and her husband pretending that her deed to your orator was void because her husband had not united in its execution, undertook to sell the land to one Peter Baumgardner, a brother-in-law of said Jeremiah, for $ 4,000, and actually conveyed the land to him by deed dated the 28th of May, 1858, and have him put in possession thereof.

The bill then charges, that at the time of this pretended sale, Baumgardner knew perfectly well both that the said sum of $ 850 had been paid by your orator to the trustee on account of the purchase money of said land, and that no part of it had been paid by said Martha or her husband, or either of them, except by the sale of said land to your orator by said Martha as aforesaid, and also that the land had been sold and conveyed to your orator by said Martha as aforesaid, and that the deed from her to him had, long prior to that time, been duly recorded among the land records of Frederick [**4]  county. It further charges, that Baumgardner has not paid to said Martha or her husband the entire purchase money, but gave her his notes therefor, some of which, to a much larger amount than said sum of $ 850 and the interest thereon, are still due from him; that after your orator found a combination had been formed between the said Jeremiah and wife and Baumgardner, to deprive him, if they possibly could do so, of the benefit of his purchase, he informed each of them he would willingly relinquish his said purchase if said Martha would surrender to him his notes for the $ 2,000, which are still in her or her husband's possession, and if they, or either of them, would pay him said sum of $ 850 and the interest thereon; and that he is now willing to surrender all claim to said land on these conditions. He further states, that on the 10th of November, 1857, said Martha executed and delivered to your orator her promissory note for the $ 850, which through inadvertence was not delivered up to her at the time of the sale to him, and which he brings into Court to be delivered up to her on the payment to him of said sum of $ 850.

He further states, that he has been informed, and therefore [**5]  charges, that the notes of Baumgardner to said Martha, for the purchase money of said land, not yet paid, have been by some means, by her or her husband, transferred to one Thomas Shaw, a partner in business of said Jeremiah, but that they have not been bona fide assigned to him for a valuable consideration, and that said Shaw well knows the aforesaid condition of said property, and of your orator's connection therewith, and what was the consideration of Baumgardner's notes, and that the said sum of $ 850 is wholly unsatisfied to your orator, and that he has no means of recovering the same unless it be paid him out of the said land in some form; that Shaw has not paid to said Martha or her husband, any consideration for said notes, or if any, a mere nominal one, and that said Jeremiah is not in possession of any, or if any, of a very trifling amount of visible property; and that said Martha is not possessed of any property whatever, except said notes, and that there are no means by which he can obtain said sum of $ 850, unless the land shall be sold to pay the same, or unless Baumgardner can be decreed to pay the same out of the purchase money yet due from him for the land.

The [**6]  bill then charges, that said Baumgardner, Jeremiah and Martha have combined and confederated together to cheat and defraud your orator out of his money so paid by him as aforesaid, and that Shaw has also combined and confederated with said parties to cheat and defraud your orator as aforesaid, and for the purpose of endeavoring to effectuate said fraud, has accepted the custody of Baumgardner's notes, so that he can pretend he is the bona fide holder thereof for a valuable consideration; whereas, in fact and in truth, he has paid no value for the same, and holds them in trust for the use of the said Martha and her husband, and so that Baumgardner may pretend that he is a bona fide purchaser and liable to said Shaw as assignee for the balance of the purchase money not paid over to said Martha or her husband.

The bill then calls for answers on oath to these allegations, and to special interrogatories fully stated, and prays that the said sum of $ 850 may be declared and decreed to be a lien on said land, or that your orator is entitled to a resulting use to the amount of said sum and interest thereon, and that the said land may be sold for the payment thereof, or that said Baumgardner [**7]  may be decreed to pay to your orator the same out of the purchase money yet due from him for said land, and deduct the same from the amount so due by him, and that said Martha or her husband, or whichever of them has the same in possession, may be compelled to surrender the notes given by your orator to said Martha for said purchase money, to be cancelled as to your Honor may seem just; and that said Shaw may be enjoined and restrained from assigning said notes of Baumgardner to any other person, and that Baumgardner may be enjoined and restrained from paying said notes to said Shaw, Jeremiah or Martha, or any other person, until the further order of this Court, and that said Jeremiah and Martha, and both and each of them, may be restrained from assigning or transferring the notes of your orator, given to said Martha as aforesaid, to any person or persons whatsoever, until the further order of this Court; and that your orator may have such further and other relief as in equity he may be entitled to.

The exhibits filed with the bill are, 1st, the deed from the trustee to Martha Ann Shaner; 2nd, the deed from said Martha to the complainants; 3rd, the deed from Shaner and wife to [**8]  Baumgardner; and 4th, the note from said Martha to the complainant for $ 850.

The injunction was granted as prayed.

Shaw, in his answer, says he has no knowledge of the sale by Dutterar to Mrs. Shaner, the terms of it, or how she got the money to pay for the farm, except that he has heard she paid for it with the money of her husband; that he has no knowledge of the sale by her to the complainant, and of the deed by her to him, or of any transactions concerning said sale and purchase except from general rumor; and that he is entirely ignorant as to the loan of $ 850 by the complainant to said Martha or her husband; that he has been informed that she and her husband sold the land to Baumgardner for $ 4,000, and that they conveyed the same to him by the deed filed as an exhibit with the bill, which he supposed to be a fair, just and bona fide sale, not made with the intent to cheat or defraud the complainant or any one else, but as to the real facts he has no knowledge; that he has been informed and believes, that said Baumgardner as part of the said purchase money gave to said Jeremiah his two single bills for $ 1,333 33, each dated April 1st, 1858, payable to said Jeremiah [**9]  at twelve and twenty-four months respectively, with interest from date; that on the 1st of July, 1858, Jeremiah offered to sell to the respondent the single bill payable at twelve months, in payment of the good will of a "Huckster's Route" called "Richard Merrings' Route," and all the horses, wagons and other property for the purpose of hauling articles to market for sale, which route and the property thereto belonging was worth $ 970, which sum Jeremiah agreed to give therefor, and sold and delivered said single bill to the respondent, which sale and delivery was on the 1st of July, 1858, in payment of said good will and property, and he paid Jeremiah $ 100 in cash, and gave his note for the balance of the money due on said single bill; that at the time of this purchase and delivery, the said single bill was not assigned to him in writing, and on the 5th of October, 1858, he procured a Mr. Carmack to write an assignment on the back of the bill which was signed and sealed by said Jeremiah; that the other single bill was on the 4th of October, 1858, bona fide assigned under hand and seal of said Jeremiah to the respondent for a full and valuable consideration, that at the time of this [**10]  assignment there had been paid on it by Baumgardner to said Jeremiah, the sum of $ 438.88, which was endorsed on the back of it, leaving a balance due thereon of $ 894 45; that at the time he made this last purchase he was the owner of another good will of another "Huckster's Route," called "Detrick Zeck's Route," with horses, wagons and other valuable property thereunto attached, all of great value, to wit, of the value of $ 1,155, which he sold and transferred to said Jeremiah for the sum of $ 1,155, and which property Shaner received in full satisfaction of the last bill, and the note given him for the balance due on the first bill.

He further states that before he purchased these bills, he called on Baumgardner to know whether the money due on them was justly due, and he said it was, and would be paid, and since his purchase of the last bill, Baumgardner has paid $ 128 thereon; that the purchase by him of these bills was a fair, honest and bona fide transaction, not made to cheat or defraud the complainant, or any one else; that the good will of said two Huckster's Routes, and the property thereto belonging and attached, was very valuable and fairly worth the sums for which [**11]  they were sold to Shaner. He denies all fraud charged against him, and says his purchase of the bills was fair and bona fide, and made without any intention to cheat or defraud the complainant; that he knows nothing of the intended fraud and combination between Baumgardner and Jeremiah to cheat and defraud the complainant out of the $ 850, and if any such was intended by them he was no party to it, and they are responsible for their own frauds; that he is advised these bills cannot be reached or affected in his hands, he being ignorant of any fraud, and because before he purchased them he inquired of Baumgardner whether the money was fairly due and owing, who having full knowledge of all the facts in the case in relation to the transaction with the complainant and Shaner's wife, charged and set forth in the bill of complaint, stated the money was justly due and he would pay it. That he is advised that if the complainant has any remedy to recover the $ 850, he has a complete remedy at law, and if under all the circumstances he is entitled to relief in equity, it is against the said real estate, and not against this respondent, who purchased the bills with the knowledge and consent of [**12]  Baumgardner as before stated; and he denies all and all manner of unlawful combination and fraud charged against him in the bill.

Baumgardner, in his answer says, that on the 28th of March, 1857, Mrs. Shaner did purchase the land of Dotterar, the trustee, for the sum mentioned in the bill, and she then, or soon after, paid the trustee a portion of the purchase money and gave him her notes or single bills with this respondent as her security for the balance, and the trustee then executed to her the deed for the land. He says he does not know, nor does he believe the complainant ever paid to said trustee any portion of said purchase money, but he has been informed that he did heretofore lend said Martha $ 850, for which he took her promissory note, the same filed with the bill. That on the 28th of May, 1858, he purchased the land of said Jeremiah and Martha for $ 4,000, and paid the trustee the unpaid purchase money, then owing by her to the said trustee, and for the payment of which, he was security, and for the balance he executed and delivered to said Jeremiah his notes, which he has been informed and believes have since been assigned by Jeremiah or Martha to Shaw, for a good [**13]  and valuable consideration; that upon his so paying and securing said sum of $ 4,000, the said Jeremiah and Martha executed to him the deed for, and put him in possession of the land; that he purchased the same truly and bona fide, and paid and secured the whole of said sum of $ 4,000, that being its full value, and at the time he made the purchase he did not know, nor does he now know or believe, that the complainant had paid any money on account of said purchase by said Martha, but believes and charges that it is a mere pretence on the part of the complainant to pretend that money lent by him to said Martha, and for which he took her note, was so paid, hoping thereby by some means fraudulently to obtain it of this respondent; that he did not know that it had been agreed by Jeremiah or Martha, or either of them, that the complainant should have a lien on the land for any money; that he did not know whether the money mentioned had been paid or not to the complainant; that he did not know whether Jeremiah or Martha were in possession of the notes mentioned in the bill or not; that he has not declared before said purchase, that he would pay the complainant the said sum of $ 850 and interest;  [**14]  that he has not declared that the complainant might and should lose said money; that he does not know of his own knowledge, but has been informed and believes, that said notes of this defendant were transferred by said Jeremiah and Martha, or one of them to said Shaw for a good and valuable consideration; this defendant knows said notes were transferred to said Shaw, and has been informed and believes for a good and valuable consideration; that the said Jeremiah is his brother-in-law; that his purchase of said land was a bona fide purchase for a valuable consideration, he having paid and secured to be paid $ 4,000 for the same, and that he was induced and obliged to make said purchase to save himself from great loss and danger which he would otherwise have sustained as security for said Martha, to said trustee, for the purchase money of the land; and he denies all and all manner of unlawful combination and confederacy wherewith he is charged in the bill.

Jeremiah Shaner in his answer says, his wife did purchase the land at the time, for the sum, and from the trustee, as stated in the bill, and that she paid a portion of the purchase money in cash, and gave her notes to the trustee [**15]  with Baumgardner as her security for the residue, and at the time of said payment, the trustee executed to her the deed for the property; that he, this defendant, acting for and on behalf of his said wife, paid said purchase money to the trustee; that a portion of said cash payment so made by said Martha, she had borrowed of complainant, for which she gave him her note, as complainant has informed this defendant, and that it was agreed between Martha, respondent and complainant, that the two former should execute a mortgage to the latter to secure him for said money, and in pursuance of this agreement, he and said Martha did execute a mortgage prepared by Joseph Davis, an attorney at law, and tendered the same to complainant, who for some reason refused to receive it. That complainant did not pay said sum of $ 850 to Dotterar, or any part of said purchase money, but respondent himself paid said purchase money, and it was not agreed or understood that complainant should have any lien on said land otherwise than as before stated. That defendant was in possession of the land from the date of the purchase by his wife, till they sold it to Baumgardner; that some time in November, 1857,  [**16]  he was absent from home in Baltimore, and on his return, he found that during his absence, his wife had left her home, and removed to Illinois, having been taken from her home in his absence, as he believes and charges, to the city of Frederick, by the complainant, who furnished her with money barely sufficient to carry her to Illinois, (which was repaid to him by respondent,) having, by some means to defendant unknown, induced her to execute the deed for the land filed with the bill, for which he gave her his two notes for $ 2,000, retaining her note for the $ 850, which defendant is informed by the bill was to be deducted from said $ 2,000, and the difference remitted to said Martha in Illinois. That he at once denounced said conveyance as illegal and fraudulent, and declared to complainant he would have nothing to do with it; and he now charges said deed was obtained by him of said Martha by improper and fraudulent practices, with intent to cheat and defraud said Martha and this respondent. That after hearing of the desertion or abduction of his wife as aforesaid, he followed her at great expense to Illinois, whence she returned with him to her home on said land, and that afterwards [**17]  they sold the land to Baumgardner for $ 4,000, and after deducting from that sum the money paid by Baumgardner on the former purchase of the land by said Martha from Dotterar, and for which he was security, he gave his notes for the balance, which notes were assigned to Shaw for a valuable consideration.

He further says, that at the time said money was borrowed, and ever since, he has owned and possessed a large amount of property, much more than sufficient to pay any sum complainant could possibly recover of him, and he has desired complainant to bring his action against him, in order that their respective rights might be duly determined in a Court of Law, and he has now an action pending against him in the Circuit Court for Carroll county, brought by complainant, as he has been informed, for the recovery of said sum of $ 850. He further says, that complainant did not pay to Dotterar, the trustee, the sum of $ 850, in part of the purchase money of said land, and that it was not at any time agreed between complainant and said Martha, and this defendant, that complainant should have any other security or lien on said land than a mortgage for money lent to said Martha; and he denies [**18]  all and all manner of unlawful combination and confederacy wherewith he is charged by the bill.

Mrs. Shaner failed to answer, and an interlocutory decree was obtained against her, a commission was issued and testimony taken.

Josiah Dotterar, the trustee, says, "he sold the land to Mrs. Shaner on the 28th of March, 1857; that Six loaned her $ 850 between the 1st and 10th of May, 1857, to pay me part of the purchase money; the money was loaned at the request of her and her husband for her use; they said at the time they procured the money, they would give Six a mortgage or lien on the land to secure his said loan of $ 850. Baumgardner is now in possession of the land, but I don't know how he got into possession." On cross-examination he says, "I was present when Six loaned the $ 850 to Shaner and wife, and no joint note was given by them for the money at that time; they were to give Six a mortgage on the property as soon as I made a deed for it to Mrs. Shaner; Six paid $ 850 of the note given for the last payment on the property to Mrs. Shaner. She shoved the money to her husband, he counted it and paid it over to me, and I put it in my pocket; this was done in my house; after [**19]  this payment there was still a balance of about $ 60 due on the note, which Mrs. Shaner paid to me and I delivered up the note to her."

Samuel Fuss says, he knows Mrs. Shaner bought the land from Dotterar about the last of March, 1857. In the latter part of December, 1857, Baumgardner and myself, sureties on a note for Jeremiah Shaner, were sued and a judgment obtained against us, and we went to Westminster and paid it, and were then going to sell this land to get our money out of it; on our way home, we were talking of this matter and Baumgardner said, I believe I will buy the property from Jeremiah and his wife; he said he would do so to save trouble and cost to Shaner, and to save our money out of it. I asked him what Six would do about the $ 850 which he had paid to Shaner and wife, (I do not remember which of the parties were spoken of,) in the property, and he said he would have to do as he had done, fight it through. Baumgardner is now in possession of the land, he bought it from Shaner and wife and went into possession a few days after the conversation I have just detailed. Baumgardner had knowledge that Six had advanced or loaned part of the purchase money paid by Mrs.  [**20]  Shaner to the trustee for the land, before his purchase of it, and so stated in the conversation I have before detailed.

Abraham Shorb says, Mrs. Shaner purchased the land from Dotterar some time in March, 1857; Mrs. Shaner and her husband said to me that Six had loaned them $ 850 to make the last payment on the land; I heard Baumgardner several times say, he thought Six was foolish for putting the $ 850 in the place without any lien or security; sometimes he would say Six ought to have his money, and sometimes he did not see how he was to get it; he said he was security for Mrs. Shaner on the note to Dotterar, the trustee, for the last payment of the purchase money on the property, and that Six was a very clever fellow for borrowing money and paying his, Baumgardner's, debts, and he would not care if Six would pay some more for him; these conversations took place before Baumgardner bought the place from Mrs. Shaner; I lived with him at the time. He is now in possession of the land, and went into possession in the fall of 1857. I know that Baumgardner, at the time he purchased the land, had knowledge that Six had advanced or loaned part of the purchase money paid by Mrs. Shaner [**21]  to the trustee for it, and I have frequently heard him say so, as I have before detailed.

George Merring says, Baumgardner stated to me before he bought the farm, that "he knew Six had paid $ 850 for Mrs. Shaner on account of the purchase money due the trustee therefor; he said at the time he was going to buy the farm that he intended to retain $ 850; he said he intended to buy the farm, and I told him he might be too fast in buying and paying the Shaners for it, and he said in reply, that he would retain in his own hands $ 850 so as to make himself safe."

The Court below (NELSON, J.,) passed a decree dismissing the bill, from which the complainant appealed.  

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

HEADNOTES:

HUSBAND AND WIFE; AGREEMENT AND SALE BY WIFE OF REAL ESTATE, NOT HER SEPARATE ESTATE: PLEADING IN EQUITY: NOTICE TO BONA FIDE PURCHASER: RESULTING TRUST: INJUNCTION. -- J. D., a trustee in chancery, conveyed to M. A. S., a married woman, by deed, certain real estate, in terms insufficient to vest in her a sole and separate estate therein. A bill in equity filed by J. S. sought to charge said real estate with a resulting trust in his favor by reason of his having furnished M. A. S. with the sum of $ 850, to complete the payment of the purchase money to the trustee, J. D., alleging that at the time of the advance of said sum, M. A. S. promised that he should be fully secured by a lien on the land, either by mortgage or in such other form as might be deemed most effectual; and that M. A. S. afterwards actually sold and conveyed to him said real estate for the sum of $ 3,000, crediting him with the sum of $ 850. The bill further alleged that the said M. A. S., with her husband, S., subsequently sold and conveyed the same property to P. B., and received in payment his promissory notes for $ 4,000, which notes had been assigned to one Shaw, the partner in business of the husband of M. A. S., without other than a nominal consideration, and that the said notes were yet unpaid. In addition to the other relief sought, the bill prayed for an injunction restraining P. B. from paying the said notes to Shaw, the assignee, or to M. A. S., or her husband, and restraining the said Shaw from making further assignment of said notes until further order of Court. The answer of P. B. denied all knowledge of any agreement by M. A. S. to create a lien on the said land in favor of J. S., and P. B. was not charged with such knowledge in the complainant's bill, nor was there any proof in the cause of such knowledge on his part. It was also averred in the answer of the said husband of M. A. S., that she had at one time offered to J. S. a mortgage upon the said real estate which he had refused to accept. The answers denied all charges of fraud, and there was none proved. -- HELD:

1st. That except as to her separate estate, any contract by the wife, made by her alone or by her husband with or without her consent, is absolutely null and void, and she cannot be compelled to perform it.

2nd. That if this principle did not stand in the way of the complainant's claim for relief, the bill must charge the party to be affected by the decree, P. B., with notice of the contract, and the proof must sufficiently sustain the averment.

3rd. That no resulting trust is established by the facts or circumstances of the case; that it does not fall within the general principle of a purchase by one, for and with the money of another, or any of its exceptions.

4th. That there are no sufficient grounds for the injunction prayed against Shaw and P. B.; but that M. A. S. and her husband should be enjoined from assigning or transferring the said promissory notes and that said notes should be decreed to be delivered up and cancelled, to be that the bill should be dismissed except so far as it may affect the said injunction against S. and M. A. S.  

COUNSEL:
Wm. P. Maulsby and O. Miller for the appellant.

1st. This land was purchased by a married woman under the sanction of a Court of Equity, and the officer of that Court executed a deed to her conveying the land to her, her heirs and assigns forever; under these circumstances, and the purchase having been made after the passage of the Act of 1853, ch. 245, the second section of which declared that it should "not be necessary to interpose a trustee in order to secure [**22]  to a married woman the sole and separate use of her property;" Mrs. Shaner is to be regarded as holding this land to her sole and separate use. She had, therefore, the power to charge this land with her agreements or contracts, and the party with whom she contracts can enforce in equity such contracts against her separate estate, provided the agreement on its face shows the intent to charge the estate, or if there is evidence aliunde proving such intent. Here there is evidence, express and overwhelming, of the intent of Mrs. Shaner to charge this land thus purchased and conveyed to her with the payment of this claim of the appellant. Cooke vs. Husbands, 11 Md. Rep., 492. Chew vs. Beall, 13 Md. Rep., 348. Koontz vs. Nabb, 16 Md. Rep., 549. Gray vs. Cook, 12 G. & J., 236. Conn vs. Conn, 1 Md. Ch. Dec., 212. Price & Nesbitt vs. Bigham, 7 H. & J., 296. Tiernan vs. Poor, 1 G. & J., 216. Brundige vs. Poor, 2 G. & J., 1. Deale vs. Ins. Co., 18 Md. Rep., 26.

2nd. Though it may be true as a general proposition, as in Clabaugh vs. Byerly, 7 Gill, 362, that a mere parol agreement to execute a mortgage, when denied by the mortgagor, cannot be enforced in equity because of the Statute of Frauds,  [**23]  yet it is equally clear, that such an agreement, when confessed by the answer or when part performed, is taken out of the operation of the statute, and will be enforced against the party making it, and all those claiming under him who have actual notice, or could be presumed to have notice thereof. Here the agreement to execute a mortgage is not only confessed by Jeremiah Shaner in his answer, but he says, such a mortgage was in fact prepared in writing, but for some reason was not accepted. The proof also shows, that the purchaser, Baumgardner, had notice of all the matters connected with the purchase of this land fully sufficient to put him on inquiry as to whether such an agreement existed or not. The proof also shows that a gross fraud would be allowed to be perpetrated if the relief here sought should be refused. Clabaugh vs. Byerly, 7 Gill, 362. 1 Sug. Vend., 155. 3 Powell on Mort., 1050, a. Worley vs. Walling, 1 H. & J., 208. Crane vs. Gough, 4 Md. Rep., 316. Winn & Ross vs. Albert, 2 Md. Ch. Dec., 169.

3rd. The complainant is also entitled to relief upon the ground of an implied or resulting trust, having furnished his money as part payment of the purchase money for the [**24]  land. Hill on Trustees, 91, 96, 97. 2 Story's Eq., sec. 1202, et seq.

Jos. M. Palmer for the appellees.

1st. The charges in the complainant's bill do not very clearly and distinctly disclose the real relief he seeks. The prayer of the bill is certainly very multifarious in its character, and it is the duty of the appellant to define the real object he has in view, to enable this Court to extend to him any relief. The Circuit Court dismissed his bill, because it did not appear from the charges in the bill, and the evidence in the case, that he was entitled to any relief, and it is insisted that the judgment of the Circuit Court was correct. If the complainant has any right or claim in the case, which he can enforce against anybody, or in any Court, it is for the payment of the sum of eight hundred and fifty dollars, which he claims to have loaned or advanced to Jeremiah Shaner and his wife, about the 1st of May, 1857, and the interest due thereon.

We will assume then, after a careful examination of all the facts and circumstances of the case, that the real object of the appellant is to recover the sum of $ 850, and interest thereon, from somebody, without much regard [**25]  from whom, or the means used to obtain it.

It is a trite saying, that "all persons who come into a Court of Equity, seeking equity, must come with clean hands, untarnished and unsoiled with iniquity of any kind, and with a case fair, just and equitable in all its parts, and free from fraud of any kind." This is a sound common sense rule of equity, never to be departed from. Stoddard et al. vs. Bowie, 5 Md. Rep., 18.

Can it be said that this complainant came into the Court of Equity seeking its aid, "with hands untarnished and perfectly clean? with a case just, fair and equitable in all its parts?" I think not. His own account, as averred in his bill, of his conduct with Mrs. Shaner in November, 1857, while she was on her way to a distant State, in the absence and out of the presence of her husband, without a friend or protector to guard her rights, must certainly awaken the suspicions of the Court that some fraud and unfairness was intended.

The answer of Jeremiah Shaner, the husband, one of the defendants, in response to that statement in the bill, is a fair exposition of the motives of appellant. His object was sordid speculation, not justice. He never had claimed [**26]  or demanded of Shaner and wife the execution of said pretended parol agreement, to execute the mortgage to secure the eight hundred and fifty dollars. That was not what he wanted. He wanted to obtain the land at half its real value. That was his motive, as is clearly disclosed by the record in the case.

But, it is said, the appellant is justly entitled to recover the $ 850, &c., which he loaned and advanced to Shaner and wife; but the question is, how is he to obtain it? Certainly not in this Court as a Court of Equity, for he has no standing in a Court of Equity, from his own showing.

He had, and now has, a full, complete and adequate remedy at law against Jeremiah Shaner, if he has not lost it by his negligence and fraudulent conduct. Whether or not he has lost his remedy at law, is not now for this Court to decide. The money was loaned or advanced to Jeremiah Shaner and wife, they were both present at the time, he acquiesced in and sanctioned the loan, and the advancement of the money, and promised to secure it by a mortgage, and was clearly liable at law for its payment. Dotterar, himself, proves this fact, and it is a fact in this case which cannot be denied. But the [**27]  contract on the part of the wife was utterly null and void, both in a Court of Law and in a Court of Equity.

It is a well settled principle in this State that all the contracts of a married woman, as a general rule, are void and not binding. She cannot convey her property unless by virtue of some special law, authorizing her to do so. All other contracts of a feme covert are null and void, as well at law as in equity, and she cannot be compelled to perform them, except for property which she holds for her separate use and benefit, free from her husband's marital rights. Burton et al. vs. Marshall, 4 Gill, 493. Norris vs. Lantz & Hyde, 18 Md. Rep., 260. Judge COCHRAN in delivering the opinion of the Court, uses the following strong language, "Except in regard to the separate property of a feme covert, all her covenants, contracts and agreements in Courts of Law as well as of equity, are absolutely null and void, and she is under no obligation, and cannot be compelled to perform them, whether entered into by herself or on her behalf by her husband without his consent." The property in that case belonged to Mrs. Hyde, but was subject to the marital rights of the husband, and was [**28]  not the separate property of the wife.

In this case, Martha Ann Shaner had no property which she held for her separate use and benefit, free from the marital rights of her husband, and she never had, so far as the record in the case discloses any such fact.

The question, as to whether the appellant had a full, complete and adequate remedy at law against Jeremiah Shaner for the eight hundred and fifty dollars, can hardly be a debateable question in this State. Crane vs. Gough, 4 Md. Rep., 317. Oliver vs. Palmer & Hamilton, 11 G. & J., 448. "The constant incroachments of the jurisdiction of the Courts of Equity ought to be resisted, because it is a jurisdiction confessedly inferior to the Courts of Common Law jurisdiction." Richardson vs. Stillinger, 12 G. & J., 480. Special causes for the inadequacy of the legal remedy are not to be presumed, but must be proved by the complainant. 7 G. & J., 118. 2 H. & J., 68. 1 Bailey's Equity Rep., 62. No case can be found in any book of authority in which equity has jurisdiction over a mere moneyed claim, for the recovery of a certain and specific sum of money.

2nd. The counsel for the appellant have submitted to the Court three legal [**29]  propositions to show that the judgment of the Circuit Court, in dismissing complainant's bill, was erroneous, and ought to be reversed. I contend that neither proposition can be sustained, by authority, upon the facts and circumstances of the case. The first point is, that the real estate in question, which Martha Ann Shaner purchased of Josiah Dotterar, and by him conveyed to her, is an estate for her separate use, free from the marital rights of her husband, and chargeable with the payment of the eight hundred and fifty dollars, loaned and advanced to Jeremiah Shaner and wife jointly. There are no facts in the case to sustain such a proposition. The law upon the subject is very clear and well settled, as appears from the authorities cited by the learned counsel, but they have no application to the case under consideration.

The facts in this case do not show that Martha Ann Shaner, at the time of the joint contract with her husband for the loan and advancement of the eight hundred and fifty dollars, did own any property for her sole and separate use, independent of her husband's marital rights, or that she ever held or owned any such property.

If the complainant cannot show [**30]  clearly and indisputably that the real estate in question was her sole and separate property, free from the marital rights of the husband, there is nothing upon which this Court, as a Court of Equity, can act. The contracts of a married woman, as a general rule, are void and not binding upon her personally, either in law or equity; but such contracts are binding upon her property which she owns and holds for her separate use and benefit, if it clearly appears from the evidence in the case, that when she made the agreement, she had reference to her separate estate, and intended to charge it by the contract, and provided the contract be of such a nature as to bind her individually in equity. This is the settled law of this State. It is admitted, that so far as her separate property is concerned, if she have any, she is considered as a feme sole.

But Martha Ann Shaner had no property for her separate use and benefit, at least it does not so appear from the facts in the record of this case. Notwithstanding, the appellant's counsel insist, that the land purchased by Martha Ann Shaner of Dotterar became the sole and separate property of the said Martha Ann, free from the marital rights [**31]  of the husband, and liable to be charged with the eight hundred and fifty dollars.

That question depends entirely upon the terms and legal construction of the deed under which she holds the property.

If it was intended that the grantee should have a sole and separate estate, free from the marital rights of her husband, it should have been so expressed and provided for in the deed, in language clear, certain and unequivocal, so as to free the question of all possible doubt. This is the language of all the authorities on the subject.

Such a claim or right on the part of a married woman, being against the common right, the instrument under which it is created must clearly speak the donor's intention to bar the husband, else it cannot be allowed. Clancy on the Rights of Married Women, 262, 263." It is not sufficient that there be a gift for the wife's benefit, or a direction to pay the money into her own hands, for there is nothing in this inconsistent with the marital rights. But there must be a direction that it shall be for her sole, separate and independent use, or in other equivalent terms, showing a manifest intention to exclude the husband." Taylor vs. Lake, 2 Russ.  [**32]  & Myl., 183 to 187. 2 Story's Eq., secs. 1381 and 1382. Hill on Trustees, 420, 421, and cases referred to. The question frequently arises, what words are sufficiently expressive to create such a purpose? for the purpose must clearly appear beyond any reasonable doubt, otherwise the husband will retain his ordinary legal and marital rights over the property. 5 Ves., 517. 3 Ves., 166. 9 Ves., 370, 377. Wills vs. Sayers, 4 Madd. Rep., 401. Massey vs. Parker, 2 Mylne & Keen, 174. Lewis vs. Adams, 6 Leigh, 320. Carroll vs. Lee, 3 G. & J., 505. Cooke vs. Husbands, 11 Md. Rep., 504.

It has been long settled in England and in this State, that a married woman can hold and own a separate estate without the intervention of trustees; that the husband will be treated in equity as a trustee for the separate benefit of his wife. 3 G. & J., 505. 11 Md. Rep., 504. 2 P. Wms. R., 316. 9 Ves., 583. 3 Brown's Ch. Ca., 383. 9 Paige, 364. Hill on Trustees, 406.

This was the law before the Act of 1853, ch. 245.

It seems to be very clearly settled by the authorities, as applied to the facts in the case, that Mrs. Shaner, at the time of the contract for the loan of the $ 850, had no property [**33]  for her separate use and benefit upon which this Court can act, for if the Court can act at all, it must be by proceeding in rem., it is the separate property that the Court of Equity can fasten upon, not the person. But we will suppose for a moment that Mrs. Shaner did own the property in question as her sole and separate estate, the appellant has no standing in this Court from his own showing, for indeed he has a complete remedy without the aid of this Court as a Court of Equity.

The law is well settled, and indeed it is admitted law, that a married woman as regards her separate property, is to all intents and purposes a feme sole, with full power to sell and dispose of at her will and pleasure, all her separate property. Mrs. Shaner exercised this right and power by selling and conveying the real estate in question to the appellant himself, which deed of conveyance was recorded and a copy of which forms a part of the proceedings in this case, having been filed by the appellant as a part of his claim.

What more can the appellant want? According to the theory of his counsel, he has got the very thing that from the beginning he has been seeking to obtain.

Let the appellant [**34]  bring his action of ejectment and try his title, and that will test the question as to the true character of the deed from Dotterar to Mrs. Shaner, and whether she took an estate for her sole and separate use, free from the marital rights of her husband.

It is not charged in complainant's bill, that Mrs. Shaner, at the time she entered into the joint agreement or contract with her husband to borrow eight hundred and fifty dollars of appellant, owned any property for her separate use and benefit, and if it was so charged, there is not a particle of evidence in the record to prove it. But suppose the property in question was her separate property, as contended for, there is no evidence in the case that the appellant has any debt or claim against Mrs. Shaner which can properly be charged upon her separate estate, upon equitable principles, even if she owned separate estate.

The counsel for the appellant, to sustain their first point, have referred to sundry Maryland decisions. The correctness of these decisions is not questioned. They certainly present a fair exposition of the law on this subject, but they do not sustain the proposition of the learned counsel, they strongly [**35]  tend the other way, as it will be found after a careful examination of them.

Koontz vs. Nabb, 16 Md. Rep., 549, is a case in which an attempt was made to enforce a debt of a married woman against her sole and separate property, and the Court decreed against the complainant upon a sound and clearly defined principle, that is, "a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced present upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent." The opinion of the Court in that case was prepared with great ability, and with legal accuracy and precision. The case of Koontz vs. Nabb, is strongly fortified by 11 Md. Rep., 492. 1 Md. Ch. Rep., 212. 7 H. & J., 296. 12 G. & J., 236.

These cases all teach us that two facts must appear to the Court to be clearly and positively proved, before a Court of Equity will lend its aid to take the sole and separate estate of a married woman to pay her debts.

1st. It must be positively proved by legal and proper evidence, that the property sought to be taken is, in truth, the sole and separate property of [**36]  the married woman.

2nd. The debt or contract attempted to be enforced against the separate estate of a married woman, must have been made and entered into by her with a clear intent that it should be binding upon her separate estate, and that the claimant has no remedy at law to recover the money he seeks to charge on such separate estate.

The question, whether the real property in question was the sole and separate property of Mrs. Shaner, depends entirely upon the terms and wording of the deed of Dotterar to her.

There is another insuperable objection to the appellant's claim for relief. The complainant does not charge in his bill, specifically, what debt or claim he seeks to charge upon the separate estate of Mrs. Shaner, which should have been done to entitle him to relief. The Court is not informed from anything in the record, what particular debt is claimed as a charge on the pretended separate estate. Is it the note for $ 850, executed by Mrs. Shaner the 10th of November, 1857, that is claimed as a charge upon her separate estate? If so, the claim cannot be sustained, for there is no evidence to show for what the note was given, or the intention of Mrs. Shaner [**37]  in giving it, and there is nothing upon the face of the note to show any intention, &c. The case of Koontz vs. Nabb, settles this question. Is it, then, the contract of May, 1857, entered into by Shaner and wife jointly, with the appellant, for the loan of eight hundred and fifty dollars, that is sought to be charged on Mrs. Shaner's separate estate, because the appellant has no remedy at law? If that be the claim, the appellant cannot have any standing in this Court. Mrs. Shaner's separate property is not, upon any principle, to be charged with that debt. That was the contract of Jeremiah Shaner, and he was responsible for the money, and the appellant had a full, complete and adequate remedy at law for its recovery. The contract on the part of the wife was null and void.

I am satisfied that no case can be found in any book of authority, where the separate property of a married woman has been charged in a Court of Equity with the payment of a debt or claim created by joint contract of husband and wife, unless it be in a case where the husband is proved to be utterly insolvent, and the wife entered into the contract with the intention to bind her separate estate on that account.  [**38]  In this case, Jeremiah Shaner has always admitted his liability and willingness to pay, and his ability to pay is not questioned, and cannot be.

It would indeed be a very hard case if Baumgardner should be deprived of his property, for which he paid its full value, under such circumstances.

3rd. The second proposition of the appellant cannot be sustained, for the real question involved in it was decided in the case of Clabaugh vs. Birely, 7 Gill, 362. That case is in fact and principle very much like this. In that case the Court decided that a mere parol agreement to execute a mortgage could not be enforced in a Court of Equity because of the Statute of Frauds. That certainly cannot now be considered a debateable question in this State, or any where else where the "Statute of Frauds" is in force. The learned counsel on the other side, however, admits the correctness of the principle as a general proposition, but he contends that there are exceptions to it, and that this case forms an exception to the general rule. He contends that if the parol agreement is confessed or admitted by the defendant in his answer, or where there is a part performance of the parol contract, that [**39]  takes the case out of the operation of the Statute of Frauds. That as a general rule is correct, but there is nothing in this case to give the rule any application. There is another general principle equally as sound, which must govern this case, that is, "the answer of one defendant in a case shall not be read in evidence against another defendant." Gresley Ev., 29, (note.) Jones vs. Torbervell, 2 Ves. Jur., 11. 4 Brown Ch. Ca., 115. Morse vs. Royal, 12 Ves., 361. 1 Greenlf. Ev., sec. 177. 1 Gallison, 630. 6 Cranch, 153, 156. 4 H. & J., 518. Sanders vs. Allen, 2 Molloy, 329.

The appellant's counsel say, that Jeremiah Shaner, one of the defendants, in his answer, admitted the parol contract to give the mortgage. Suppose he did admit the agreement to execute the mortgage, that cannot have any effect upon the rights of Mrs. Shaner and Baumgardner, and it cannot be used in evidence against them for any purpose. They have not admitted the parol agreement, or any other agreement to execute a mortgage. The real object of the appellant is to reach the said real property in the possession of Baumgardner, a bona fide purchaser, without notice to him of any such agreement or contract on [**40]  the part of Shaner and wife to execute a mortgage.

The bill does not charge that Baumgardner, at the time he purchased the property, had notice of any agreement or contract, that Shaner and wife had agreed to execute a mortgage to the appellant to secure the payment of the sum of $ 850 on the property in question, and if there were such a charge of notice in the bill, there is no evidence in the record to prove it. Baumgardner is charged with notice that the appellant had loaned or advanced to Shaner and wife eight hundred and fifty dollars to pay the last payment for said land, she having paid the first payment in some way, and Baumgardner the second payment as her security. But it is not charged he had notice of the contract for a mortgage. The appellant has an insurmountable difficulty to contend with in this case. The pretended contract by Shaner and wife with the appellant, to execute a mortgage on the property to secure the said sum of eight hundred and fifty dollars, for two reasons, was utterly null and void: 1st, it was void, being by parol, under the Statute of Frauds; second, because all contracts, of married women, as a general rule, are void. The true principle to [**41]  be extracted from all the cases is this: "The agreement of a "feme covert" with the consent of her husband for the sale of her real estate, is absolutely void at law, and a Court of Equity will never enforce such a contract against her. 2 Kent's Com., 168, 170. 2 Story's Equity, secs. 733 to 736. Emery vs. Ware, 8 Ves., 814. Davis vs. Jones, 4 Bos. & Pul., 207. Jannes vs. Jackson, 16 Ves., 367. Martin vs. Mitchell, 2 Jacobs & Walker, 425.

In the case, 2 Jac. & Walker, the Master of the Rolls uses this strong language: "The acts of a married woman with respect of her estate are perfectly void, she has, as said by the Master of the Rolls, in Wright vs. Raller, 2 Ves., 676, no disposing power, though she may have a disposing mind. This agreement signed by her with her husband cannot affect her estate, and cannot give the party a right to call upon her in a Court of Equity to execute a conveyance to bar her, if she survives, and to bind her inheritance." This is the settled law upon the subject. The appellant has not a shadow of claim either against Mrs. Shaner or Baumgardner. In a case where a feme covert owns real estate for her separate and sole use, with power to sell and dispose [**42]  of it, the law is different. Jeremiah Shaner was unquestionably bound for the said eight hundred and fifty dollars, but not in a Court of Equity.

4th. The third proposition of the appellant is certainly one not very easily solved, as applied to this case. The counsel say that the "complainant is also entitled to relief upon the ground of an implied or resulting trust, having furnished his money as part payment of the purchase money for the land." The authorities referred to, to sustain the proposition, are not denied, but the proposition itself, as applied to this case, is new and novel, and I dare not risk any comment upon it, not having heard any lucid explanation of it by the learned counsel on the other side. There certainly is not one fact in the case to justify any such proposition, so far as I understand the record. Hill on Trustees, 92, 95, 97, and cases there cited.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*442]  WEISEL, J., delivered the opinion of this Court.
The deed by Josiah Dotterer to Martha Ann Shaner, exhibited with the bill in this case, was executed on the 17th of October, 1857, and without [**43]  any terms to constitute the real estate therein conveyed, her sole and separate estate, she being a feme covert. The Acts of Assembly of 1842, ch. 293, and 1853, ch. 245, which govern this case, did not invest her with a separate estate in the property so as to exclude the marital rights of the husband. This construction 

 [*443]  has been distinctly and repeatedly settled by this Court.  Schindel vs. Schindel, 12 Md. 108, 122, 312, 313. Bridges & Woods vs. McKenna, 14 Md. 258, 266. Mut. Ins. Co. vs. Deale, 18 Md. 26, 47. Weems vs. Weems, 19 Md. 334, 345.
Such being the nature of her title, no question can arise as to her power to affect or charge it by any contract or agreement of her own. It is only in regard to the separate property of a feme covert that she can make a contract that equity would recognize and enforce.  4 Gill 487. 18 Md. Rep., 269.
But the object of the bill, as shown by its frame-work and the proof taken to support it, is to charge the property with a resulting trust in favor of the appellant, by reason of his supplying $ 850 to Mrs.  [**44]  Shaner to complete the purchase money due by her to Dotterer, or with an equitable mortgage based on the parol promise and agreement of Mrs. Shaner and her husband, when he paid the $ 850, that he should be fully secured by a lien on the land, either by mortgage or in some other form, as might be deemed most effectual. Such is the averment of the bill, and one of the prayers is, that the said sum may be declared and decreed to be a lien on the said land, or a resulting trust in favor of the appellant.
It was conceded, and cannot be denied, that a mere parol agreement to execute a mortgage of real estate, cannot be enforced in equity because of the Statute of Frauds. But it was insisted, that when such an agreement is confessed by the answer, or has been performed in part, it is taken out of the operation of the statute, and will be enforced against the party making it, and all those claiming under him who had actual notice, or could be presumed to have notice of it, and that the answer of Shaner and the proof in the cause, are sufficient to place this case within the exception to the rule.

 [*444]  The authorities before cited upon the subject of contracts by femes covert, [**45]  establish the principle, that except as to her separate estate, any contract by the wife, made by her or by her husband, with or without her consent, is absolutely null and void, and she cannot be compelled to perform it. This principle, however, is to yield to any statutory mode for enabling married women to contract, or to bind or bar their interests in real estate. Morris vs. Harris, 9 Gill 19, 28. Johns vs. Reardon, 11 Md. 465, 470.
Even if this principle did not stand in the way of the appellant's claim to relief, the bill must charge the party to be affected by the decree with notice of the contract, and the proof must sufficiently sustain the averment.
The bill in this case, while it charges Baumgardner (the purchaser of the land from Shaner and wife,) with knowledge of the loan to or payment for them of the $ 850, does not aver his knowledge of the alleged agreement to mortgage or give a lien on the land to secure its re-payment. Nor does the proof establish such knowledge in him, and his answer expressly denies it. The witnesses (and they were all produced on the part of the complainant, Six,) testify as to Baumgardner's knowledge [**46]  of the loan, but none of them prove that he knew of the alleged promise to give a lien. What was deposed to by Fuss and Merring conveys a mere suspicion of such knowledge on his part, while Shorb's testimony proves the want of it. It is also to be noted that none of the interrogatories to which the witnesses deposed, specifically elicited their knowledge on this particular point of the investigation.
We do not think that any resulting trust is established by the facts or circumstances of this case. It does not fall within the general principle of a purchase by one for and with the money of another, or any of its exceptions. It is the case of a loan of a sum of money to a vendee in her own name and for her own purposes and use, to eke 

 [*445]  out a balance due on the purchase, with a promise or under the expectation of being secured. The mode in which he sought the security by a purchase of the land himself from the wife alone, under the circumstances adverted to in the proceedings, and his alleged refusal to accept a mortgage when tendered, do not place him in a favorable attitude in a Court of Equity.
The answers deny all fraud and combination charged in the bill against the [**47]  several defendants, and there is no proof of any.
The decree below simply dismissed the bill with costs, without noticing the several injunctions in the case. Those against Shaw and Baumgardner should be dissolved, but that against Jeremiah Shaner and Martha Ann Shaner to restrain them from assigning or transferring the four promissory notes for $ 500 each, given on the 10th day of November, 1857, by the appellant to said Martha Ann, as alleged in the bill, should be made perpetual, and the said notes should be decreed to be delivered to the said appellant to be cancelled. The appellees should however be allowed their costs. We will affirm the decree below dismissing the bill, except so far as it may affect the said injunction against Shaner and wife, and the relief prayed against them for the delivery up and cancellation of said notes. That should be made perpetual, and the bill retained for these purposes; the other injunctions to be dissolved. We will sign a decree accordingly.
Decree affirmed in part, and reversed in part. 

30 of 120 DOCUMENTS 

BRUSCUP, Adm'r, vs. JAMES TAYLOR and MARGARET, his Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 410; 1867 Md. LEXIS 16 

March 2, 1867, Decided 

PRIOR HISTORY:
 [**1]  PETITION for a supersedeas in the Court of Appeals, on an appeal from an order of the Orphans' Court of Baltimore city.

Joseph Henry, in his lifetime, made in the Eutaw Savings Bank a deposit of about $ 1,800, which was entered in these words: "Joseph Henry and Margaret Taylor, and the survivor of them, subject to the order of either," and a few months after died. After his death Margaret Taylor, one of the petitioners, drew out the money.

Bruscup, styling himself acting administrator, filed his petition against Taylor and wife claiming this money.

James Taylor and Margaret, his wife, appeared and set up the fact that the money was deposited as above stated; that it was the property of the said Margaret, and not of the estate; that prior to the filing of the petition, she had drawn the money out with the full knowledge and consent of the bank, acting under the advice of J. Mason Campbell, Esq., its attorney; and further denying that the money was assets of the estate, and asserting her ownership of the same. The respondents demurred to the jurisdiction of the Orphans' Court to settle a disputed question like this, as they claimed by title paramount to the administrator.  [**2]  

On the 20th October, 1866, the Orphans' Court passed the order appealed from.

On the 25th of October, the petitioners prayed for an appeal, which was granted; and on the 26th inst., before obedience to the order was due, filed an appeal bond in the sum of $ 4,000, which bond was duly approved by the Court.

On the 8th of January last, the Court ordered that James Taylor and his wife should be attached for contempt, in not obeying the order of the 20th of October, and both parties were attached and brought before the Orphans' Court; and after showing cause, on the 4th of February, 1867, were sentenced to be imprisoned for contempt, in disobeying the order of October 20th, until discharged according to law.

The present application is intended to supersede all the proceedings subsequent to October 26th, when the appeal had been granted, and appeal bond had been given and approved.  

HEADNOTES:

SUPERSEDEAS FROM COURT OF APPEALS TO STAY FURTHER PROCEEDINGS BY ORPHANS' COURT UNDER AN ORDER APPEALED FROM, PENDING THE APPEAL. -- Where an order of the Orphans' Court requiring parties before them to bring money into Court, has been appealed from, and the Orphans' Court notwithstanding proceeds to enforce its first order by attachment for contempt, and an order for the imprisonment of the parties attached, the Appellate Court will, by way of supersedeas, order the suspension of all further proceedings by the Orphans' Court until the order appealed from be heard and determined.  

COUNSEL:
Robt. J. Brent and J. L. Brent for the petitioners.

1st. By the appeal all proceedings in the Orphans' Court, growing out of the order appealed from, were suspended.

It is contended that in virtue of sec. 43 of Art. 5 of the Code, p. 28, the Orphans' Court had jurisdiction to [**3]  enforce its order notwithstanding the appeal. This section was intended to permit the Orphans' Court to proceed with the administration of an estate, in matters not affected by a pending appeal.

But after the appeal, there were no further administration in the Orphans' Court; and the appeal having been taken and perfected before the order to pay the money into Court had been disobeyed, that order was suspended; and there can be no contempt in not obeying an order not in force and operative.

All the proceedings are to enforce this order, and no new proceedings are contemplated or initiated.

Again, if the money be paid into Court, then the order that has been appealed from is executed; and can a party be heard to come to this Court after he has executed a decree or judgment? Shall the judgment debtor pay the judgment, and after satisfaction is entered, appeal.

If the money is to be paid into Court, what did the Court approve the appeal bond for? Shall the Court hold the money and the appeal bond too? Offutt vs. Gott, 12 G. & J., 386. State vs. Williams, 9 Gill, 172-6.

Again, if the money be paid into Court, and the petitioners reverse the order, the interest [**4]  on the money paid in is lost; for who will repay this interest?

In an analogous case the Court of Appeals held, that Chancellor BLAND could not enforce the payment of money pending the appeal, and granted on petition a supersedeas. Thompson vs. McKim, 6 H. & J., 302-334.

2nd. The Orphans' Court has no power to enforce its order for the payment of money by imprisonment.

It has the general powers of a Court of Chancery to enforce its deceees. See 231, Art. 93, p. 669 of Code.

Courts of Chancery have no power to enforce the payment of money by imprisonment. See 118, p 96 of Code.

It is true sec. 238 of Art. 93, p. 671 of Code, confers power upon the Orphans' Court against any party concealing any part of the personal estate of a decedent, to enforce the delivery of the concealed property by attachment, imprisonment and sequestration; but construing this in reference to the power of a Chancery Court, this power of imprisonment cannot be exercised when the order is, in a case of disputed title, like the present, merely an order to pay money; and neither the order of the Court, nor the proceedings, show a case of concealed assets.

3rd. But if the Orphans' Court [**5]  can imprison to enforce the payment of money, it cannot imprison the wife upon an order requiring that her husband and herself should jointly pay money. This is the obligation of the husband, and not of the wife, who is under his dominion and control. No personal obligation can be enforced against a feme covert, except through her separate property. Burton vs. Marshall, 4 Gill, 493. Many decisions might be quoted to illustrate this doctrine, but at present it is not deemed necessary. There is no case to be found where a married woman has been imprisoned for the non-payment of money, when the obligation rested alike on her and her husband.

No counsel appeared at the hearing in opposition to the petition.  

JUDGES:
The matter of the petition was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and WEISEL, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*413]  BOWIE, C. J., delivered the opinion of this Court.
Without anticipating the questions which may arise upon the consideration of the appeal from the principal order or decree in this case, we think the motion of the appellee for a supersedeas should be granted.
Whether the Orphans' Court had jurisdiction in the case in which the order appealed [**6]  from was passed, is not now the subject of inquiry. The action of that Court now complained of is the further proceeding to enforce the original order while the appeal from it is pending. It is the opinion of this Court that the appeal stays all further proceedings.
How far the bond filed and approved of by the Orphans' Court has this effect, we do not now determine. Independently of it, the appeal itself stays the hands of the Court below until that shall have been heard and disposed of. 

 [*414]  The language of this Court, upon a similar application in the case of Thompson vs. M'Kim, in 6 H. & J. 302, 334, is very apposite, viz: "It is emphatically in such a state of things that the power of this Court, to cause by special order a suspension of proceedings on the matter appealed from, should be exercised, and not lightly or in every cause; but where the Court sees that if the order or decree appealed from should turn out to be wrong, the enforcement of it pending the appeal would produce an irreparable injury to the party appealing, it ought and will interpose to prevent such injury, or all the purposes of its institution as an Appellate Court of Chancery, will not be [**7]  answered."
The answer filed in this case to the petition of the appellant, praying the interference and protection of this Court pending the appeal, takes the ground that the proceedings to enforce the order are authorized by the 43rd sec of the 5th Article of the Code of Public General Laws. That section cannot certainly be construed to contemplate any proceedings that would have the effect of executing the very order appealed from, unless the same can, "with propriety be carried on before the appeal is decided," and "the Orphans' Court can provide for conforming to the decision of the Court of Appeals, whether the said decision may eventually be for or against the appellant."
It is not necessary to point out the obvious modes in which the enforcement of the original order might have inflicted irreparable injury on the appellants, if the same should not be affirmed. The mere restoration of the fund with interest, would be no indemnity against the consequences of its execution. The proceedings contemplated by the section referred to, must therefore be of another character.
It may be that in a case in the predicament of this, no such further proceedings could be had. But however [**8]  that may 

 [*415]  be, the order appealed from in this case, is to bring the money into Court, and certainly the party so ordered and appealing from it, is to be protected from complying with the order pending the appeal, in the absence of any statutory provision which would allow the cause below to proceed, notwithstanding the appeal. We will, therefore, grant the supersedeas asked for by the appellants.
Wherefore it is, this 2nd day of March, 1867, by the Court of Appeals of Maryland ordered, that all further proceedings in the Orphans' Court of Baltimore city, in the case of Bruscup, Adm'r, vs. James Taylor & Margaret, his Wife, be suspended and stayed until the appeal of said James and Margaret Taylor, from the orders and decrees heretofore passed in said cause, to wit, on the 20th of October, 1866, and on the 4th of February, 1867, be heard and determined.
RICH'D I. BOWIE,
JAS. L. BARTOL,
BRICE J. GOLDSBOROUGH.
D. WEISEL.  

31 of 120 DOCUMENTS 

JACOB KUNKEL vs. JACOB MARKELL, RHODERICK DORSEY, Exc'r et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 390; 1867 Md. LEXIS 15 

February 21, 1867, Decided 

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

The bill in this case was filed September 21st, 1860, by the appellees against the appellant, and alleges that Markell and Kunkel being responsible as sureties for Francis Thomas, for certain debts due by Thomas to divers persons, the said Thomas, to secure them, the said Markell and Kunkel, therefor, on the 21st of February, 1853, assigned and delivered to Kunkel in trust, three single bills of one M. P. O'Hearn, and as declaratory of such trust took from Kunkel this receipt:

"Received, Frederick, February 21st, 1853, of Francis Thomas, three single bills of M. P. O'Hearn, dated the 14th of February, 1853, one for $ 7,000, one for $ 5,000, and the third for $ 5,320, and endorsed and assigned by the said Thomas, with the further guarantee that said single bills shall be secured by a deed of trust to be executed by said Thomas upon his interest in the Allegany lands heretofore conveyed to him by Jacob Markell and the undersigned; and the undersigned hereby agrees to apply the proceeds of said single bills first, to pay all the expenses incurred by the undersigned in and about the execution of the sales of [**2]  the Allegany lands, and of this further trust; secondly, to take unto himself individually, as part of the undersigned's share of the purchase money of said lands, the sum of $ 3,000, and the balance of the proceeds of said single bills to pay and apply to such debts of the said Thomas as the said undersigned may be surety for; and lastly, to pay such other debts of the said Thomas as the undersigned and Jacob Markell may be jointly liable for as his securities or sureties.

JACOB M. KUNKEL."

The bill then charges that Thomas executed to Kunkel a lien as stipulated in this declaration of trust on the Allegany lands, as a guarantee for the payment of these single bills so assigned in trust. That afterwards, on the 5th of September, 1856, Thomas executed a mortgage to the complainant, Markell, and to Rhoderick Dorsey, whose administrator is also a complainant, by which the aforesaid fund in Kunkel's hands is made liable for the payment of certain debts due from Thomas to Markell and Dorsey, also to indemnify the said Dorsey because of his security for the said Thomas mentioned in said mortgage; all of which facts and amounts for which said fund is liable under this mortgage,  [**3]  will appear by a copy of the mortgage filed as a part of this bill marked A; that afterwards, on the 1st of October, 1856, Thomas executed to the complainant, Rigney, a mortgage by which he secured payment to Rigney of $ 1,000 due from Thomas to him, out of the said trust fund in the hands of Kunkel, all of which will appear by a copy of the mortgage filed as part of the bill marked B; that afterwards, on the 11th of November, 1856, Thomas executed another mortgage to the complainants, Pearre and Schley, by which he assigned to them the said fund in the hands of Kunkel in trust to pay them certain sums of money mentioned in the said mortgage, all of which will appear by a copy thereof filed as part of the bill marked C.

The bill then charges that the single bills so assigned to Kunkel in trust, have long since, to wit, on the ----- of ----- been paid to him by J. H. Gordon, trustee, in the case of Kunkel vs. Thomas, O'Hearn and others, in the Circuit Court for Allegany county, as a Court of Equity; and that the fund was, when so paid into the hands of the said Kunkel, subject to all the trusts and charges hereinbefore stated and liable for all the debts and securities mentioned [**4]  in the several mortgages; that the $ 3,000 which Kunkel was to take to himself out of the fund, has been paid to him in whole or in part by other means, and consequently that sum is no longer a charge on the fund which is increased to that amount for distribution amongst the complainants; that Kunkel has used the fund outside of the trust, and is, therefore, liable for interest on it from the time he so used it; that the said Kunkel has heretofore refused, and still refuses to account to your orators for said fund in trust as aforesaid.

The bill also alleges that certain named parties, (who with Kunkel are made defendants,) are interested in the distribution and application of said trust fund, because they are creditors of the said Thomas, and the said Markell and Kunkel are securities for the said Thomas to them, and the said fund is in trust to indemnify the said Markell and Kunkel as such securities.

The bill prays for an answer from all the defendants, and that Kunkel may particularly answer on oath when the fund and the amount of it was paid him by Gordon, and whether he has used it outside of the trust, and that your orators may have such further and other relief as [**5]  their case may require.

To this bill the defendant, Kunkel, demurred, and the grounds of demurrer which appear to have been relied on in the Court below, are:--

1st. That the bill is too loosely drawn, and the charges and averments so uncertain in their object, that they do not make such a case as should entitle the complainants to relief, and there being no other prayer but that for general relief, the Court cannot learn from the allegations of the bill what relief would comport with the case made.

2nd. That there is no charge by the complainants that the money they claim by the exhibits filed with the bill is still due and unpaid by the said Thomas.

3rd. That the bill is multifarious.

4th. That Thomas and O'Hearn should have been made parties defendants to the suit.

The Court, (NELSON, J.,) overruled this demurrer, and from this order the defendant, Kunkel, has appealed.  

DISPOSITION:
Order reversed and cause remanded for further proceedings.  

HEADNOTES:

PLEADING IN EQUITY: DEMURRER TO BILL: PARTIES: MORTGAGE, MORTGAGOR, MORTGAGEE: PRAYER FOR GENERAL RELIEF: MULTIFARIOUSNESS. -- A bill filed by mortgagees against one K., alleged that M. & K., being sureties for F. T. for debts due by him to divers persons, F. T., to secure them therefor, assigned and delivered to K., in trust, three single bills of M. P. O'H., and took from K. a receipt therefor, at the same time guaranteeing that said single bills should be further secured by a deed of trust of certain lands theretofore conveyed to him by M. & K.; that K., in said receipt, agreed with F. T. to apply the proceeds of said single bills to the payment of expenses and debts of T. F. in the order specified therein, so that whatever remained resulted to F. T., increased by the amount of any of said debts paid from other sources; that the complainants took a conditional assignment of this resulting trust -- the mortgages which were of different dates in the same year embracing also real estate -- to secure the payment of the debts mentioned in the mortgages when due, if they were not already paid from other sources; that F. T. secured the payment of the single bills by a lien on certain lands in Allegany county, and that the said single bills had long since been paid to K.; that a debt due to K., which was to have been paid out of the proceeds of said bills, had been paid in whole or in part from other sources, &c. Other creditors of F. T., embraced in the trust, were made parties defendants, but F. T. was not made a party. The prayer of the bill, after praying for an account of the trust fund, concludes with the prayer for general relief. K., the only party defendant appearing, demurred to the bill for causes set forth in the demurrer. -- HELD:

1st. That the bill seeks to appropriate to the complainants by virtue of the mortgages they hold, the resulting trust fund of F. T. in the hands of K.; it is, therefore, a bill to foreclose the mortgages as to that portion of the fund, and F. T., as a mortgagor, whose interests are to be effected and concluded by the decree, is a necessary party.

2nd. That the principle is well established, that upon a bill to foreclose, the mortgagor is a necessary party, unless the bill discloses a state of facts, (as for instance the insolvency of the mortgagor,) which would render it unnecessary to make him a party.

3rd. That M. P. O'H. was not a necessary party; he was the debtor of F. T. whose single bills were assigned in trust to K. and paid to him as alleged in the bill, and has no interest in the subject matter of the suit.

4th. That the claim of the complainants should have been stated with such clearness as to leave nothing to uncertain conjecture or vague inference; that it was necessary to aver that the mortgage debts continued to exist and were unsatisfied in whole or in part, and any other facts which would entitle them to participate in this fund; and that the bill being defective for want of these averments, they cannot be supplied by any extraneous matter, nor will the prayer for general relief aid the omissions.

5th. That the objection to the bill of multifariousness does not apply in a case like this, where the interests of the several complainants, though distinct and upon distinct conveyances, are yet of a similar nature, against the same defendants, and in relation to the same subject matter, and the relief prayed is in character the same to all.  

COUNSEL:
Joseph M. Palmer for the appellant.

The appellant insists that the judgment of the Circuit Court is erroneous. Three distinct propositions were submitted to the Court below by the appellant upon demurrer, for its [**6]  determination, and the ruling of the Court was, that the demurrer be overruled and the appellant ordered to answer the bill. I will argue the questions involved in the order the Court below decided them.

1st. I shall contend that the complainant's bill is radically defective. It does not contain apt, proper and sufficient averments to entitle the complainants to any relief they seek. The rules and principles of equity proceedings and pleadings are clearly defined and settled in this State. Every original bill must state a consistent case on behalf of the complainants, for if their claims are inconsistent, or any of them have no claim, the misjoinder will be fatal to the suit. The bill must state the cause of action in direct terms and with reasonable certainty, not necessarily with the same technical precision as at law, but with sufficient precision to show to the Court that the complainants have a definite claim in equity. The allegations must be positive and not by way of recital. It is an admitted principle in equity, that no relief can be granted beyond the scope of the averments. Mitford's Eq. Pl., (Jeremy's Ed'n,) 42. Flint vs. Reeves, 3 Ves., Jr., 343. Lyon vs. Tallmadge,  [**7]  1 Johns. Ch. Rep., 184. Ellicott vs. Ellicott, 2 Md. Ch. Dec., 468. James vs. McKernon, 6 John. Rep., 564. 6 Paige's Rep., 239, 251. Clarke vs. Turton, 11 Ves., 240. Chambers vs. Chalmers, 4 G. & J., 420. Hood vs. Inman, 1 Gill, 234. 4 John. Ch. R., 437.

Can it be successfully said that the bill in this case squares with these plain practical principles of equity pleadings? I think not. There is no distinct charge or statement in the bill which, in the slightest degree, entitles the complainant jointly to any part of the trust funds in the hands of the appellant, as the trustee of Francis Thomas, placed in his hands for a specific purpose, and for the use and benefit of specific cestuis que trusts. The complainants by their bill, assume a false character in relation to said trust funds in the hands of appellant. They assume the character of cestuis que trust under the declaration of the trust. They have no right, according to the averments in their bill, to any part of the trust fund as such. They only can claim, under any circumstances, a contingent interest in the surplus which may be chance remain in the hands of the appellant, as trustee, after the trust is finally settled,  [**8]  and the real cestuis que trust are satisfied. The complainants pretend to claim some interest in said trust funds by virtue of three mortgages which they exhibit as part of their bill, given to them separately and individually, for distinct and separate purposes, by Francis Thomas. These mortgages convey by Thomas to the complainants, a large and valuable real estate, and the contingent interest of Thomas in the trust funds in question, to secure the debts and claims recited in said mortgages. The appellees do not aver in their bill that there is any money due and owing on said mortgages by Thomas or anybody else. They don't pretend to claim that there is anything due on said mortgages, which is a material allegation in all bills to foreclose mortgages. The bill ought to contain such averment. It is the uniform practice, and always has been, to make such averments in a bill to foreclose mortgages, and it is considered a material averment for a mortgagee, before he can obtain an order and decree to sell, or in anyway dispose of property mortgaged, first to establish in a judicial proceeding, the amount of his claim. This is usually done by referring the case to the auditor, &c. It may [**9]  be said that the demurrer admits this fact. It is true, that a demurrer admits all facts well pleaded, but I do not understand that a demurrer admits a fact that is not pleaded at all.

The giving the three mortgages by Francis Thomas to the complainants, three years after the creation of the trust, was a transaction about which the appellant, as trustee, had no knowledge, interest or concern, and he is utterly unable to make any appropriate answer to any statement or averment in relation to such matters charged in the bill. Francis Thomas is the principal party interested. If he had been made a party to the bill, he could answer the whole matter understandingly. The bill is defective in this, it does not charge that the trust funds in the hands of the appellant were even sufficient to pay the claims of the cestuis que trust specified in the declaration of trust. It does not charge that, under any circumstances, there will remain in the hands of said trustee a surplus of funds, after paying and satisfying the cestuis que trust their claims. The bill does not pray any specific relief, and indeed it does not, in proper form, pray for any relief, leaving doubtful to the Court what [**10]  the real object of the bill is. I respectfully submit, that the averments in the complainant's bill are not sufficient to entitle them to relief. The bill does not contain either sufficient form or substance. These principles appear to be too clear and plain to require any authorities to sustain them. The reasoning of the learned Judge of the Circuit Court upon the proposition, is not sustained by the authorities, and is opposed by the uniform practice of Courts of Equity in this State.

2nd. The appellant in the Circuit Court, objected to the sufficiency of the bill for multifariousness. The bill is clearly defective for that cause. The Court will never permit several complainants to demand by one bill, several matters perfectly distinct and unconnected, against one defendant; nor one complainant to demand several matters of distinct natures against several defendants. 1 Brown Ch. Ca., 200. Cooper Pl., 182. Mitford's Eq. Pl., 181, (note by Jeremy.) West vs. Randall, 2 Mason, 201. Harrison vs. Hogg, 2 Ves. Jr., 323.

This case seems to decide the very question involved in the case under consideration. In the case of Hester vs. Weston, 1 Vernon, 463, a demurrer was allowed to [**11]  a bill, because it contained several matters not relating one to the other. Judge STORY in his Equity Pleading, defines multifariousness in a bill to mean, "the improperly joining in one bill, distinct and independent matters, and thereby confounding them," and the example by which he illustrates his definition is thus given, "the uniting in one bill several matters properly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature, against several defendants, in the same bill." See Story's Equity Pl., 271.

Sir THOMAS PLUMER, in Brooks vs. Lord Whiteworth, 1 Mad. Ch. R., 57, says, "that certainly a defendant has the right to insist that he is not bound to answer a bill containing several distinct and separate matters relating to individuals with whom he has no connection."

The authorities on this subject are very numerous, and it would be useless to cite many of them on this occasion. Judge STORY closes his review of the authorities upon this defect in a bill, with the following remark: "The conclusion to which a close survey of all the authorities will conduct us, seems to be, that there is not any positive inflexible [**12]  rule as to what, in the sense of a Court of Equity, constitutes multifariousness, which is fatal to a suit on demurrer." The question of multifariousness in a bill in equity, has been frequently before the Court, and the facts and circumstances in the cases which constitute such a defect in equity pleading, have been carefully examined, and the true rule extracted from the authorities, and adopted. 9 G. & J., 286. White vs. White, 5 Gill, 359. Griffin vs. Lee, 10 Md. Rep., 365. Boyd vs. Hoyt, 5 Paige, 65. Swift vs. Ekford, 6 Paige, 22.

These authorities seem to be conclusive for the appellant. The bill is clearly and maifestly multifarious, indeed it is a legal anomaly, and the like can hardly be found in any book of authority, to bring this case to the standard of the principles of the authorities above stated; the appellees are seeking by a joint bill to obtain, in some way, payment and satisfaction of three distinct and independent mortgages, given to secure separate and independent debts or claims to the appellees, separately not jointly. This certainly is a misjoinder, both of parties and causes of action, and not warranted by any authorities. The appellees, in their bill [**13]  in the Circuit Court, charge and aver, that the three thousand dollars which the said appellant, as the trustee, was to take to himself, out of the trust funds, has been paid to the appellant in whole or in part by other means, not stating when, by whom or under what circumstances paid, so as to give to the appellant an opportunity as defendant in the Court below, to answer the bill in a manner to defend himself against the charge. This is a distinct and independent cause of complaint, made by the appellees jointly, against the appellant, which must be decided before any distributution of the trust funds can be made, even if the appellees jointly are or will be entitled to any part of the trust funds, which is denied. This distinct and independent charge and complaint of itself, renders the bill defective and multifarious.

It may be contended by the appellees, that the demurrer does not sufficiently point out the defect of multifariousness. It appears from the record, that the question of multifariousness was raised and argued in the Circuit Court upon a demurrer ore tenus, and decided by the Court. It is a settled principle in equity, that in cases where the defendants omit to [**14]  demur for multifariousness, the Court may, "sua sponte" take the objection and dismiss the bill. In this case there was a general demurrer to the whole bill. Chew et al. vs. Bank of Baltimore, 14 Md. Rep., 299.

3rd. The judgment of the Circuit Court is erroneous upon the third objection to the sufficency of the bill. I insist that the bill is defective for the want of proper parties, and particularly because Francis Thomas, the mortgagor, was not made a party defendant.

A careful examination of the averments of the bill and the exhibits in the case, which constitute a part of the bill, are sufficient, I am inclined to think, to convince any legal mind, that Francis Thomas has a material interest in the subject matter of this suit; he is not only interested in seeing that the trust funds in hands of the appellant are properly applied and distributed, according to the true intent and meaning of the trust, but he is materially interested in the ascertainment of the actual sums due on the claims recited in the several mortgages to each of the several appellees, as claimed by them, if they do actually claim anything, or sum due. It would seem to be perfectly clear, that he is [**15]  deeply interested in both questions, and ought to have been made a party. In the consideration of this question, it is not necessary to advert to the insufficiency of the averments in the bill, or to the novelty of the procedure of the appellees, by filing a joint bill to enforce the obligation of the three mortgages in the case; for if Francis Thomas ought, according to the strict rules of equity pleadings, to have been made a party, the bill must be dismissed, even if the averments of the bill are considered good and sufficient. The general rule, as to who are to be considered necessary parties to suits in equity, are well defined by the authorities. "It is a general rule in equity, that all persons materially interested, either legally or beneficially, in the subject matter of the suit, must be made parties to it, either as plaintiffs or defendants. It is true there are some exceptions to this general rule, but this case does not, it will be found on examination, fall within any of the exceptions. Mitford's Eq. Pl., (by Jeremy,) 164, 165. Edwards on Parties, 1, 2, 3.

In the case of Oliver vs. Palmer & Hamilton, 11 G. & J., 448, the Court of Appeals say: "It is a fundamental [**16]  rule of equitable jurisprudence, to the universality of which the case before us forms not one of the exceptions, that where a bill is filed to effect a fund in which different persons have an interest, all the persons interested therein must be made parties. Fell vs. Brown, 2 Brown's Ch. Ca., 278. Haines vs. Beach, 3 John. Ch. R., 459.

"To a bill for foreclosure and sale of mortgaged property, all incumbrancers, or persons having an interest existing at the commencement of the suit, subsequent as well as prior in date of plaintiff's mortgage, must be made parties. otherwise they will not be bound by the decree." In the case of Caldwell vs. Taggart, 4 Peters, 202, the Court say: "There is no want of learning in the books on this subject." The general rule is laid down thus: "However numerous the persons interested in the subject of a suit, they must all be made parties plaintiffs in order that a complete decree may be made." West vs. Randall, et al., 2 Mason, C. C. R., 189. Wylie et al. vs. McMakin, 2 Md. Ch, Dec., 416, 417. Mechanics Bank vs. Seaton, 1 Peters, 299. 13 Peters, 359. Crocker vs. Higgins, 7 Conn. R., 346.

By interest it implies a right in the subject of controversy [**17]  which a decree more nearly or remotely may affect." Wendell vs. Van Rensselaer, 1 John. Ch. Ca., 349.

The learned judge of the Circuit Court decided, that Thomas was not a necessary party. He says: "It is a general rule, that no one need be made a party to a bill against whom, if brought to a hearing, the plaintiff can have no decree." He cites 1st Daniel's Practice, 271, and 3 Peere Wms., 311. This as an abstract proposition, is doubtless correct, but its application to this case is not perceived. The judge further says: "Thomas is in no wise responsible to them (the appellees) for the default of the trustee, nor could he be made so by any proceedings in the case; and if he were called upon to answer, all he could say would be, that he had placed the funds in the trustee's hands for the benefit of the complainants." What a sad mistake! The trust funds were not placed in the hands of the trustee for the benefit of the complainants, but they were placed there for the benefit of specified "cestui que trusts," according to the terms of the declaration of trust. From the opinion of the judge as expressed, we must conclude that he misapprehended the whole scope and object of the bill [**18]  and the averments in it. The error of the learned judge is too apparent to require further comment.

O. Miller and G. W. Dobbin for the appellees.

1st. The appellees respectfully submit there is no sufficient ground on which to place the first of the above objections. The bill clearly makes out a case of cestui que trusts calling upon their trustee for an account and settlement and distribution of the trust funds in his hands. It avers the creation of the trust by Thomas, the purpose for which it was created, and charges that the defendant was made trustee, that the funds are in his hands as such trustee, and that he refuses to carry out the trust. The averments are entirely sufficient to inform the defendant of the charges against him, so as to enable him to understand what he is required to answer, and also to inform the Court what remedy is suitable to the case made by the bill under the general prayer for relief. Mewshaw vs. Mewshaw, 2 Md. Ch. Dec., 12. Young vs. Lyons, 8 Gill, 169. Crain vs. Barnes, 1 Md. Ch. Dec., 151. Bolgiano vs. Bolgiano, 19 Md. Rep.

2nd. Nor is there anything in the second objection, which will warrant the sustaining of the demurrer. This objection [**19]  is, that there is no charge made by the complainants, that at the time of filing this bill there was any sum or sums of money due to the complainants, or either of them, from Thomas, unpaid and unsatisfied, so as to entitle them to relief as prayed. The mortgages are filed with the bill, and by them this fund in the hands of Kunkel is expressly dedicated to the payment of the specified debts. In reference to the first of the mortgages, (that to Markell and Dorsey,) the bill expressly alleges that the fund is liable to the payment of the debts therein specified. Again, as to all the mortgages, the bill alleges, "that the fund was, when paid into Kunkel's hands, liable for all the debts and securities mentioned in the several mortgages; and that Kunkel has hitherto refused and still refuses to account to your orators for said fund in trust as aforesaid. These are sufficient averments that the claims of the complainants are still due and owing.

4th. Nor is the objection of multifariousness sustainable. Where there are two good causes of complaint growing out of the same transaction, or where there is one common intent or object, and the parties are all jointly concerned, and the [**20]  interest of one is not to be distinguished from the other, while the relief sought by each is of the same subject matter, and not different in its nature and character, the objection of multifariousness will not hold. Here there are in the hands of this defendant, trustee, trust funds specifically appropriated to the benefit of each of the specified claims. The complainants have a common interest in the fund for the payment of their respective claims, and the defendant a common liability to each. In such a case a demurrer for multifariousness will not lie. Story's Eq. Pl., secs. 284, 285, 285 a. Thomas vs. Doub, 8 Gill, 8. Young vs. Lyons, 8 Gill, 164. Williams vs. West, 2 Md. Rep., 174. Doub vs. Barnes, 1 Md. Ch. Dec., 127. Peters vs. Van Lear, 4 Gill, 249.

5th. The objection that O'Hearn and Thomas were not made parties is also, it is submitted, untenable. No one need be made a party to a bill against whom, if brought to a hearing, the plaintiffs can have no decree. O'Hearn and Thomas are each in this precise condition with reference to this bill; and besides this, Kunkel, the trustee, is the representative of Thomas the creator of the trust, and is the only necessary party [**21]  in such a case to be brought before the Court. Hoye vs. Johnston, 2 Gill, 291. 1 Daniel's Ch. Pr., 271, 339. 3 Peere Wms., 311, note. Story's Eq. Pl., sec. 231. Davis vs. Simpson, 5 H. & J., 147. Calvert on Parties, 7, (17 Law Lib.) Crook & Wife vs. Brown, 11 Md. Rep., 158. Davis vs. Graham, 2 H. & J., 94. Lucas vs. McBlair, 12 G. & J., 1.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*404]  WEISEL, J., delivered the opinion of this Court.
The three single bills mentioned in the receipt of Jacob M. Kunkel to Francis Thomas, dated February 21st, 1853, and set out in the bill in this case, passed into the hands of said Kunkel, who agreed with said Thomas to apply the proceeds to the expenses and debts of Thomas specified therein, and in the order therein stated. Whatever remained resulted to said Thomas, increased by the payment of any of said debts from other sources. This assignment to Kunkel was an absolute one, for the purposes expressed in the receipt.
The mortgagees in the three mortgages exhibited with the bill, who were the complainants below and are the appellants in this case, took a conditional assignment [**22]  of this resulting trust, the mortgages embracing also certain real estate; all conveyed to secure the payment to the mortgagees 

 [*405]  of the several debts of said Thomas mentioned in the mortgages, provided they were not paid by Thomas at the times named in said mortgages respectively. The mortgages were given at different times in 1856, thus creating rights of priority between the mortgagees, to the premises and rights mortgaged.
The bill, as has been stated, was filed by the mortgagees in September, 1860, after the times limited in the mortgages for the payment of the debts secured by them, (all which matured in 1857,) against the said Jacob M. Kunkel, simply alleging and setting forth the receipt he gave, and that he, Thomas, had secured the payment of the notes or single bills therein mentioned, by a lien on certain lands in Allegany county; and that said single bills had long since been actually paid to said Kunkel. It also alleged the execution of said three mortgages, exhibiting copies from the records as parts of the bill. It charged that the sum of three thousand dollars due to Kunkel, and to be paid by the proceeds of the single bills in the receipt, had been paid [**23]  in whole or in part by other means, and that the fund in his hands had been proportionably increased thereby; also, that Kunkel had used the fund outside of the trust, and was liable for interest on it from the time he so used it; and that he had refused, and still refused to account to the complainants for said fund.
Other parties, creditors of Thomas, whose debts were to be paid with the proceeds of the single bills mentioned in the receipt, were made parties defendants, with Kunkel, to the bill. Thomas himself was not made a party.
The bill prayed for an answer from Kunkel on oath to these matters, "and particularly that he answer, when the said trust fund, and the amount thereof was paid to him," and "whether he had used, outside of the trust, the said trust fund, as charged in the bill; also, that the other defendants should answer the several matters and things 

 [*406]  stated and charged in the bill, and that the complainants might have such further or other relief as their case might require.
The only party appearing to the bill was Mr. Kunkel, who demurred to it for the causes set forth in the demurrer, which was overruled by the Court below, and he was required to answer.  [**24]  From this order this appeal was taken.
The demurrer is in the usual form of a general demurrer, with a protestation, and assigning special causes of objection to the bill as apparent on its face. These are, that the complainants have not, by proper averments, stated a case that entitles them to relief against the defendant, Kunkel; that they have not charged that at the time of filing their bill, any sum or sums of money was due to them, or any of them, by Francis Thomas, so as to entitle them to the relief prayed; and that said Thomas, and M. P. O. Hearn, (the maker of the single bills assigned to Kunkel,) were necessary and proper parties to the bill.
It is very apparent, that the complainants stand in a different relation to Kunkel from that of the other creditors of Thomas, who were to be paid with the proceeds of the single bills mentioned in the receipt. These were cestuis que trust of the fund, and could resort to Kunkel, as trustee, for an account and application of the fund to their claims. But the complainants do not stand in that relation. They are not cestuis que trust, but assignees by way of mortgage, to whom Kunkel is to pay Thomas' interest in the fund only [**25]  in the event that Thomas himself had not paid the debts to secure which he had given the mortgages. They had but a lien upon the resulting trust in the fund, by virtue of the mortgages, and in asserting this lien, or stating a proper case against Kunkel for relief in respect to it, certain averments and parties became necessary. And the question now is, does this bill present a proper case for 

 [*407]  the relief prayed? If not, the demurrer was properly interposed.
The bill seeks to appropriate to the complainants, by virtue of the mortgages they hold, the resulting trust fund of Thomas in the hands of Kunkel. It is, therefore, a bill to foreclose the mortgages as to that portion of the fund. Thomas, the mortgagor, has a direct interest in the subject matter, and is to be affected by the decree. If he has paid the debts secured by the mortgages, or if the other mortgaged property has been applied in their extinguishment, the complainants have no longer any right to the fund; and Kunkel is to be protected by the decree as against any claim of Thomas, if the fund is to be decreed to the complainants. In other respects, also, Thomas, the real debtor, is interested in any account [**26]  to be taken of the fund.
He is, therefore, as mortgagor, whose interests are to be affected or concluded by the decree, a necessary party. Entire justice cannot be done without him, and he cannot, therefore, be dispensed with, as a merely nominal or formal party. The principle is well established that upon a bill to foreclose, the mortgagor is a necessary party, unless the bill discloses a state of facts or a condition of things, (as, for instance, the insolvency of the mortgagor,) which would render the making of him a party unnecessary. Such a cause for exemption is not alleged in this case. Story's Eq. Pl., 193, 195. Worthington vs. Lee, 2 Bland 678. We are clearly of opinion that Thomas should have been made a party defendant to this bill; but we do not discover any interest in O'Hearn which would require him to be made a party. He was the debtor of Thomas whose single bills were assigned in trust to Kunkel and paid to him, as alleged in the bill, and has no interest in the subject matter of this suit.
Another objection raised by the demurrer to this bill is, 

 [*408]  that it does not sufficiently state a case for the relief prayed, and that it omits [**27]  material averments, which the admissions of the demurrer do not supply; that all that is stated in the bill may be admitted, as is done by the demurrer notwithstanding the protestando, and yet the complainants have stated no case against the defendant, Kunkel, for relief. In this objection we also concur.
It must be borne in mind that this is not the bill of the cestuis que trust, entitled absolutely to the fund under the receipt, calling upon the trustee to account and pay, for which purpose a bill by them constructed as this is, might be sufficient, but it is by parties, mortgagees, holding a different relation, both to the fund and the defendant, Kunkel; and it is necessary for them, as in all cases, to state such facts or make such averments, generally and substantially, not minutely or in detail, as would entitle the complainants to the relief they ask against the party to bill. These cannot be supplied by any extraneous matter, nor will a prayer for general relief aid the omission. The claim of the party must be stated with clearness, so as to leave nothing to uncertainty, conjecture or vague inferences. As the complainants have only a contingent interest in the trust [**28]  fund that resulted to Thomas, dependant upon the non-payment of the debts secured by the mortgage lien upon it, it became necessary for them to aver that those debts continued to exist and were unsatisfied, either in whole or in part; and, also, to state any other facts which would entitle them to participate in this fund. Without such a state of facts, equity could not properly afford them relief; and the necessity or obvious propriety of such distinctive averments, is a further reason why the mortgagor should have been made a party. The bill is deficient for the want of these averments. See, also, West vs. Hall, 3 H. & J. 221. Chalmers vs. Chambers, 6 H. & J. 29. Ringgold vs. Ringgold, 1 H. & G. 11. Townsend 

 [*409]  vs. Duncan, 2 Bl., 45. Lingan vs. Henderson, 1 Bl., 236. Berry vs. Pierson, 1 Gill 234. Mewshaw vs. Mewshaw, 2 Md. Ch. 12; and Young vs. Lyons, 8 Gill 162.
We do not think the bill is objectionable on the ground of multifariousness, which was urged by the appellant's counsel in his brief and in the argument. In this case the interests of the several [**29]  complainants, though distinct and upon distinct conveyances, are yet of a similar nature, against the same defendants, and in relation to the same subject matter, and the relief prayed is the same to all in character. In such case the objection of multifariousness does not apply. Story's Eq. Pl. secs. 285, 286, 531, 533. This case, in this respect, is similar to that of a creditor's bill in the Maryland practice. See, also, Thomas vs. Doub, 8 Gill 1, 7. Young vs. Lyons, 8 Gill 162. Williams vs. West's Adm'rs, 2 Md. 174, 198. Peters vs. Van Lear, 4 Gill 249, 263, 264. Our views on this point are supported by the case of Wilson vs. Wilson, decided by this Court at April term, 1865, and adverted to in the argument of this case.
The order of the Court below overruling the demurrer, and requiring the defendant to answer, will be reversed for the reasons assigned in this opinion; but as the purposes of justice may be advanced by permitting further proceedings in the cause by amendment of the bill, making additional parties or otherwise; in conformity with this opinion, the cause will be remanded [**30]  to the Circuit Court for Frederick county, as a Court of Equity, for such further proceedings as shall be necessary for determining the cause upon its merits; the appellant to have his costs of this appeal; all other costs to abide the event of the suit.
Order reversed and cause remanded for further proceedings. 

32 of 120 DOCUMENTS 

HUGH GELSTON vs. JOHN FRAZIER, MARY ANN FRAZIER, JOSEPH CABOT, Trustee, and AMOS F. MUSSLEMAN, Trustee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 329; 1867 Md. LEXIS 11 

February 14, 1867, Decided 

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

This was an appeal from an order of the Court below, (ALEXANDER, J.,) passed on the 31st of March, 1866, dissolving the injunction previously granted in the case, whereby the appellees were enjoined from collecting certain rents from the appellant. The opinion of this Court contains a full statement of the case.  

DISPOSITION:
Order affirmed and cause remanded, with costs to the appellees.  

HEADNOTES:

AGREEMENT, -- SPECIFIC PERFORMANCE OF: TRUSTS AND TRUSTEE: TRUSTEE WHEN A NECESSARY PARTY TO AGREEMENT TO SELL: HUSBAND AND WIFE: SEPARATE ESTATE OF WIFE, -- SALE OF; PRESUMPTIONS; INJUNCTION, -- DISSOLUTION OF. -- J. F. and M. A. F., his wife, in June, 1831, united in executing a deed of the real estate of the wife to J. C., in trust for the sole and separate use and benefit of the wife, so that the said M. A. F., during the joint lives of the husband and wife, should be suffered to hold, use and occupy said real estate, and receive the rents, issues and income thereof, and apply the same to such uses as she might think proper; "or otherwise with the consent and approbation of the said J. C. or his heirs, testified by his or their uniting in the due execution of any deed or deeds of conveyance with the said M. A. F., and either with or without the concurrence of her said husband to sell and dispose of absolutely forever, or for any less estate therein, the whole or any part of the aforesaid piece or parcel of land," &c. And "from and immediately after the decease of either of them," as to so much thereof as may not have been disposed of as before provided, "in trust, &c., for the use and behoof of the survivor" of them, "and the heirs and assigns of such survivor forever, in fee-simple, to be then forthwith conveyed and released to such survivor," &c. On the 13th of May, 1833, the husband and wife united with the trustee, J. C., in leasing said real estate by an instrument of writing duly acknowledged to W. C. H for ninety-nine years, renewable forever, for the yearly rent of $ 1,100, payable semi annually. Annexed to said lease and following the acknowledgments, and bearing the same date therewith, was a covenant signed by the husband and wife, without the trustee, whereby they bound themselves, their heirs, executors and administrators at any time during the continuance of the lease, on payment or tender of payment to them by the said W. C. H., his heirs or assigns, to execute to him or them a good and sufficient deed of conveyance in fee-simple of said real estate. In 1839, H. G. became the assignee of said lease, and in 1864, tendered to the husband and wife, in the currency of the U. S., the sum stipulated in the covenant, and demanded from them a deed of said real estate in fee-simple. This tender being declined unless paid in gold and silver, H. G. filed a bill in equity for a specific performance of the covenant, and an injunction restraining the husband and wife from proceeding to collect further rent. The injunction was granted, and after answers filed, motion to dissolve and testimony taken, the cause was heard on motion to dissolve. -- HELD:

1st. That without the consent of the trustee to the sale, in the way specified in the deed, (in the absence of fraud,) a Court cannot treat him as a party to it and decree him to perform it, and his execution of the deed would be necessary to convey to the purchaser the fee which is legally in him: The agreement, therefore, is without an essential party to it, -- the trustee.

2nd. That the effect of the agreement, if good in other respects, would be to divest the wife of her separate control of the proceeds of sale, by providing for the payment of the money to the husband and wife, thus changing the character of the trust and enabling the husband to participate in the receipt and control of the proceeds if paid in their joint lives, thereby endangering the entire fund and leading to the destruction of the trust itself during her life.

3rd. That the agreement is repugnant to, and in violation of the trust which secured to the wife a separate estate, and which a Court of Equity must regard when called upon to enforce a contract made under it.

4th. That the very fact that the covenant was annexed to the lease as a separate and distinct agreement, in which the trustee forbore to unite, though cognizant of it, and uniting in the lease itself, is a circumstance to show his dissent from its provisions, and that these did not commend themselves as within the sphere of the trust, or as consistent with it.

5th. That the injunction was ancillary, and the complainant's right to it depended upon the validity and sufficiency of the covenant, and this being fatally defective, the injunction was properly dissolved.  

COUNSEL:
Wm. Schley and T. A. Linthicum, for the appellant, argued:

That the injunction was properly issued upon the case made by the bill, because:

1. Equity having possessed itself of the subject matter, will interfere by injunction to prevent multiplicity of suits. Caples vs. Shipley, 17 Md. Rep., 179. Lucas vs. McBlair, 12 G. & J., 1. Amelung vs. Seekamp, 9 G. & J., 468. Glenn vs. Fowler, 8 G. & J., 340. Shipley vs. Ritter, 7 Md. Rep., 408. Lynch vs. Colgate, 2 H. & J., 34.

2. And to restrain proceedings at law where the defendant has a defence which is only available in equity.

3. The material averments being admitted by the answers, and where denied, sustained by the proof in the cause, the injunction should continue till final hearing.  [**2]  Alexander vs. Ghiselin, 5 Gill, 138. Washington University vs. Green, 1 Md. Ch. Dec., 97.

4. The charges of the bill are not sufficiently denied by the answer to dissolve the injunction. Fitzhugh vs. McPherson, 3 Gill, 408. Doub vs. Barnes, 4 Gill, 1. Kent vs. Ricards, 3 Md. Ch. Dec., 392. Hardy vs. Summers, 10 G. & J., 316. Drury vs. Roberts, 2 Md. Ch. Dec., 157.

The deed of trust confers upon Mary Ann Frazier the power of disposition over the whole estate and property, restricted only as to the manner in which deeds of conveyance therefor are to be made, and the contract endorsed upon and annexed to the lease, being admitted by the answer, shows the intention upon the part of the donee of the power, together with her husband, to execute that power by a conveyance in fee upon the condition therein mentioned, and is such a contract or covenant as she, a married woman, having a separate estate, has the right to make, and which is binding upon her to the extent of the power. 15 Barbour, 555. Hulme vs. Tenant, Smith's Le. Ca., 511. Jacques vs. The Meth. Church, 17 Johnson. Macqueen on Husband & Wife, 66 Law Library, 300, 301. Cooke vs. Husbands, 11 Md. Rep., 492. Hardy vs. Summers,  [**3]  10 G. & J., 316. Powell on Contracts, (60.) Stead vs. Nelson, 2 Beavan, 245. Price, &c., vs. Bigham, 7 H. & J., 296. Tiernan vs. Poor, 1 G. & J., 266.

The contract is fair, just, reasonable, bona fide, mutual and certain, in all its parts, possessing all the requisites of a legal, valid, binding contract. Stansbury vs. Fringer, 11 G. & J., 149. Schollenberger vs. Brunton, 3 Am. L. R., N. S., 591. And this covenant is a covenant running with the land, and passes to the assignee of the lessee, and vests by assignment in the appellant, Gelston, all the rights of Wm. C. Harris, to extinguish the ground-rent. Spencer's Case, 1 Smith's Leading Cases, 115. Vanhorn vs. Crain, 1 Paige, 455.

The lease and the covenant endorsed thereon, constitute and form one entire and inseparable agreement or lease, and the covenant is as valid and binding as if incorporated in the lease before the attestation clause, and Cabot, the trustee, signed, sealed and delivered the lease with this covenant annexed to and endorsed thereon, and thereby expressed and declared his assent to the entire paper and its contents, and by exhibit H. G., No. 4, in 1843, reaffirms this consent and approbation. Vanhorn [**4]  vs. Crain, 1 Paige, 455.

It is not required that the trustee should unite with the wife in contracts or covenants, for sale or for conveyance, because the trustee holds merely the naked, legal title, and has no interest in the property to be bound by such covenant or contract. He is only required to testify to his giving his assent or approbation by uniting in the deed or deeds of conveyance, executed or to be executed in consummation of the contracts of the donee of the power.

The Act of Congress of the United States, approved February 25th, 1862, making the treasury notes of the United States, issued thereunder, a legal tender as therein provided, for all debts, demands, &c., &c., except as therein excepted, is a valid and constitutional exercise of the powers vested in Congress by the Constitution. Md. Bank vs. Vandyke, 27 N. Y., 400. Birks vs. Tippet, 1 Saunders 28. Schollenberger vs. Bunton, 3 Am. L. R., 591. Carpenter vs. Atherton, 3 Am. L. R.

Another refusal of the appellee to accept of the sum of $ 18,333.33 1/3 in money made by said Act of Congress, a legal tender, is in legal effect the same as a refusal to accept gold and silver if tendered. Buel vs. Pumphrey,  [**5]  2 Md. Rep., 261. Dent vs. Dunn, 3 Camp., 296.

The petition filed by the appellees on the 19th day of June, 1865, is an express review of all objections to the kind of money tendered.

Wm. S. Waters and A. F. Musselman for the appellees.

This is a bill for the specific performance of a contract. The contract to be enforced is the covenant annexed to the lease of Cabot, trustee, and Mary A. Frazier, to Harris. Said covenant was executed by John Frazier and Mary A. Frazier only. The persons against whom the bill is sought to be enforced, are Cabot, trustee, Musselman, trustee, and Frazier and wife. This is the case made by the bill, and no other contract can be enforced. Chambers vs. Chalmers, 4 G. & J., 420, 438.

The alleged contract is that of a married woman; in regard to her separate property, such a person is peculiarly protected by the law. Generally her contracts are void in law, and it is only so far as the statute authorizes the contrary that they have any efficacy, and the enabling statute must be strictly pursued. Johns vs. Reardon & Wife, 11 Md. Rep., 465 In a Court of Equity, however, she is, under certain restrictions, allowed to contract in reference [**6]  to her separate estate. When a separate estate is given to her generally, and nothing said about her right to dispose of it, she has the power of disposition, but when the instrument creating the separate estate provides a mode and manner in which she shall convey, she can convey only in the manner and mode named in the instrument, and any other conveyance by her will be a nullity. Cooke vs. Husbands, 11 Md. Rep., 492, 503. Tiernan vs. Poor, 1 G. & J., 229. Lowry vs. Tiernan & Williamson, 2 H. & G., 34. 4 Kent, 330. Miller & Mayhew vs. Williamson, 5 Md. Rep., 220, 234, 235.

The object of placing restrictions upon alienation, and providing a manner of alienation, is to protect the wife, and any departure from the strict mode destroys the protection; no departure from this mode will be tolerated. Nor will a Court of Equity undertake to substitute any other mode, or aid any of the parties in the trust, in carrying out any other mode than the strict mode provided in the settlement. Lowry vs. Tiernan, 2 H. & G., 40. Miller & Mayhew vs. Williamson, 5 Md. Rep., 220. Hopkins vs. Myall, 2 Russ. & My., 86.

The contract in question is a separate contract by parties different from those [**7]  to the lease, and with different representatives of parties. The lease is by Cabot, trustee, and Mary Frazier, with Harris, his executors, &c. The covenant is by John and Mary Frazier with Harris, his heirs, &c. The first contract is within the mode provided by the trust; the second is not, and is void, or as though it had never been. No Court of Chancery will aid it, because no Court will deprive a married woman of that protection which the trust throws around her. Tiernan vs. Poor, 1 G & J., 229, and cases supra.

There is no subsequent contract; that alleged in exhibit No. 4 is not a valid and binding contract within or without the power so as to bind Mrs. Frazier or any one, if the first contract appended to the lease is void.

1. It is without consideration.

2. It is not a deed on the part of Cabot, trustee.

3. There is no pretence of anything, but a parol or implied assent on the part of Mrs. Frazier.

4. No pretence that she ever assented to it except by agent, to which there are the following objections:

(A.) She has no power to appoint an attorney. Wallingsford vs. Wallingsford, 6 H. & J., 485, 490.

(B.) Her agent was, if her agent at all, only [**8]  to collect rents; not to make a contract to convey her property.

(C.) The contract must be in writing and sealed to bind the parties, and in order to authorize an agent to execute an instrument of that kind, he must be constituted with the same solemnity.

(D.) Both the contract and the constitution of the agency, independent of the provisions of the trust, are required, by the Statute of Frauds, to be in writing. O'Conner vs. Speight, 1 Sch. & Lef., 306.

But it is said it would be inequitable to allow Mrs. Frazier now to disavow her contract, she having heretofore acquiesced in it. Our answer is:

1st. Her acquiescence has been at the persistent demand of the complainant, and for his own benefit, and not for his disadvantage.

2nd. The very object of the law and of the trust, is to protect Mrs. Frazier from her loose declaration, and from her presumed acquiescence, and to protect her against every other form of obligation, except that mentioned in the creation of the trust.

3rd. There can be no acquiescence to bind any one, unless it is proved to the satisfaction of the Court that the party made it knowing at the time her legal and equitable rights; knowing [**9]  that the contract was void, and that the act she was doing was with the object to make that good which was void. Hoffman Steam, &c., vs. Cumberland Co., 16 Md. Rep., 456, 508.

4. The object of the bill is to compel Cabot, trustee, to exercise a discretion, which the trust lodges with him for the wife's protection, and which no Court of Chancery will control. Hill on Trustees, 488, 211, 212.

But suppose, for the sake of the argument, that Cabot's name was signed to the covenant, and sealed by him, and it was executed according to all the requisites of the trust, even then the complainant is not in a position to claim its enforcement in this bill. He must have tendered all the rent in arrears, as well as the principal sum, before his right accrues. It is conceded, that the rent was not all paid, but claimed that by a contract binding on Mrs. Frazier, the complainant is excused from paying all. Is the complainant so excused? He is not.

It is said that he is excused by the tender made in 1843, and the agreement thereupon in exhibit 4, filed with the bill. This contract only proposes to release it for two years, with the privilege of redemption on payment of $ 6,333.33 1/3 in [**10]  cash, and balance of $ 12,000 in instalments, for which notes were to be given, and these secured by a mortgage. Mrs. Frazier is not bound by this contract. Because:

1. It is such a contract as is required to be in writing by the Statute of Frauds. She never authorized any one in writing to sign it in her behalf, nor did any one sign it, professing to do so as her attorney; she did not sign it herself. O'Conner vs. Speight, 1 Sch, & Lef., 306. 2 Leigh's Nisi Prius, 1021, 1039.

The answer denying the contract set up in the bill, need not plead or rely upon the Statute of Frauds. Small vs. Owings, 1 Md. Ch. Dec., 363. Cozine vs. Graham, 2 Paige's Ch., 177, 181. 3 Paige's Ch., 478. 11 Paige's Ch., 405, 408. Story's Eq. Pl., sec. 763, note 2.

2. She never in fact appointed an attorney to sign such instrument, and could appoint none. Wallingsford vs. Wallingsford, 6 H. & J., 490.

3. She never ratified such contract.

4. Her acts of acquiescence could not bind her, because she did not know her rights, or at least it does not appear to the Court that she understood them, and intended to bind them. Hoffman Steam Co. vs. Cumberland Coal Co., 16 Md. Rep., 456, 508.

5.  [**11]  Her only acts were receipts for rents, from her husband's agent, and that of only part of the rents, her receipts for part only of the rent, or receipts in full, when in fact only part of the rents were paid to her, cannot bind her. Receipts are only prima facie, and may be rebutted. A release only could discharge. Geiser vs. Kershner, 4 G. & J., 305. Jones vs. Ricketts, 7 Md. Rep., 108, 116. Campbell vs. Booth, 8 Md. Rep., 115, 107. 1 Leigh's N. P., 652. Hardy vs. Cox, 5 Gill, 189. Co. Litt., 264. Blake's Case, 6 Coke Rep., 44. Rogers vs. Payne, 2 Wilson, 376.

6. The husband had no power to dispose of her rights.

7. Mr. Cabot, trustee, alone had no power to do so.

8. The trustee and lessor can only be discharged by receipts, as will appear in the lease, and all the provisions of the trust are arranged for her protection. To dispense with them, is to break up the trust. Methodist Church vs. Jacques, 3 John. Ch., 78. Lowry vs. Tiernan, 2 H. & G., 34, 40. Miller & Mayhew vs. Williamson, 5 Md. Rep., 220, 235.

9. The contract was a fraud upon her rights, and she had, at any time within twenty years, a right to call the complainant and her trustee into Court, to have [**12]  the arrears of rent made up to her. The Statute of uses of Henry VIII. does not apply here. See same cases as above, and also Dugan vs. Gittings, 3 Gill, 138. Bowie vs. Stonestreet, 6 Md. Rep., 418. Ware vs. Richardson, 3 Md. Rep., 505.

10. The covenant to pay rent could not be released by parol; this could only be done by release under seal, or by payment in full in fact. 1 Leigh's N. P., 652, Coke Litt., 264, b. Littler vs. Holland, 3 Term Rep., 590. Blake's Case, 6 Coke, 44. Rogers vs. Payne, 2 Wilson, 376. Smith vs. Wilson, 8 East., 437.

11. There was a subsequent agreement marked H. G., No. 5. This is void for the reasons already given, and still more for the following:

1. The contract does not even state a consideration, which it must do, and it is in fact without one,--no tender having been made.

2. It does not purport to be executed by Mrs. Frazier, by any agent of Mrs. Frazier, or agent of any other person.

The agreement of November, 1855, and subsequent agreements:--as to these, no written agreements are shown executed by any one.

The subsequent receipts by Messrs. Williams and Musselman were only for the particular rents which they were authorized [**13]  to collect. They were mere attorneys to collect, and had no power to waive any rights which Mrs. Frazier might have; the complainant paid to them semi-annually, the rent in full of $ 550, during the time they collected the rents from about 1862, to May, 1864, inclusive.

Mrs. Mary Frazier has denied that she is bound by any of the agreements, and the burden of proof is upon the complainant to show that she was, and that the agreements themselves are equitable and right, agreeable to the Statute of Frauds, and of binding force, according to the provisions of the deed of trust.

The contract appended to the lease wants mutuality, and a Court of Equity will not enforce it. The covenant is separate entirely from the lease, independent of it, by different parties, and has a different subject. The Court cannot go into any loose conjectures as to the motives which induced the lease or covenant. There are no motives proved, and even if there were, they could not control or vary the written contract. It must stand or fall by its own provisions. Geiger vs. Greene, 4 Gill, 472. Allen vs. Burke, 2 Md. Ch. Dec, 534. Duvall vs. Myers, 2 Md. Ch. Dec., 401. Smith vs. Crandall, 20 Md. Rep.  [**14]  , 500, &c.

Where the Court at final hearing would dismiss the bill, there could be no ground for granting an injunction merely to protect the property pending the suit for specific performance. Geiger vs. Greene, 4 Gill, 472, &c.

The complainant has no interest in the contract sued upon. It is not a covenant running with the land, and has none of the requisites of such. It is personal to Harris and his assigns. Flight vs. Glossop, 2 Bingham, N. S., 125. Wheelock vs. Thayer, 16 Pick., 68. Plymouth vs. Carver, 16 Pick., 183. Keppel vs. Bailey, 2 Mylne & Keene, 517, 530. Webb vs Russell, 3 Term R., 393.

The injunction will be dissolved and the bill dismissed, if it appears to the Court that the contract cannot be specifically performed. Geiger vs. Greene, 4 Gill, 472. 2 Md. Ch. Dec, 534. 2 Md. Ch. Dec., 401.

The defendants are entitled to have the order dissolving the injunction affirmed, and the bill dismissed by this Court, or the cause remanded with directions to the Court below to dismiss the bill with costs to the appellees. 4 Gill, 472, &c.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*339]  WEISEL,  [**15]  J., delivered the opinion of this Court.
We think the Circuit Court of Baltimore city committed no error in the order for dissolving the injunction issued in this case, from which this appeal was taken.
In June, 1831, John Frazier, and Mary Ann, his wife, united in a deed by which they conveyed the real estate of the wife, situated in the city of Baltimore, to Joseph Cabot, in fee for the uses and trusts therein expressed, as follows:
"To have and to hold the lot, piece or parcel of ground and premises above described, with the appurtenances, unto the said Joseph Cabot, his heirs and assigns forever; in trust and confidence, nevertheless, and to, for and upon the uses and to the ends, interests and purposes hereinafter mentioned, expressed and declared of and concerning the same, that is to say: In trust for the sole and separate use, benefit and behoof of the said Mary Ann Frazier, so that she, during the joint lives of the said John and Mary Ann, be suffered and permitted either to hold, use, occupy 

 [*340]  and enjoy the said ground and premises, or the clear rents, issues and income thereof to receive and take, and such rents, issues and income to apply to such uses as she [**16]  may think proper, or otherwise with the consent and approbation of the said Joseph Cabot, or his heirs, testified by his or their uniting in the due execution of any deed or deeds of conveyance with the said Mary Ann, and either with or without the concurrence of her said husband, to sell and dispose of absolutely, forever, or for any less estate therein, the whole or any part of the aforesaid piece or parcel of land or ground and premises with the appurtenances, for such price or consideration as the said Mary Ann shall deem fit, and the proceeds to invest in other property, or the same to apply and dispose of as the said Mary Ann shall elect and determine, so that neither the said ground and premises, nor the issues, income or proceeds of the same shall at any time during the natural life of the said Mary Ann, be subject to the power, disposal or control of the said John Frazier, nor be in any manner liable or bound for, or by his debts, contracts or engagements. And from and immediately after the decease of either of them, the said John and Mary Ann Frazier, then as to such part or parts, and so much of said trust estate and property as may remain undisposed of by the said Mary [**17]  Ann, by deed as aforesaid, in trust for the use and behoof of the survivor or longest liver of the said John and Mary Ann, and the heirs and assigns of such survivor forever in fee simple, to be then forthwith conveyed and released to such survivor, and his or her heirs and assigns, so that the trust hereby created shall close and be ended, and of, on, or upon no other use, trust, interest or purpose whatsover. And it is hereby declared to be the understanding of the parties hereto, and the true intent and meaning of this instrument, that during the coverture of the said Mary Ann Frazier, her separate receipts for any and all money, being the 

 [*341]  avails of this trust, shall be a protection to, and discharge of the trustee, who shall not be held answerable, except for wilful commission or gross negligence in the execution of the trust hereby reposed in him."
On the 13th day of May, 1833, the trustee, Joseph Oabot, and the said Mary Ann Frazier executed to William C. Harris, his executors, administrators and assigns, a lease for said real estate for the term of ninety-nine years, renewable forever, for the yearly rent of eleven hundred dollars, payable semi-annually. This lease [**18]  was acknowledged in Baltimore by Mrs. Frazier and by Harris, (who signed and sealed the same as party of the third part,) on the said 13th day of May, 1833; and by Joseph Cabot, the trustee, and party of the first part, in Philadelphia, on the 16th day of May, 1833. Annexed to said lease, and following the acknowledgments of the parties to it as aforesaid, was the following covenant, signed, sealed and acknowledged by the said Mary Ann Frazier and her husband, John Frazier, and bearing equal date, both as to the instrument and its acknowledgment, with the lease itself:
"The undersigned, John Frazier, and Mary Ann, his wife, named in the foregoing lease to William C. Harris, do for themselves, their heirs, executors and administrators, covenant with the said William C. Harris, his heirs and assigns, that the said John Frazier and Mary Ann his wife, and their and each of their heirs, shall and will at anytime hereafter, during the continuance of the foregoing lease, at the request and proper cost and charge in the law of the said William C. Harris, his heirs or assigns, and on his or their paying or tendering in payment to the said John Frazier and Mary Ann, his wife, or the survivor [**19]  of them, or the heirs of the survivor, of the sum of eighteen thousand, three hundred and thirty-three dollars and one third of a dollar, lawful money, over and above all rent accrued by virtue of said lease and then in arrear, 

 [*342]  make, execute, acknowledge and deliver, or cause and procure to be made, executed, acknowledged and delivered to the said William C. Harris, his heirs and assigns, a good and sufficient deed of conveyance in fee-simple, of and for the lot, piece or parcel of ground and premises within described, with the appurtenances, free, clear and discharged from the rent reserved by said lease, and every part thereof.
In witness whereof, the said John Frazier, and Mary Ann, his wife, have hereunto subscribed their names and affixed their seals, on this thirteenth day of May, in the year of our Lord, one thousand eight hundred and thirty-three.  
JOHN FRAZIER, (Seal.)
MARY A. FRAZIER, (Seal.)"
Of this lease, and all the rights, privileges and appurtenances thereto belonging, the appellant, Hugh Gelston, became the assignee, in 1839, under a sale by virtue of a decree of Baltimore County Court, as a Court of Equity. Regarding the above [**20]  covenant as a part of the lease, and running with the real estate conveyed by it, and as succeeding to the rights and privileges of Harris under the covenant, Gelston, in 1843, proceeded to obtain a title to the reversion by tendering to the said Frazier and wife the sum stipulated in the covenant, and demanding a conveyance in fee for the land and premises in the lease. The tender having, for a consideration, been withdrawn, his relation as lessee continued to April, 1864, when he notified Mrs. Frazier that he would, on or before the first of May of that year, pay the said sum in extinguishment of the rent and demand again a deed in fee-simple for the leased premises. This being declined unless paid in gold or silver, and Gelston insisting upon paying in the legal tender notes of the United States, commonly known as "greenbacks," and having paid the rent to the 1st day of May, 1864, he, in 

 [*343]  May, 1865, filed his bill in the Circuit Court of Baltimore city, by which, having alleged more particularly the foregoing matter and other facts and circumstances connected with it, he prayed from the defendants (Musselman having been made, by decree of Court, trustee in the place of [**21]  Cabot) a specific performance of said covenant, and also an injunction in the meantime restraining the parties from proceeding to collect further rents by distress, or in any other manner.
The injunction was granted and issued, and after answers filed a motion to dissolve was entered. A commission to take proof was subsequently issued by agreement, executed and returned, and the cause set down for hearing, and heard on the motion to dissolve.
In the view entertained by this Court, of the nature of the covenant which the appellant asks to be specifically performed, it becomes unnecessary to pass upon the other points presented in the briefs of counsel and argued. That taken upon the constitutionality of the legal tender clause in the Act of Congress, approved February 25th, 1862, for issuing treasury notes, was waived in the argument in this Court. If urged, we would have been relieved from reviewing the opinion of the Court below upon it, as will be apparent from what we are about to say upon the main branch of the case.
Returning, then, to the covenant, it cannot escape the notice of the Court, that the trust created by the deed was for the sole and separate use, benefit and estate [**22]  of Mrs. Frazier during the joint lives of herself and husband. She was to hold, use, occupy and enjoy the property conveyed, or to receive the clear rents, issues, and income thereof, and apply the same to such uses as she might think proper; or otherwise, to sell and dispose of absolutely, forever, or for any less estate therein, the whole or any part of the property, for such price or consideration as she should deem 

 [*344]  fit, and the proceeds to invest in other property, or to apply and dispose of as she should elect and determine. But it is expressly provided, that in making such sale or disposition of any estate in said property, or any part of it, the consent and approbation of the trustee, or his heirs, should be had, and should be testified by his or their uniting in the due execution of any deed or deeds of conveyance with the said Mary Ann Frazier, and either with or without the concurrence of the husband; and, also, that the said ground and premises should be held, or the issues, income or proceeds invested, applied or disposed of, so that neither the one nor the other should, at any time during her natural life, be subject to the power, disposal or control of her [**23]  husband, or be in any manner liable or bound for or by his debts, contracts or engagements. It was further provided, that after the decease of either of them, any or so much of the trust estate as might remain undisposed of by her, by deed as aforesaid, should be in trust for the use and behoof of the survivor, his or her heirs and assigns, and then forthwith conveyed and released to him or her in fee, so that the trust created by the deed should be closed and ended; and for or upon no other use, trust, intent or purpose whatsoever was said trust created.
Though the property conveyed in trust was, prior to the deed, her own legal estate, of which she could not be divested, except in the mode prescribed by our legislative enactments, to pass the real estate of a feme covert, ( Cheney vs. Tipton, 3 Gill 327; Johns vs. Reardon, 11 Md. 465;) yet the conveyance of her husband of it in trust by the deed of June 23rd, 1831, constituted it her separate estate for her use during the joint lives of herself and husband, with power to use or alienate it in a particular way, and, so far as undisposed of, to go in fee to the husband after her death,  [**24]  if he survived her. In this case the deed is not silent as to the mode of alienation, and the mode 

 [*345]  specified is a negation of every other mode, and is "paramount law governing and controlling every contract in relation to it." This was pronounced the settled law in Maryland, in Cooke vs. Husbands, 11 Md. 492, 503, upon the authority of the cases there cited, and has of course been adhered to since. And in the case of Tiernan vs. Poor, 1 G. & J. 216, 229, this Court added, "that no decree could pass against a feme covert to carry into effect any contract she might make, unless such contract were within the limits of her jus disponendi;" a doctrine emphatically recognized and repeated in Miller vs. Williamson, 5 Md. 219, 234, 235. With such jealous care is the separate estate of a wife guarded and protected by a Court of Equity.
Applying this test to the contract or covenant entered into with Harris by Frazier and his wife, in relation to the fee-simple interest in the property, we find that the trustee is no party to it, and cannot be bound by it. It is an agreement by Mrs. Frazier, (with the concurrence [**25]  of her husband only,) to sell and dispose of the entire fee-simple estate in the property to the lessee, his heirs or assigns, at any time during the continuance of the lease, upon his or their paying or tendering payment of the stipulated price, but it lacks the consent and approbation of the trustee. This cannot be inferred from his silence, or knowledge or subsequent acts. The deed conferring the power of sale and disposition, requires it to be testified by his uniting with the wife in the due execution of the instrument. "Of any deed or deeds of conveyance," is the language of the trust; but this must necessarily be extended to all binding engagements that would result finally in a conveyance. For unless the trustee consent to the sale in the way specified in the deed, (in the absence of fraud,) a Court cannot treat him as a party to it and decree him to perform it, and his execution of the deed would be necessary to convey to the 

 [*346]  purchaser the fee which is legally in him. The agreement, therefore, is without an essential party to it,--the trustee.
The effect of the agreement, if good in other respects, would be to divest the wife of her separate control of the proceeds [**26]  of sale, by providing for the payment of the money to the husband and wife; thus changing the character of the trust and enabling the husband to participate in the receipt and control of the proceeds, if paid in their joint lives, thereby endangering the entire fund and leading to the destruction of the trust itself during her life. In this respect the agreement is repugnant to, and in violation of the trust which secured to the wife a separate estate, and which a Court of Equity must regard when called upon to enforce a contract made under it.
The deed of trust was not only recorded, but the lease itself which Harris took, and to which the covenant was annexed in the manner already stated, contained a full recital of the trust itself under which the lease was made and executed. So that the lessee and his assignee, Gelston, had full and entire knowledge of the nature and requirements of the trust.
The lease itself was made in pursuance of and conformity with the trust; but not the covenant which was appended to it. The very fact that it was annexed to the lease, as a separate and distinct agreement, in which the trustee forbore to unite, though cognizant of it, is a circumstance [**27]  to show his dissent from its provisions, (for he united in the lease itself,) and that these did not commend themselves as within the sphere of the trust, or as consistent with it.
We deem it unnecessary to go into the inquiry whether the covenant was one in gross or one running with the land. The view we have taken of the covenant itself, and of its want of essential requisites to be enforced in equity, is amply sufficient for this case.
The injunction in this case was ancillary, and the complainant's 

 [*347]  right to it depended upon the validity and sufficiency of the covenant, which we have thus pronounced fatally defective. The injunction was properly dissolved. The cause, however, is to be remanded for further proceedings, to be disposed of on final hearing, in conformity with this opinion. The appellees are entitled to their costs in this Court.
Order affirmed and cause remanded, with costs to the appellees. 

33 of 120 DOCUMENTS 

ELIZABETH DONALDSON and THOMAS DONALDSON, EX'crs of SAMUEL J. DONALDSON, Deceased, (Adm'r d. b. n. of CHRISTOPHER RABORG, Deceased,) vs. CATHARINE M. RABORG, Adm'x d. b. n. of CHRISTOPHER RABORG, Deceased; and CATHARINE M. RABORG, &c., vs. ELIZABETH DONALDSON, &c.--Cross-Appeals.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 312; 1867 Md. LEXIS 10 

January 30, 1867, Decided 

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

On the 5th of June, 1823, letters of administration de bonis non, upon the estate of Christopher Raborg, deceased, were granted by the Orphans' Court of Baltimore city to Samuel J. Donaldson, who assumed the trust, and continued to be such administrator down to the time of his own decease, in the year 1866. Shortly after Donaldson's death, administration de bonis non of Christopher Raborg's estate, was granted to Catharine M. Raborg, daughter of said Christopher.

By Donaldson's last administration account he stands charged with a balance of $ 4,228.76, due the estate. Catharine M. Raborg, upon succeeding to the administration, filed in the Orphans' Court on the 18th of June, 1866, a petition, claiming as administratrix de bonis non, payment from the executors of Donaldson of this undisposed of balance with compound interest thereon from April the 25th, 1867. In obedience to a citation issued on the said petition, the executors of Samuel J. Donaldson appeared on the 26th of July, 1866, and by way of response to the petition, put in, (under protest,) three pleas, viz:

1. That the bond given by the said Samuel J. Donaldson,  [**2]  as administrator de bonis non of the said Christopher Raborg, was made and approved the 5th of June, 1823, and that his last administration account, whereby it is shown he had in hand said sum of $ 4,228.76, was passed the 25th of April, 1837; and that beside said sum of money, the said Donaldson, at the time of his death, had no assets of his said intestate in his hands; "and so they say that the thing in action, in respect whereof the said petition was filed, was, at the time of filing said petition, of more than twelve years standing."

2. "That the cause of action of the petitioner, if it ever existed, is, and at the time of filing the petition was, barred by limitation and lapse of time."

3. That the said sum of money was money in the hands of the said Donaldson, as administrator, and as such, distributable and payable by him to the next of kin and personal representatives of his said intestate, and for which these respondents are not accountable to the petitioner.

The record shows that Samuel J. Donaldson, having been appointed administrator de bonis non, June 5th, 1823, passed his first account on the 24th day of July, 1834, and passed a second account (not final)  [**3]  on the 25th day of April, 1837, and since then never rendered any account.

During the period intervening between the 2d administration account and the death of Mr. Donaldson, numerous citations and attachments against him were issued and served, citing and requiring him to render another account. In all of them, the fact that he stood charged with the balance of $ 4,228.76, fully appeared.

In addition to these proceedings, it appears that on the 14th of October, 1859, Christopher R. McClellan, of Brooklyn, N. Y., filed a petition, alleging that, as a grandchild of the intestate, he was entitled to a distributive share of one-twelfth (being one-third of a fourth) of the said balance, with interest on such distributive share from April 25th, 1837. The answer of Samuel J. Donaldson, filed November 1st, 1859, objected to the jurisdiction of the Court, and prayed the benefit of the defence of limitations. It averred, also, that he had "paid or settled" the entire residue to or with Samuel McClellan, husband of a deceased daughter of the said Christopher Raborg, the said Samuel, as is averred, representing himself to be authorized by his own children and by all other representatives [**4]  of the intestate, to receive their respective proportions thereof, and promising to obtain the execution and delivery of formal releases, which said Donaldson prepared for the purpose. The said answer of Samuel J. Donaldson further stated, that, at the time of this transaction, the said Samuel McClellan "was largely indebted to him."

After a hearing, the Orphans' Court, upon consideration of the said petition of Catharine M. Raborg, the pleas of Samuel J. Donaldson's executors, and the evidence furnished in the proceedings, passed an order on the 26th of September, 1866, that the said executors be and were thereby directed to pay over to the said petitioner, as administratrix d. b. n., the said principal sum, without interest, amounting to $ 4,228.76, due by the estate of Samuel J. Donaldson to the estate of the said Christopher Raborg.

From the said order both parties appealed, and both appeals were before the Court upon the one record.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

ADMINISTRATION D. B. N., -- WHEN PROPER TO BE GRANTED: CODE, ART. 93, SEC. 72, CONSTRUED; LACHES AND LIMITATIONS; PRACTICE IN THE ORPHANS' COURT; CODE, ART. 93, SEC. 11. -- S. J. D., as adm'r d. b. n., of C. R., deceased, on the 25th of April, 1837, passed his second administration account, whereby a balance of $ 4,228.78 in money was shown to be remaining in his hands. S. J. D. died in December, 1865, without having passed any further account in the Orphans' Court, and letters testamentary on his estate were granted to E. D. & T. D. Shortly thereafter administration d. b. n. on the estate of C. R. was granted to C. M. R., daughter of said C. R., who, in June, 1866, filed a petition before the Orphans' Court of Baltimore city against the executors of S. J. D., asking payment of the above balance of money shown to be in his hands, with compound interest thereon from the time of the passing of the said second administration account. -- HELD:

1st. That under the circumstances of this case, administration d. b. n., on the estate of C. R., was properly granted.

2nd. That it being admitted that at the death of S. J. D., there remained in his hands, as administrator d. b. n. of C. R., unadministered, the sum of $ 4,228.76, by the settled law of Maryland, the amount so appearing to be due the estate of C. R., is subject to an order of the Orphans' Court to pay over the same to C. M. R., the administratrix d. b. n., in pursuance of Art. 93, sec. 72, of the Code.

3rd. That strictly, neither laches nor limitations can apply as a defence to the claims of the petitioner, C. M. R., her petition having been filed shortly after the letters of administration d. b. n. were granted, until which time her right of action had not accrued.

4th. That the possession of S. J. D. was that of a trustee for the benefit of the next of kin, and operated nothing as a bar, because his possession is according to his title.

5th. That a final account and distribution, made in accordance with law, was necessary in order to exonerate the administrator, S. J. D., or his personal representatives.

6th. That the bar of the Statute of Limitations goes only to the particular remedy to which it is applicable; it does not follow because no action can be maintained on the administration bond against the sureties by reason of the words of the statute, that the remedy given the administratrix d. b. n. ought not to be granted.

7th. That in a proceeding like the present, the Orphans' Court had no power to award interest on the money claimed; that their authority under the Code is simply to order the payment over of the money remaining in the hands of S. J. D., as administrator at the time of his death.

8th. That if the petitioner had instituted a preliminary proceeding under sec. 11, of Art. 93, of the Code, to compel the executors of S. J. D., to render a further account of his administration, or had inserted a prayer similar to that in Mickle vs. Campbell, 10 Md. Rep., 352, the question of the liability of S. J. D. for interest, would have arisen, and upon proper proof interest might have been made a subject of charge in such account, and upon the balance thus ascertained, including principal and interest, the order of the Court passed under the 72nd section, would operate.  

COUNSEL:
Thomas S. Alexander for Donaldson's executors in both appeals.

In support of the appeal taken by the executors of Donaldson, it is insisted:

1. That at the time of the death of Donaldson, in 1865, the claims [**5]  of the next of kin of his intestate was of twenty-eight years standing, and barred, therefore, as well by the Statute of Limitations as by lapse of time.

Being thus barred by limitations at the time of Donaldson's death, those claims could not be revived, nor a new claim created for their benefit by the grant of administration de bonis non.

At the time of Donaldson's death, the action of the next of kin on his administration bond, was barred by the Acts of 1715, ch. 23, and 1729, ch. 24.

Their remedy in equity was likewise barred by lapse of time. See Knight vs. Brawner, 14 Md. Rep., 7, to show that limitations is as available in equity as at law, in relation to the same subject. Johnson vs. Farmers Bank, 11 Md. Rep., 412, decides that limitations barring the action of the next of kin against the administrator, will equally bar a proceeding before the Orphans' Court by the administrator de bonis non against the executor of the first administrator.

2. Upon the showing of the petitioner herself, the money shown to be in the hands of Donaldson by his last account, was wasted by him in his lifetime, and for assets thus wasted, his executors are not accountable to the [**6]  administrator de bonis non. 1798, ch. 101, sub-ch. 14: Sec. 2. Goods converted into money by executor, do not pass to the administrator de bonis non.

That money in the hands of the executor, at the time of his death, is alone to be ordered to be paid over. Lemmon vs. Hall, 20 Md. Rep., 168. Gardiner vs. Semmes, 1 Gill, 428. Sibley vs. Williams, 3 G. & J., 52.

3. That the matter of the pleas was not traversed, nor was any demurrer filed thereto. If, then, the Court thought the matters pleaded were insufficient as a bar to the petitioners' right, the pleas ought to have been overruled, and liberty given to the executors to answer further, and more especially as they had averred their readiness to prove payment of the balance of the estate to the next of kin.

In support of the appeal taken by the petitioner from so much of the order as denies interest on the money in hand, it is insisted:

4. That the order directing payment of the principal sum assumes that said sum remained in the hands of the administrator in specie, and unproductive, and, therefore, no interest is chargeable thereon. Lemmon vs. Hall, 20 Md. Rep., 168.

Wm. Schley and A. W. Machen, for Catharine [**7]  M. Raborg, Adm'x d. b. n. of Christopher Raborg, on both appeals.

The application made by the petition on which the order in question was passed, is founded on the Act, 1820, ch. 174, sec. 3, and Code, Art. 93, secs. 72 and 73. On behalf of the administratrix de bonis non, we submit:

I. That the defence of limitations, which has been set up, cannot avail. This is a claim made immediately after the decease of an administrator, by the administratrix de bonis non, for money belonging to the estate of the intestate, which is acknowledged to have come into the hands of the former administrator, as administrator, and remained in his hands down to the time of his death.

1. No statute can be found purporting to bar such a demand; and it would be strange if any such statute should exist, inasmuch as the right only accrued the other day, when the former administrator died and letters of administion de bonis non were granted to Miss Raborg, his successor. There can be neither laches nor limitation of action by lapse of time for any period, whether longer or shorter, prescribed by Act of Assembly or not, when the right in question is pursued immediately upon its coming into being.  [**8]  The cause of action here had no existence until there was an administrator de bonis non. "Laches cannot be imputed where there is no one to sue, and the cause of action accrues only from the time there is a competent person to bring it." Haslett's Adm'r vs. Glenn, 7 H. & J., 24. Fishwick's Adm'r vs. Sewell, 4 H. & J., 428. Wilson, Adm'r of Owens, vs. Smith, 10 Md. Rep., 67, where 35 years had intervened between the death of the intestate and the grant of letters, with adversary possession during the interim. Faulkner vs. Daniel, 3 Hare, 212. Mickle vs. Cross, 10 Md. Rep., 352.

2. The defence of limitations is strictissimi juris, never favored, never enlarged by construction, and never introduced where its presence is not provided for by law. Least of all is it to be favored when attempted to be set up to prevent the execution of a trust, and more especially a trust of the sacred nature of that reposed in an executor or administrator.

The case falls immediately under Lord REDESDALE'S rule, that where the only circumstance is that the trustee does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title. Hovenden vs.  [**9]  Lord Annesley, 2 Sch. & Lef., 633. And, see, Wedderburn vs. Wedderburn, 4 M. & Cr., 52, 53. Ravenscroft vs. Frisby, 1 Collyer, 16, (where an account was directed after 40 years.) Breckinbridge vs. Floyd, 7 Dana Ky., 461-3. Decouche vs. Savetier, 3 Johns. Ch., 215-17. See Knight vs. Brawner, 14 Md. Rep., 1 and 7, which was a bill in equity, by a legatee against the sureties, whose liability had no foundation but the bond. Sto. Eq. Jurisp., sec. 1521.

3. The administratrix d. b. n., representing as she does everybody who is capable of having any sort of claim against or right in the estate of the deceased, stands upon a peculiar ground. But even if it could be admitted that she can be identified with the persons entitled to take by distribution, it is abundantly clear that the defences set up by Samuel J. Donaldson's representatives are inadmissible.

In the absence of a distribution made under the order of the Orphans' Court in the course of proceedings prescribed by the Act of 1798, ch. 101, sub ch. 11, sec. 16, and sub-ch. 14, sec. 12, nothing short of an actual distribution, proved to have been properly made, can exonerate the administrator or his personal representatives.  [**10]  

An ex parte distribution claimed to have been made by the administrator in private, cannot, at the utmost, be more conclusive than a distribution made ex-parte with the sanction of the Orphans' Court; and such a distribution was rejected and held to afford no protection to the executor upon a bill in equity filed after the lapse of sixteen years from one of the distributions in question, and twenty-eight years from the date of the other. Conner vs. Ogle, 4 Md. Ch. Dec., 425, affirmed in the Court of Appeals, Ib., 455; reaffirmed in Lowe vs. Lowe, 6 Md. Rep., 354, and Scott vs. Fox, 14 Md. Rep., 396. See also Hanson vs. Worthington, 12 Md. Rep., 48.

4. We are in the Orphans' Court, the forum, too, peculiarly intended for the administration of the estates of decedents, and there is no obligation to resort elsewhere for relief, whatever right there may be to do so. And until a final account as to debts has been stated, the Orphans' Court have no power to order distribution.

There never was a final account as to debts stated by Mr. Donaldson, consequently no cause of action accrued to the persons who might be entitled to distribution, to demand their shares of him in the [**11]  Orphans' Court. They might have compelled an accounting from time to time, which would have shown whether or not the debts were all paid, and so the administrator might of his own accord have stated accounts--it was wrong that he did not state them--which would have given the information; but unless it had appeared by an account stated pursuant to 1798, ch. 101, sub-ch. 10, sec. 6, that all claims known by, or notified to, the administrator had been discharged or retained for, neither the obligation to pay, nor the correlative right to demand payment, could ever arise. Lowe vs. Lowe, 6 Md. Rep., 354, 356.

It is true, that the 14th section of the 8th sub-chapter of the Act of 1798, ch. 101, as it was construed in Coward vs. Worrell, 7 G. & J., 475, authorises the administrator's bond to be put in suit after thirteen months from the date of his letters; but this only goes to show that that remedy in the Common Law Court, against the sureties and principal jointly, may be pursued sooner than the remedy in the Orphans' Court. The bar of limitations goes to the particular remedy to which it is applicable, in no manner affecting the right itself, or any other remedy which the law may [**12]  furnish for its enforcement. Farmers Bank vs. Iglehart, 6 Gill, 58, and Spears vs. Hartley, 3 Esp., 81, per Lord ELDON, C. J., there cited. Brent vs. Bank of Washington, 10 Pet., 617.

There may also be distinct and successive breaches. The bond may be forfeited by neglect to render an account, and it may also be forfeited by non-performance by the administrator of the duties which the account subsequently stated shall give rise to.

But if there be any incongruity in the cases, the two later decisions in the Court of Appeals, of Conner vs. Ogle, 4 Md. Ch. Dec., 451, and Lowe vs. Lowe, 6 Md. Rep., 347, must be considered as having overruled the earlier case of Coward vs. Worrell. Fox vs. Scott, 14 Md. Rep.

5. This is a claim against the very money, assets remaining specifically in the hands of the administrator; that is the effect of the office of administrator and the express enactment of the statute; and it is not an action to recover a debt from Mr. Donaldson, or his representatives. No lapse of time can bar a proceeding against the thing, Mr. Donaldson's possession having been fiduciary and lawful, and not adverse. Smith vs. Smith, 7 Md. Rep., 55.

There was no [**13]  other legal character in which he could hold the money. He was not legatee, as in Gardner vs. Simmes, 1 Gill, 428. He never pretended to be a creditor of Christopher Raborg, and however strong his desire to make the estate pay what Samuel McClellan owed him, the law did not authorize its gratification. He had no choice but to hold the money as administrator so long as he continued to hold it at all.

Finally, the inference from the admissions contained in his answer to Christopher R. McClellan's petition, in 1859, is irresistible, that no money was in fact ever paid out by Mr. Donaldson to anybody, and that he simply found it convenient to treat the property of the estate in his hands, as a compensation for a private debt which he may have supposed was of itself desperate. The merits even of that "settlement," as between himself and his alleged debtor, he never saw fit to disclose. It is sufficient, however, to say, that upon his own showing, he had no good defence as against the right of the next of kin,--certainly none that could avail were it established by proof against the claim of the administratrix de bonis non.

If any presumption of distribution and payment could be [**14]  entertained in favor of Mr. Donaldson upon the other facts, it would be conclusively rebutted by the proceedings shown by the record. His submitting to repeated citations and attachments, commencing as far back as 1846, and continued down to within a short period of his death, without rendering and proving any account to discharge himself of the balance for which he was thus continually called to account, was the clearest admission possible of the unsettled state of his administration.

6. In short, the right in question is a statutory right, created by the Act of 1798, and its supplement, the Act of 1820; it was in embryo during the life of the administrator, and when letters were granted to his successor, came then first into being. No act of limitation furnishes matter for a plea to be pleaded against it. The Court also is statutory, like the right of action, and there is no room, as in a Court of Equity, to raise up matter of limitation by analogy. Johnson's Adm'r vs. Farmers Bank of Maryland, 11 Md. Rep., 412, not only establishes the exclusive jurisdiction of the Orphans' Court, but indicates quite clearly that no defence is admissible in that Court which does not go to the [**15]  merits.

II. The third plea raises the objection that money in the hands of the administrator cannot, like unconverted assets, be subject to the claim of the administrator de bonis non, but is only demandable by the persons entitled to share in the distribution. This proposition is contrary to the plain provision of the Act of 1820, ch. 174, sec. 3, (Code, Art. 93, sec. 72,) and is conclusively answered by repeated decisions. Lemmon vs. Hall, 20 Md. Rep., 168. DeValengin vs. Duffy, 14 Pet., 291, 292. Alexander vs. Stewart, 8 G. & J., 226.

III. The estate of Samuel J. Donaldson, under the circumstances of this case, is clearly chargeable with interest on the balance of $ 4,228.76, and the Orphans' Court having refused to allow interest under the influence, as is supposed, of a mistaken idea, that as interest is not expressly mentioned in the statute, they had no power to direct payment of it, there is error in their order in this respect. Hence our appeal.

The administrator is chargeable with interest upon the balance in his hands from the time he should have settled the estate, or if he received it after that time, from six months after he received it,--his duty being [**16]  to account within that period. Conner vs. Ogle, 4 Md. Ch. Dec., 425, 454. Thomas, Adm'r of Bradlee, vs. Frederick County School, 9 G. & J., 115, 119, 120. Chase vs. Lockerman, 11 G. & J., 185.

The cases above cited were in equity. In Gwynn vs. Dorsey, 4 G. & J., 453, an appeal from the Orphans' Court, it was held that the Orphans' Court has power to make an administrator account for interest, and ought to charge him with interest from the time he applied it to his own use, if he did so apply it, or if he has not made use of it, but retained it by him, from the time he should have distributed it, unless it appear that his retention of it was for a good reason.

Mickle vs. Cross, 10 Md. Rep., 352, which was a case like this, between the administrator de bonis non and the executor of the prior administrator, is also an authority for the doctrine that the estate of the deceased administrator may be held chargeable with interest, and upon any such state of facts as this case exhibits, ought to be so charged. See also Valentine's Executor vs. Strong, 20 Md. Rep., 527. Act 1798, ch. 101, sub-ch. 10, sec. 9. Breckinridge vs. Floyd, 7 Dana, 463.

IV. The order of the Orphans' Court [**17]  seems to be defective in not specifying a day on or before which the payment shall be made, and in this particular, as well as in respect to the non-allowance of interest, it is prayed that this Court will order the proper amendments, in manner provided by the Code, Art. 5, sec. 42.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*324]  BARTOL, J., delivered the opinion of this Court.
Without repeating the facts in this case, about which there is no dispute between the parties, we proceed at once to decide the questions of law presented by the record.
The proceeding was instituted under the 72nd section of the 93rd Article of the Code, which contains the same provisions as the Act of 1820, ch. 174, sec. 3, and must receive the same construction as has been given to the Act of 1820.
To the petition filed in the Orphans' Court, Donaldson's executors, the defendants below, pleaded three pleas, upon which the questions argued before us have arisen.
Departing from the order adopted by the counsel in the argument, the defence under the third plea will first be considered. This plea denies the right of the petitioner to maintain the suit,  [**18]  upon the ground that the defendants are responsible only to the next of kin or distributees of Christopher Raborg, deceased; that no administration de bonis non was necessary, and that the case made by the pleadings 

 [*325]  is not one within the 72nd section of Art. 93 of the Code, in which the petitioner is entitled to the remedy there provided.
In Alexander vs. Stewart, et al., 8 G. & J. 226, the Court of Appeals decided that "the Orphans' Courts have exclusive cognizance in the appointment of administrators de bonis non, and where an executor had not completed his trust, by the payment of all legacies, and the delivery over of property in his hands to the persons entitled, the exercise of the power of appointment was rightful." In that case there were assets of the testator existing in specie unadministered, and the appointment of an administrator de bonis non, was declared to be indispensably necessary to give title to the distributees, who could derive title through no other channel. So in Scott vs. Fox, 14 Md. 388, it was held, that letters of administration ought to be granted in case no final distribution has been made [**19]  under the order of the Orphans' Court. The principle decided by those cases seems to establish the propriety of the appointment of an administratrix de bonis non in this case.
Muncaster vs. Muncaster, decided at the April term, 1865, is not in conflict with the cases above cited. That was an application to the Orphans' Court by heirs-at-law or next of kin of a decedent, to compel the executor of an administrator to pass an account of his testator's administration, in conformity with the 11th section of Art. 93 of the Code; no administration de bonis non had been granted; and this Court decided that the Orphans' Court had jurisdiction to enforce the performance of the duty prescribed by the Code, and that the petitioner being a party in interest had a standing in Court to maintain the suit.
The question whether an administration de bonis non might not become necessary in order finally to settle the estate and make distribution, was not raised or decided.

 [*326]  Here the assets of Christopher Raborg, deceased, were received by Samuel Donaldson, the administrator d. b. n. in money; by his last administration account, passed on the 25th day of April, 1837, there [**20]  remained in his hands belonging to the estate the sum of $ 4,228.76, which the petition alleges and plea admits, remained in his hands at the time of his death. The question is whether money so retained may be recovered by the administratrix d. b. n. by a proceeding under the 72d section of the 93rd Article of the Code. This question, we think, has been conclusively settled by the case of Lemmon vs. Hall, 20 Md. 168, in which the construction of the Act of 1820, was established in accordance with the ruling of the Supreme Court in De Valengin's Adm'r vs. Duffy, 14 Peters 291, and of the Court of Appeals in Gardner & Hughes' Ex'crs vs. Simmes, 1 Gill 425. See, also, Sibly vs. Williams, 3 G. & J. 52, 63.
It is now settled in Maryland, that money remaining in the hands of an executor or administrator, in that character, at the time of his death, is subject to an order to pay over to the administrator d. b. n. Here the petition does not allege that Mr. Donaldson wasted the money, but that he retained it in his hands unwasted, without necessity, that he blended it with his own private property,  [**21]  and made use of it for his own profit.
There is nothing in the plea to show that the money had been wasted or lost, or that it did not remain in his hands as administrator at the time of his death. We are, therefore, of opinion that the third plea is not a good defence to the action.
The first and second pleas rely on the lapse of time, and the Statute of Limitations in bar of the claim.
Strictly, neither laches nor limitations can apply to the petitioner, inasmuch as Mr. Donaldson died in December, 1865, and this petition was filed in June, 1866, soon after 

 [*327]  letters of administration de bonis non were granted to the adm'x. Until then her right of action had not accrued. Haslett's Adm'r d. b. n. vs. Glenn, 7 H. & J. 17, 24. Fishwick's Adm'r vs. Sewell, 4 H. & J. 393, 428. Owens' Adm'r vs. Smith, 10 Md. 67.
The possession of Mr. Donaldson was that of a trustee for the benefit of the next of kin. It has been correctly said that "when a trustee does not perform his trust his possession operates nothing as a bar, because his possession is according to his title." Hovenden vs. Ld. Annesley, 2 Sch. & Lef. 633. [**22]  
No final account was passed by Mr. Donaldson, nor any distribution made in accordance with law, which was necessary in order to exonerate the administrator or his personal representatives. See Conner vs. Ogle, 4 Md. Ch. De.c, 425, 455. Lowe vs. Lowe, 6 Md. 347, 354. Scott vs. Fox, 14 Md. 388, 396. Hanson vs. Worthington, 12 Md. 418.
It has been argued that inasmuch as the right of action upon the administration bond was barred by lapse of time, the relief sought by the petition ought to be denied. But it is settled that the bar of the Statute goes only to the particular remedy to which it is applicable. See Brent vs. Bank of Washington, 10 Peters 617. Farmers' Bank vs. Iglehart, 6 Gill 50.
It does not follow that because no action can be maintained on the administration bond against the sureties, by reason of the words of the Statute of Limitations, that the remedy given to the administratrix de bonis non under the Code, ought not to be granted. A case might arise in which laches and great lapse of time would defeat this remedy as was said in the case [**23]  of Johnson vs. The Farmers Bank, 11 Md. 412. But in the opinion of this Court such a defence cannot prevail in the present case, and, therefore, the first and second pleas were also properly overruled.

 [*328]  Upon the appeal of the administratrix de bonis non, this Court is of opinion that in the present aspect of the case, the Orphans' Court had no power to award interest upon the money claimed. Their authority under the Code is simply to order the payment over of the money remaining in Mr. Donaldson's hands, as administrator. See Lemmon vs. Hall, 20 Md. 168. There is no provision for enforcing the payment of interest in a proceeding like the the present.
If the petitioner had instituted a preliminary proceeding under sec. 11, Art. 93 of the Code, to compel the executors of Mr. Donaldson to render a further account of his administration, or had inserted such a prayer in the present petition, as was done in the case of Mickle vs. Cross, 10 Md. 352, the question of his liability for interest would have arisen, and upon proper proof, interest might have been made a subject of charge in such account; and upon the [**24]  balance thus ascertained, including principal and interest, the order of the Court passed under the 72nd section would operate.
No such preliminary proceeding has been taken in this case, and in the petition there is no prayer for a further account; there was, therefore, no error in refusing to award the payment of interest upon the money claimed.
The order appealed from will be affirmed with costs to the administratrix de bonis non.
Order affirmed. 

34 of 120 DOCUMENTS 

SAMUEL D. BRADY vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 290; 1867 Md. LEXIS 9 

January 24, 1867, Decided 

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

The bill in this case was exhibited by the complainant, (at the instance of the Comptroller and of the Board of Public Works,) in its sovereign capacity as a State, against the Chesapeake and Ohio Canal Company, a corporation created by the State, and to which it had imparted a portion of its right of eminent domain, and, also, in its capacity as a creditor of said company, holding liens on its property and net revenues, and against an attaching creditor of said company; and the object of the bill was to enjoin said attaching creditor, &c.

No question is made in the bill as to the validity of the judgment on which the attachment was founded. But the complainant insists, that the aggregate of the sums attached did not constitute a greater sum than prudent men, charged with the management of the affairs of said company, and exercising reasonable, provident and proper foresight in the management of the canal, as a public work, ought to have reserved to meet the necessary current and probable contingent expenses of said company; and that the company was without any other available means at its disposal to meet [**2]  necessary current and probable contingent expenses; and the bill further insists, that the specific articles attached are necessary articles to be owned and possessed, and employed by said company in the proper working and management of said canal; and that if the same should be withdrawn from the possession and use of said company, it would be necessary to supply their places by other like articles or their equivalents.

The bill then shows the various acts whereby said company was incorporated, its franchises conferred, and its duties to the public imposed. It also shows the several claims of the State, as an ordinary stockholder, as a preferred stockholder, and as a creditor of said company, and which are fully set forth in the bill.

The bill relies on the stipulation in the covenant and obligation of said company, given in accordance with the requirements of the Act of 1834, chapter 241; and, also, upon the mortgage given by the company to the State, pursuant to the Act of 1844, chapter 281; and the complainant alleges that nothing whatever has been paid to the State on account of its claims.

The complainant therefore prayed for an injunction, as already stated.

The [**3]  answer of Samuel D. Brady, the plaintiff in the attachment, admits the laying of the attachment by his direction; admits that the sums attached represent, in part, the income and earnings of the canal; and denies that the canal is in need of said sums to meet current and probable contingent expenses. The answer also admits the indebtedness of said company to the State to the extent of $ 2,000,000, under the Act of 1834, chapter 241, and insists that this is the only claim as to which the State occupies the position of a creditor. The answer insists, that the money so loaned, as well as the proceeds of the subscription of $ 3,000,000, under the Act of 1835, as, also, the proceeds of the subscription of $ 1,375,000, under the Act of 1838, were exhausted in the prosecution of the work to Harper's Ferry, and thence to dam No. 6; and that afterwards, in December, 1839, the Canal Company issued scrip to the amount of $ 810,525.58, of which part was protected by sterling bonds; but $ 433,406.29, was without any protection whatever; and that the Legislature having declined to make any further appropriation, the work was suspended on the 16th of March, 1841; that subsequently, by the Act of [**4]  1844, chap. 281, the State agreed to waive its lien to the extent of $ 1,700,000, in favor of capitalists who should advance money to the Canal Company, on the credit alone of said company; that said capitalists paid only forty per cent. for said bonds; and the answer insists, that by such waiver, the State retired and gave her place to strangers; and that she cannot now claim priority over other creditors of said company, next after the bondholders, in whose behalf the waiver was made. The said answer also denies, that the said defendant had any notice, by way of mortgage, or otherwise, of the claim of the State; and insists that said mortgage was, and is, wholly void, because not recorded within twenty days from its date, the property being, at the date of said mortgage, in the actual possession of said company. The answer further states, that some of the land of said company is not required for use, nor used by said company, and insists, that the attaching creditor is entitled to sell all the right and interest therein of the said company; and that he was about to issue execution on his judgment to be levied on such land, when he was prevented by the filing of said bill.

The [**5]  answer of the Canal Company, in effect, admits all the averments of the bill; and avers that the monies attached were absolutely necessary to keep the canal in repair; and insists that the claims of the appellant were not, in any way, protected by any legislation, and were not claims which the company could validly pay; and, also, insists, that the specific articles attached were absolutely essential and necessary to keep the canal in proper repair. Accompanying the answer, a duly certified copy of a mortgage from the Canal Company to the State was filed, dated 15th of May, 1839, and recorded 21st of June, 1839; and, also, a copy of the report of the president of the company, for the year 1865.

It is not necessary to notice the answers of the garnishees, as no question arises on these answers.

By an agreement, the absence of an affidavit to the bill, in support of the averments thereof, was waived; and the motion for an injunction (not having been acted on, ex parte, as the counsel for the attaching creditor desired to be heard,) was superseded by said agreement. The case, when heard, was heard on final hearing, on bill, answers and general replication; and a decree, pro [**6]  forma, was entered by agreement, awarding a perpetual injunction, and from which decree the present appeal was taken.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

THE CHESAPEAKE AND OHIO CANAL A PRIVATE CORPORATION. -- The Chesapeake and Ohio Canal, though chartered for great public purposes, and exercising by grant a portion of the State's right of eminent domain to take private property for the use of its work, upon just compensation to the owner, is nevertheless a private corporation.

STATE SOVEREIGNTY, -- ITS EFFECT WHERE THE STATE IS A SUITOR. -- The fact that the State itself is a shareholder, or a large shareholder, in the capital stock of the company, does not impart to the company any of its sovereignty as such, nor can the State, by virtue of its sovereignty, claim any other or higher rights as a suitor than those of an ordinary stockholder, except so far as it may have rights and interests over other stockholders secured to it by law, and engagements with the company or its other stockholders in pursuance of law.

LIBERAL RULES OF INTERPRETATION TO BE APPLIED FOR THE BENEFIT OF THE STATE. -- In view of the nature, objects and powers of this corporation, liberal rules of interpretation for its benefit ought to be adopted in expounding its privileges and rights for effectuating the designs of the Legislature, and securing the rights of the State in a work of such magnitude and involving such vast public interests.

LIENS AND PRIORITIES OF THE STATE: ASSIGNEE, -- RIGHTS OF STATE AS: MORTGAGE, MORTGAGOR, MORTGAGEE: IMPLIED AGREEMENT; REGISTRATION: NOTICE: ATTACHMENT: INJUNCTION. -- Under the Acts of 1834, ch. 241, and 1844, ch. 281, and the covenants and mortgages executed in pursuance thereof, the State became a creditor of the company for more than seven millions of dollars, principal and interest, and as security for its repayment pledged the whole of the net revenues of the company, as also all its other property and the rents and avails thereof; which pledge is still subsisting. The mortgage given in pursuance of the Act of 1844, ch. 281, bearing date the 8th of January, 1846, was acknowledged in Maryland on the 19th of January, 1846, and recorded in Allegany county on the 5th of May, 1848. A judgment in favor of S. D. B., against the company, was rendered on the 25th of October, 1844, revived by sci. fa. in October, 1855, and again on the 3rd of October, 1864. On the last fiat a writ of attachment by way of execution was issued, returnable in October, 1865. A bill for an injunction was filed in behalf of the State and a pro forma decree passed perpetually enjoining S. D. B. from further proceedings under the attachment. On appeal -- HELD:

1st. That it is very clear from the language of the Act of 1844, and the mortgage made in pursuance of it, that the State waived its priority only in favor of the liens created and authorized by that Act. In all other respects, and against all other creditors, the State expressly reserved its rights and priorities.

2nd. That by the Acts of 1834, ch. 241, and 1844, ch. 281, all the net tolls and revenues of the Canal Company were assigned by way of security to the State, and as any other assignee, the State would have the right to interpose its claim against any subsequent attachment.

3rd. That the right of the State to see to the proper application of all the tolls and revenues of the company, to the legitimate objects had in view by said Acts of Assembly, and prevent their waste or diversion to any other purpose whatever, is not to be interfered with by the application of the technical rules which govern the relation of mortgagor and mortgagee.

4th. That the State, although a mortgagee not in possession of the canal and other property of the company, cannot be debarred from the application of the tolls and revenues of the company, to the objects of the said Act of Assembly, and cannot be brought within the principle of an implied agreement between the mortgagor and mortgagee, that the mortgagor shall take the rents and profits to his own use until dispossessed by the mortgagee.

5th. That the credits attached passed to the rightful ownership of the State as an ordinary assignment, to which recording was not necessary; it is not necessary, as the law now stands in Maryland, that an assignee of claims or moneys shall give notice by registration or otherwise, in order to shield his claim from an attaching creditor.

6th. That the said Acts of Assembly are public Acts, of which the Courts take notice, and they are notice to the public of what they contain, and are sufficient to put any party dealing with the company upon inquiry.  

COUNSEL:
Thomas Perry and Wm. Price for the appellant.

1. The State cannot, as a stockholder, step in and take priority over a creditor of the company. The Act of 1835, ch. 395, sec. 4, guarantees dividends out of the profits of the work; and the Act of 1838, ch. 396, sec. 4, contains a similar guaranty. Those Acts do not require a lien for the dividends due the State. They are mere stipulations among the stockholders inter sese, that the State shall have this priority as to dividends; this is made manifest by the fact that in making the subscription by the Act of 1835, the State exacted a lien on the amount subscribed for three years, and the dividends out of the profits are guaranteed after the expiration of that period. The arrangement will be understood by reference to the 4th and 7th sections of the Act of 1835, chap. 395. There are no direct authorities upon this point, as it seems that no person has ever insisted that a stockholder could stand before a creditor. See Ang. & Ames on Corps., secs. 85, 598, 600, 602. Gilbert vs. Moody, 3 Comst.  [**7]  Rep., 479. Canan vs. Arkansas, 15 How., 304. Wood vs. Demman, 3 Mason C. C. Rep., 308.

2. A State by becoming interested in a private corporation, or even by owning all the capital stock, does not impart to such corporation any of its prerogatives as a State. It lays down its sovereignty, and exercises no powers not derived from the charter. The State has the same rights as an individual stockholder, neither more nor less. Canan vs. Arkansas, 13 How., 309. Bank of the U. States vs. The Planters Bank, 9 Wheat., 904. Darrington vs. The Bank of Alabama, 13 How., 17. Ang. & Ames on Corps., secs. 30, 31, 32.

3. A mortgagor in possession is entitled to take and use the rents, issues and profits, without accountability to the mortgagee. If the mortgagee desires to subject the rents and profits towards the satisfaction of his mortgage debt, he must foreclose or otherwise obtain possession. Ford vs. Philpot, 5 H. & J., 314. Weldon vs. Houghton, 1 Pick., 87. Carns vs. McClary, 5 N. H., 529. 2 Eden on Injunction, 3rd Edition, 205, 206, (top,) notes 1, 2, 3. 3 Pow. on Mortg., 946. Canan vs. Arkansas, 15 How., 307, 309. 3 Pow. on Mortg., 1083, marg. Myers vs. White, 1 Rawle, 355. Chase [**8]  vs. Palmer, 25 Maine, 341. Davenport vs. Bartlett, 9 Alabama, 179. Ang. & Ames on Corps., secs. 30, 31, 32.

4. It makes no difference that the revenues of the canal are included in the mortgage. They are not more included than the property of the canal and the canal itself. For until the mortgagee enters or otherwise obtains possession, he cannot alter the revenues or the property itself. Nor can he hold the mortgagor to account for the revenues before his entry. The principle being that there is an implied agreement that the mortgagor shall take the rents and profits to his own use without accountability, until he shall be dispossessed by the mortgagees. Welden vs. Houghton, 1 Pick., 87. Carns vs. McClary, 5 N. H., 529. Fisher on Mortgages, 333. 3 Pow. on Mortgages, 6 Eng. Edition, 946. The mortgage is not regarded as an alienation, but as a collateral security for the debt until the entry of the mortgagee. Ibid.

5. It was not competent for the State to waive her liens as she did by the Act of 1844, ch. 281, sec. 4, in favor of a stranger, and then step in next to that stranger and hold the lien next to his. And this was her own view of her rights, for she took a new mortgage [**9]  after her waiver, which is dated 8th of January, 1846. Sam'l D. Brady's judgment was recovered on the 24th of October, 1844, and was a lien upon the property of the canal before the Act of 1844 was passed.

6. The mortgage of the 8th of January, 1846, is that upon which the State in her bill relies. It was not recorded for more than two years after its date, viz: on the 5th of May, 1848. But the law of Maryland existing at the time of this mortgage, required all mortgages of real property to be recorded within six months, and all mortgages of personal estate to be recorded within twenty days. And as the State stands in this case precisely as an individual, this mortgage of hers cannot interfere with the rights of creditors of the Canal Company. Cockey vs. Miller's Lessee, 16 Md. Rep., 201. Price & Bevans vs. McDonald, 1 Md. Rep., 405.

7. There is no averment nor intimation in the bill, that the Canal Company has committed any fraud, or has been guilty of any misappropriation of its revenues; nor even an intimation that the complainant is in danger of losing its security; there is no prayer for the appointment of a receiver. The bill contemplates no change in the possession,  [**10]  but leaves the company in the undisturbed control and possession of its work. The bill does not ask a foreclosure, nor any proceeding of the kind. It is submitted, therefore, that the bill discloses no equity which would entitle it to the interference of this Court. Her sovereignty in this case is out of the question; she has the same rights as an individual, and no greater.

A. Randall, Att'y Gen., and Wm. Schley for the State.

It may be proper to refer to the case of Boyd vs. Chesapeake and Ohio Canal Company, 17 Md. Rep., 195. In that case, the company sought to shield its property from execution by interposing the liens of the State. This Court, page 211, said, that whatever protection the State might be entitled to claim, as mortgagee, could only be asserted by itself. It does not affect any of the questions which arise on this appeal.

In support of the decree, the counsel for the appellee will maintain, in argument, the following points:

1. Independently of its rights as a creditor, holding an express lien on the property and net revenues of the company, the State, in its sovereign capacity, is entitled to maintain this suit. The company, by its incorporation,  [**11]  became an agent of the State, for the contruction and maintenance of the canal. In the Act of incorporation, (1824, chap. 79, sec. 4,) it is made an express duty of the company "to repair and keep in order the canal, locks and other works necessary thereto." It is clear, that the Canal Company would be enjoined, if it was about to disable itself, by parting, voluntarily, with its earnings, necessary to keep in repair the canal locks, &c.; and public interest and convenience requires that others should be restrained from depriving the company of means necessary to maintain the public works.

In all such cases, the State has the power of visitation. Angell & Ames on Corporations, chapter 19, folio 610; and in Maryland, by the 7th Article, secs. 1 and 2 of the existing Constitution, the State acts, in such cases, through the Board of Public Works. Flower vs. Lewis, 4 Milne & Craig, 254. Storm vs. G. M. Rail Road, 2 Younge & Collyer, 48. Binney's Case, 2 Bland., 99. Bosley vs. The Sus. Co., 3 Bland., 63. Parsons vs. Hughes, 12 Md. Rep., 1. State vs. Nor. Cent. R. R. Co., 18 Md. Rep., 213. East R. R. Co. vs. Eastern R. R. Co., 7 Eng. L. & E. Rep., 505. Severn R. R. Co. vs. The King,  [**12]  2 Barn. & Ald., 646. 16 N. Y. Rep., 163, (note at 159.) Angell & Ames on Corp., secs. 684, 695 and 695.

2. But the State, as a creditor, holding an express lien on the property and revenues of the canal, is clearly entitled to intervene. The company is charged to be insolvent, and irreparable damage will result to the canal if money, necessary for the repair of the canal, is permitted to be diverted from the use to which it is dedicated. It is not just language to say, that the money attached is the proper money of the company. It is money held in trust by the company, for the express purpose of keeping the work in proper repair. Act of 1824, chap. 79, secs. 8 and 9. Act of 1844, chap. 281, proviso to sec. 2. Sus. Bank & Bridge Co. vs. Genl. Ins. Co., 3 Md. Rep., 311. Mayor & C. C. of Balto. vs. Balto. & O. R. R. Co., 6 Gill, 296. Hamilton vs. Robinson, 8 Md. Rep., 301. Hudson vs. Warren, 2 G. & J., 415. Preston vs. Leighton, 6 Md. Rep., 88. Hannon vs. State, use of Robey, 9 Gill, 440. Act of 1824, ch. 79, secs. 3 and 11. Hampton vs. Edelen, 2 H. & J., 66. Williams vs. Banks, 11 Md. Rep., 198. Duncan vs. Manchester, &c., 8 Price, 509. Ireton vs. Philpott, 12 Price, 197. Fletcher [**13]  vs. Morny, 2 Story Rep., 555. Mitchell vs. Winslow, 2 Id., 630. 6 Am. Law Reg., 493.

3. The averment, in the answer of the appellant, that the moneys attached are not needed for repairs, is not sustained by proof. It is in conflict with the answer of the company, and is disproved by the various reports, which show that the expenses for ordinary repairs are always heavy, and the extraordinary repairs by no means few or far between. These reports, by agreement, are in evidence.

4. But, even if it were in proof, that the moneys attached were not necessary to be retained for necessary current and probable contingent expenses, still, under the Act of 1844, even if considered as surplus revenue, it ought to be applied in manner as therein provided. The State has a direct interest, that the bonds issued under said Act, and in favor of which the State waived its lien, should be extinguished as early as practicable. Any diversion of surplus capital to the payment of unpreferred debts, is a wrong to the State.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*299]  WEISEL, J., delivered the opinion of this Court.  [**14]  
The motion for a preliminary injunction in this case was postponed by an agreement of the solicitors, to be called up at a future day. Answers having been filed, it was afterwards agreed that the cause should be submitted upon final hearing, and that upon such hearing a decree pro forma should be entered denying the right of the appellant to enforce his judgment, and that a perpetual injunction should be granted, from which said Brady was to appeal. The injunction was accordingly entered on the 13th of February, 1866, from which this appeal has been taken. 

 [*300]  It was therefore granted and perpetuated on bill, answers and exhibits.
The bill took a broader scope than the controversy with the appellant, touching his right to attach the chattels and moneys mentioned in the proceedings to satisfy his judgment. It embraces and enumerates the several relations of the State of Maryland to the Chesapeake and Ohio Canal Company, as stockholder and creditor, and re-asserts the claims of the State to the property, works and revenues of that company under the several Acts of Assembly which, from time to time, during the progress of its work, authorized aid to be afforded to it by [**15]  subscriptions to its capital stock and by loans, and under the several promises, agreements and conveyances which those Acts of Assembly contemplated and provided for, and which were made, entered into and executed by the company. In view of these relations, and the heavy indebtedness to the State secured by these engagements and conveyances, the State, through its Board of Public Works, charged with its interests in this respect, claimed the protection of the Court and asked that the president and directors of the Canal Company should be strictly enjoined and prohibited from parting with any portion of its revenues, tolls or income, as net revenue or otherwise, until a sufficient amount shall have been deducted and reserved to meet all necessary current and probable contingent expenses, and from paying any debts from net revenues to any creditors not entitled to claim payment in priority of the State, whereby its revenues would be absorbed and applied to other purposes than those which would enable the company to perform all its duty and engagements to the State without hindrance or embarrassment. The company, by the admission of its answer and submission to the decree of the Court,  [**16]  is a willing party to the injunction and has not appealed from the order.
The only matter now to be determined upon this appeal 

 [*301]  is, the right of the appellant, Brady, to a judgment of condemnation of the chattels and credits which have been levied on under his writ of attachment. If he has this right, the injunction as to him would be dissolved and his writ permitted to take its course at law.
The only garnishees who admit credits in their hands, or moneys belonging to the Chesapeake and Ohio Canal Company, are the Cumberland City Bank to the amount of $ 469, and John H. Shaw, the collector of the company at Cumberland, to the amount of $ 9,244.61. The American Coal Company, another garnishee, also admitted moneys due by it, at the time the attachment was laid in its hands, for tolls to the amount of $ 2,137.59, which however it was induced to pay over to the company upon an indemnity. These, it sufficiently appears from the answers, were of the tolls and revenues of the company.
The bill alleges and charges, that these sums are not more than should be reserved by prudent men charged with the conduct and management of the canal, to meet the necessary current and the [**17]  probable contingent expenses of the company, according to past experience and the uncertain reverses and injuries to which such a work is constantly exposed from freshets and other casualties, and that the company is entirely without available means for such purposes, manifestly indispensable other than those of its ordinary tolls and revenues. The State further alleges and charges, that these moneys so attached are exempt from the reach of this creditor by reason of the various relations it sustains to the company as stockholder, with preferred claims to dividends, and as a creditor with liens upon all the property and works of the canal and all its net tolls and revenues, and relies for the assertion of this right upon the various Acts of Assembly passed upon these subjects, and the agreements and covenants with the company, and 

 [*302]  the conveyances executed by it to the State, as provided for in said Acts.
We do not consider it necessary, in the aspects presented by this case, to examine minutely how far the State, as a stockholder in this work, with guaranties for preferred dividends out of its profits, would be sustained in enforcing its rights against the appellant. Much [**18]  stress was laid in the argument upon the superior rights of the State as a sovereign, not only in granting the chartered rights to the company, but in exercising visitorial power over the company, and by this means controlling its revenues and keeping them within the line or course of expenditure provided for in its charter, and other laws authorizing subscriptions by the State to its stock. The provisions of the Constitution, in the establishment of a Board of Public Works for supervising all public works in which the State is interested as stockholder or creditor, were also urged as imparting to the State peculiar attributes in its character as complainant in this suit.
The Chesapeake and Ohio Canal Company, though chartered for great public purposes, and exercising by grant a portion of the State's right of eminent domain to take private property for the use of its work, upon just compensation to the owner, is nevertheless a private corporation. The fact that the State itself is a shareholder, or a large shareholder, in the capital stock of the company, does not impart to the company any of its sovereignty as such, nor can the State, by virtue of its sovereignty, claim any other [**19]  or higher rights, as a suitor, than that of an ordinary stockholder, except so far as it may have rights and interests over other stockholders secured to it by law and engagements with the company, or its other stockholders in pursuance of law. The cases cited by the appellant illustrating this, are sufficient for the purpose. Angell & Ames on Corp., secs. 30, 31, 32. Bank of United States vs. Planters 

 [*303]  Bank of Georgia, 22 U.S. 904, 9 Wheat. 904, 6 L. Ed. 244. Curran vs. State of Arkansas, 56 U.S. 304, 15 How. 304, 14 L. Ed. 705. Wallace vs. Turnpike Company, 8 Watts 316. But while this company is a private corporation, as distinguished from a public municipal body, it is not of that ordinary kind which is created merely for the pecuniary benefit of its stockholders, but like that of the Baltimore and Ohio Rail Road Company, it was designed to promote great public interests, which were its chief objects, and to the accomplishment of which more than ordinary powers were granted, and liberal rules of interpretation for its benefit ought to be adopted in expounding its privileges and rights for effectuating [**20]  the designs of the Legislature, and securing the rights of the State in a work of such magnitude and involving such vast public interests. Mayor & C. C. of Balto. vs. Balt. & Ohio R. R. Co., 21 Md. 50, 91.
But the State, in this case, claims exemption from the proceedings instituted by the appellant, and asks for the restraining power of equity, on the ground of its character as a creditor of the company, with liens on its property, and net revenues and tolls, to secure its loans. It relies, in this branch of the case, on the Acts of 1834, ch. 241, and 1844, ch. 281, and the obligation or stipulation of the company and the mortgage executed by it, which these Acts authorized and required, as conditions upon which the Legislature of the State granted the aids for prosecuting and completing the canal to Cumberland, as provided in those Acts.
By the Act of 1834, ch. 241, a sum not exceeding two millions of dollars was authorized to be raised and loaned to the Chesapeake and Ohio Canal Company, to enable it to complete its work to Cumberland. As a condition precedent, the company, after assenting in general meeting to the terms of the Act relating to itself, was [**21]  to prepare and deposit with the Treasurer of Maryland, a covenant and 

 [*304]  obligation, verified by its corporate seal, and the signatures of its president and directors, pledging the whole of the net revenues of the company, and the whole of the water rights, lands and other property at any time acquired by it, or the rents or other avails thereof, for the purpose of securing to the State the payment of the interest and principal of said loan; the interest to be paid quarterly as therein specified, and the principal at the time therein stipulated. To secure the final payment of the debt, it was further provided that the company should stipulate in said covenant or obligation for the payment to said treasurer of the whole of its net revenues, and the proceeds of the sales or leases of the whole of the property thitherto or thereafter to be acquired by it, as the same should from time to time be sold or leased, until he should receive a sum in his judgment sufficient to constitute a sinking fund adequate to pay off the principal of said debt, when and as the same should become payable, over and above the payment of the interest.
The bill alleges that the company assented to this [**22]  law, executed the covenant or obligation as therein provided and required, and received the said loan of two millions of dollars. It further states that nothing has ever been paid to the complainant by said company, or in any way, on account of the principal or interest due on said loan; and that no payments have ever been made to the treasurer for the purpose of constituting the sinking fund required; and that the interest which has accrued on the loan and is due to the State, computed to the 31st of May, 1865, amounted to the sum of three millions and fifteen thousand dollars.
The covenant or obligation executed by the Company and delivered to the Treasurer of Maryland, in pursuance of this Act, has not been exhibited with the bill, and is not before the Court; but the fact of its execution and delivery, in the mode required by the law, was not denied in the 

 [*305]  argument. The appellant in his answer admits that the State advanced to the company the two millions of dollars under this Act, in regard to which sum the State is a creditor, with all the rights of a creditor. The answer is silent as to the interest due and in arrear, but states that the principal was applied to [**23]  the construction of the canal, and was exhausted when it reached Harper's Ferry. The annual reports of the company made in June, 1865, and June 1866, the one a part of the record and the other filed with it, and made evidence by the agreement of counsel, certify to the amount of such interest due and in arrear as stated in the bill.
To say nothing of other claims of the State as a creditor presented in the bill, here is an item of clear indebtedness exceeding five millions of dollars, for which the net tolls and revenues have been pledged to the State, by solemn obligation of the company, and in pursuance of one of the public statutes of the State. How far the information of the appellant is correct or can be relied upon as to the solvency and prosperous condition of the Canal Company, and its ability ere long to pay off its debts and establish its credit upon a firm and lasting basis, as averred in his answer, can be judged of in the face of this item of indebtedness alone, to say nothing of a ten millions of indebtedness besides, with an annual surplus of revenue from all sources, in 1865, of but thirty-seven thousand dollars, as disclosed by said reports.
Stopping at this point,  [**24]  we thus perceive that the State is a creditor of the company for a sum exceeding five millions of dollars, principal and interest, which debt originated by loan in 1835, under an Act of Assembly which authorized the pledge of the company, in the mode therein prescribed, of the whole of the net revenues of the company, as, also, of all its other property, and the rents and avails thereof, as security for its repayment, and which pledge was accordingly 

 [*306]  given and still subsists. What protective force this has will be hereafter noticed.
We pass now to the consideration of the Act of 1844, ch. 281, the last in the series of legislative aids which the State with unbounded liberality has afforded to this important work of internal improvement.
The canal having reached dam No. 6 in its construction, after an additional expenditure of the State's money, by way of subscriptions to its stock, amounting to four millions, three hundred and seventy-five thousand dollars, the generosity of the State and its known devotion to this enterprise were again appealed to. The application was not answered by a renewed appropriation of money, but by affording such means of credit to the company [**25]  as would enable it to borrow from other capitalists money enough to complete the work to Cumberland. This was accomplished by authorizing the company by said Act of 1844, to borrow or raise upon its own bonds, with preferred liens on its revenues, a sum not exceeding one million, seven hundred thousand dollars. The State waived and postponed its rights and liens on the revenues of the company, held under former Acts, in favor of the bonds to be issued by the company, under this Act, so as to make them and their accruing interest preferred and absolute liens on its revenues, until said bonds and interest should be fully paid. The law, also, provided that the company should have the privilege and authority to use and apply such portion of the revenues and tolls as would be necessary, in the opinion of its president and directors, to put and keep the canal in good condition and repair for transportation, provide the requisite supply of water, and pay the salaries of officers and agents, and the current expenses of the company. It directed a semi annual payment by the company of the interest to the preferred bondholders, and as soon as the net revenues arising from the canal and its [**26]  works should 

 [*307]  be more than sufficient for this purpose, and some other purposes specified, the company should annually pay to the Treasurer of the State, the surplus net revenues to such amount, not exceeding $ 25,000 annually, on an average of years, from the date of the completion of the work, as would be adequate for a sinking fund, to be invested by the treasurer and accumulated until deemed sufficient as a sinking fund to pay the principal of said bonds; the moneys so applied to be considered as held by the State as agent for the company, for the payment of said bonds as they matured, and on no account to be applied or used for any other purpose whatever. This Act further provided that the Canal Company should execute to the State, and deliver to the Treasurer a further mortgage on the said canal, its lands, tolls and revenues, subject to the liens and pledges by this Act authorized, as an additional security for the payment of the loan made by the State to the company under the Act of 1834, ch. 241, and the interest due and in arrear, and which would thereafter accrue thereon, to be approved by the Attorney General as sufficient in law. This being done,  [**27]  and the company's assent to it obtained and filed, the Act was to take effect and be in full force.
A mortgage was accordingly executed by the Chesapeake and Ohio Canal Company to the State of Maryland, a copy of which is exhibited with the bill, and not denied by the appellant's answer. After reciting the provisions of said Act, it conveyed all the property of said Canal Company, real and personal, then owned or thereafter to be acquired, to the State, including the tolls and revenues that may thereafter accrue from the said canal and its works, and every part thereof, together with all goods, chattels, property and rights, and all tools, implements and boats then owned or which might thereafter be provided, built or purchased by the said company, or its agents, for the use of the said canal, or to be used in its construction, repairs or operations, subject, 

 [*308]  however, to all the liens and pledges created or authorized, then or thereafter, by said company, under and in pursuance of the provisions of said Act of Assembly; conditioned for the repayment to the State by the company of the two millions of dollars, and all interest in arrear and to accrue thereon, loaned [**28]  to it under the Act of 1834, ch. 241.
This instrument bears date the 8th day of January, 1846. It was acknowledged in Maryland on the 19th day of January, 1846, and was recorded in Allegany county, Maryland, on the 5th day of May, 1848.
The judgment of the appellant was originally rendered on the 25th of October, 1844. This judgment was revived by sci fa in October, 1855; and, again, on the 3rd of October 1864. On this last fiat, the writ of attachment by way of execution was issued returnable to October term, 1865, of the Circuit Court for Allegany county, under which the chattels and credits already mentioned were attached.
Mr. Brady, the appellant, by his answer, and in the brief of his counsel, took three positions, which were mainly urged and relied upon in the argument. The first was, that by the Act of 1844, the State waived its liens upon the revenues and property of the company in favor of the bonds to be issued under it, and that by such waiver, the State retired and gave place to strangers, and having done so, it cannot now legally or in conscience step in before other creditors of the company, and stand next in priority to said bondholders. It is also admitted [**29]  that the appellant is not one of said bondholders, or entitled to any priority over the State, except so far as he asserts it by reason of his judgment and proceeding in attachment.
It is very clear from the language of the Act of Assembly of 1844, and the mortgage made in pursuance of it, that the State waived its priority only in favor of the liens created and authorized by that Act. In all other respects, and against all other creditors, the State expressly reserved 

 [*309]  its rights and priorities, and there is no doubt that one of the objects, if not the only object, of taking the new mortgage authorized by that Act, was to re-assert and re-secure its prior rights and claims, and place them beyond all cavil and dispute. If other creditors could thus step in and grasp by legal process the tolls or revenues of the company, or enforce executions upon its property and works, the plain design of that law would be frustrated. The work itself would not only be destroyed by the abstraction of the means for its preservation, repairs and operation, but the preferred creditors deprived of their chartered securities, and the State itself defeated in all its plans and munificence for [**30]  making this work the great and important channel of trade which was designed by these Acts of Assembly, and the conveyances made under them. The appellant states, that his original judgment was obtained in October, 1844, which was prior to the passage of the law of 1844, ch. 281, which took place on the 10th of March, 1845, and that his lien upon the property of the canal was therefore prior to the law. This Court does not mean to pass any opinion, in this case, on the efficacy of judgment liens upon the real estate of the Canal Company. All the conveyances to the State are not before us in this cause. It is sufficient here to say, that by the Acts of Assembly of 1834, ch. 241, and 1844, ch. 281, and the covenant and mortgage which followed, all the net tolls and revenues of the Canal Company were assigned by way of security to the State, and, as any other assignee, the State would have the right to interpose its claim against any subsequent attachment. The credits attached in this case, the appellant himself admits in his answer, and it is clearly shown elsewhere in the record, represent in part the income and earnings of the said canal.
A second ground taken by the appellant is,  [**31]  that the State is a mortgagee not in possession of the canal and the 

 [*310]  other property of the company, and therefore it cannot divert the revenues to its use and possession upon the principle of an implied agreement between mortgagor and mortgagee, that the mortgagor shall take the rents and profits to his own use until dispossessed by the mortgagee.
It is very evident, from the Acts of Assembly and the covenant and mortgage referred to, that the Canal Company was to remain in possession and management of the work, while the net revenues were to be appropriated to the State's use as a creditor. A portion of the tolls and revenues were to be used, by express stipulation, for the purpose of repairs and to meet current expenses, and these were as much to be protected as the net earnings, for the vitality of the canal, as a public and profitable improvement, depended upon their use, as well as the ultimate security of the State as a creditor. And it seems unnecessary to inquire, in the condition of this work and its finances, as shown by the proofs in the record, how much would be needed for repairs, &c., for all the revenues are guarantied and assigned to the State, to be applied [**32]  necessarily, first, to the repairs, maintenance and management of the work; next, to the preferred bondholders under the Act of 1844, the State being the agent and party for the accumulation and application of the sinking fund provided for by the law; and then, in its own right to its own claim as the next preferred creditor under both laws and the mortgage or assignment. The right of the State to see to the proper application of all the tolls and revenues of the company to these legitimate objects, and prevent their waste or diversion to any other purpose whatever, is not to be interfered with by the application of the technical rules which govern the ordinary relation of mortgagor and mortgagee. And the doctrines enunciated by this Court, in the cases of Parsons vs. Hughes, 12 Md. 1, and the State vs. Nor. Cent. R. R. Co., 18 Md. 193, can well be applied 

 [*311]  and extended to a case like this, the mortgagor here being a party defendant as well as the attaching creditor.
A third position taken by the appellant is, that the mortgage of the 8th of January, 1846, was not recorded for more than two years after its date, and that it cannot [**33]  interfere with the rights of creditors without notice; that he is a rightful and meretorious creditor of the company, and that he had no notice of the claims of the State at the time of the service of the attachment or before, or until after the filing of the bill in this case.
We think, that as to the credits attached in this case, they passed to the rightful ownership of the State for the purposes hereinbefore expressed, by virtue of the Acts of Assembly and the covenant and mortgage aforesaid, as an ordinary assignment to which recording was not necessary. The revenues and tolls were to be assigned to the State, and they were assigned, and it is not necessary as the law now stands in Maryland, that an assignee of claims or moneys shall give notice, by registration or otherwise, in order to shield his claim from an attaching creditor.
In addition to this, these Acts of Assembly are public Acts of which the Courts take notice, and they are notice to the public of what they contain,--13 Wheat., 16. 3 Bland 63;--and are sufficient to put any party dealing with the company upon inquiry.
With regard to the chattels spoken of in the proceedings as levied [**34]  upon under the writ of attachment, it is not necessary for this Court to inquire. The answer of the Canal Company denies that they were levied on under said writ, but avers they were taken by the sheriff under another and different proceeding; and that they are erroneously mixed up with this proceeding. The counsel for the appellant, in the argument before this Court, disclaimed any intention to interfere with them, and stated that they were not intended to be levied upon under the writ of the appellant. 

 [*312]  Under such circumstances, we forbear to express any opinion upon the appellant's right to them, but think, under the circumstances, that the injunction should cover them.
No exception was taken to the jurisdiction of the Court, nor could any be taken in the face of the agreements of counsel in the record. The whole scope of the bill presents a clear case for equity against the Canal Company, touching its revenues and the proper application of them, and any parties interfering in them would properly be made parties and come within the restraining powers of the Court, during the investigation of the matters in controversy, and be subject to its final decree in the premises.  [**35]  
Entertaining these views, we think the the action of the Court below should be sustained throughout, and that the decree awarding a perpetual injunction should be affirmed, but without costs.
Decree affirmed. 

35 of 120 DOCUMENTS 

JOSEPH HUTTON vs. WILLIAM A. PADGETT and WILLIAM W. PADGETT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 228; 1867 Md. LEXIS 4 

January 23, 1867, Decided 

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

This was an action upon a guaranty brought by the appellees against the appellant. The facts of the case are stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

CONTRACT, -- CONSTRUCTION OF: GUARANTY: CONSIDERATION: STATUTE OF FRAUDS. W. A. P. and another sued J. H. on the following guaranty: "I hold myself responsible to W. A. & W. W. Padgett of Baltimore, Md., to the amount of $ 2,000, for any drafts they have accepted, or may hereafter accept, for John Latouche, now of Alexandria, Va." -- HELD:

1st. That the Maryland Courts have in a number of cases affirmed the well settled law of England, that to bind a party upon a collateral promise to answer for the debt or default of another, it is necessary, under the Statute of Frauds, that the consideration, as well as the promise, should appear from the writing.

2nd. That it is not necessary, however, that the consideration should be stated in express terms; it is sufficient if it may be collected or implied with certainty from the instrument itself.

3rd. That the plain meaning of the contract in this case is, that in consideration that the plaintiffs will accept for Latouche, the defendant, will be responsible to them for the payment of subsequent acceptances to the amount of $ 2,000. This is a good legal consideration and gratifies the statute.  

COUNSEL:
F. Stone and W. H. Tuck for the appellant, argued:

1st. That the paper in question does not show a sufficient consideration to bind the defendant. The consideration, as well as the promise, must appear on the instrument. Nabb vs. Koontz, 17 Md. Rep., 283. Wyman vs. Gray, 7 H. & J., 409. Elliott vs. Giese, 7 H. & J., 457.

2nd. That the defendant was entitled to notice from the plaintiffs of their acceptance of the guaranty, and that they had given credit on the faith of it; and, also, to notice that Latouche had failed to meet his engagements with the plaintiffs. Norton vs. Eastman, 4 Greenlf., 521. Seaver vs. Bradley, 6 Id., 60. Tuckerman vs. French, Id., 115. Wildes vs. Savage, 1 Story's C. C. R., 22. Russell vs. Clark, 7 Cranch, 69. Edmonston vs. Drake, 5 Peters, 624. Douglas vs. Reynolds, 7 Peters, 113. Lee vs. Dick, 10 Peters, 482. Adams vs. Jones, 12 Peters, 207. Reynolds vs. Douglas, 12 Peters, 497. Kitchloe vs. Holmes, 7 B. Monroe, 5. Mussey vs.  [**2]  Reyner, 22 Pick., 223. Clark vs. Remington, 11 Metcalf, 365. Caton vs. Shaw, 2 H. & G., 13.

Peter W. Crain for the appellees.

In this case the appellees' counsel submits but one point and that is, that the appellant, by his obligation, made himself directly responsible for drafts drawn in favor of Latouche, after the 16th day of May, 1860, on the appellees, for he says, "I hereby hold myself responsible to W. A. & W. W. Padgett to the amount of two thousand dollars, for any drafts they have accepted or may hereafter accept for John Latouche of Alexandria." It is admitted in the bill of exceptions, that all the drafts drawn by Latouche or the appellees, and paid by them, were subsequent to 16th of May, 1860, the day on which Hutton signed the obligation.

It is not a collateral obligation, but an original undertaking on the part of Hutton to pay the drafts drawn by Latouche on the appellees, to the amount of two thousand dollars.

The ground of objection, on the part of the appellant's counsel, and as stated in his exceptions, is that there was no sufficient consideration mentioned in the obligation.

There was no necessity for Hutton to mention any consideration,  [**3]  it was a direct and not a conditional undertaking to be responsible to the appellees for any drafts drawn by Latouch as paid by them, limiting the amount to two thousand dollars. As the Court of Appeals have frequently decided the principle, I deem it unnecessary to submit an argument on the obligation, and will refer the Court to Caton vs. Shaw & Tiffany, 2 H. & G., 13. 4 Gill, 111. 17 Md. Rep., 283.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*230]  BARTOL, J., delivered the opinion of this Court.
This suit was instituted by the appellees, upon the following guaranty:
"I hereby hold myself responsible to W. A. & W. W. Padgett, of Baltimore, Maryland, to the amount of $ 2,000, for any drafts they have accepted, or may hereafter accept, for John Latouche, now of Alexandria, Va."
"Witness my hand this 16th of May, 1860.
"JOS. HUTTON."
At the trial below, the plaintiffs, after proving the signature of Jos. Hutton to be that of the defendant, further proved that subsequent to the date of the paper, they accepted and paid drafts of said Latouche, drawn on them, to the amount of $ 2,000, and then rested.  [**4]  
Whereupon the defendant, by his counsel, prayed the Court to instruct the jury: "That upon all the foregoing evidence the plaintiffs were not entitled to recover, because no liability attached to the defendant by the instrument of writing or guaranty aforesaid, there being no sufficient consideration mentioned in said instrument of guaranty."
The Circuit Court refused to give this instruction to the jury; and the defendant excepted. The only question before us, therefore, on this appeal, arises upon the defendant's prayer.
In the argument in this Court the appellant's counsel have presented two points:
1st. That the consideration of the guaranty does not sufficiently appear on the instrument to bind the defendant.
2nd. That the defendant was entitled to notice of the acceptance of the guaranty, and, also, of the amount of 

 [*231]  acceptances for Latouche, and of his failure to meet his engagements.
In support of this last position, several authorities have been cited; but it is unnecessary for us to examine them, because we are not at liberty "to decide any point or question which does not appear by the record to have been raised or made in, and decided by, the Court below.  [**5]  " Code, Art. 5, sec. 12.
This being a guaranty, and not a mere overture or offer to guarantee, it is settled by the case of Caton vs. Shaw & Tiffany, 2 H. & G. 13, that no notice of its acceptance was necessary.
No question, however, of notice is raised by the prayer; it presents but one proposition, which is that the guaranty is not binding, because the consideration does not appear on the face of the instrument. And in reviewing the ruling of the Circuit Court, we must confine ourselves to the consideration of that proposition only.
Ever since the case of Wain vs. Walters, 5 East., 10, the law has been well settled in England, that to bind a party upon a collateral promise to answer for the debt or default of another, it is necessary, under the Statute of Frauds, that the consideration, as well as the promise, should appear from the writing.
The same principle has been affirmed in Maryland in a number of cases. See Wyman vs. Gray, 7 H. & J. 409. Elliott vs. Giese, Id., 457. Nabb vs. Koontz, 17 Md. 283.
It is not necessary, however, that the consideration should be stated in express terms, it is sufficient if [**6]  it may be collected or implied with certainty from the instrument itself. Nabb vs. Koontz, 17 Md. 283. See Stapp vs. Sill, 1 Camp. 242. (S. C., 9 East., 348.) Newbury vs. Armstrong, 6 Bing. 201, (19 E. C. L. Rep.,) 55. Raikes vs. Todd, 8 Adol. & El. 846, (35 Eng. C. L. Rep. 552.)

 [*232]  In the case last cited, the guaranty was almost identical with the one here sued on, and while it was decided not to be binding as to advances previously made, the whole Court held, that in respect to future advances, the liability was clear; this last proposition was not even disputed in the pleadings, the amount of advances made subsequent to the guaranty being voluntarily paid into Court.
The reasoning upon which these cases depend, seems to us to be entirely satisfactory. If the consideration can be clearly inferred or gathered from the writing, the statute is gratified.
There is no doubt or difficulty as to the consideration of the guaranty before us, so far as the subsequent acceptances are concerned.
The plain meaning of the contract is, that in consideration that the plaintiffs will accept [**7]  for Latouche, the defendant will be responsible to them for the payment of such acceptances to the amount of $ 2000.
This is a good legal consideration and the statute is gratified. The rule of law governing a case like this, is well expressed by PARSONS in his work on Contracts, Vol. 1, 496, cited in Nabb vs. Koontz, 17 Md. 283.
In 2 Robinson's Prac., 285, it is correctly said, "that it is not necessary there should be a consideration directly between the persons giving and receiving a guaranty. It is sufficient if thereby the party for whom the guarantor becomes a surety receives a benefit, or the party to whom a guaranty is given suffers a loss."
This Court being of opinion that there was no error in rejecting the prayer of the defendant below, the judgment will be affirmed.
Judgment affirmed. 

36 of 120 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. vs. JOHN HORN ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 194; 1867 Md. LEXIS 1 

January 16, 1867, Decided 

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

The appellees filed their petition in the Circuit Court of Baltimore city praying for an injunction to restrain the appellants from further proceedings in collecting the assessments levied upon the appellees, and other owners of lands, on the line of North Avenue, for the payment of the expenses of grading said avenue. The appellants answered the petition, justifying their action under the Acts of 1864, chs. 188 and 344. The cause was heard upon the petition and answer, and an order passed by the Court, (ALEXANDER, J.,) restraining the appellants from further action. From this order this appeal was taken. For a full statement of the case see the opinion of this Court.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

CONSTITUTIONAL LAW: BALTIMORE CITY, -- GRADING AND PAYING STREETS OF. -- The ACT of 1864, CH. 188, empowered and directed the Mayor and City Council of Baltimore to pay the contractors for the work done and accepted by the city in grading North Avenue, and to borrow money for the purpose, and levy a tax for its repayment; and CH. 344, of the same session, empowered them to collect from the several owners of the property fronting on both sides of North Avenue, the sums of money theretofore assessed on the property belonging to them, as ascertained by the warrant of the City Commissioner dated Nov. 18th, 1857, with interest from that date, &c. -- HELD;

That the passage of these Acts was a plain assumption of judicial power by the Legislature, in violation of the Constitution of the State, and in effect reversing the judgment of the Court of Appeals in the case of Porter vs. Mayor & C. C. of Balto., 18 Md. Rep., 284, and the said acts must be pronounced inoperative and void. 

COUNSEL:
Wm. Price and C. L. L. Leary for the appellants.

The only question raised upon this record is this, is the Act of Assembly of Mary land of 1864, chapter 344, entitled, "An Act to authorise the Mayor and City Council of Baltimore to collect and receive from the property holders on both sides of North Avenue, as well in Baltimore county as in the city of Baltimore, the sums severally assessed to them for the grading of said avenue,  [**2]  " a valid exercise of legislative power? The intention of this law is apparent from the preamble, of the Act of the same session, chap. 188, entitled, "An Act to provide for paying the costs and expenses of grading North Avenue," &c., and from a consideration of the resolution of the Mayor and City Council, No. 202, approved 26th of October, 1863, above referred to. The object sought to be accomplished by this legislation was the payment of the expenses incurred by the corporation in grading North Avenue. In the Mayor & City Council vs. Porter, this Court says: "That the City Commissioner had no legal power or authority to cause North Avenue to be graded, and that all his proceedings in the premises were coram non judice and void, (p. 298.) The grading of this avenue was done under the authority of the Act of 1856, chapter 164, but the provisions of that Act were not pursued by the city authorities, and the decision of the Court is founded upon the irregularity of these proceedings. The Act of 1856, ch. 164, in providing for the payment of the expenses of this work, adopts, according to the opinion of this Court in Porter's case, the principle applied by the Act of 1838, ch. 226, of [**3]  awarding damages and assessing benefits, in paying the expense of opening, widening and extending the streets of the city. It contemplates the necessity of taking private property for public use. Now, is the Legislature precluded from applying by subsequent legislation a different principle, or from adopting a different mode of estimating and paying the expense of this work? We say that it is not. And this is simply and substantially the effect of, and the office performed by, the Act of 1864, chaper 344. In the opening and widening of streets, it frequently becomes necessary to take and to destroy private property, which cannot be lawfully done without making compensation to the owner. This is an exercise of the right of eminent domain which was delegated by the Act of 1856, ch. 164. But in grading North Avenue no such power was exerted. No private property has yet been taken for the public use. But the work has been completed and paid for by the city, and the Legislature in the exercise of its taxing power by the Act of 1864, ch. 344, authorises the city to reimburse itself by collecting the assessments previously made, although made without the proper legislative sanction. It authorises [**4]  a mode of paying the expenses of this work different from that provided by the prior Act of 1856. Instead of the system of awarding damages and assigning benefits, as was contemplated by the Act of 1856, ch. 164, in analogy to the law providing for the opening and widening of streets, the Act of 1864, by authorising the collection of the assessments made by the City Commissioner, simply adopts the mode of assessment according to the number of front feet, provided by law for paying the expense of grading and paving the streets of the city. It operates retroactively. It is a legislative ratification of the proceedings of the city under the Act of 1856, ch. 164, and relates back to the acts of the City Commissioner and makes them valid. It adopts retroactively the same mode of paying the expense of grading North Avenue, as is applied in grading and paving the streets of Baltimore city. It is nothing more than an exertion of the taxing power of the Legislature, while the Act of 1856, ch. 164, is an exercise of the right of eminent domain; and the Legislature has an equal constitutional right to pass either, and to select and apply either system in paying the expenses of this great improvement.  [**5]  See Moale vs. Mayor and City Council, 5 Md. Rep., as to the distinction taken between the exercise of the right of eminent domain and of the taxing power. "That the imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain, we entertain no doubt." Mayor, &c., vs. Greenmount Cemetery, 7 Md. Rep., 536.

The constitutionality of the laws and ordinances by which the grading and paving of streets in the city of Baltimore are regulated, has been repeatedly affirmed by this Court. Steuart vs. Mayor, &c., 7 Md. Rep., 500. Howard vs. First Independent Church, 18 Md. Rep., 455.

There can be no doubt of the power of the Legislature to pass retrospective laws affecting civil rights and remedies, where private vested rights are not invaded, and no vested rights have been disturbed in this case. Goshen vs. Stonington, 4 Conn., 209. Welch vs. Wadsworth, 30 Conn., 149. Simmons vs. Hanover, 23 Pick., 194. Baugher vs. Nelson, 9 Gill, 305, 306.

The Act of 1864, ch. 344, cannot be construed as an exercise of judicial power. It authorises the Mayor and City Council "to collect from the several owners of the property fronting on both sides of North [**6]  Avenue the sums of money heretofore assessed," &c.

How then can the city collect these assessments except by appealing to the judicial authority of the State? And how can this Act of Assembly be tortured into a "legislative judgment" against the citizen, when all the parties affected by its operation can be reached only by judicial process, and can avail themselves of the "trial by jury" at their own option.

Wm. F. Frick and Brown & Brune for the appellees.

There are various grounds upon which this Act must be determined to be unconstitutional and void, the most prominent of which is:

1. That it is undoubtedly an exercise of judicial power. As such, it is in direct violation of the 8th and 23rd Articles of the Declaration of Rights. These Articles, as expressed in the same language in former Constitutions, have been repeatedly construed and expounded by this Court and declared to be intended as salutary restraints upon the Legislative Department, which it is the province of the Judicial Department to enforce. If the Legislature incautiously, or otherwise, steps beyond the strict limits of its authority, and attempts in any way to exercise judicial power, it is the [**7]  duty of the Courts to declare its act unwarranted by the Constitution, that being the paramount law to which all departments of the Government must yield. Though it is difficult to lay down any general rule by which it may be determined whether the Legislative Department oversteps the limit of constitutional restraint, it is quite clear, that it has no power to interfere so as to change or affect the decision of cases pending in the Courts according to the "law of the land;" that is, according to "the due course and process of the law," to deprive the citizen, in any case affecting his life, liberty or property, of the right to the "judgment of his peers;" that is, to "trial by jury," or to change, modify or set aside the judgments or decrees of Courts when made, which would (except for such legislative interference) be final and conclusive between the parties. These are well recognized special instances in which legislative action is unauthorized and void.

It would be difficult to present a plainer case, than this, of improper interference by the Legislative with the Judicial Department. The validity of the assessments created "by the warrant of the City Commissioner, of November [**8]  18th, 1857," and the right of the Mayor and City Council of Baltimore to collect the same, constituted the immediate subject matter of litigation in the case of Porter vs. The Mayor and City Council of Baltimore, in the Circuit Court of Baltimore city, and afterwards in this tribunal as a Court of last resort. That subject matter was one purely and wholly of judicial cognizance and determination. It was adjudged "according to due course and process of law," and by and through the final decree of this Court, the assessments in question were declared void, and the Mayor and City Council of Baltimore, by the authority of this Court, were perpetually enjoined and prohibited from any proceedings in, or attempt at, their collection. And yet, the Legislature assumes, in the face of this judicial action, to "authorize and empower" the Mayor and City Council of Baltimore to collect these identical assessments. The mere statement of the case seems to be a sufficient argument. Constitution of 1864, Arts. 8 and 23 of the Declaration of Rights. Crane vs. Meginnis, 1 G. & J., 476. Regents University of Maryland vs. Williams, 9 G. & J., 410, 411. Berrett vs. Oliver, 7 G. & J., 206. Miller vs. State,  [**9]  use Fiery, 8 Gill, 148. Wright vs. Wright's Lessee, 2 Md. Rep., 452. Denny vs. Mattoon & Others, 2 Allen, 377. Menzies vs. Dentler, 33 Penna. State Reports, 495. Mc Daniel vs. Correll, 19 Illinois, 226. Reiser vs. Wm. Tell Saving Fund, 39 Penna. State Rep., 144.

II. Even supposing that this question of power could properly be considered at all, without reference to the previous action of the Judicial Department in the premises, and that the Act could be treated as an original exercise of legislative power, it is liable to equally fatal objections. It proceeds upon the theory that the "assessments," &c., "of November 18th, 1857," were not collectable by any law then in existence, and it authorizes the Mayor and City Council of Baltimore to collect them, and declares them "to be a lien on the property assessed." Now this is obviously not a case in which a general taxing power is exercised by the Legislature.

It is a special and local tax or assessment levied upon certain property to pay the cost of a public improvement, to wit, the grading of North Avenue. It is not a general tax imposed for the support of the Government, or of the municipal corporation of the city of Baltimore,  [**10]  or for any other object or purpose for which a general tax would be necessary or proper. It cannot, therefore, be supported or justified upon the ground of the power inherent in the Legislature, to lay general taxes for public purposes, that is, to put or set burdens, charges or impositions upon persons or property for public uses.

It is to be supported upon an entirely different ground; the theory upon which these special taxes have been held to be allowable is, that the property taxed or assessed, is benefitted by the improvement. Alexander vs. Mayor & C. C. of Ballo., 5 Gill, 395, 396, 397.

It matters not to enquire whether the Legislature, in authorizing such assessments, proceeds by virtue of its taxing power, or in the exercise of authority growing out of, or connected with, its right of eminent domain. It is sufficiently clear, that "the benefit" to the property assessed is the only foundation of, and justification for, the assessment of the tax. It is not, therefore, laid as a "burden, imposition or charge" upon the property, as its rateable contribution to public objects and uses, but as an assessment or ascertainment of a sum which the property ought to pay, by [**11]  reason of the benefit or enhanced value which it has derived from some neighboring public improvement. In this sense, it is not a "burden," or a tax in the nature of a burden; it is a charge for which the equivalent is immediately and directly rendered to the owner of the property. And the result, therefore, necessarily follows, that the tax can only be lawful where the corresponding "benefit" accrues. Now this is a matter of fact, which the Legislature has the power to provide for ascertaining, but which it has no authority arbitrarily to determine for itself. It is a question affecting the property of certain citizens only, and as such, they have the right to require that it shall be judicially determined, and "by the judgment of the peers," that is, by a jury trial. Hence it is, that when the question arose in this Court upon the constitutionality of the Act of 1838, chapter 226, under which the city was authorized to "assess upon property benefitted," the expenses of opening streets, the law and the city ordinances passed under it, were declared to be constitutional, "because the aggrieved party may appeal to the City Court, and contest the correctness of the assessments made by [**12]  the commissioners, before a jury of the country." Alexander vs. The Mayor, &c., 5 Gill, 396.

But it cannot be pretended that the Legislature, in this respect, can take the place of the commissioners and jury; that it can determine conclusively for itself, whether the citizen's property is benefitted or not, and to what amount it is benefitted; and pass a legislative judgment or decree that he shall pay a particular sum, and that the same shall be, until paid, a lien upon his property; and that he is to have no benefit of an appeal to Court or jury from this legislative judgment. And yet, that is precisely what this act attempts to accomplish, regarding it not in the light of the 1st point, as a reversal of the decree of this Court, but under this 2nd head, as an original exercise of a power of taxation or assessment. Steuart vs. M. & C. C. of Balto., 7 Md. Rep., 511, et seq.

III. There are various other special objections to the Act, growing out of its structure, and the avowed grounds and purposes of its passage. The most prominent is this, the question under the Act of 1856, in the case of Porter, in this Court, was in fact between the contractors and the property holders.  [**13]  The former had not been paid, and the city sued virtually for their use. This Court having determined that the property holders were not bound to any body, because the assessments against them were void, the Legislature passed the Act of 1864, chapter 188, imposing upon the city corporation the responsibility of paying the contractors, because it had passed an ordinance accepting the work, and declaring it to be "for the public good." The money was provided to be raised by a general tax on all taxable property in the city, and the money has been so raised, and the work fully paid for to the contractors.

Now obviously, under and by means of this Act, (chapter 188,) the debt for which "the assessments of November 18th, 1857," were levied, has been fully paid and discharged, and there is, therefore, no lawful purpose for which those assessments can now be collected by the city."

They were levied "to pay the expenses of grading North Avenue." Even assuming them to have been originally lawfully levied for that purpose, it is quite clear, that being levied as a special and local tax, for one object, they could not be collected for the purpose of devoting them to another and very [**14]  different object. And yet, that is precisely what the Legislature has sought to accomplish by the Act of 1864, chapter 344. It would appear from that Act, that some of the parties assessed had chosen originally to pay the tax without question. In tender consideration for the mistake committed by these parties in paying, voluntarily, an unlawful tax, the Legislature directs that those parties who raised the question of its legality, and received the decision of this Court in their favor, shall, non obstante that judicial determination, still pay the tax for the benefit (to the extent of fifty cents in the dollar,) of the parties who held back from the risk and expenses of litigation. Upon what theory of right this extraordinary measure was planned and adopted it is not easy to understand. The only explanation to be offered of it is to be found in the fact, that the Legislature allowed to the recusant property holders, the privilege of a deduction of fifty per cent. from these assessments, provided they paid them within twelve months; and could not, without an obvious show of injustice, put them upon a better footing than those who had submissively paid the whole claim. But no stronger [**15]  evidence can be found of the convictions of the Legislature itself, that the law which it was passing was an arbitrary exercise of unconstitutional power, than this very provision. It was obviously inserted for no other purpose than to operate "in terrorem" upon the property holders, and to offer them a premium of fifty per cent., not to make a question about the legality of the Act. And it was no doubt supposed that it would have that effect.

As the law stands, it is a legislative judgment against one citizen, against whom no lawful claim exists, in favor of another citizen who has no lawful right whatsoever to the amount against anybody. What is to become of the balance of the fund to be raised under the Act, after the payment of the fifty per cent. to the few parties who originally paid the whole assessment, does not appear. So far, therefore, as that portion of it is concerned, it is a legislative judgment for the payment of money, without specifying any purpose to which it is to be applied. Medford vs. Learned, 16 Mass., 216.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*204]  WEISEL, J., delivered the opinion of this [**16]  Court.
The record in this case shows that the case of Porter vs. The Mayor and City Council of Baltimore, 18 Md. 284, which involved the same question of right under the law of 1856, ch. 164, also disposed of that question in this case, and consequently the Court below, after that decision and in pursuance of it, on the 23d of May, 1862, perpetuated the injunction in this case. By that decision it was settled by this Court that the powers conferred by that Act were not complied with by the Mayor and City Council of Baltimore, and that the work done in grading North Avenue, and the assessment of the tax for its payment, were unauthorized, and that the payment of the tax could not be enforced by a sale of the property levied on for that purpose; and also that the ordinance of the city which was afterwards, on the 9th of December, 1859, passed to confirm the grading of the avenue, was without authority of law, of no binding force, had not the effect of ratifying the acts of the City Commissioners or in any manner changing the rights of the parties litigant, pp. 300, 301.
In this dilemma the city authorities adopted measures 

 [*205]  for procuring further legislation [**17]  on the subject, and at January session of 1864, the General Assembly passed two laws, one, ch. 188, empowering and directing the Mayor and City Council of Baltimore to pay the contractors for the work done and accepted by the city, and to borrow money for the purpose, and to levy a tax for its repayment. The other, ch. 344, after reciting the former laws and proceedings, authorized and empowered the said Mayor and City Council to collect from the several owners of the property fronting on both sides of North Avenue, the sums of money theretofore assessed on the property belonging to them, as ascertained by the warrant of the City Commissioner, dated November 18th 1857, with interest from said dates, with a provision by which the owners could settle within a specified time at a reduced rate, but failing so to do, were declared liable for the whole, and the amount was made a lien upon their property.
The city paid the contractors, and after the time limited in the last named Act for reduced settlements with the owners, the collector of the city, Augustus M. Price, gave notice to the owners that unless the amounts so assessed were paid on or before the 15th of March, 1866, he would proceed [**18]  to enforce payment by a sale of the lots. To stay this proceeding on the part of the city and its collector, as well as to procure an attachment for contempt for the violation of the injunction before granted and perpetuated, the appellees filed their petition, to which the Mayor and Council and collector filed their answers, relying for their justification, and the authority for their acts and pretensions in the premises, on the said Act of Assembly of 1864, chap. 344, which, they insisted, invested them with full, legal and effective powers to enforce the collection of said moneys.
At the hearing of the application of the petitioners for the protection claimed, the parties by agreement, all advantages in other respects being waived, submitted as the only 

 [*206]  question to be determined the constitutionality of the said Acts of Assembly of 1864. The Court below determined the Act of 1864, ch. 344, inoperative and void, and passed an order perpetually enjoining and restraining the defendants from collecting the assessments and making the threatened sale. From this order this appeal has been taken.
The only question therefore presented to this Court by the record, and the briefs,  [**19]  and arguments of counsel, is as to the constitutional validity of the Act of 1864, ch. 344, under which these renewed proceedings of the appellants were attempted.
The most prominent objection to this law, taken in the argument by the counsel of the appellees, was that the Legislature in passing it, exercised judicial power, which, by the Declaration of Rights, and numerous decisions in this State and other States of the Union, which separate the judicial from the legislative and executive powers of government, it could not assume and exercise. And this position, we think, is well taken. When this law was passed, the rights of the parties under the law of 1856, ch. 164, had been judicially determined by this Court. In the case of Porter vs. The Mayor & City Council, this Court had adjudged that the parties assessed in certain proceedings under that law, were not liable for the assessments, and had perpetually enjoined the city authorities from proceeding to collect them; and yet the law of 1864, ch. 344, passed after that decision, expressly authorised those authorities to proceed and collect them. It adjudged those parties to pay that which this Court, in a regular proceeding,  [**20]  determined they were not bound to pay. It, in effect, and that most plainly, reversed the judgment of this Court. That which this Court said was illegally done, or done without authority of law, or in contravention of law, and that the parties could not be assessed for, this Act of Assembly clearly declares shall be paid for by the parties, 

 [*207]  although they were relieved from that payment by the final determination of this Court. There certainly could not be a more plain assumption of judicial power by the Legislature, than was exercised by the enactment of the law of 1864, ch. 344, and as such, this law must be pronounced inoperative and void. It is unnecessary to repeat the reasons and grounds which have guided the Courts in adjudications of this kind. They have heretofore been ably set forth by this Court in the cases of Crane vs. Meginnis, 1 G. & J. 463, 476; Berrett vs. Oliver, 7 G. & J. 191, 206; Miller vs. State, use of Fiery, 8 Gill 145, 148; Wright vs. Wright's Lessee, 2 Md. 429. The case of Denny vs. Mattoon & others, 2 Allen (Mass. Rep.,) 377, is directly in [**21]  point, as well as the case of Daniel vs. Correll, 19 Ill. 226.
There is, also, great force in the other points presented by the appellees, especially the third, but we deem it unnecessary to pass upon them.
Begarding the Act of Assembly of 1864, ch. 344, void for the reasons and upon the authorities stated and referred to by us in this opinion, the decree of the Circuit Court of Baltimore city, perpetually enjoining and restraining the appellants from collecting or attempting to collect the assessments for grading North Avenue, mentioned in said Act of 1864, ch. 344, and as thereby attempted to be authorised, must be affirmed, with costs to the appellees in both Courts.
Decree affirmed, with costs, &c. 

37 of 120 DOCUMENTS 

DAVID BARNUM AND AUGUSTUS KIRBY BARNUM, Infants, by their next friend, vs. ZENUS BARNUM, ANDREW MCLAUGHLIN AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 119; 1866 Md. LEXIS 93 

December 21, 1866, Decided 

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

This is an appeal from a decree of the Circuit Court of Baltimore city, (KREBS, J.,) dismissing the bill of complaint filed in that Court by the appellants, infants, by next friend, against the appellees. The appellants are the children of Augustus Barnum, deceased, who was one of the children of David Barnum, deceased. The object of the bill is to obtain a construction of the will of said David Barnum, and the complainants claim a decree for a sale of certain fee-simple estates and leasehold and personal property, constituting Barnum's City Hotel and furniture, in the city of Baltimore, and an account of the rents and profits thereof accrued since the death of their father. A full statement of the case is made in the opinion of this Court.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

WILL, -- CONSTRUCTION OF: POWERS: TRUSTS: PERPETUITIES: GENERAL AND SPECIAL POWERS. -- The will of David Barnum empowered and directed the trustees therein named to lease his hotel property and to apply the rents, &c., as therein provided. The period for which the leasing is authorized and directed is thus stated in the will: "And the period during which my trustees, and their heirs and successors, shall have the power and are required to lease as aforesaid, shall be so long as my said children, or any children or descendants of them, or any of them, left by them, or any of them, at the death of them, or any of them, shall live; it being understood that any lease made during the period aforesaid, shall have full effect, and continue for its stipulated term, notwithstanding the cessation of all of said lives before the end of the term." -- HELD:

1st. That under these provisions the period for continuing the trust or power to lease may extend so as to embrace persons and lives not in esse at the time of the testator's death, -- descendants born after that event.

2nd. If an estate be so limited as by possibility to extend beyond a life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year (to cover the period of gestation) afterwards, during which time the property would be withdrawn from the market or the power over the fee suspended, it is a perpetuity, and void as against the policy of the law, which will not permit property to be inalienable for a longer period.

3rd. That the execution of the trusts for leasing the hotel property, and performing the duties enjoined upon the trustees, being made to cover a period beyond that allowed by law, during which time the said property, real and personal, is placed extra commercium, the devise in trust is therefore void.

4th. That if the trust be void, then the power to lease, which is blended with it, in this case, must be void also; it is not a mere power, distinct from the trust, leaving the act to be done at the will of the party to whom it is given, but it is mixed and blended with the trust, and its execution is as imperative as the trust itself.

5th. The general principle is, that every power, the direct object of which is to create a perpetuity, is absolutely void; the exceptions to the rule arise out of the distinction between general and limited or special powers. But in every case, the execution of the power being distinct from the power itself, must conform to the requisition of the rule against perpetuities, or run the hazard of being avoided.

6th. Where a power is itself valid in not transgressing the rule, the donee, in executing it, may go beyond the proper boundary. Equity in such case, being guided by the power, will treat the excess as surplusage and vodi, but only where the portion which exceeds the boundary of perpetuity be definite and ascertained, or can be rendered so.

7th. In this case the limitation is in the instrument itself, creating the trust or power, and no one can declare with certainty how the dispositions of the testator would have been regulated if he had been aware at the time of his inability to extend them to some included in his gifts. The whole is therefore vitiated by the excess.

8th. The trusts being void in toto, the legacies springing out of them must also be regarded as void; and the power to lease being void, the right to share in the distribution of the rents must necessarily fail.

WILL, -- CONSTRUCTION OF: JURISDICTION AND PRACTICE IN EQUITY. -- A further provision of said will was as follows: "Should my views in the above first article of this will be disappointed, so that judicially or otherwise, a sale should take place of said City Hotel buildings and grounds, during the life of my children, it is my will, and I direct that my trustees, or any Court of Equity, shall cause the proceeds of sale to be invested in mortgage or ground-rents, or in debt of the United States or of the city of Baltimore; and that subject to the payment of one-third of the income of the investment to my wife during her life, the said investment shall be for the benefit of my children during their lives, and after their deaths, shall be the property, for the shares of the decedents, of their respective children or descendants, per stripes; the children or descendants of such of my children as shall have died before the investment, taking as their absolute property, and per stripes the shares to which, if they had lived, the deceased would have been entitled." HELD:

1st. The inference is strong, if not irresistible, that the testator had in contemplation a probable sale, resulting from the failure of the first article by reason of its invalidity.

2nd. That in providing this alternative disposition of that portion of his estate, it is not likely that the testator would ground his bequests upon an actual precedent sale as a condition, when a state of things might arise leading to a sale, or proceedings be instituted that would result in one. In either or any of these events, his views as contained in the first article would be equally disappointed.

3rd. That the words, "a sale shall take place," in this clause, have the same meaning as if the testator had said, "so that judicially or otherwise a sale is to take place."

4th. That equity treats as done that which ought to be done; that if upon the failure of the first article, parties became entitled to the proceeds of sale when effected, they would have a right to resort to a Court of Equity for a sale which would produce those proceeds. That, in substance, the will is the same as if it directed a sale to take place in case the views in the first article could not be carried out.

5th. That the first clause of the will of the testator being void, and his purposes therein declared having been disappointed, the second clause becomes operative, and the complainants are entitled to relief.  

COUNSEL:
E. Otis Hinkley for the appellant argued:

1. That an estate created by the execution of a power takes effect as if it had been limited expressly in the instrument creating the power. Hence, a power in reference to the time of the execution thereof, and to the estates or interests thereby attempted to be created, must be governed by the same rule [**2]  against perpetuity which prevails in regard to the limitation of estates. 4 Kent's Comm., 337. 1 Sugden on Powers, 498, 474, 475. 2 Ibid., 22, 24. 1 Jarman on Wills, 248. Lewis on Perpetuities, (52 Law Lib.,) 485 to 494, 488, 489.

II. That the power (erroneously so termed) to lease the premises, and to collect and distribute the rents thereby to be realized, so long as any child of the testator, and any child or descendant of any such child left at the death of any child shall live, and until the expiration of the lease for ten years, which shall be running at the time of the death of the last survivor of such children and descendants, is simply void as tending to a perpetuity, or if not altogether void, would be incapable of execution after the expiration of all the lives in being at the time of the testator's death, and twenty-one years thereafter. If void in part, the views of the testator would pro tanto be disappointed, and the casus arises which was anticipated by the second article of the will.

The time limited by the perpetuity rule is "lives in being and twenty-one years and a fraction." Cadell vs. Palmer, 7 Bligh. N. S., 202. 1 Clark & Finnelly, 371. 4 Kent, 271.  [**3]  Newton vs. Griffith, 1 H. & G., 115 and 125. Hoxton vs. Archer, 3 G. & J., 212. Biscoe vs. Biscoe, 6 G. & J., 235. Dashiell vs. Attorney General, 5 H. & J., 392. Torrance vs. Torrance, 4 Md. Rep., 11. Smith vs. Clark, 10 Md. Rep., 194.

Mr. Barnum's will creates a trust and not a power. Marlborough vs. Godolphin, 1 Eden, 404, 415, 419. 1 Sugden on Powers, 178, 129, 154. 2 Ibid., 162, 158, 160. 1 Jarman on Wills, 248. Lewis on Perpetuities, 485 and 486. The distinction is important, because equity never aids the non-execution of a mere power. 2 Sugden on Powers, 28.

III. The judge below, on the authority of cases referred to in his opinion, supposes that if an estate is limited in strict settlement, and a power is conferred on trustees to sell or lease during the life of the tenant for life, or the minority of any tenant in tail, such power will not affect the validity of any of the estates limited, and that it may be validly executed during the life estate. Lord ELDON thought that such power tended to a perpetuity as it might possibly continue for centuries, and, therefore, that the power was void ab origine. Ware vs. Polhill, 11 Ves., 283. 2 Sugden on Powers, 467.

Lord [**4]  ELDON'S opinion sustains, therefore, our preceding propositions. Assuming that the more recent cases referred to in the Court below have overruled or questioned Lord ELDON'S opinion to this extent, that the power may be executed within the term of any life in being at the death of the testator, and twenty-one years thereafter, it may nevertheless be confidently affirmed:

1. That it has never been adjudged that the power may be executed after the expiration of that term.

2. The reason assigned in support of the power is, that the power is collateral to, or appendant on the estate, and is terminable at any moment by any act determining the estate to which it is attached. It is supposed, in short, that the power is intended to effect no more than a modification in the form of enjoyment of the estate, and cannot tend to a perpetuity where the estate with which it is associated is validly created. 2 Jarman on Wills, 729. Wallis vs. Freestone, 10 Simon, 225, expressly places it on this ground. 1 Sugden on Powers, Introduction, p. XII. Waiving all discussion as to the sufficiency of this reasoning when limited to a case where the person beneficially interested has an estate distinct [**5]  and independent on the power, and to the enjoyment of which the exercise of the power is not essential, and by the alienation of which the power may be destroyed, it can have no application in a case where the person to whom the estate or trust is limited has no control over the execution of the power by the grantee thereof, and where the power is not exhausted by a single act, but is to be exercised continuously during the continuance of the estate or trust, and through a term which exceeds in duration the limits prescribed by the law against perpetuities. In this last case supposed, the rule of Lord ELDON is clearly applicable; and it was accordingly held by Sir WILLIAM GRANT, in Leake vs. Robinson, 2 Merivale, 383, that where a trust was created for accumulation with a view to distribution amongst the individuals of a class as they should arrive at their respective ages of twenty-five years, the entire trust was void, although some persons of the class had attained the age of twenty-five years within the term prescribed by law. And overlooking the intermediate cases, which, with an unbroken unanimity, sustain Leake vs. Robinson, the Vice Chancellor, in Ferrand vs. Wilson, 4 Hare,  [**6]  376, treats the limitation of an estate, and a power or trust to accumulate or apply rents and profits, as equally void where the estate in the first instance may not take effect, and the person for whom the fund is destined in the second instance may not come into existence until a period after the testator's death, more remote than is allowed by law. 2 Sugden on Powers, 65. Porter vs. Fox, 6 Simon, 492. Cowport vs. Austen, 12 Simon, 250. Ibbetson vs. Ibbetson, 10 Simon, 495. Browne vs. Stoughton, 14 Simon, 369. Dungannon vs. Smith, 12 Clark & Finnelly, 546, and 634 and 640. Southampton vs. Hereford, 2 Vesey & Beames, 54. Boughton vs. James, 1 Collyer, 26. General and particular powers distinguished. Lewis, 483 and 484, 522. 1 Jarman, 250. 2 Do., 729. 1 Sugden, 472, 473 and 474. 2 Do., 471. Merlin vs. Blagrave, 25 Beav., 133. Seaman vs. Ward, 22 Id., 595. Thomas vs. Wilberforce, 31 Id., 302. Ward vs. Barrow, 2 Ohio, (N. S.,) 241. Amory vs. Ford, 5 Seld., 403.

Now in the case before us, the "estate," as it is termed, is eliminated out of what is termed the "power." The beneficial enjoyment of the estate is dependent altogether on the exercise of the power. There is no gift other [**7]  than is to be found in the direction to pay over the rents and profits realized by the exercises of the leasing power. The property is given to trustees, not to those who are treated by the Court as the cestui que trusts. The trustees are directed to lease the property for hotel purposes, and cannot use or employ it in any other manner. They are to distribute the rents realized by the leases to be made by them, and no provision is made for the distribution of profits to arise in any other manner. And the estate limited to the trustees is to continue, and the power of leasing delegated to them is to be exercised, and the distribution of the fruits realized by the exercise of this power is to be made periodically, as they arise, and continuously for and until the end of a term which may endure beyond the limits defined by the law, and for the subsistence of persons constituting for the time being the "family" of the testator.

The purpose of the testator in those provisions of the will, or as he has expressed it, his "view," is one and inseparable, and the various provisions are dependent one on the other. If the estate devised to the trustees is incapable of continuance, for and [**8]  during the entire term, it is void ab initio. If the estate of the trustees is avoided, their supposed power of leasing is at an end, and with that power, the right of the "family" to share in the distribution of the rents to be realized from the exercise of the power. 4 Kent, 271. Coster vs. Lorillard, 5 Paige Ch., 172 and 225. Same Case on Appeal, 14 Wendell, 265 and 392. Root vs. Stuyvesant, 18 Wendell, 257. St. Amoun vs. Rivaud, 2 Michigan (Gibbs,) 294. Hawley vs. James, 16 Wendell, 61 and 251. Van Vechten vs. Van Vechten, 8 Paige Ch., 104 and 121. Moneypenny vs. Dering, 16 Meeson & Welsby, 418. Lewis on Perpetuities, (52 Law Lib.,) 129, 159, 164, 169, 170, 430, 453, 433, 454, 441, 457, 485. Supplement to Lewis on Perpetuities, (66 L. L.,) 151, 152, 154.

As the cy pres doctrine creates estates tail, quaere whether it is any longer applicable in Maryland since the Act of 1786, ch. 45, of descents, 1782, ch. 23, to bar entails, and the New Code, titles "Inheritance" and "Conveyancing," because now estates tail might descend even to collaterals very remote, and so the reason of the rule would utterly fail. Newton vs. Griffith, 1 H. & J., 127 and 132. Wells vs. Biscoe, 2 G. &  [**9]  J., 458 and 467. Ground of cy pres doctrine stated in 1 Jarman on Wills, 261. 2 Sugden on Powers, 61.

IV. That the distribution ordered by the first article of the will is to be made--1. To and amongst the children of the testator during their respective lives,--to each child an aliquot share or proportion of the fund.

2. Upon the death of any child, his part or share will devolve on his children during the lives of such children, and the survivors of them.

3. If any child in the second degree should die in the lifetime of any child of the testator, leaving a descendant, such descendant will succeed to a life estate in the part or share of his immediate ancestor.

4. The succession of life estates will continue until the death of the last of the descendants who shall come into being before the death of the last survivor of the testator's children.

5. The distribution is to be continued until the expiration of the lease granted for ten years, and running at the expiration of the preceding lives, amongst the persons who may at the time of distribution be inheritable as heirs-at-law of the testator's children.

6. And ultimately the principal estate, so far [**10]  as it consists of personalty, is to vest in and be distributed amongst the last mentioned class of persons.

7. It is unnecessary to consider whether there is an implied limitation over of the fee in the realty. It is very clear that the testator did not contemplate an enjoyment of the fee, or the exercise of a dispositive power over the same, until after the determination of the estate expressly limited to the trustees.

The opposite of this construction would give the estates, real and personal, to the testator's children absolutely; and if the opinion of the Court below is to be sustained as incident to the absolute ownership, the right to call for a conveyance of the legal title, and thus to extinguish all powers of leasing and superintendence which are given to the trustees by the will.

Of those two theories, that which is presented by the appellants alone is consistent.

1. With the purpose of the testator as expressed in the opening of the first article of his will: "Desiring that my City Hotel in Baltimore should be permanently conducted after my death, and believing that the property thus employed will prove a sure and better resource for my family." ***

2.  [**11]  With the general texture of all the provisions to be found in the first article; which would indeed be superfluous and unavailing, if the testator intended that his children should succeed to the entirety of his interest in the property, with the dispositive power which is inseparable from absolute ownership.

3. The theory of the appellants is further sustained by the letter of the direction to distribute the rents as received, "to and amongst my children and their heirs per stirpes." "Heirs," in reference to devises of real estate, is usually a word of limitation. Under special circumstances it may operate as a word of purchase. In dispositions of personal estate, if it has any operation whatever, it must take effect as a designation of the person, who at the time fulfils the character of heir-at-law of the parties named. Excepting in remote collateral successions, heirs--qua heirs--always take per stirpes. And it is only in a case where heirs are to take as purchasers, and indifferently therefore, per stirpes or per capita, that one or other expression is appropriate in order to avoid obscurity. When, therefore, the fund consists of fee-simple estates, leaseholds and personal [**12]  chattels, and is given to trustees, not absolutely, but for a term which may subsist for several generations, and is to be managed as one undivided fund, for the benefit of persons who are indifferently treated as "the family" of the testator, and as his "children and their heirs per stirpes," we must understand by the latter expression the children of the testator, and their children, or other descendants succeeding in their own right, to such share or proportion of interest as had been enjoyed by their immediate ancestors. Porter vs. Fox, 6 Simon, 492. Snowden vs. Fitzhugh, 19 Md. Rep., 197.

4. It is also sustained by the alternative disposition made by the second article of the will. There could be no disappointment of the views of the testator if he intended to give to his children the fund absolutely, and with the power of enjoyment or appropriation thereof in such form as they might deem expedient. Such disappointment was anticipated as the conclusion from the possible adjudication, that the will, if operative at all, would bind the property for a longer term than was allowed by the policy of the law. In this event he makes a disposition which is clearly unexceptionable.  [**13]  He gives the fund beneficially to his children during their lives, and absolutely to their immediate descendants. This limitation of the interests of the children, to a life estate in the proceeds of the property, after it has been converted into money, is hardly reconcilable with the theory, that the primary intent of the testator was to give to those children, the absolute interest in the property, with the power of converting the same at their pleasure. As to intention in wills, see 1 Jarman on Wills, 411. Iglehart vs. Kirwan, 10 Md. Rep., 564. Lingan vs. Carroll, 3 H. & McH., 333. Berry vs. Berry, 1 H. & J., 421. Walston vs. White, 5 Md. Rep., 303. Simpers vs. Simpers, 15 Md. Rep., 187. Workman vs. Cannon, 5 Harrington, 91. Thrasher vs. Ingram, 32 Ala., 645.

I. Nevett Steele for the appellees.

1. The intention of the testator, expressed in the first article of his will, is free from any ambiguity. He thereby devised and bequeathed to the trustees the hotel property and furniture, in order that they might make successive leases, from time to time, for the period of time therein mentioned, of such part of the property as constituted the hotel proper and the furniture belonging [**14]  thereto, and that they might and should dispose of the rents in the manner therein mentioned. Whether such intention is, or is not, consistent with the rules of law, is a different question, and cannot control the construction of the will in the effort to ascertain the actual intention of the testator. Scarborough vs. Doe & Saville, 3 A. & E., 897, (30 Eng. C. L. Rep., 266.) Lewis on Perpetuities, 52 Law Lib., 144.

2. The devise to the trustees and their heirs, unrestrained by other parts of the will, would be construed to be in fee-simple; but as the devise is coupled with a trust and a power of limited duration, the fee is determinable with the termination of the power and trust; that is, when the power to lease shall have ended, and when the current lease, existing at that time, shall have ended, and the trustees shall have received and have paid over the rents. Playor vs. Nichols, 1 B. & C., 336, (8 Eng. C. L. Rep., 144.) Doe vs. Timmins, 1 Barn. & Adol., 538, 545. Doe vs. Simpson, 5 East., 562.

3. It follows, as a consequence, that the estate of the trustees was a particular estate; that is, an estate to endure as long as, and no longer than, the trust was to continue;  [**15]  and hence it results, as a further consequence, that the remainder was not affected at all by the first article. That remainder passed, under the residuary clause, (7th article of the will,) in fee as to the realty, and absolutely as to the personalty to his children. Even, therefore, if the first article, upon any ground, should fail to operate in whole or in part, such failure would only affect the particular estate, and not the remainder. Doe d. Stewart vs. Sheffield, 13 East., 527. Williams d. Goodtitle vs. David, 10 B. & C., 895. White vs. Vitty, 2 Russell, 484--4 Russell, 584. Goodtitle d. Hart vs. Knott, Cowper, 43. Morris vs. Underdom, Willes, 293. Ferguson vs. Hedges, 1 Harrington, 524. Hayden vs. Stoughton, 5 Pick., 537, 538. Bringham vs. Shattuck, 10 Pick., 306. Lingan vs. Carroll, 3 H. & McH., 323.

4. But the first article does not violate the rule against perpetuities. That rule does not apply to the quantity or quality of estate in the property devised in trust, but to the ownership of the estate devised in trust; that is, to the estate of the cestui que trust. Property may be validly devised to trustees in fee-simple, in fee tail, especial or general, or for a term [**16]  of years renewable forever, for the benefit of the cestuis que trust, but it is not permitted that the ownership of the cestuis que trust shall be "tied up" for a period beyond the allowable limit of inalienable ownership; that is, beyond a life or lives in being, and twenty-one years and a fraction of a year. 8 Bligh., 299. Lewis on Perpetuities, 511, (52 Law Lib., 338.)

5. Nor does the rule apply to powers over property where powers are separable and separated from the beneficial ownership of the estate, and are not in restraint of alienation of the estate, legal or equitable, of the beneficial owner, for any period beyond the allowed limits. And this doctrine is alike applicable, where powers are conferred, to be exercisable over an antecedently created estate, or where the estate is, or may be, intended to be created through the exercise of the powers conferred.

6. The real question, therefore, in any and every case which comes under judicial consideration in relation to the applicability of the rule against perpetuities, must be the single and practical enquiry, whether the beneficial ownership of the estate is "tied up" and made inalienable for a period of time beyond [**17]  the time allowed by the established rule against perpetuities.

7. There is nothing, therefore, in this first article which transgresses the rule. Upon just construction, the powers of the trustees were not intended to endure beyond the lives of persons who should, at the moment of the death of the testator, answer the description of children or descendants of children. It was not intended that after-born descendants of children--post nati--should be embraced within the continuance of the powers to lease. The word "left" is not of the same import as if the language had been "may be left by them at the period of their deaths respectively."

If, however, it should be held, that the powers are to be exercised during the lives of after-born descendants of children, then the practical question suggested in the sixth point will arise, and that is, whether the property is "tied up," from generation to generation, so as to be incapable of alienation within the period allowed by the rule against perpetuities. And upon this question the point is confidently made, that uno flatu with the vesting of title in the trustees, the right of alienation vested in the cestuis que trusts of their [**18]  equitable estates in the rents. The language is plain and unambiguous,--"in equal shares to and among my children, and their respective heirs, per stirpes," &c.

What language could be employed more apt to create a vested estate, in presaenti, as to the rents to accrue under the trust? There is no limitation over. The words "per stirpes" are here mere words of representation, not of purchase. The child was the stirps through whom the heirs of such child were to take their shares of the accruing rents. They are the very words to indicate an estate in fee. And if, by judicial construction, the case should be brought within the rule in Shelley's Case, the result would be the same. Supplement to Lewis on Per., (66 Law Lib.,) 154, 155. Doe d. Long vs. Prigg, 8 B. & C., 229, (15 E. C. L. Rep.,) 121. Dorsey vs. Dorsey, 9 Md. Rep., 31. Ware vs. Richardson, 3 Md. Rep., 544. Simpers vs. Simpers, 15 Md. Rep., 107. Smith vs. Clark, 10 Md. Rep. 194. Cassilly vs. Myer, 4 Md. Rep., 1.

8. If the last point be well taken, then the right of alienation would be an incident or quality of the estate, and the deed of Augustus Barnum, and the deed of Caroline Barnum, devisee of Ephraim Kirby Barnum,  [**19]  effectually conveyed to Mr. McLaughlin the titles of both, not merely in the residue of the estate, but in the rents. Hence, the appellants would have no titles to maintain this suit.

9. If however, upon any theory of judicial construction, it shall be held that the first article violates the rule against perpetuities, the effect would be, not to avoid the trust, nor to destroy the power in toto. The power would be good pro tanto,--would endure as long as it might endure without trenching on the rule, and would be void only for the excess. Biddle vs. Perkins, 4 Simons, 135, (6 Cond. Ch. R.) Powis vs. Capron, Id., 139. Collins vs. Freestone, 10 Simons, 225. Nelson vs. Callow, 15 Simons, 353, (38 Cond. Ch. R.,) Wood vs. White, 4 Myl. & Cr., 460, (18 Cond. Ch. R.,) 480. Boyce vs. Hanning, 2 Cromp. & Jer., 334-344. Ferrand vs. Wilson, 4 Hare, 377-381. Lewis on Perpetuities, 494-5, (52 Law Lib., 328, 304, 305, 364.) Sugden on Powers, 2d Vol., 469-472.

10. If, however, the first article be void in whole or in part, still, as to any property covered by the trust which would have passed under the residuary clause, and also any parts of said property which passed to the children of [**20]  the testator by descent, as not effectually disposed of by the will, and also any property to which they were entitled in a course of distribution, the appellants can make no claim, because the deed of their father and of the devisee of their uncle, in terms, covered all the property, as well personal as real. The appellants can have no right, therefore, unless the second article took effect, in operation, upon the decease of the testator, in displacement of the first article. Their claim is necessarily based on the second article, and their proposition affirms that their father and uncle had but estates for their respective lives.

11. But this second article was never intended to go into operation unless a sale of the ground-rents and buildings should judicially or otherwise, against his will, take place. It was to take effect, if at all, after a sale, and in consequence of a sale, in disappointment of his views. It was not intended to be a ground and cause of sale. Whether intended in terrorem, or as a substitutional provision, it is manifest that a sale, "judicial or otherwise," was made a condition precedent to the effect in operation of the second article. In contemplation [**21]  of the possible disappointment of his wishes, he may have introduced this provision, as a clause in terrorem, to prevent the voluntary destruction of the trust.

12. Upon the double hypothesis that the term (designated in preceding points as a particular estate,) did not pass at all, or only passed in part, under the first article of the will; and that the same did not fall into the residue of the testator's estate, and so pass under the residuary clause, then said particular estate, or so much thereof as did not effectually pass under said first article, must be considered as property of the testator whereof he died intestate, and passed as provided by law in cases of intestacy. Torrance vs. Torrance, 4 Md. Rep., 11.

Wm. Schley also for the appellees.

The appellants, in this case, base their claim on two propositions; and their claim is without support, unless both propositions can be established.

Firstly. That the first article of the will transgresses the established rule against perpetuities, and for that reason is void; void ab initio and in toto.

Second. That this article being void as alleged, the second article took effect, in operation, presently upon [**22]  the decease of the testator; and that, under said second article, their father, Augustus Barnum, and their uncle, Ephraim Kirby Barnum, took, respectively, estates for their natural lives, and no longer.

I shall consider, first in order, the objection to the first article of the will.

In the interpretation and construction of a will, the first object should be to ascertain the actual intention of a testator; and such intention is to be gathered from a careful and true consideration of the whole will, by just and reasonable exposition, regardless of the ulterior question whether such intention can or cannot be carried into effect consistently with the rules of law.

Now, apart from the assumption that the first article violates the rule against perpetuities, there can be no reasonable doubt as to the actual intention of the testator. He desired the hotel to be rented out in the manner expressed in said article, during the period specified in said first article. He had two objects in view, plainly expressed in said first article. One was that the City Hotel should be permanently conducted, after his death, in a becoming manner as a hotel; and the other, to provide, what [**23]  he considered, a sure resource for his family from the rents to accrue from leases of the hotel property. As a mode of carrying these views into effect, he devised the property to trustees, &c., with power to rent, for successive terms, during "the period" mentioned in said first article, with special directions, that, in all leases, the tenants should be required to keep and deliver up, in as good condition as delivered to them, the furniture, &c.; and he also directed how the accruing rents should be applied and distributed.

The precise question to be decided, on the point of the actual intention of the testator, respects the duration of the period within which the trustees were empowered and directed to make leases.

The appellants insist, that the trustees intended to embrace, within said period, the lives of descendants of any of his children left by any child, at the death of such child, whether such descendants were living at the death of such testator, or should be born after his death; and that, therefore, the period of time, during which the trust was to continue, and the power to lease was to be exercised, transcended the utmost limit of time allowed by the rule [**24]  against perpetuities. The appellees, on the other hand, insist, that upon the true exposition of his intention, gathered from the whole will, the prescribed duration of said period does not offend against said rule.

I do not propose to consider now what the effect would be if the actual intention shall be such as the appellants insist. But regardless entirely of the effect of his intention either way, I desire to establish, that the position of the appellees as to his intention, in fact, is correct.

It is unnecessary to cite authorities for these positions; that in the exposition of a will, the intention of the testator is his will; in the language of Lord Chief Justice WILLES, the rule is 'voluntas testatoris totum est;" that his intention is to be collected from the words of the will free of conjecture; that such intention is to be gathered from the whole will, and that the intention, at the time the will was made, is the intention to be discovered, if possible; and that such intention, when discovered, so far as may be consistent with the rules of law, shall prevail and be carried into effect. It is a common saying that a will must be made to speak from the testator's [**25]  death, and this is true, for it then goes into operation and first speaks out. In the language of a very respectable writer, Ram. on Wills, 108, (Law Library, 8th Vol., page 59.) "What does it speak? Does it say more than what the testator said when he made his will? Were it permitted to say more, (at the testator's death than he intended to say when he made his will,) "clearly the law would fulfil an intention which is not expressed in the will." The true statement is that the will was ambulatory during the lifetime of the testator, and only became a finality at his death, but it then becomes a finality of the intention existing at the making of the will, and therein expressed. There is nothing, however, in the rule which prevents a testator from providing by anticipation for future events, certain or contingent. Contingent remainders, springing uses, shifting uses and all executory limitations are valid, subject only to the overruling power of the law. No individual can make a law in his own case, in disregard of the law of the land, The rule in Shelly's case, for example, professedly disappoints the actual intention of the testator, but before the rule applies, it is necessary to [**26]  ascertain the actual intention, in order to ascertain whether the case is one for the application of the rule. In case of an estate tail, the entail may be docked by a common recovery in England, and here it may be docked by a deed of bargain and sale, yet, in such case, it is always necessary, by ascertaining the testator's intention, to discover whether the estate created is or is not an estate tail. So the rule against perpetuities overrules any testamentary disposition which contravenes said rule, but it is necessary to ascertain the actual intention of the testator, in the particular testamentary disposition, in order to ascertain whether his intention, if carried into effect, would or would not constitute a perpetuity.

1. I proceed, therefore, to ascertain, if I can, the intention of the testator as expressed in the first article of his will.

In disposing of the rents, he directed, that after deducting one-third allotted during her life to his wife, the remaining two-thirds should be divided in equal shares among his five children, (named in said article,) and their respective heirs, per stirpes, and that the one-third allotted for her life to his wife, should, after [**27]  her death, be divided in like manner. The word "heirs," as here used, cannot by any possible construction, be deemed a word of purchase, and each child took a present, vested, absolute estate in his allotted share of the rents. Technical words, when used in a will, are presumed to be intended to take effect in a technical sense, unless a contrary intention shall appear in the will. Scarborough vs. Doe & Saville, 3 A. & E., 897, (30 Eng. C. L. Rep., 266.)

In the introductory part of the first article, he uses the indefinite words "my family," and we see by the actual disposition of the rents, that he meant thereby to designate his wife and children. The heirs of children were not to take any part of the rents in their own right, even if any child should die in the lifetime of the testator, otherwise than by representation of such deceased child, in right of such deceased child claiming under and through their parent as the stirps. Clearly, in the gift of the respective shares to his children, he did not intend to give them such shares for any period of time less than the whole period of the duration of the trust. Now I deem this important, as tending to elucidate the meaning of [**28]  the testator, when he undertakes to define the period during which leases were directed to be made. I quote the language: "And the period during which my trustees, and their heirs and successors, shall have the power and are required to lease as aforesaid, shall be so long as my said children, or any children or descendants of them, or of any of them, left by them, or any of them, at the death of them, or of any of them, shall live, it being understood that any lease made during the period aforesaid, shall have full effect and continue for its stipulated term, notwithstanding the cessation of all of said lives before the end of said term." Now, as one object for devising the property in trust was to provide a sure resource for his family, and as he has indicated in a prior part of this article, the persons intended to be embraced in the word "family," and as he gave to his children absolute shares of all rents to accrue from the leases, for the whole period during which leases were to be made, it is, at least, reasonable to suppose that he would, so far as the object of the trust was concerned, limit the period of leasing to the lives of his children, and as he contemplated the possibility [**29]  of the death of one or more of his children, leaving children living at his death, he naturally added those lives to the others in defining the period, or for the gratification of another object of the trust, namely, the continuance of the property as a hotel; he may have desired to embrace in the number of lives all descendants in esse at his death, so as possibly to prolong such continuance by such enlargement. And this interpretation is strengthened by the use of the words "left" and "shall." Both are in the indicative mood. If the testator had used words belonging to the potential mood, it would undoubtedly have favored the argument in support of an intention to include after-born children and descendants. But as this will speaks of the day of his death, it would appear to indicate an intention, by the use of the word "left," to point to his own children, and children and descendants of children, living at the time of his own decease. The word "left" refers to an existing, accomplished event, not to something potential, for who can know that some one of his own children will not survive all his children's children and descendants? If his intention had been so large and comprehensive [**30]  as the appellants claim, we should probably have found apt words to manifest such intention, as "born or to be born," or some phrase or word more appropriate than the word "left."

And the word "shall," as here used, has, to my mind, a positive, indicative and demonstrative signification. Now I do not propose to contend, that grammar is to control a Court of Justice in the exposition of a will. But the language of Sir RICHARD PEPPER ARDEN, in 4 Vesey, 329, is very apposite here: "Every word is to have its effect. Every word is to be taken according to the natural and common import." As the Court, in construing wills, are frequently required "ex fumo dare lucem," every thing which is found in the will, and which may illustrate the intention of the testator, is deemed worthy of consideration. And it is certainly more appropriate to construe a will by the rules of grammar, where words used in a grammatical sense have operation and effect, than to introduce false grammar to change their meaning.

But reliance is placed, in the brief of the appellants, on the words "permanently conducted," and undoubtedly, if the object to be accomplished by the trust, as expressed on the face of [**31]  the will, required the creation of a perpetuity, then the argument in support of an intention to create a perpetuity would be eminently proper. But the word "permanently" does not mean "forever." It imports continuance, but no definite time. A permanent boarder at this hotel is such if he be not a casual or transient guest. A servant "permanently" employed there is one who, like Susan Nipper, is not merely "a temporary;" not one employed for the occasion upon some emergency. But here the word "permanently," a word of indefinite meaning, is so far limited in duration, that it is not to extend beyond the "period" fixed by the testator in the latter portion of this clause. We can only define the length of time intended to be covered by the word "permanently," by first ascertaining the duration of the period fixed by the testator. It is not an uncommon effort to explain a passage by another still more obscure,--"ignotum per ignotius."

But it is seriously insisted, in the brief of the appellants, that the first takers of the respective shares of rent under the first article, were intended to take only estates for life, and that their children, under the term "heirs," were intended [**32]  to take by succession for their lives, and so on, from generation to generation, until the death of the longest liver of the descendants of the last survivor of the testator's children.

To such suggestions I give the short but sufficient answer, that where a testator uses certain words which, in a legal understanding, have a known and definite meaning, he must be taken to have intended to mean precisely what the words employed by him import. We are not at liberty to conjecture as to his meaning. If in giving to his children their respective shares of the rents, he has used words which, in legal signification, import absolute gifts, then in the absence of anything to show that he used words in a different sense, it must be taken that he intended to make absolute gifts. In the language of Chief Justice TINDAL, (30 Eng. C. L. Rep., 266,) "We hold it to be a necessary rule in the investigation of the intention of a testator, not only that we ought to look to the words in the will alone to determine the operation and effect of the devise, but that we ought to disregard altogether the legal consequences from the nature and qualities of the estate, when such estate is once collected [**33]  from the words of the will itself. In determining, therefore, what the intention of the testator was in any particular case, &c., &c., we have no right to assume that the testator was himself ignorant of such lcgal consequence and effect, or that he had not taken it into consideration. The only safe course is to look carefully for the intention of the testator as it is to be derived from the words employed by him within the whole will, regardless alike of any general surmise or conjecture from without the will, or of any legal consequences annexed to the estate itself, when such estate is discovered within the will."

It might as well be suggested in a case where, from the words of the will, there is a clear devise in fee that the testator really intended that his devisee should take but an estate for life, and that his heirs should have a remainder as purchasers.

If these views be correct, then the duration of the trust estate did not exceed the limit allowed by the rule against perpetuities; and as the power to rent is engrafted on the trust, and merely ancillary thereto, the duration of the power was limited in like manner.

2. But even if the actual intention of the [**34]  testator embraced, as part of the period of the trust, the lives of after-born descendants, the trust would not for that reason be void in any degree, either wholly or in part.

It will be noticed that the leases are to be made from time to time, in no case for a term exceeding ten years. The leases, therefore, would not create estates that would transcend the rule.

It will also be noticed, that there is no restraint against alienation by his children of their respective shares, even for a day. There is no remainder, vested or contingent, in the shares of rents given to any other persons, no shifting or springing uses, or other executory limitations. The children took vested estates in their respective shares, presently on the death of the testator. Hence, the right of alienation, as a legal incident, attached at once to the respective shares of Augustus Barnum and Ephraim Kirby Barnum.

Keeping these considerations in view, what possible difference can it make, so far as concerns the rule against perpetuities, whether the trust and power were to continue and be exercised for one generation, or two, or indefinitely? The rule against perpetuities is levelled, not against [**35]  vested estates capable of immediate alienation, but against future estates, which, by possibility, may not certainly vest within the limit prescribed by law, and against provisions rendering vested estates inalienable for an excessive period. Avoiding these objections which the law sternly denounces, property may be devised in trust for a term of years, long or short, "whilst water shall flow or grass shall grow," in tail or in fee. Take, for illustration, the case of an estate tail. Such an estate may endure for generations, and yet was never considered as subject to this rule, and for the plain reason that it is destructible by a recovery, and with us, by an ordinary deed of bargain and sale. Still, using the case of an estate tail for further illustration: An estate tail differs from an estate in fee-simple in having a remainder that may be validly devised, if properly devised. Suppose it is devised at the moment of the creation of the estate tail, so as to become a vested remainder, although the period of enjoyment is indefinitely postponed. The devise of such an estate is not within the rule against perpetuities, because presently vested, but if devised upon a contingency, so [**36]  that the estate, by possibility, may not become vested until beyond the permitted period, it is too remote. The distinction which will appear by a contrast of an estate tail, where there is a remainder, and the case of a limitation of a fee upon a fee, where there is no remainder, and which can only take effect, if at all, as an executory devise, will afford another apt illustration. In the latter, the estate under executory devise, must necessarily be contingent, and the period when it will vest at all, must be necessarily indefinite, and hence the numerous cases in the reports of executory limitations, after an indefinite failure of issue, and which species of limitation the rule annihilates.

Other cases might well be put for illustration, but sufficient has been said to show the character of the proposition which I have asserted.

The whole doctrine on this subject is very lucidly stated by the author in Lewis on Perpetuities, (66 Law Library, 28, 31. He does not seem to attach as much importance to the attribute of alienability as some judges have done, but he considers remoteness to depend on the distinction between vested and contingent interests, regardless of the period [**37]  of possessory enjoyment.

3. But if the trust and power, or either, be liable to exception under the application of the rule, then the further inquiry would arise, whether both, or either, are or is void in toto, or only pro tanto.

It will readily be acknowledged that there is a distinction between a case of a future estate to arise under the execution of a power, and an estate existing independently of the power, and when such power is merely annexed to the estate for administrative purposes.

In the former case the estate may be void, inasmuch as it would necessarily depend on the validity of the power for its support; and if the power be void the estate would necessarily be so, and therefore, in such case, the apt inquiry would be as to the validity of the power. In the latter case the estate may be good, even if the annexed power is void, provided the power be not an essential, component part of the estate. The estate and the power, if separable, would in such case be severed. If the trust itself be lawful, it would not fail, although the means be objectionable. Equity would in such case provide the proper means to carry the trust into effect.

There is another [**38]  distinction in relation to the execution of powers, and which is especially material in the consideration of this point. Here the trustees are to make leases for successive terms, &c. Each lease is a separate and distinct act. The testator himself created a term of three years, and the trustees were directed, after the expiration of that term, or in case the designated lessees should not accept, to lease for successive terms, not in any case for a term exceeding ten years. Now, as the first lease was to be made by the trustees, at farthest, at the end of three years, and was to continue only for ten years, there could be no objection, of course, to their power, or to the lease, unless it can be found in the accompanying provision, that they shall "from time to time, during the period hereinafter mentioned, lease," &c. But as each several lease is a distinct and separate act, the power to lease "from time to time" must be deemed a power to do several successive acts; and it does not follow, even if it be true that some of the leases directed to be made would be void as being created beyond the period allowed for the exercise of the power, that those leases, made within the allowed limits,  [**39]  would also be void. Such a power may well be apportioned. A power to make leases not exceeding ten years, from time to time, during the lives of persons in being at the testator's death, and also to make leases during the lives of after-born persons, may be void as to the latter portion of the period, and yet good as to the former period. The power may be validly exercised during the lives of the persons in being, and yet be void as to the residue of the period. The decision of Vice Chancellor WIGRAM, in the case of Ferran vs. Wilson, 4 Hare, 377, (30 English Chancery Reports, 376,) approves of the apportionment of the power in such a case. This decision is commented on in the supplement to Lewis on Perpetuities, 196, (66 Law Libary, 134.)

4. I pass now to the ulterior question, as to the effect of the invalidity of the power ab initio, or as to the effect of its cesser at any time during the prescribed period.

The trust having been manifestly created for the purposes of enabling the trustees to make leases, and to distribute the rents as directed in the will, the trust, in its origin, was limited to the accomplishment of the object of its creation. Even, therefore, if it [**40]  was the intention of the testator that the trust should continue as long as any descendant of his children, living at the death of any of his children, should live, still this would only be the creation of a limited estate of indefinite duration, and the residue of the interest of the testator would remain subject to his disposition. That residue of interest passed under the seventh article of his will. The language is very comprehensive --"all the rest and residue of my estate, of every kind, not hereinafter disposed of, I give and devise, &c., &c., to and among all my children and their heirs, as tenants in common, share and share alike," &c., &c.

Whether, if the trust was void, ab initio, the limited estate intended to have been placed in trust, or if void pro tanto, the residue of said limited estate would sink into the residue, and so pass under the seventh article of the will, or whether it would be disposed of by law as property whereof the testator died intestate is, in this case, a question of no practical importance. For Augustus Barnum, the ancestor of the complainants, and under whom they must necessarily claim, (unless the first article is displaced by the second [**41]  article of the will, and as to which I shall presently speak,) by his deed, before referred to, conveyed "all the estate, real, personal and mixed, in possession, remainder, reversion, or expectancy, legal or equitable, to which, by devise, or bequest, or descent." he was entitled in his father's estate. And although the deed from Caroline Barnum is not so full, yet it could readily be shown, if it were necessary, that her deed, in connection with the deed of Ephraim Kirby Barnum, conveyed all his interest in his father's estate to Mr. McLaughlin. But it is unnecessary to discuss questions of estoppel or election, inasmuch as the devise, by Ephraim Kirby Barnum, of all his estate, real and personal, to his wife, Caroline Barnum, effectually prevented the accrual of any right in his estate on the part of the appellants; and the bill, indeed, expressly states that Ephraim Kirby Barnum devised all his real and personal estate to said Caroline Barnum, and concedes that if he had any estate beyond his life, the same had become vested in Mr. McLaughlin.

5. More has been said than perhaps was strictly necessary on so much of the case as has been considered, for the appellants, in effect,  [**42]  claim, and claim exclusively, under the second article of the will. It seemed to me proper, however, to consider every question which I have discussed as introductory to an examination of this second article. For if the first and second and third points made in this argument, or any one of those points, be well taken, then it is clear that there has been no disappointment of the views of the testator as expressed in the first article, even in the sense in which the appellants construe the word "disappointed" as used in this second article. And if it should be held that my notions, as embodied in the discussion of these points, are wrong, still the fourth point is important, inasmuch as it clearly shows that the appellants cannot possibly have any right unless they can make good their claim under the second article.

It cannot be disputed that the effect, in operation of this second article, is strictly contingent, dependent on the actual occurrence of a certain event, and which is carefully specified in said article itself. That event is the contingency that the views, embodied in the first article, shall be disappointed, so that judicially or otherwise, a sale shall take place [**43]  of the City Hotel, buildings and grounds during the life of any of his children.

A sale is a condition precedent, a sale in fact, not of the respective interests of all, or of any of the cestui que trusts, but of the said City Hotel buildings and grounds. The distinction between a sale of the property itself and the sale of interests by the cestui que trusts, is broad and material. For in the sale of the property, his scheme for the continuance of the hotel for a certain period, (one object of the trust,) would be clearly disappointed; whereas, sales of their respective interests, by all or any of the cestui que trusts, would not interfere with the trust, nor necessarily divert the property from use as a hotel, and would not be, in any other respect, in disappointment of his views as expressed in said first article, because, in giving interests to his children, in manner as thereby given, he meant that they should take such quantity of interest as he thereby gave; and the right of alienation is a legal incident, annexed by law to such interests as he gave, independently of any wish or desire which may be supposed to have existed on the part of the testator. If it be suggested [**44]  that he wished, in the first article, to limit the estates of his children to mere estates for life, the answer is, if this be so, quod voluit non dixit. In using technical words, the testator must be supposed to use them in their technical sence. If it had been an estate in fee, with which he was dealing, instead of the division of rents to accrue during a limited period, he could not have used any more appropriate words to give an absolute estate.

And to show more clearly that this second article was only to take effect in case of a sale of the property itself, and after such sale, and in consequence of such sale, we find that the proceeds of sale are the subject of disposition in this second article. It is in nature of a springing use, not precisely a shifting use--the accrual of new and substituted rights, dependent on the occurrence of a state of case which has not as yet happened. It is strictly analogous to a contingent executory limitation to arise upon a future event, which may or may not occur.

Two of the children, Mrs. Stannard and Richard Barnum, are still living, and within the life of the longest liver of them, such state of case, if it be possible, may happen.  [**45]  It has not yet occurred. I rest this part of the case on the short but sufficient exception, that the appellants have not any title, under the will, to maintain this suit. If they have any right at all, it is merely executory and contingent, dependent on the occurrence of an event which has not as yet happened, and may never happen.

There are cases, indeed, in which equity has interferred, at the instance of persons having contingent interests, to prevent waste or other destruction of property, on bills in nature of bills quia timet. But the effort in this case, is an effort in fact, to convert a mere contingent interest into a vested right, by procuring a judicial sale of the property, in direct violation of the testator's views, as expressed in the first article, so as to bring the second article into operation. Claiming under the will, they must claim according to the will. They cannot invoke the aid of a Court of Justice for the purpose of disappointing the will of the testator in its primary object, by destroying the vested rights of persons entitled under the same instrument, so as thereby to create in themselves a vested and inconsistent right.

I deem it unnecessary [**46]  to notice minor points suggested in the preceding argument of the appellees on this part of the case, as the one exception is quite sufficient.

The views put forth in this argument are the result of an extented examination, and careful consideration of elementary writers and decided cases; and they are respectfully submitted to the Court.

Thos. S. Alexander for the appellants in reply.

It is conceded that the appellants must show that, as children of Dr. Augustus Barnum, deceased, they are entitled to an account of rents and profits of the City Hotel property, accrued and realized since the death of their father, and to a participation in the accruing rents, or to a sale of the premises, on showing that such sale will promote the advantage of all parties having interests in the property. They must claim, if at all, directly under the last will of David Barnum, deceased.

It is conceded likewise, that in order of discussion, the first question involves the interpretation of the will, or in other words, the actual intent of the testator. We agree too that the canons of interpretation are stated with sufficient accuracy and fullness for the purposes of this case in [**47]  the early pages of the arguments made on behalf of the appellees, and we must show that the intent of the testator as thus collected, was to secure to the appellants, from the time of the decease of their father a right to share in the distribution of the rents, to be realized thereafter.

Now this intent is demonstrated by the first three lines of the first article of the will. The great object of the testator was to provide "a sure and better resource for his family," and he proposed to accomplish that object by the direction that his City Hotel should "be permanently conducted" after his death. No motive is assigned, nor can any motive be collected from the will for the direction for permanently conducting the City Hotel other than the desire of the testator to advance the interests of his family. Blackwell vs. Bull, 1 Keen, 177.

But who were to constitute the "family" for whom provision was thus to be made? The arguments for the appellees assert "the wife and children of the testator." Why is it then that the trustees are required to conduct the City Hotel for a term exceeding the lives of the wife and children? In the progress of the arguments it was affirmed, on the [**48]  authority of Tolson vs. Tolson, that the expression "family" was inoperative because of its uncertainty. We are not interested in repelling this argument. For if the object is void for uncertainty the trust must fail, and the "views" of the testator will thereby be effectually "disappointed." But in truth "family" is rather of an indefinite than an uncertain significance, and its specific meaning in each particular case is dependent on the context in which it is found.

"Permanently" is a word of similar character. It imports fixedness or stability for a term of longer or shorter duration. When those terms are found associated together they exercise a reflex influence over each other; thus, if we can clearly ascertain the term during which the City Hotel is to be "permanently conducted," we must conclude that the testator under the description of "family" embraces the persons and classes of persons in succession towards whom he might be supposed to stand in loco parentis during that entire term of time, and so if the family could be certainly defined, then we might conclude that the City Hotel was to be "permanently conducted" so long as those persons existed for whom provision [**49]  was intended to be made under the description of "family."

Now we shall find by referring to the last sentence of the first clause, that "the period during which the trustees shall have power, and are required to lease as aforesaid, shall be so long as my said children, or any children or descendants of them, or any of them, left by them, or any of them at the death of them, or any of them shall live," and until the termination by efflux of time, of any lease made during the period aforesaid, and which may be in force at the cessation of all of said lives. The conclusion then is, that the testator intended to provide for a family which was to endure, during the life of the survivor of his children, and during the life of the last of his descendants, born during the lifetime of his surviving child, and for a term of ten years thereafter. If we adopt the interpretation which the appellees would give to this clause, the term during which the leasing trust, or power is to be exercised would be restricted, but the conclusion would remain that during this restricted term there would be a family to be provided for out of the profits of the City Hotel.

Let us next inquire whether [**50]  there is anything in the will in conflict with the definition which is thus given to the term "family." The City Hotel is to be leased, the rents are to be collected periodically, and as realized are to be distributed to and amongst those who at the respective periods of distribution, may constitute the family for whose sure and better resource the trust was created.

The persons amongst whom the rents are to be distributed are described as "my children and their respective heirs per stirpes." On the part of the appellees it is argued that heirs is a word of limitation when used for the purpose of enlarging the estate of the first taker. But this is a begging of the question. Technical words like other words of art yield to the intent of the testator, when it is clearly expressed. Of the facility with which the term heirs may be converted into a term of purchase, the case of Ware vs. Richardson, 3 Md. Rep., 505, is an illustration, and the question here is whether the testator, by giving to his children an absolute interest in and dominion over the subject of the devise, intended to confer on them the power at their pleasure of disappointing the views which he had so elaborately [**51]  developed, or whether he intended to designate with greater certainty the succession of persons who had already been described as his family, and for whose sure and better resource the entire provision had been contrived? Against the construction suggested by the appellees, it may be objected: First, That at the date of the will, words of limitation were not requisite to enlarge the estate of the first taker of real or personal estate. As a word of limitation, therefore, the term was unnecessary. Secondly, As applicable to personal estate, the term heirs is devoid of meaning, unless intended to designate the person or persons who were to take in succession in their own right. Thirdly, The intent clearly was that the entire fund compounded of real estate, leasehold and personalty, should be enjoyed by the same persons, and as the term heirs can operate only as designatio personae, who is to succeed to so much of the funds as is constituted of personal estate, it is fair to infer that the testator intended to use the same expression in the same sense in its application to real estate. Fourthly, The complex expression, my children--their respective heirs--per stirpes, is naturally suggestive [**52]  of a succession of persons who are in their turns to become the partakers of the testator's bounty. There are children--next persons, who are in a stricter or looser sence termed "heirs," and again, gradations of heirs, to prevent confusion amongst whom, it is directed that they should take per stirpes, or in other words, shall succeed each to the part or share of the part of his immediate parent, and so up to some one child of the testator, as the stirps, or source of that branch of the family; and lastly, by adopting our construction, uniformity and consistency is maintained throughout all the provisions of the will, amongst which on any other hypothesis there must exist an irremediable discord.

We conclude then, as we have done in our opening argument, that the testator intended to provide for his children, and their descendants in their successive generations, during the whole term prescribed for the exercise of the leasing trust or power, and that the persons thus constituting the family at the moment that leasing trust or power became exhausted, were intended to take absolutely the principal fund. As matter of actual intention, we affirm that the testator did not intend [**53]  that any interest or estate in the City Hotel should pass by the devise of the residue of his estate, and it is equally certain that he did not intend to die intestate as to any part of his property.

2. We proceed next to discuss the legal effect and operation of the will, to show that is, how far it may operate consistently with the law, and in what respect, if any, it conflicts with the policy of the law.

An estate may be given to A. for life, with remainder to his unborn son in fee, in tail or for life. But there cannot be a further limitation of the estate for years, for life, or in fee to the issue of such unborn son, or any other disposition thereof, which is to be contingent with respect to the person of the donee. Every disposition of the fee or of any lesser estate, must be alienable within a life or lives in being, and twenty-one years thereafter, or must depend or be expectant on some antecedent estate which may be aliened, and the alienation whereof will destroy all subsequent limitations.

Trusts and powers are subject to the same law of perpetuity which refers to dispositions of legal estates.

It results, therefore, that the estate is validly vested [**54]  in the trustees, and if the trust or power be not absolutely void, for the reasons hereafter stated, it may be exercised during the lives of the testator's children, and possibly of their children. Beyond this limit no such trust or power can be exercised or extended. In respect to the limitations after the expiration of the last of those lives, whether for years or in fee, the trusts are certainly void, as tending to perpetuity, and indeed we submit, on the authorities, it is clear that no lease can be validly executed after the expiration of twenty-one years next succeeding the expiration of the last life in being at the death of the testator.

Being thus bad in part, though good in other parts, the entire limitation must fail, unless the case can be taken out of the operation of the general rule upon some one or other of the grounds taken by the appellees.

They insist in the first place, that the beneficial interest in the fee being given to the children, with the absolute power of alienation thereof, the case is thus released from the dangers resulting from perpetuities. It is assumed as the basis of this argument that if the beneficial interest is made alienable, no legal [**55]  inconvenience results from fettering the legal title. It is overlooked that the rule against perpetuities was a rule of the common law before the invention of trusts, and has been imported into equity by analogy, and thus the result of such importation is that the legal estate and the trust or powers, and the beneficial interest which is to be served by the execution of such trust or power, must all be enjoyed in subservience to the law of perpetuity. This point was sufficiently developed in the course of the opening argument.

It is next said that the trust or power is capable of severance. It is a trust or power to lease for short terms in succession. This power may be exercised within a certain limit, although it may not be exercised after that period. The vice of the argument is, that the object of the trust or power is the permanent subsistance of the family. The general rule in regard to the partibility of the powers is stated briefly, but it is hoped accurately in our opening statement, as are also the reasons for supposing that the trust or power now under discussion is not capable of partial execution.

The subject is therefore dismissed with the following brief remarks.  [**56]  

1. If the power or trust is capable of partial execution during the two successive classes of lives, that is, of children of the testator, and of descendants living at the time of the death of the last survivor of the children, and void only for the excess, then the appellants, upon their theory of interpretation, are interested in the execution of the power or trust, and have been so from the time of the death of their father, Dr. Augustus Barnum.

2. They are in like manner interested in the execution of the power or trust upon the hypothesis that it may be executed during the lives of the testator's children and descendants in being at the time of his death, and for twenty-one years thereafter.

3. If the power or trust is incapable of execution in any part, then to the like extent there is a disappointment of the views of the testator, and the casus arises which was anticipated by the second article.

We proceed next to settle the interpretation of this second article, and the equities of the parties thereunder.

On the part of the appellees it is insisted that no interest can be derived to the appellants under this article until after a sale shall have been [**57]  effected of the property. The sale is contemplated as the cause of disappointment in the views of the testator. But this interpretation of the article inverts the order of sequences. The sale is the effect induced by some other pre-existing cause.

"Should my views in the above first article of this will be disappointed, so that--in consequence or by reason thereof--judicially or otherwise, a sale shall take place." * * The sale is therefore contemplated as the effect of some pre-existent cause. And this pre-existent cause may have its effect by means of a judicial sale. But a judicial sale is made in execution of a judgment of a Court of competent jurisdiction, which judgment is a conclusion of the law from the case made by the pleadings, and that case in its turn is nothing more than a combination of the facts existing at or before the commencement of the suit. The cause of disappointment to the views of the testator, is, therefore, supposed to have a possible existence at or before the beginning of the suit which it is supposed may have its consummation in a sale. The views of the testator would necessarily be disappointed by a sale, but a like result would follow from any other [**58]  circumstance which would divert the income of the City Hotel to any purpose other than the support of "the family" of the testator. And again, this cause of disappointment may be contemplated as operative in fact, or as potential. For as a misapplication by the trustees in violation of their trust could not be treated as a disappointment of the views of the testator, so on the other hand, if the provisions made by the first article were inoperative in law as tending to a perpetuity, there would arise a case of disappointment within the intent of the second article. And a brief explanation will suffice to show that it was provoked directly by an apprehension of disappointment from this very cause.

The testator seems to have been aware that there were limits prescribed by the law to the exercise of the testamentary power. But he was unable to define those boundaries with precision. In vindication of his professional adviser, it may be sufficient to remind the Court that many of the cases now treated as leading cases on the subject, are of date subsequent to the will, and many of earlier date were not at that time within reach of the Maryland Bar. In this state of uncertainty as [**59]  to the extent of his power, he acted as a practical man would act under the circumstances. He first declared his leading object. He then gave in detail the processes by which he would accomplish that object, and confessing now his fears lest his intentions as thus expressed would be disappointed, he lastly provides an alternative disposition, to take effect in that contingency. In vindication of this theory which supposes that his uncertainty arose out of his inability to fathom the rules of the law against perpetuities, we may observe that in either contingency he limited the interests of his children to life estates in the income, and by the second article he gives to their children the corpus of the inheritance absolutely, which, by the first article, he had parcelled out to several successions of generations of his descendants. It is not possible to imagine a cause of disappointment to his views, which would have provoked the testator to reduce the absolute interests first intended for his children to life interests, nor any motive for enlarging the life interests first given to their children, to absolute interests other than the assumed inability to tie up the inheritance for [**60]  a more extended period. We conclude, therefore, that in the event of a failure of the dispositions made by the first article because of their tendency to fetter the estate for a longer period than the law allows, the testator intended that the estate should vest in his children for their lives, and in their immediate descendants absolutely.

But it is still insisted, that the gift is of "the proceeds of sale," and, therefore, cannot vest until a sale shall have been effected. Now it is to be recollected that equity treats things as done, which ought to be done. It relieves against accidents, and supplies circumstances, and invents remedies in vindication of clearly defined rights, and upon the hypothesis of the failure of the disposition made by the first article, the parties who would become entitled to the proceeds of sale when effected, must have the right to ask that a sale shall be ordered. It cannot be tolerated that the interests of the grandchildren should be dependant on the option of the children, who, in declining an application for a sale, would actually enlarge their estates for life into absolute estates in the principal fund. But the solution of the difficulty is [**61]  to be found in the anticipation expressed by the testator that the conversion might be effected by a judicial sale. Now a judicial sale must be the sequel of a proceeding which must state a cause for the exercise of jurisdiction, and to which there must be parties interested in the exercise of jurisdiction. But what facts would have to be stated in the present case? the devise in the first article, the disappointment of the testator's views because of their inconsistency with the policy of the law, the alternative disposition made by the second article, and the necessity of a sale to effect the intent of the testator expressed in that article, and the decree directing a sale would likewise declare the rights of the parties which by legal retrospect would date from the death of the testator, and to this cause the children, and the children of children would be necessary parties. It may be assumed as clear, that any person who would share in the proceeds of sale when made, are proper parties to the suits brought to effect that sale. And it would seem to be equally clear that every person whose right is to be established or negatived, enlarged or restricted by the decree, ought to be [**62]  a party, and may be a party plaintiff or defendant to the litigation which is to eventuate in the decree.

Assuming, then, that the decree would declare the rights of the appellants to share in the fruits of the decree, such rights must date back potentially to the death of the testator, the clauses creating a perpetuity being void ab initio, and the substituted clauses taking effect immediately in that event. Hence they have an equity to maintain this suit.

Upon the theory of the appellees that the trust or power of leasing is good within the prescribed limits, and void only for the excess, the right of suit of the appellants is divested of all shadow of doubt. They will be entitled to an account of profits accrued since the death of their father, and to a share of future accruing profits; and this right carries with it a right to show that a sale is necessary for the interest of all parties and to call for a declaration of their rights in the event of a sale.

We are reminded by the counsel for the appellees that the sale is to be made during the life of some one of the testators's children. As two of those children are yet living, it is unnecessary to enquire how far [**63]  the deaths of all their children would prejudice our right; but it is evident that the reason for this caution of the testator was simply because as, in the first clause, he intended that his children should take life estates only, and had made such disposition as, that if the trust were good, they could not get any more, so here, in the second clause, he thought it proper to guard against any misconstruction of his intention, or attempt of his children to claim more than life estates in any event, by saying plainly that if any sale should take place during the life of any one of his children, such child should not take a fee-simple, but only a life estate in the proceeds of sale, and the more effectually to accomplish his intention, he directs investments by the trustees of such child's share so that it should be put out of their reach for life, but says that the children or descendants of his children are to take as their absolute property, so that if the sale had taken place after death of all the children of the testator, no investment would have been necessary. And we may be excused for the suggestion that in the event of a reversal and remanding of the cause, this Court ought [**64]  to declare our right to a sale, so that the appellees may be deprived of all motive for involving us in protracted litigation.

Having thus explained our views in relation to the interpretation, and operation of the will, and our rights thence resulting, we will review the argument of the appellees in favor of an opposite interpretation of the clause defining the leasing trust or power. We have explained in our opening argument the distinction between a trust and power, and shall not enlarge on that topic. 1 Sugden on Powers, ch. 3, sec. 1, page 154. 2 Sugden on Powers. Duke of Marlborough, 1 Eden. Treated for the purpose of this branch of the argument as a power, the question will be whether it is to be exercised for a succession of lives and a term of ten years thereafter, or for lives in being at the time of the testator's death, and a like term of ten years thereafter. This last is the view taken by the appellees, and their argument is thus presented. The will takes effect at the time of the death of the testator. It speaks of that time. The term "shall" used in the clause in question is future, and denotes a period subsequent to the death of the testator. The term "left" is [**65]  past, and relates to a time anterior to the testator's death. The power of leasing is, therefore, to be exercised during the lives of the testator's children, and (if any one or more of them should die in the lifetime of the testator, leaving children or descendants who also should survive him) during the lives of such children or descendants of children. Thus the power is limited to lives in being at the death of the testator, and a term not exceeding ten years thereafter. Upon this construction the clause is not liable to objection as tending to perpetuity.

Now as matter of fact, the testator did not anticipate the death of any of his children during his own lifetime. He devises to them by name.

As matter of law, it is not universally true that a will speaks as of the day of the testator's death. In critical construction it speaks as of the day of its date, and every exception to this rule is founded on special considerations, which only confirm the general rule. All this was sufficiently explained in the course of our preceding argument. We dismiss this topic therefore, with the suggestion that if Ephraim, named in the will, had died in the testator's lifetime without [**66]  issue, and another son had been born to the testator in his lifetime, but after the making of the will, who was also christened Ephraim, this second son would not have taken the share given to the first named Ephraim, but in reference to this share the testator would have died intestate.

But, again, the interpretation proposed to be given to "left," is not called for by the strict rule of grammar, nor by the looser rule of familiar usage. A participle is not in itself a notation of time. It is not a self-existent part of speech like a noun, nor self-efficient as a verb, but is rather an auxiliary, like an adjective or adverb. It must depend on something else from which it derives its value or significance. This would be true of "left" as the preterite of the intransitive "to leave," in its active form. But "left" in its present connexion is the preterite of "to be left," in the passive form. And as a preterite in the passive form its notation of time would depend altogether on its prefix, expressed or implied.

It is a maxim that false grammar does not vitiate, and certainly could not control, the intent expressed, that the leases shall continue during the lives of all the [**67]  descendants of the testator, who shall be in being at the time of the death of his last surviving child. Lord COKE, as quoted in 2 Jarm., 101, says, that as procreatis may embrace subsequent issue, so procreandis may include those who are already born, and cases are cited which apply that doctrine.

Can it fairly be supposed, that if the testator really meant to limit the period of leasing to the duration of the lives of his children and descendants, living at his death, he would have used the peculiar and elaborate phraseology, "as long as my children, or any children or descendants of them, or any of them, left by them, or any of them, at the death of them, or any of them, shall live," instead of the simple words, "as long as any of my children or their descendants, living at my death, shall live?"

If he had meant to refer to the date of his own death, he would at least have omitted the words, "at the death of them, or any of them," as defining "left," because in fact the descendants could not have been left until their parents, the children, respectively had died, and so there would have been no use whatever in the words in that view of the case; but the real use of the [**68]  words, and we must believe that the testator had a purpose in using them, is to show that he did not mean at his own death, but expressly at the death of his children.

As the testator has expressly said as long as descendants of his children left at the death of them shall live, upon what just grounds can it be supposed that he meant living at his own death? His death and the death of them, or any of them, are two distinct forms of expressions, with distinct meanings. No reference whatever is made to his own death. Upon what ground, then, can the words, at his death, be interpolated? If he had even used the word "left" indefinitely, and not said when, it would have been a mere interpolation against his intent to insert, at or before his death, but where he purposely says, at the death of them, is there any just ground, any sound or reasonable rule of construction to nullify, or at least, render utterly useless, those words by inserting others?

Would not such a construction force a will or intent upon the testator merely because such an one would have been lawful? The second clause shows that he feared a disappointment of his views. Redfield on Wills, 481.

But what would [**69]  be the conclusion from the premises of the appellees if that conclusion is admitted? Adopting their interpretation of the leasing clause with reference to the time of its duration, the appellants would remain entitled to an account of rents already accrued since the death of their deceased father, and to share in the rents to be realized in future by the exercise of that power. The claim as thus restricted is to be negatived only by showing that the rents were given to the testator's children absolutely.

And if we are right in our theory that "heirs per stirpes" in the first clause is used as "designatio personarum," and if the appellees are right in their theory, that the leasing power is to be restricted in its exercise to lives in being at the time of the death of the testator, and a term short of twenty-one years thereafter, then the appellants, if living at the expiration of that term, or in the event of their death, their descendants living at that time, will become entitled to share in the distribution of the principal estate.

The conclusion from the whole therefore is:

1. That the appellants must show that the term, "heirs per stirpes," is a term of purchase [**70]  and not of limitation, otherwise they fail altogether.

2. Succeeding in their first proposition, and adopting the theory of the appellees in relation to the duration of the leasing power, the appellants and their descendants are entitled to share in the fruits of the leasing power during its existence, and to share in distribution of the principal fund existing at the time of expiration of that power. This claim would rest upon the true construction of the first article expressed in reference to the rents, and implied in reference to the principal estate.

3. Upon the appellant's theory of construction of the first article, it is altogether inoperative in law, and the provisions of the second article apply. According to which the income of the estate was to be paid to the testator's children in equal shares during their lives, and on the death of Dr. Augustus Barnum the appellants succeeded absolutely to a child's part of the principal estate.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*163]  WEISEL, J., delivered the opinion of this Court.
The controversy in this case arises upon the construction of [**71]  the will of the late David Barnum, of Baltimore, the founder and proprietor of the City Hotel of that city. It was executed on the 29th of August, 1843, with a codicil made on the 2nd day of September following. They were admitted to probate on the 13th day of May, 1844.
After a careful examination of these papers, as spread 

 [*164]  out in the record, we can present the following as an analysis of them, by which their provisions will be the more clearly understood, and the intention of the testator more readily ascertained. The will and codicil alone furnish the facts in the statements which this analysis contains.
The principal part of his estate was the City Hotel buildings and grounds in the city of Baltimore, and the furniture and chattels in that hotel. To this part of his estate his entire will and codicil relate, with the exception of clause fourth, (save its concluding sentence,) and clauses fifth, sixth and seventh. The eleventh appoints executors, but they have duties to perform, in certain events, in relation to this property. The controversy is about this portion of his estate.
He had a family. A wife and children named in the will, among whom, and their representatives,  [**72]  in case of their deaths, the nett rents of the hotel were to be distributed, composed, as we may fairly conclude, the family he had in contemplation when he used the term.
He had debts to provide for, as therein declared. These were of two classes, a City Hotel stock debt and his general debts.
He undertook to make a disposition of this City Hotel property and furniture in a way which, in his judgment, would prove a sure and better resource for his family. In doing so, he did not forget or overlook his duty to his creditors of both classes; but whilst providing for his family from the rents and profits of the property, he primarily charged these with the payment of the regularly accruing interest upon the City Hotel stock, and of his general debts. He introduced this plan by an expression of a desire, at the beginning of the first clause of the will, that his City Hotel property in Baltimore should be permanently conducted, after his death, as a hotel, and of his 

 [*165]  belief that the property thus employed would prove a sure and better resource for his family.
The plan is set out in the first, second, third, eighth, ninth and tenth clauses, and the last paragraph or sentence [**73]  of the fourth clause of the will, and the entire codicil. These should be read together. The second clause refers to the first clause alone, as containing his views or plan; but it is very manifest that the other clauses here specified and the codicil, would share the fate of the first, by the application of the second clause, whenever declared operative to disappoint those views.
Disregarding, then, at present, the second clause, and reading the other clauses above designated, and relating to this property, together, we discover his disposition of it to be this: He devised all his said hotel property, real and personal, to two trustees, his wife and his son, Ephraim K. Barnum, and the survivor and the survivor's heirs. By clause tenth, the continuance of the trust is provided for, in case of the death of both of said trustees. The property thus devised is described as "all the buildings of said City Hotel, and all the grounds thereof, and all the furniture, and all other chattels of said hotel, now or hereafter attached to it or used for it." The trusts are declared. The trustees were to lease the said property and apply the rents in a specified mode. With this view he divided the [**74]  buildings, &c., into what he devoted to hotel purposes, and what he designed for other uses, calling or distinguishing the former as the hotel part of the property. The hotel part was not to "include any of the offices or apartments of the basement story of the City Hotel buildings, save only what was used for the lower bar and lunch-room of the hotel, and the apartments used for the culinary and other purposes of the hotel buildings." All else, including furniture and chattels, are denominated in the will as 

 [*166]  "the hotel part of said buildings and grounds, furniture and chattels."
This hotel part the trustees were to permit Zenus Barnum and Andrew McLaughlin, (or one of them, if both would not agree to be tenants.) to use, occupy and enjoy as tenants, upon condition that they would conduct it as a hotel, and for the term of three years, at the yearly rent of ten thousand dollars, payable quarterly; and if they, or either of them declined to rent it, or taking it, their tenancy should by any means be terminated, the trustees should, from time to time, during the period hereafter mentioned, lease the said hotel part for terms of years not exceeding ten years, for such yearly [**75]  rent as his executors or administrators, with the will annexed, should approve, to any person who they should be satisfied would well conduct it as a hotel; the rents under all the leasings to be primarily chargeable, in exoneration of all his other estate, real and personal, with the interest on the City Hotel stock and his general debts.
After deduction for the interest on the hotel stock and his debts, the trustees were directed to apply annually the rents of the said hotel part as follows: Three hundred dollars annually to his widow, in quarterly payments, in consideration of her ownership of a piece of ground constituting a part of the hotel premises, (with power in her to take possession of it and use or sell it, in case of default in any payment;) and of the residue, one-third to his wife for life, and the other two-thirds "in equal shares to and among his children and their respective heirs (per stirpes,) Eliza Stanard, Francis McLaughlin, Ephraim Kirby Barnum, Richard Barnum and Augustus Barnum;" these children and their respective heirs in like manner being entitled at his wife's death to her one-third of the said rents.
The rents of the offices and rooms in the basement,  [**76]  not 

 [*167]  included in the hotel part, he devised as follows: of room No. 4, to his daughter Frances McLaughlin and her heirs; of room No. 5, to his daughter Eliza Stannard and her heirs; of room No. 6, to his son Richard Barnum and his heirs; of room No. 10, to his granddaughter Frances Waterman and her heirs; of room No. 9, to his grandson David McLaughlin and his heirs; of room No. 11, to his son Augustus Barnum and his heirs; of rooms Nos. 7 and 8, to Ephraim K. Barnum and his heirs, (in case the testator should sell the coal land devised to him in the 6th clause of the will;) and of office No. 3, to Zenus Barnum for his life.
He directed that if the devise of the rents of said rooms 7 and 8, to his son Ephraim, should not take effect, they should be deemed part of the general residue of his estate; and that the trustees should from time to time rent out said offices or rooms, or allow the same to be done by the respective devisees of the rents thereof.
By the 8th clause or article, a discretionary power is given to his executors or administrators, c. t. a., to mortgage the City Hotel buildings, furniture and chattels, on such terms as they might deem expedient,  [**77]  to obtain money for paying his general debts, and then to set apart such portion of the rents of the hotel part of said buildings as they might deem expedient, for reducing the principal of the mortgage as well as paying the mortgage interest, either by way of actual payment to the mortgagees, or of a sinking fund to accumulate for the eventual extinction of the mortgage principal.
The proceeds of sales of his country seat, on the Harford turnpike, (4th clause,) are also charged with the payment of these debts in case the arrangement for the purpose, in the 1st clause, should prove impracticable, or if money could not be procured by mortgage as above. These two latter modes to be first availed of if practicable. The 

 [*168]  tenants were to be bound to keep the furniture and chattels in good condition as delivered to them, and to replace such as should be lost or destroyed, or rendered useless by wear or tear, except by fire, against which risk the trustees were to keep the furniture and chattels insured in an amount deemed prudent, as also the said City Hotel buildings.
The period during which this leasing was to take place, and this trust to continue, was to be "so long as his [**78]  said children, or any children or descendants of them, or of any of them, left by them, or any of them, at the death of them, or any of them, shall live; it being understood that any lease made during the period aforesaid, shall have full effect and continue for its stipulated term, notwithstanding the cessation of all of said lives before the end of the term."
We may observe here, though it may not be material in the examination of the questions before us, that the various provisions made for the payment of his general debts, do not interfere with the trust. That is still to subsist. If a mortgage were effected, these debts, by that means, would be consolidated and bind the hotel property in the hands of the trustees, and the rents would be made applicable by them to the consolidated debt and its interest, in the mode specified in the 8th clause, instead of in the way contemplated in the 1st clause or article. By this clause, the executors or administrators, cum testamento annexo, were to approve of the yearly rent for which the trustees were to lease the hotel part of the property, (except that for the three first years to Zenus Barnum and McLaughlin.)
By the 8th article, the [**79]  collateral power was conferred upon them to mortgage, if they deemed it expedient, the City Hotel buildings, furniture and chattels, to pay his said debts. They were the proper, legal parties to pay debts, and this may explain why the testator, in providing assets for the purpose, conferred upon them these powers of approval and control over the property. The hotel stock 

 [*169]  debt, it seems, was to remain in its original form as a distinct, peculiar debt, the rents applicable to the interest only on it. His intention, however, appears to be, not to extinguish his general debts by applying all the rents of the hotel part primarily to that object, for his family was to be supported at the same time. If an annual partial application proved too slow, and creditors could not wait, then a mortgage could be resorted to. If that failed, or when made were passed to a foreclosure, then the avails of his country seat, on the Harford turnpike, should be brought into requisition for this purpose.
This, we consider, is the purport and reading of the will in the clauses mentioned respecting the City Hotel property, real and personal, and constitutes the testator's plan or views for permanently [**80]  conducting the hotel during the period described, as a sure and better resource for his family, including a provision for the payment of his debts at the same time. For these the said property would have been legally bound by the testamentary and chancery laws of Maryland, a condition which its owner would not likely disregard or overlook in making a settlement for his family.
The first and very important question which arises on this statement of the contents of the will, and which has been most ably discussed at the hearing of this cause, is whether the period described in the will through which the leasing by the trustees is to run, transgresses the rule of law against perpetuities; whether it exceeds a life or lives in being at the testator's death, and twenty-one years and the allowed fraction of a year afterwards. That period is thus described: "and the period during which my trustees and their heirs and successors shall have the power, and are required to lease as aforesaid, shall be so long as my said children, or any children or descendants of them, or of any of them, left by them, or any of them, at the death of them, or 

 [*170]  any of them, shall live; it being understood  [**81]   that any lease made during the period aforesaid, shall have full effect and continue for its stipulated term, notwithstanding the cessation of all of said lives before the end of the term."
It was very ingeniously pressed upon the Court by the counsel for the appellees, in the argument, that a fair philological examination of this sentence would confine the time within the rule; and that the word left, by assigning to it a past signification and allowing the will to speak as of the day of the testator's death, would indicate an intention to point to his own children, and children and descendants of children living at the time of his own decease; and that upon this construction the powers of the trustees would not, and were not, intended to endure beyond the lives of persons who should, at the moment of the testator's death, answer the description of children or descendants of children; in other words that descendants of children, born after the death of the testator, were not to be embraced within the continuance of the powers to lease; and that the word "left" is not of the same import in the will as if the language were, "may be left by them, (the children,) at [**82]  the period of their (the children's) deaths, respectively."
But, we think, this clause will not admit of this interpretation. The participle left must have reference to and qualify the word with which it stands connected in the sentence, express or implied. And here the persons designated as left are the children or descendants of any of his children, and the time of being left is so plainly expressed that no doubt can well arise or be entertained, viz: at the death of any of his said children. If the testator meant otherwise, and intended to confine the time to his own death, he would not have resorted to phraseology so elaborate as that used by him, when the simple phrase of living at my death, would have at once conveyed his meaning. His own death, and the death of any of his children, are 

 [*171]  two distinct events. He has used language plainly and distinctly, as we think, to express the latter. Upon what rule of construction then can it be applied to the former?
The time or period, therefore, for continuing this trust or power to lease the hotel property may extend so as to embrace persons and lives not in esse at the time of the testator's death,  [**83]  --descendants born after that event.
If an estate be so limited as by possibility to extend beyond a life or lives in being at the time of its commencement, and twenty-one years and a fraction of a year (to cover the period of gestation) afterwards, during which time the property would be withdrawn from the market, or the power over the fee suspended, it is a perpetuity and void as against the policy of the law, which will not permit property to be inalienable for a longer period. The question whether an estate is a perpetuity, generally arises in cases in which a future contingent estate or executory devise is limited upon a fee, and if the contingency upon which the executory estate is to vest, is not necessarily to happen within the time fixed by the rule as the legal boundary, then the precedent estate or estates are denominated a perpetuity, and the executory estate or devise fails for want of a legal estate to support it. In all such cases, to give effect to the limitation over, the contingency must happen within the time prescribed by the rule. If it may happen after that time, then the preceding estate tends to a perpetuity, which the law abhors and forbids. The [**84]  object of the rule is to prevent the tying up of property, real or personal, and rendering it inalienable longer than the period designated by it. For that time the power over the inheritance or absolute interest of property may be suspended, but no longer. Lewis on Perp., 164, 165. 4 Kent's Comm., 267, 271.  1 H. & G. 111, 116, Newton vs. Griffith, 1 H. & J. 111, Dallam vs. Dallam.
In the case now under consideration, no question is presented 

 [*172]  as to the future vesting of an executory estate, in order to determine the validity of the preceding one; but simply whether the trusts of the will require in their execution a longer period than that prescribed by the rule against perpetuities, and, therefore, render the property devised to the trustees inalienable during that time. If so, the law denounces the devise in trust as a perpetuity, and declares it void.
We have already said, that such is the character of this devise; that the execution of the trusts for leasing the property and performing the duties enjoined upon the trustees is to cover a period beyond that allowed by law, during which time this hotel property, real and personal,  [**85]  is placed extra commercium; and that the devise in trust is therefore void.
If the trust be void, then the power to lease, which is blended with it, as in this case, must be void also. It is not a mere power distinct from the trust, leaving the act to be done at the will of the party to whom it is given, but it is mixed and blended with the trust, and its execution is as imperative as the trust itself. This distinction is well marked and to be observed. 2 Sugden on Powers, 158. In this case, the power is the trust, and the trust is the power. They cannot be separated, and any exceptions to the application of the rule, in cases of mere powers to sell or lease, do not apply to a case like this. The general principle is, that every power, the direct object of which is to create a perpetuity, is absolutely void. Lew. on Perp., 486, and cases there cited. The exceptions to the rule, then, arise out of the distinction between general and limited or special powers. But in every case, the execution of the power, being distinct from the power itself, must conform to the requisition of the rule against perpetuities, or run the hazard of being avoided. And where a power is itself [**86]  valid, in not transgressing the rule, the donee, in 

 [*173]  executing it, may go beyond the proper boundary. Equity in such case, being guided by the power, will treat the excess as surplusage and void, but only where the portion which exceeds the boundary of perpetuity be definite and ascertained, or can be rendered so. But Mr. LEWIS, in his work, p. 494, adds, "that if the limitation under the power be read as inserted in the deed creating the power, (which he elsewhere observes to be the true rule by which to determine the validity of the limitation itself,) it is evident, that where a part of the appointment fails for excess, the whole must be involved in its fate, because such failure implies that all the interests created were not so given as necessarily to vest within the perpetuity line; and wherever such is the character of direct original limitations, they are wholly void for remoteness, notwithstanding actual events might enable some, or even all of them, to take effect within the required period." In the case under consideration, the limitation is in the instrument itself creating the trust or power, and no one can declare with certainty how the dispositions of the [**87]  testator would have been regulated if he had been aware, at the time, of his inability to extend them to some included in his gifts. The whole is therefore vitiated by the excess. This is strengthened when we consider that this trust was created as a resource for his family, and to this end for permanently conducting the property as a hotel, the testator's idea of his family being itself a matter of much controversy and doubt.
These views may sufficiently dispose of that part of the argument, on behalf of the appellees, which labored to extricate the trust in this case from the effects of the perpetuity rule, on the ground that it did not apply to powers exercised as in this case, or if so, that the trusts would be declared good in equity, pro tanto, or to the extent of the rule.

 [*174]  The trusts being void in toto, we regard the legacies springing out of them to be void also. The power to lease being void, the right to share in the distribution of the rents, the fruits of the exercise of the power, must necessarily fail.  Coster vs. Lorillard, 14 Wend. 265, et seq. It is needless, therefore, here to inquire what estates the children of the testator [**88]  took in these rents, under the phraseology of the will, so much discussed in the argument as bearing upon the testator's intention in the perpetuity clause, or as rendering the estates of the cestui que trusts free from its obnoxious effect, regarding them as fee-simple, equitable interests and alienable at the pleasure of those entitled.
If the clauses already referred to and analyzed with the residuary clause, constituted the entire will, the devise of the trust being void, the testator would be held to have died intestate of his hotel property. It would not pass by the residuary clause, under the rulings of this Court, in the case of Tongue vs. Nutwell, 13 Md. 415.
But there is another and important clause or article in Mr. Barnum's will which is yet to be considered, and under which the complainants, the appellants, claim in this case. The testator's intention in that article is to be inquired into and effect given to it consistently with the rules of law.
Upon its construction and effect this Court do not entirely agree, as they have concurred in the preceding part of this opinion. A majority of the Court, however, have, after a careful examination [**89]  of the second article in connexion with all the other portions of the instrument, arrived at the conclusion that the testator intended by it an alternative provision in case his views expressed in the first article should be disappointed by any cause which would lead to a sale of the City Hotel buildings or grounds in the lifetime of any of his children. The language of the article is: "should my views in the above first article of this will be disappointed, so that judicially or otherwise a sale shall take 

 [*175]  place of said City Hotel buildings and grounds during the life of any of my children, it is my will, and I direct that my trustees, or any Court of Equity, shall cause the proceeds of sale to be invested in mortgage or in ground rents," &c.
It is apparent from the other parts of his will, that the testator's principal object was a family settlement in regard to the main and favorite part of his estate. The various and complicated provisions of the instrument, constituting almost its entire contents, are devoted to this purpose. He devised a mode for perpetuating it and for working out through its means a provision for the liquidation of his debts, and the support [**90]  of his family through all the generations of his descendants, and providing for a correspondent continuation of the trust beyond the lives of those named as trustees in the will, by his executors and administrators cum testamento annexo to be appointed.
Although the third and other articles of the will stand necessarily in connexion with the first, it is the first that embodies the main features of the settlement. It names the trustees, the period of the trust, the cestui que trusts, the trusts themselves, with other guards and provisions for their safe and continued execution. His views may therefore be said to be contained in the first article, though in fact the other articles also embrace portions of them.
It was contended by the counsel of the appellees, with plausibility and force, that this second article was not intended to go into operation unless a sale of the buildings and grounds of the hotel should judicially or otherwise take place against the testator's will, and not until and after such a sale had taken place, and as a condition precedent, and that his motive in introducing it was in terrorem to prevent the destruction of the trust by any of his children,  [**91]  who in such event should receive only life estates in the proceeds. And as no such sale has taken place, the clause itself is and remains inoperative, and the bill of the complainants 

 [*176]  has been prematurely filed; that the contingency or event upon which another and different disposition of the property is to take effect has not happened, and therefore no rights under it have accrued or can be asserted.
The testator might reasonably be supposed to provide some mode for securing a cherished plan, and rendering it completely operative. But if this were the motive for the insertion of the second article, why hold the rod over his children, when grandchildren, descendants of a deceased child, might effect the same interruption, tempted too by the absolute possession and enjoyment of the proceeds of sale?
It is impossible to say what was the governing motive of the testator in inserting this second article. He may as reasonably, if not more so, have looked forward to a probable sale of the hotel, during the life of some one of his children, five in number, even if he was not aware that he had violated the rule against perpetuities, and thereby rendered the first article void [**92]  and inoperative. He owed debts for which the urgent demands of creditors might render a mortgage of the hotel expedient, a prior plan; for the proceeds of the country seat were to be postponed to this. A mortgage effected might in time be pressed to a foreclosure or sale. The stockholders might determine upon a sale of the property to pay the certificates of stock. Other events might occur to render a sale necessary, and therefore the word otherwise was introduced to embrace any kind of sale. But inasmuch as the testator, in this article, looks only to a sale of the realty, the hotel buildings and grounds, omitting all notice whatever of the personalty, the furniture and chattels, (no small portion in value or amount of the property devised in trust in so large and extensive an establishment,) the inference is strong, if not irresistible, that he had in contemplation a probable sale resulting from a failure of the first article by reason of 

 [*177]  its invalidity. In such an event, the personal property would be applicable to his debts without any special provision for that purpose. The establishment could no longer be conducted as a hotel upon his proposed plan, and as a support [**93]  for his family; and the next best thing, looking to a sure provision for not only his children, but their children and descendants, he directs the investment of the proceeds of the sale of the buildings and grounds in mortgage, ground-rents, United States or city of Baltimore stocks, for the benefit of his children during their lives, (subject to one-third of the income of the investment to his wife during her life,) and after their death to be the property of their respective children or descendants per stirpes; the children of such of his children as shall have died before the investment, taking as their absolute property and per stirpes, the shares to which, if they had lived, the deceased children would have been entitled.
If the first article should prove inoperative by the rules of law, and the testator apprehended it, what more likely than to provide in his will a substitute or alternative disposition of the estate. The presumption is, that making a will, he did not design to die intestate of any portion of his property, particularly of that which constituted his principal estate, and which he was seemingly so careful to dispose of for the benefit of his family and [**94]  creditors. In doing so he would not likely ground his bequests upon an actual precedent sale as a condition, when a state of things might arise leading to a sale, or proceedings be instituted that would result in one. In either or any of these events, his views, as contained in the first article, would be equally disappointed.
It is to be noted, too, that the testator speaks in the future tense, "a sale shall take place," not in the second future, "a sale shall have taken place." The meaning is 

 [*178]  the same as if he had said, "so that judicially or otherwise a sale is to take place."
If the theory of the appellees be correct, and any of the cestui que trusts in the first article, taking an equitable estate in fee, in the premises, should sell his interest, (as has been done in this case,) and then a sale of the hotel buildings and grounds should take place in the lifetime of some of the children, for a cause other than that of the invalidity of the trust in the first article, how could the testator's directions, as to the investment of the fund, take place for the life of the children, and after their death absolutely to their descendants? This conflict can only be [**95]  reconciled upon the ground that the children and other legatees were to take life estates in the rents under the first and third articles, and that they had no disposable ownership in the property itself. If the testator's views in the first article should then be disappointed, and a sale take place, his intentions as to the proceeds could then be carried out under the second, in which life estates are expressly given to all the children, with remainders to the grandchildren or descendants per stirpes.
Equity treats as done that which ought to be done. If, upon the failure of the first article, parties became entitled to the proceeds of sale when effected, they would have a right to resort to a Court of Equity for a sale which would produce those proceeds. In substance, the will is the same as if it directed a sale to take place in case the views in the first article could not be carried out, and it would seem the testator supposed that the trustees would have the power to make the sale. What else could he have meant by the language: "I direct my trustees or any Court of Equity shall cause the proceeds to be invested," &c., agreeing with the previous branch of the sentence, [**96]  "so that judicially or otherwise, a sale shall take place?" A sale by the trustees would not be a judicial sale, as would be one under 

 [*179]  an order or decree of a Court of Equity, which could only be obtained after proceedings instituted and conducted for the purpose.
But we must not be understood as saying that the trustees have the power to make the sale under this will, as the testator has failed to use language sufficient, in our judgment, to confer it.
The first clause of the will of the testator being void, and his purposes therein declared having been disappointed, the second clause becomes operative, and the complainants are entitled to relief. It, therefore, follows, that the Court below erred in dismissing the bill. The decree appealed from will therefore be reversed, and the cause remanded for further proceedings; the costs in this Court and the Court below to be paid out of the trust fund.
Decree reversed and cause remanded.
Note.--This cause was heard before the full Court, but the opinion was not filed until after the death of Justice COCHRAN; he however concurred, in consultation, with the views of the majority. BOWIE, C. J., dissented.  

38 of 120 DOCUMENTS 

WILLIAM W. WITTMAN, AND BENENIA A. WITTMAN HIS WIFE, ET AL. vs. MARIA R. GOODHAND, ADM'X OF JOHN GOODHAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 95; 1866 Md. LEXIS 91 

December 20, 1866, Decided 

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

This appeal is taken from an order of the Orphans' Court for Baltimore city, passed on the 7th day of September, 1866, declaring valid a paper offered for probate as the last will and testament of John Goodhand, deceased.

The facts of the case are these: John Goodhand, of the city of Baltimore, departed this life on or about the 6th day of April, 1866, intestate, leaving surviving him a widow, Maria R. Goodhand, and four children, viz; Benenia A. Wittman, (wife of said William W. Wittman,) Cornelia F. White, (the wife of Y. T. White,) George W. Goodhand and Emma Ida Isabel Goodhand, the three first named being children by his first wife, and said Emma being the child of said Maria R. Goodhand. On the 2nd of May, 1866, the said Maria R. Goodhand obtained from the Orphans' Court of Baltimore city, letters of administration on the personal estate of said John Goodhand, deceased, and at the time of making said application alleged that said John Goodhand died without a will. And afterwards, to wit, on the 10th of May, 1866, the sister of said Maria R. Goodhand, Emma S. Snead, brought into said Orphans' Court the paper signed John [**2]  Goodhand, and dated the 10th of January, 1862, alleging that she "found the same in a box, in the house of said deceased, on or about the 8th of May, 1866, and the same was accordingly admitted to probate, whereupon the said William W. Wittman, and Benenia his wife, Y. T. White, and Cornelia his wife, and George W. Goodhand, filed in said Court a petition and caveat, alleging the above facts, and further charging, among other things, that said paper was obtained from said John Goodhand by the exercise of undue influence over him while sick, by the said Maria R. Goodhand, and by the fraudulent devices of said Maria, which the said John Goodhand was incapable of resisting. That she had been expressly directed by said John Goodhand to destroy the same, and that she had fraudulently concealed the same in a box, and that he died in the belief that his directions had been obeyed, the said paper had been destroyed, and that his property would be distributed according to law, he having expressed his determination to make no distinction between his children in the distribution thereof.

The petition further charges, that said paper is not the last will and testament of said John Goodhand,  [**3]  and prays the Court to set aside said "pretended will," and declare the same null and void.

The answer of appellee denies all these allegations except the first, and this is explained. Her statement is in substance as follows:

The paper in question was executed by the deceased at the time it bears date, out of her presence, and without her knowledge. The deceased delivered it to her in its present shape, executed and witnessed, requesting her to record it if anything occurred to him, meaning in case of his death. She put the paper away; lost sight of it entirely, until it was accidentally discovered after the death of her husband, and after she had taken out letters on his estate. She had talked with persons who, as she thought, understood the legal effect of the instrument, and from information thus derived, she believed that it could not operate as a will, as it had but one witness. She believes that her husband intended to confer upon her daughter, after his death, the property in said paper named, and that said paper was designed to effect that object. She had lost sight of it and forgotten it, because she had been advised that it had no legal effect. Upon her discovery [**4]  of it, after her husband's death, and administration on his estate by her, she exhibited the paper to her legal adviser, and was informed by him that the paper was testamentary in its character, and being executed under the circumstances stated, it was her duty to place the same before the Orphans' Court, and be guided by their directions. That in accordance with this advice, she did place the paper before the Court, and caused the handwriting of the deceased, and of the witness, also deceased, to be proved. In regard to the fifth allegation against her, that her husband had directed her to destroy this paper, &c., she alleges that the conversation with Smith was in reference to another will, which the deceased had executed anterior to the execution of the paper now in question. That this will had been cancelled prior to the execution of the paper in question. That the deceased before that time had erased his own name and the names of all the persons in it, and had given it to her in that condition. That her conversation with Smith had relation to this will, and at once after this conversation this cancelled will was carried by her to her husband who tore it into fragments, and the [**5]  fragments were burned.

The matter of the said petition was accordingly set down for hearing, and testimony was taken on both sides.

Wesley A. Tucker testified, that in the latter part of 1861, and in the month of January, 1862, said John Goodhand was in declining health, that said John Goodhand told this witness that "he was greatly troubled by his wife in reference to making a will." That "she desired him to make some separate provision for her daughter, Ida;" and that towards the close of 1862, he told witness "that he had made a will for the purpose of making peace with his wife." "That if the good Lord would deliver him from this marriage, he would never marry again." That she, the said Maria, endeavored to persuade witness "to use his influence upon her husband to cause him to make a separate provision for the youngest child, Ida." That in March, 1866, said Goodhand told witness that "he had concluded to die without a will." That the "State of Maryland would make a good enough will for him;" that "he wanted to make no difference between his children," and that his wife was present when he so said. That witness never heard said John Goodhand speak of any other paper in [**6]  the nature of a will; that he believed the paper in question was the one that said John Goodhand referred to when he said in 1862, that he had to make a will for the purpose of making peace with his wife. Witness also testified, that said Maria told witness that unless said John Goodhand did make some provision for her that she would be left without support.

Henry C. Smith testified, that said John Goodhand never spoke to him of any other paper but the will made in 1862, and on the cross-examination of this witness, although a strong effort was made to get him to change the date, it will be seen that he insisted that the year was 1862. He further testified, that in 1864 or 1865, said John Goodhand called on him and said, that "he was in a great deal of trouble;" "that the old woman (said Maria) was raising the devil at home." "That she demanded six hundred dollars"--"that he had not that sum, and that he did not know what to do about it;" and that he, said John Goodhand, said to witness, "I have no peace at home or comfort of my life--I have but a short time to live, you know my health is very bad, and is not my peace worth more than six hundred dollars?" That witness loaned said [**7]  John Goodhand $ 600. That to "purchase peace" was the object that he said he wanted it for. He further testified, that in the presence and hearing of the said Maria, he (said John Goodhand) expressed his determination to die without a will, and that he wished to make no distinction in the distribution of his estate between his children. She desired this witness to see said John Goodhand and "persuade him to make some such provision for this child, Ida." He further testified, that during this conversation, Mrs. Goodhand said there was one matter troubled her. That "Mr. Goodhand, you know, made a will," and that witness answered, "yes, in 1862, but that will is destroyed." She said he had told her to destroy it, and placed it (that is, the will of 1862,) in her hands for its destruction, but that she had failed to do it, she had not done it--she did not know what might "turn up; what might occur."

William W. Wittman also testified, that said John Goodhand stood in fear of said Maria, and that he told him that he "had" to make the memorandum or paper in question "to have some peace," which he repeated to this witness on several occasions, for she would have "worried him to death [**8]  if he had not done it." That this witness "heard him say a short time before he died--he was scarcely able to talk then--I was leaning over his bed--that if he was only a thousand miles away he could live or die in peace."

Maria R. Goodhand testified, that she laid aside this paper "like she would any other letter, and took no particular account of it."

Emma Snead testified, that she found the little strip of paper in question in a box; "I opened it and carried it down to my sister; I told her that there was a piece of paper that I saw Ida's name in, and commenced to read it, and I did not finish, and went down stairs and gave it to her." That witness then left the room and went to packing.

The Court afterwards filed two orders, one dated July 13th, 1866, and the other the 7th of September, 1866, rescinding the first order, and pronouncing said paper a valid will and dismissing said petition; from which last order, excepting so much thereof as rescinds the first order, the caveators appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

LAST WILL AND TESTAMENT: DURESS: IMPORTUNITY. -- In order to invalidate a will on the ground of importunity used in influencing its execution, the importunity must be in such degree as to take away from the testator his free agency.

LAST WILL AND TESTAMENT: DURESS: IMPORTUNITY: DECLARATIONS OF A TESTATOR made after the execution of a will, such as, "I had to do it, William, to have some peace; if I did not she would worry me to death," supposing them to be admissible, in the absence of other proof of duress, are not sufficient to invalidate a will in face of the fact that the testator was of sound mind and had the power of resisting the importunities made use of.

LAST WILL AND TESTAMENT: DURESS: IMPORTUNITY: REVOCATIONS OF WILL: DECLARATION OF A TESTATOR made after the execution of a will, that he had "concluded to die without a will," that "the State of Maryland would make a good enough will for him," &c., cannot amount to a revocation of the will, which, under the CODE, ART. 9, SEC. 303, cannot be effected except by writing.  

COUNSEL:
T. B. Horwitz for the appellants argued:

1st. That the paper writing admitted to probate as the last will and testament of John Goodhand, deceased, was [**9]  obtained by undue influence exercised over him, and is therefore void.

"A testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contradiction and control." 1 Swinbourne on Wills, 22. "That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and render the instrument not his free and unconstrained act, is sufficient to invalidate it." Kirloside vs. Harrison, 1 Eng. Eccles. Rep., 336. Davis vs. Calvert, 5 G. & J., 301, 302. Wampler vs. Wampler, 9 Md. Rep. 551.

2nd. That the paper writing, so obtained by undue influence, is void, "not in relation to the person alone by whom it is procured, but as to all others who are so intended to be benefitted by his undue influence." Davis vs. Calvert, 5 G. & J., 302.

3rd. That the paper writing in question was fraudulently concealed by said Maria R. Goodhand after she was directed by said John Goodhand to destroy the same, and is therefore inoperative as a will and void. Davis vs. Calvert, 5 G. & J. 303.

4th. That said paper writing was obtained by fraud, and is therefore void. Davis [**10]  vs. Calvert, 5 G. & J., 303.

Wm. S. Waters for the appellee.

The petitioner's answer and evidence raise the following questions:

1. Is the paper in question testamentary in its character? Its execution is conceded.

2. Was it obtained by undue influence or fraud?

3. Has it been revoked?

First. Is the paper testamentary in its character?

The petition concedes, that the paper is the will of the deceased, but that it was obtained improperly, and was directed to be cancelled. It is proved that in 1862, he declared he had made a will precisely of this character. The paper in question was not only intended, in fact, as a will of the deceased, but independent of this specific intention, it was his obvious purpose that this paper should take effect after his death, and that is sufficient to make it a testamentary paper. Carey et al. vs. Dennis et ux., 13 Md. Rep., 1.

Second. The next question is, was this paper obtained by undue influence or fraud?

Mrs. Goodhand says, she knew nothing of it until delivered to her by deceased. It is then executed and witnessed.

Tucker and Smith both say, that he declared his intention to make just such a will,  [**11]  before it was made, and declared after it was made that he had done so. Goodhand informed members of his family generally of it.

The deceased was a business man, and a man of sound health, mind and judgment when the act was done. Let it be admitted that his wife was a termagant, that she did worry him, and that he was induced to make the will to please her, does all this amount to undue influence? Fraud there is none.

1st. The importunity and undue influence, to vitiate the instrument, must be such as deprives the party of free agency, such as he is too weak to resist. 5 Gill & Johns., 302. 18 Eng. L. & E. Rep., 578, 579, 583, 589, 585, 591, 592, 595, 596. 3 Searg. & Rawle, 267. 3 Wharton.

2nd. It is proved that Maria R. Goodhand had not control to this extent. She could not control her husband, unless his will agreed with hers. See the resistance he made to her importunity on his death bed.

3rd. A wife is allowed to have influence over her husband in making his will, and such influence is proper. In this case, the purpose she had in view was just in itself. The other children were raised, and her daughter could not be made equal with them, unless by a will of this [**12]  sort. 18 Eng. L. & E. Rep., 516.

4th. There is no instance of undue influence setting aside a will, where the testator's mind was free from infirmity. 18 Eng. L. & E. Rep., 583, 589, 596.

5th. The writing in question was not made under the instructions of Maria R. Goodhand. It was displeasing to her, and it is alleged that she constantly urged him to make a new will.

6th. The deceased declared, before the making of the will, that he intended to make it, showing that his will, from whatever motive, was to make it.

Third. Did the will in question remain unrevoked at the time of the testator's death?

No declarations on the part of John Goodhand, that he had destroyed the will, or that he had no will, or admissions on the part of Maria R. Goodhand, that she had been ordered to destroy it, or any verbal statements on the part of either of them, can render the will ineffectual. Code, Art. 93, sec. 303. 4 H. & J., 142.

1st. It is not a fact, that the testator ordered it to be destroyed, or that Maria R. Goodhand admitted that she had been ordered to destroy it. All these matters are fully explained in the testimony.

2nd. The acts of Mrs. Goodhand, or her [**13]  opinions, could not set aside the instrument, and deprive her daughter of benefits under it. No fraud on her part has been shown in reference to its non-production. The testimony sets her conduct in proper light in reference to all this.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*104]  BARTOL, J., delivered the opinion of this Court.
The paper exhibited as the last will of John Goodhand, deceased, was executed and attested in such form as to pass personal estate, and the property therein named being leasehold will pass under it, unless the caveat of the appellants be sustained.
The execution of the paper is not denied, but the objections to its validity, relied on by the appellants, are:
First. That it was obtained by undue influence exercised over the testator by the appellee, who was his wife.
Second. That it was obtained by fraud.
Third. That the paper was fraudulently concealed by the appellee after she had been directed by her husband to destroy it, and is therefore inoperative as a will and void.
1st. As to the alleged undue influence: The proof shows, that at the time of executing the will, the testator was of sound [**14]  mind, and though not in robust health, was far from being in a weak or enfeebled condition.
The paper does not appear to have been executed in the presence of his wife,--Mrs. Goodhand, the appellee, is the only witness who speaks on this point; she states that she knew nothing of the execution of the paper until it was handed to her by him signed and attested.
Both the witnesses, Tucker and Smith, who were called to support the caveat, state that the deceased declared to them his intention to make such a will, and informed them afterwards that he had done so. These witnesses state, that he said to them, in 1861, "he was greatly troubled by his wife in reference to making a will, that she desired him to make provision for her daughter, Ida." But there is no evidence of any such undue influence exercised over him 

 [*105]  in procuring the execution of the paper as would render it invalid.
In Davis vs. Calvert, 5 G. & J. 269, 302, it is said: "That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient [**15]  to invalidate it."
Sir JOHN NICHOLL, in the case of Kingleside vs. Harrison, 2 Phillimore 551, observed, "that importunity, in its correct legal acceptation, must be in such a degree as to take away from the testator his free agency."
This record certainly furnishes no evidence of any such importunity or undue influence in procuring the execution of this will.
On this point, the testimony of Wittman, one of the caveators, has been chiefly relied on in the argument. He states that Goodhand, after the execution of the will, told him what he had done, and said: "I had to do it, William, to have some peace; if I did not she would worry me to death." This testimony is excepted to on the ground that the verbal declarations of a testator, made after the execution of a will, are inadmissible to impeach its validity, and authorities have been cited in support of this position.
Without expressing any opinion on this point, which it is unnecessary for us now to decide,--in our judgment, the declarations of the testator made to Wittman, even supposing them to be legally admissible, are not sufficient, in the absence of other proof of duress, to invalidate the will in the face of the [**16]  fact that the testator was of sound mind, and that he had the power of resisting the importunities of his wife, as is shown by the other evidence in the cause.
The second ground of objection, that the execution of the will was procured by fraud, is without any proof to support it.
Third. The allegation that this will was fraudulently 

 [*106]  kept concealed by the appellee, after the testator had directed her to destroy it, and that he died in the belief that it had been destroyed, rests upon the testimony of the witnesses Wesley A. Tucker and Henry C. Smith. This testimony consists of the declarations made by the testator in the latter part of 1865 and early in 1866; and also of the declarations of the appellee made about that time.
As to the declarations of the testator, it is clear that they could not amount to a revocation of the will, which, under the Code, Art. 93, sec. 303, could not be effected except by writing.
Both these witnesses state that the appellee, in 1865, spoke as if there was no will in existence, and endeavored to persuade them to prevail on her husband to make a will in favor of her daughter, Ida. But this is explained by the fact that she considered the [**17]  memorandum of the 10th of January, 1862, as inoperative as a will, and it is possible the testator was of the same opinion.
The witness, Smith, states that Mrs. Goodhand, in January, 1866, told him her husband had made a will and had directed her to destroy it, which she had neglected to do, and was troubled in consequence. And the inference of the witness was that she referred to the memorandum of the 10th of January, 1862. It appears, however, by the testimony of Mrs. Goodhand, Miss Sarah Snead and George H. Crane, that there was another will, a more formal paper, which had been executed by the deceased, and which was destroyed by him in February, 1866. This evidence explains the meaning of Mrs. Goodhand's conversation with Smith, and effectually rebuts the inference that they referred to the memorandum of January, 1862. This paper having been executed by the testator freely, without duress or undue importunity or fraud, and remaining unrevoked, was properly admitted to probate by the Orphans' Court. 

 [*107]  The order appealed from will therefore be affirmed with costs to the appellee.
Order affirmed. 

39 of 120 DOCUMENTS 

RICHARD C. HALL ET AL., Appellants.--In the matter of the estate of ELIZA S. HALL, deceased.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 107; 1866 Md. LEXIS 92 

December 20, 1866, Decided 

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

This is an appeal from a pro forma order of the Orphans' Court of Baltimore city, passed on the 25th day of September, 1866, requiring the executor of the last will and testament of Eliza S. Hall, deceased, to allot and distribute to and amongst the granddaughters of the testatrix who were living at the time of her decease, the one-fifth part of all the rest and residue of her estate which was devised by her in trust for the sole and separate use of Eugenia S. Hall during her lifetime, &c.

By her will, which was executed the 19th of November, 1861, the said testatrix, after a few small legacies, devised all the residue of her estate in equal shares to her five children, Benjamin Rush Hall, Richard Clarence Hall, William Taylor Hall, Mary Cornelia Butts and Eugenia Sophia Hall. The shares of the three sons were severally devised to them absolutely; but provision was made against the event of the share of Benjamin Rush Hall, who was a resident of Louisiana, becoming liable to confiscation, in which case it was not to vest in him at the testatrix's death, but was to pass over to her two other sons in joint tenancy; and provision [**2]  was also made against the contingency of the dying of Richard Clarence Hall before the testatrix, under the influence, evidently, of a desire to make provision for his wife in such an event.

The shares or equal fifth parts of the testatrix's two daughters, Mary Cornelia Butts and Eugenia Sophia Hall, were devised to Richard Clarence Hall and William Taylor Hall in trust for their sole and separate use respectively, during their natural lives, and at their decease, respectively, in trust for their respective children and descendants living at their death, their heirs and assigns, the issue of any deceased child to take their parent's share, with a provision that in case of the decease of any of the children of the testatrix's said two daughters under age, and without issue living at the time of his death, the part of the child so dying should accrue to his surviving brothers and sisters. After some provisions intended to meet the case of the death of Mrs. Butts without issue, and relating to her share exclusively, the testatrix proceeded to limit the share of Eugenia Sophia in manner following:

"And it is further my will, that my daughter, Eugenia Sophia Hall, if she be and [**3]  continue unmarried, shall have the power after my decease, to dispose by will of all that one equal undivided fifth part of my estate hereinbefore devised and bequeathed by me to my sons, Richard Clarence and William Taylor Hall, in trust for her sole and separate use and benefit during her natural life. And in case it shall so happen that my said daughter, Eugenia Sophia, shall depart this life intestate and unmarried, or having been married, shall die without descendants living at her death, or such descendants shall all subsequently die under lawful age, then I give, devise and bequeath the same equal undivided fifth part of my estate to my granddaughters or granddaughter living at the time of my decease, their heirs, executors, administrators and assigns, absolutely, to be equally divided between them as tenants in common, share and share alike. And I request, authorize and fully empower the above named trustees, or their successors, to make such equal division as soon as convenient after the death of my said daughter, Eugenia Sophia, and to distribute to or among said devisees respectively their said portion, notwithstanding that either of my said granddaughters may not have arrived [**4]  at lawful age. And in case any of my said granddaughters shall depart this life under lawful age, and without issue living at the time of her decease, then the part or share of the one so dying shall become the property of the survivors or survivor of them, their heirs, executors and administrators, share and share alike."

The five children named in the will were all living at the time of making it. But Eugenia Sophia, without having married, died in the lifetime of her mother, leaving a last will, duly executed on the 9th day of January, 1864, by which she devised certain property specifically, and by a comprehensive clause, all the rest of her property to her mother, the said Mrs. Eliza S. Hall, constituting Richard Clarence Hall executor.

This appeal is by the executor and William T. Hall, from the pro forma order above referred to.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

WILL, CONSTRUCTION OF. -- E. S. H., by her last will and testament, bequeathed to her daughter E. one-fifth of her estate for life, with power, if she continued unmarried, to dispose of the same by will after the decease of her mother, and in case of her dying intestate and unmarried, her share was devised to the granddaughters of the testatrix living at her death. E. died in the life time of her mother, unmarried, leaving a will in which, after specific bequests, she devised all her property to her said mother. E. S. H. afterwards died; in the distribution of her estate, it was held:

1st. That E. had no interest in the share bequeathed to her which she could dispose of by will, until after the death of her mother; and that the will of E., prematurely made, could not defeat the gift over to the granddaughters.

2nd. That the making a will by E., and her dying intestate, must be construed to mean making a will and dying intestate after the death of the mother.

3rd. That the death of E. during the life of her mother, leaving a will, did not cause the bequest to her to abate; E. S. H. cannot be considered as having died intestate as to that one-fifth, but it passed to the granddaughters by operation of her will.  

COUNSEL:
Arthur W. Machen for the appellants.

1. Our first proposition is, that a gift limited upon the natural expiration of a life estate which itself has failed to come into existence, by reason of the devisee for life having died before the testator, can never take effect contrary to the intention. Underwood vs. Wing,  [**5]  4 De G. M. & G., 633, 664. Calthorp vs. Gough, 4 T. R., 707, note. Doe vs. Shippard, 1 Doug., 79. 2 Williams' Ex'r, 1144. Baker vs. Hanbury, 3 Russ, 340. It is only by bearing this principle in mind that it is possible to reconcile the class of cases represented by Jones vs. Westcomb, 1 Eq. Cas. Ab., 245, where the gift over has been sustained, with cases of at least equally unquestionable authority where the gift over has been held to fail, as is very clearly pointed out by the Lord Chancellor in Mackinnon vs. Sewell, 2 My. & K., 209, 212, 213, 217, 219, 220, a leading case of the former class.

Evidence of intention that Eugenia must survive the testatrix to give effect to the limitations in this clause, is found in the significant words, "after my decease," coupled with the power to dispose by will. These words could not have any operation as qualifying the power, for it is manifest, that as the will of Mrs. Hall could not go into effect before her own death, it was impossible that her daughter, under any circumstances, or under any form of gift, could exercise the power until after that time. She could not execute the power before it existed. (See Glenn vs. Belt, 7 G. & J.  [**6]  , 362, 365.) The words, therefore, have no meaning as restrictive of the power, and the testatrix cannot be supposed guilty of the absurdity of employing them for any such purpose. They must, then, have been used to indicate, that in the mind and contemplation of the testatrix, Eugenia must outlive her in order that any of the subsequent limitations should have operation. Meaningless in connection with the power, they express the condition upon which the alternative limitation was made to depend.

Evidence of such intention is also visible in the express provision made for the case of the pre-deceasing of Richard Clarence Hall, of whose one-fifth a special disposition is made in the event of his not being in life to take it. Either from entertaining no apprehension as to the health of her other children, or some other motive, she did not think fit to provide for the occurrence of a similar contingency with respect to her other children. The particular pains which she took to provide specially for such a case in regard to Richard Clarence, indicates that she meant to make no provision for it in regard to Eugenia.

Further support of such construction is found in the principle [**7]  of equality in the division of her estate amongst her living children, manifested in the whole will. She did not divide her property into six parts, according to the number of children she had had when Clinton J. Hall, her deceased son, was yet alive, but into five parts, according to the number of her then living children. The granddaughters are never introduced as objects of original or primary favor. The limitation to them is always remote and improbable. It is liable to be defeated in respect to Mrs. Butts' one-fifth by her leaving any issue, and she had issue. In respect to the fifth of Eugenia Sophia, who was unmarried when the will was made, they were liable to be defeated by any testamentary disposition it might be her pleasure to make.

The succession of the heir is not to be defeated by implication, unless it be a necessary implication. Ridgely vs. Bond, 18 Md. Rep., 448. Shuldham vs. Smith, 6 Dow., 22, 56, per Lord Eldon. There is no such implication here. On the contrary, the general intent favors our construction. The testatrix evidently purposed no modification of the rules of descent, except such as was requisite to protect her daughters against the consequences [**8]  of coverture, and her son, who resided at the South, against the danger of confiscation. It certainly must be desired to accomplish such a disposition, in the event which has happened, as the testatrix would herself have made, if the event had been before her eyes. And it is impossible to doubt that, if Eugenia's death had occurred before the will was made, Mrs. Hall would have divided her estate into four parts, according to the number of her surviving children, giving to each an equal share. And this is what the law accomplishes for her in the absence of an express provision for the case.

It is to be observed that while only a life estate was conferred on Mrs. Butts, without any power of devising, the power of disposition by will given to Eugenia is absolute, and the existence of granddaughters would not have effected her right of control in this respect. This feature of the will is evidently introduced for a purpose, and shows that, in any event, the testatrix had contemplated the exercise by her daughter, Eugenia, of a discretionary power to direct the property according to what might prove to be the condition of the family at a period subsequent to her own death. In the language [**9]  of the Master of the Rolls, in Calthorpe vs. Gough, 4 T. R., 708, note, "There was no event in which the children (devisees in remainder) could take anything which it was not in her power to deprive them of." And see Baker vs. Hanbury, 3 Russ., 340, and Sugden's argument there.

The force of this consideration is not lessened, if we admit that the presence of a mere power of appointment may not be enough, in all cases, to prevent the gift over from operating independently. The relation of the parties in remainder to the person who has to exercise the power, as whether they are her issue or next of kin, and, therefore, naturally to be the objects of her favor, in some mode, in case she should exercise it or otherwise, may have an important influence in determining any given case of doubt. The whole context, indeed, must be carefully considered, where the question is open, and the remainder is not expressly made dependent on a condition of survivorship, or some other condition.

II. It is an inflexible rule of law, that whenever a gift is perceived to be unequivocally limited upon any contingency, there is no longer room for construction, the contingency must be exactly fulfilled,  [**10]  or the gift fails. The liberality of construction exemplified in the class of cases of which Jones vs. Westcomb and Avelyn vs. Ward are the types, is only indulged for the purpose of ascertaining whether any contingency was really contemplated or not. A condition distinctly expressed must have full effect yielded to it, however more reasonable it may appear to us to substitute a condition somewhat different in character. Denn vs. Bagshaw, 6 T. R., 516. Dicken vs. Clarke, 2 Yo. & Col. Ex., 572. Festing vs. Allen, 12 M. & W., 279. Doo vs. Brabant, 4 T. R., 706. Humberstone vs. Stanton, 1 Ves. & B., 385. Williams vs. Jones, 1 Russ., 517. Williams vs. Chitty, 3 Ves., 545. Carpenter vs. Heard, 14 Pick., 449, 2 Redfield on Wills, 496 and 497, note, where the opinion of PUTNAM, J., in the last cited case is strongly commended.

A. The gift to the granddaughters in question is certainly contingent. Before they can take, Eugenia, to say nothing of any other condition, must have died intestate. But she did not die intestate. She has left a will perfectly executed, which upon its face disposes of everything she had.

It will not do to say that by "intestate" the testatrix did not mean [**11]  what she has said, what all lexicographers define to mean the words "dying without a will," (see Webster, Johnson, Bailey, Burrill, in verb.,) the meaning that it bears in the Testamentary Law of the State, (see Code, Art. 93, sec. 16,) but that what she really intended was, without making such a will as should dispose of said one-fifth. For this is to improve upon her will, and not to take it as we find it. There is no apparent necessity to justify the introduction of qualifying words: the clause, as it stands, involving no "absurdity, repugnance or inconsistency." Gundry vs. Pinniger, 1 De G. M. & G., 505. Holmes vs. Craddock, 3 Ves., 319. Williams vs. Jones, 1 Russ., 518. Grey vs. Pearson, 6 Ho. Lords Cas., 61, 106.

Eugenia's will, had she survived her mother, was capable (under quite possible circumstances) of operating as a good execution of the power contained in her mother's will, the fact of Mrs. Hall's death occurring subsequently to the making of Eugenia's will not preventing the latter from operating upon the property since the Act of 1849, ch. 129. See 2 Sugd. on Pow., (7th ed.) 7. 1 Id., 407, 408.

In such a case, the event of Eugenia's having survived her mother,  [**12]  and of Eugenia's will having come to operate upon the one-fifth devised by Mrs. Hall's will, this portion of Mrs. Hall's estate would have gone, by virtue of Eugenia's will and the Act of 1810, ch. 34, (Code, Art. 93, sec. 304,) to Mrs. Hall's heirs and distributees. Glenn vs. Belt, 7 G. & J., 362.

Eugenia's last will, quaecumque via data, was assuredly a testamentary instrument, perfect in form of execution; it appointed an executor, purported to dispose of all her property, and in the Court from which this appeal is taken, was proved as her will; and without departing from all ordinary use of language, it is impossible to say that she died intestate. The natural force of the unambiguous words here used: "In case it shall so happen that Eugenia Sophia shall depart this life intestate," cannot be overcome without resorting to a licentious latitude of construction which is entirely unexampled among respectable precedents. In cases where the temptation, from considerations of general equity, or the presumed intention of the testator, was far stronger than can be contended to exist here, the effort to escape the natural meaning of the words, or to modify it, by the interpolation [**13]  of other words suggested by the context, has signally failed.

In Andre vs. Ward, 1 Russ., 260, it was sought to interpolate the word such, and to treat "in case of my son's death leaving no issue," as equivalent to "in case of my son's death leaving no such issue," (referring to issue previously mentioned in the same sentence,) so as to support a gift over; but it was held that the construction could not be allowed.

In Lennox vs. Lennox, 10 Sim., 400, the words were: "If Ann L. (legatee for life) shall survive any husband with whom she may intermarry," then to her, her executors, &c.; there was also a provision that if she should not survive her husband the legacy should go (in default of children) to her appointees, and if she should make no appointment, to the persons who would be entitled to take from her under the statute of distributions if she had died intestate and unmarried. Ann L. having died a spinster, it was strongly pressed on behalf of her personal representatives, that it could make no difference to the testator whether she had a husband who died in her lifetime, or whether she never had a husband at all; but the argument did not prevail and the gift was not [**14]  sustained. See also Swayne vs. Smith, 1 Sim. & St., 56. Philpot vs. St. George's Hospital, 21 Beav., 134. Boyce vs. Boyce, 16 Sim., 476. Lee vs. Busk, 14 Beav., 459; S. C. affd. 2 De G. M. & Gord., 810, and Underwood vs. Wing, 4 De G. M. & Gord., 633.

B. But if it be considered that the sentence in question is so tied to that which precedes it as to justify the insertion of words qualifying "intestate," by reference to "the power to dispose by will" previously mentioned, then, by the same reason, after or before the words, "depart this life" must be inserted the words, "after my decease," with which the grant of power is qualified. And treating these words as in, it is impossible that the claim of the granddaughters should be sustained, as is shown by Holmes vs. Cradock, 3 Ves., 317. And see 14 Pick., 458.

The clause so interpreted reads thus: "My daughter, Eugenia Sophia, if she be and continue unmarried, shall have the power, after my decease, to dispose by will of all that one equal undivided fifth part, &c. * * and in ease it shall so happen that my said daughter, Eugenia Sophia, shall, after my decease, depart this life intestate and unmarried, &c., then," &c.

Upon [**15]  the face of the whole clause it is manifest, that the words "after my decease" are words of condition affecting all the subsequent limitations. This case, like Toldervy vs. Colt, 1 M. & W., 250, "ranges itself," in the language of ABINGER, C. B., "under that class of cases, in which a rule of construction founded on plain common sense, has been illustrated, namely, that, where a condition precedes a certain series of limitations, each of that series must be taken to be affected by that condition, unless there is a manifest intention upon the face of the will to be collected to the contrary; that is to say, in other words, you must follow the plain grammatical construction of the will in giving effect to the limitations, unless you find by some other parts of the will that the testator's intention was to deviate, in one particular, from that plain grammatical construction." 1 M. W., 283, 284.

The Acts of 1810, ch. 34, and 1832, ch. 295, (Code Art. 93, sec. 304) have no operation upon the devise now in question. It is out of the power of any Legislature to make a life estate outlast the life of the cestui que vie. The consequence, as to the posterior gift, is mere matter of construction.  [**16]  Young vs. Robinson, 11 G. & J., 328. Glenn vs. Belt, 7 G. & J., 362. Craycroft vs. Craycroft, 6 H. & J., 54.  

JUDGES:
GOLDSBOROUGH, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*117]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The appellant, Richard C. Hall, as executor of Eliza S. Hall, filed his petition in the Orphans' Court of Baltimore city, alleging that he was ready and willing to distribute the estate of his testatrix; but being in doubt as to the parties entitled to one undivided fifth part thereof bequeathed to Eugenia S. Hall, who died in the lifetime of her mother, the testatrix, he prayed for an order of distribution, which the Orphans' Court passed pro forma, on the 25th day of September, 1866, directing the executor to distribute the share of Eugenia amongst the granddaughters of the testatrix who were living at the time of her decease. From this order this appeal was taken.
Whether the ruling of the Court below is correct, depends upon the proper construction of the will of Mrs. Hall, which is dated the 19th day of November, 1861, and was admitted to probate on the 13th of March, 1865.
A careful examination of this will has satisfied us that the order of the Orphans'  [**17]  Court is correct.
The share bequeathed to Eugenia was for her life, and if she continued unmarried, she should have the power to dispose of the same by will, after the decease of her mother; and failing to do so, her share was devised to the granddaughters of the testatrix living at her death. Eugenia died in the lifetime of her mother unmarried. Though she made a will which was admitted to probate, she had no interest in this share which she could devise, until the death of her mother. Her will was premature and could not defeat the rights of the granddaughters. Though it is 

 [*118]  provided by the will of the mother that if Eugenia should die intestate and unmarried, still her making a will and dying intestate are correlative, and both must be construed to mean after the death of her mother.
In other words, the intestacy must have relation to the property devised, and over which Eugenia had the power of disposition, which power she could exert only upon the contingency of her surviving her mother. Her will, by which she devised the property to her mother, could not vest an interest in her mother, nor did the death of Eugenia in the lifetime of her mother cause the devise to [**18]  her to abate, so that in neither event can the theory of the appellant be sustained that the mother died intestate of this share.
To give such a construction would be in direct conflict with the express provision of the will of the testatrix, which gave to Eugenia the power to make a will after the mother's death; and failing to do so, her share passed to the granddaughters by operation of the will.
The order of the Orphans' Court must be affirmed, and this Court will pass a decree to that effect with costs in both Courts to be paid out of the estate.
Order affirmed. 

40 of 120 DOCUMENTS 

DANIEL MCCANN ET AL., ADM'RS., &C., vs. JAMES SLOAN AND LUCIEN B. CALWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 81; 1866 Md. LEXIS 89 

December 11, 1866, Decided 

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

This was a motion for a procedendo filed in the case of McCann & Nussear vs. Sloan & Calwell, heretofore decided in this Court, and reported in 25 Md. Rep., 575. The circumstances under which the motion was made are stated in the opinion of this Court.  

DISPOSITION:
Motion overruled.  

HEADNOTES:

PRACTICE IN COURT OF APPEALS: PROCEDENDO. -- Under a true construction of the CODE, ART. 5, SEC. 16, to authorize the granting of the writ of procedendo, the propriety of a new trial must appear from the record before the Court at the time of the reversal or affirmance of the case under consideration. Any other construction would convert the Court of Appeals into a tribunal of original instead of appellate jurisdiction.

A motion for a procedendo after judgment affirmed without granting the writ, based upon the affidavit of a witness to supply a defect of evidence in the record, on the ground that it is new evidence discovered since the trial of the cause below, is virtually a motion for a new trial for reasons not appearing in the record.  

COUNSEL:
O. Miller for the motion.

A. H. Hobbs contra.  

JUDGES:
The motion was heard by BOWIE, C. J., and BARTOL, GOLDSBOROUGH and WEISEL, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*82]  BOWIE, C. J., delivered the opinion of this Court.
The 5th Article of the Code, sec. 16, enacts, that "in all cases where judgments shall be reversed or affirmed by the Court of Appeals, and it shall appear to the Court that a new trial ought to be had, a writ of procedendo shall issue."
It is obvious from the language of this section, as well as the final character of decisions in this Court, that the propriety of a new trial must appear from the record before the Court, at the time of the reversal or affirmance of the case under consideration.
Any other construction would convert this Court into a tribunal of original, instead of appellate jurisdiction. When this case was under consideration,  [**2]  the question of procedendo was presented to the minds of the Court, and the conclusion reached, that there was no ground for the writ. The appellants now seek to change the decision of the Court, by presenting an affidavit of a witness to supply a defect of evidence in the record, on the ground that it is new evidence discovered since the trial of this case. This is virtually a motion for a new trial, for reasons not appearing in the record.
It is the misfortune of the plaintiff that he should have gone to trial without being prepared with full proof of his claim. If he relied upon the original entries in the plaintiff's books, he must have shown the absence or death of all the book-keepers, and laid a sufficient foundation to shew the books were the books of original entries, to make their contents evidence. The appellants attempted, at the trial below, to prove by certain witnesses, that certain books referred to in the bill of exceptions, were the books of original entries, which testimony being excepted to, was ruled out, and the ruling has been affirmed upon this appeal.

 [*83]  Failing in this, the appellants now apply for a procedendo, "because of newly discovered [**3]  evidence of the said books of original entries since the trial of this case below. This motion is not sustained as is required upon motions for a new trial, by an affidavit of the appellants, that the testimony has been discovered since.
On the contrary, the deponent, whose deposition is relied on as the basis of the motion, was a salesman of the appellants, and in the absence of all proof to the contrary, his existence is presumed to have been known to the appellants, and his absence alone was not sufficient ground to warrant the admission of secondary proof. If the Court had the power, it would be a precedent of dangerous tendency to award a procedendo under such circumstances. Without regard to these, the motion is overruled, because the record does not show that a new trial ought to be granted.
Motion overruled. 

41 of 120 DOCUMENTS 

JOHN C. VOSHELL AND GIDEON HEATON vs. BENJAMIN T. HYNSON, WILLIAM G. HYNSON AND JACOB GROSS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 83; 1866 Md. LEXIS 90 

December 11, 1866, Decided 

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

This appeal is taken from two orders of the Court below, (ALEXANDER, J.,) the one passed on the 24th of February, 1866, appointing receivers and granting an injunction, and the other, dated 30th of April, 1866, continuing said order of 24th of February, 1866, until final hearing or further order.

The bill in this case, filed 24th of February, 1866, states that Benjamin T. Hynson and William G. Hynson, trading as B. T. Hynson & Son, on the 20th of December, 1865, obtained a judgment in the Court of Common Pleas of Baltimore city against said John C. Voshell for the sum of $ 461.94 and costs; and that said Jacob Gross, on the 30th day of December, 1865, also obtained judgment in said Court of Common Pleas against said John C. Voshell for $ 228.31 and costs, and that both of said judgments are due and unpaid. That on the 31st of January, 1866, the said B. T. Hynson & Son and Jacob Gross caused writs of fieri facias to be issued on said judgments, which were levied on the goods and chattels of said John C. Voshell, contained in the "Voshell House," conducted by said Voshell, situated in the City of Baltimore. The bill further charges,  [**2]  that said Heaton, by virtue of a mortgage executed to him by said Voshell, dated the 31st of December, 1864, "claimed to prevent the execution and sale by the sheriff of the goods and chattels of the said Voshell, so levied upon as aforesaid, to satisfy said judgments;" and the special return of the sheriff of said writs of fieri facias, and an inventory and appraisement of said goods and chattels, were filed with said bill. The bill further alleges, that said Voshell had no other property out of which said judgments could be satisfied, and that "since the execution of said mortgage to said Heaton, the said Voshell had been permitted to use and dispose of the goods and chattels mentioned in the said mortgage, and that the said Voshell was then in the possession and use of said goods and chattels," and was then "disposing of them or part of them," and "that a part of the goods and chattels levied on by said sheriff, under the executions aforesaid, are not the same goods and chattels as those mentioned in said mortgage, but are others and different," and that the complainants were "unable to distinguish the one from the other."

The bill further states, "that if the goods and chattels [**3]  levied upon as aforesaid, be not taken from the possession of said Voshell, that they will be disposed of," and that the complainants "will be subjected to an entire loss of their claim," and that they are without remedy at law. The bill then prays "that a receiver may be appointed to take charge of the goods and chattels levied upon as aforesaid, and to preserve or dispose of the same," under the direction of the Court, and that said John C. Voshell may, by injunction, be restrained from "selling or disposing of or retaining from the receiver any of the goods and chattels levied upon as aforesaid, or intermeddling with them; and that said goods and chattels may be sold, and the proceeds applied to the payment of the claims of the complainants after paying any prior claims against the same," and for further relief.

On this bill (which was sworn to by said William G. Hynson,) the Court immediately granted the injunction, and without notice to the defendants, or rule to shew cause, appointed receivers. Whereupon the receivers so appointed, at once, before filing the bonds required by the order of Court, commenced to act in the premises, and addressed a note to said Voshell threatening [**4]  to sell the property in the Voshell House, on the following day, "Monday next," being the 26th of February; the note is dated 24th of February, 1866.

On the 27th day of February, 1866, the said John C. Voshell and Gideon Heaton, the only parties who were made defendants, filed their answer to said bill.

The answer admits that said judgments were due and owing by said John C. Voshell to the complainants. It then alleges that said John C. Voshell, being indebted unto the said Gideon Heaton in the sum of $ 1,687.25, passed his promissory note therefor to the said Heaton, dated 31st of December, 1864, and payable one year thereafter, with interest until paid, and to secure the payment thereof had executed a mortgage of same date to said Heaton. And that no part of said note, or the interest due thereon had been paid, making the amount then due said Heaton by said John C. Voshell, on said mortgage, ($ 1,804.22) eighteen hundred and four dollars and twenty-two cents. The answer further alleges, that all the goods belonging to said John C. Voshell, and covered by said mortgage, would not sell for sufficient even to pay said note, without the interest due thereon, and that a sale [**5]  thereof by a receiver, would be attended by a heavy loss to said Heaton. It further shews that the bulk of the goods and chattels so levied upon by the sheriff do not belong to said John C. Voshell, of which fact the sheriff had notice at the time that he made the levy; and again, before he made his return. The answer further specifies to whom the principal part of the furniture so levied upon belongs. It then denies all the material allegations in the bill, more especially that the complainants could not distinguish the goods named in the mortgage from those that were levied upon as aforesaid, but not named therein, and shews that the complainants purposely made no effort whatever to distinguish the one from the other, with the view and design of making it appear to the Court that the property mortgaged was of larger value than the mortgage claim. And there is nothing in the testimony to shew that the complainants ever made the slightest attempt to so distinguish the property in question.

And the answer denies that said John C. Voshell had been "permitted to dispose of the goods and chattels mentioned in the said mortgage," and that he was then disposing of them or part of them,  [**6]  " and it avers that the party (Wm. G. Hynson) who made the affidavit attached to the bill, had no knowledge whatever upon which he based such charge, but that he did so with the hope that the complainants might thereby obtain an injunction, and have a receiver appointed, that, in that way, and under the threat of selling all the furniture in the Voshell House, the said B. T. Hynson & Son might extort the amount of their said judgment.

The answer further insists, that if it could be shewn that there was other property in the Voshell House belonging to said John C. Voshell and not covered by said mortgage, that then the complainants had an ample remedy at law, and that the Court below would have no jurisdiction in the premises.

It further shews that there was due and owing to the landlord of the Voshell House for rent thereof, at the time said order of 24th of February, 1866, was passed, granting an injunction and appointing receivers, the sum of $ 1,200, for which he had caused a distress to be levied. The answer was sworn to by both the defendants.

After this answer was filed, viz: on the 2nd of March, 1866, a commission was issued to take testimony, and on the 12th of [**7]  March, 1866, the complainants filed a general replication. On the 15th of the same month the defendants filed a motion to rescind the order appointing receivers and to dissolve the injunction.

Under the commission, testimony was taken by both sides. To a large part of the complainants' testimony the defendants excepted, on the ground that the same were not applicable to any fact put in issue by the bill. The case was finally set down for argument, and on the 30th of April, 1866, the Court, (ALEXANDER, J.,) filed an opinion and passed an order continuing the injunction and receivers until "final hearing or further order," from which order, and from that of 24th of February, 1866, this appeal was taken.  

DISPOSITION:
Orders reversed and cause remanded.  

HEADNOTES:

PRACTICE IN EQUITY: APPOINTMENT OF RECEIVER: INJUNCTION. -- An appeal was taken from an order appointing a receiver and granting an injunction, and also from an order refusing to discharge the receiver and dissolve the injunction, upon motion to that effect after answer filed on oath and testimony taken. -- HELD:

1st. That in such case the Court cannot assume the allegations of the bill to be true, and thereon sustain the action of the Court below, but it becomes necessary to inquire whether the several propositions laid down in Blondheim vs. Moore, 11 Md. Rep., 365, can be sustained so as to justify the Court below in refusing to discharge the receiver and continue the injunction.

2nd. That the material allegations of the bill being denied by the answers, which are not overcome by the testimony, the order granting the injunction and appointing the receiver, as well as the order "continuing said order until final hearing or further order," must be reversed and the cause remanded.

3rd. That the progress of the case precludes the Court from the consideration of the question of the appointment of a receiver without notice to and hearing of the defendants; the rule laid down by the adjudged cases, that the Court will not appoint until the defendant is first heard, unless the necessity be of the most stringent character, is one which can only be enforced upon appeal from the order appointing the receiver. 

COUNSEL:
T. B. Horwitz for the appellants argued:

1st. The complainants were not entitled to a receiver nor to an injunction, because "fraud and imminent danger" were not "clearly proved" before the order in this case for an injunction and receivers was passed. Thompson vs. Diffenderffer, 1 Md. Ch. Dec., 495. Furlong & Miller vs. Edwards, 3 Md. Rep., 112. Blondheim et al. vs. Moore, 11 Md. Rep., 374, 375. But so far from fraud in this case being [**8]  clearly proved, it is not even alleged in the bill, and there was certainly no proof of imminent danger.

2nd. The defendants were entitled to notice before said order was passed. Blondheim vs. Moore, 11 Md. Rep., 374, 375. Trieber vs. Burgess et al., 11 Md. Rep., 461. Nusbaum vs. Stein, et al., 12 Md. Rep., 322.

The defendants resided within a very short distance of the Court, and could, without loss of time, have been notified of the complainants' application for an injunction and to have a receiver appointed, and for that reason, also, were entitled to notice. Trieber vs. Burgess et al., 11 Md. Rep., 461.

Not only were the receivers appointed on the same day that the bill was filed in this case, without previous notice to the defendants, but they actually proceeded to act as receivers before they had even filed the bond required by the order appointing them receivers.

3rd. All the material allegations in the bill are denied by the answer, and the answer is evidence for the defendants; Hubbard vs. Mobray, 20 Md. Rep., 167; and the allegations being unsupported by testimony, the motion to dissolve the injunction "must prevail." Washington University vs. Green, 1 [**9]  Md. Ch. Dec., 103. 20 Md. Rep., 167. And especially does the answer deny that the other goods and chattels in the Voshell House cannot be distinguished from those mentioned in the mortgage from Voshell to Heaton; and the testimony proves that the complainants actually refused to receive any information on the subject, and instructed the sheriff to levy on all the furniture in the house. The answer and the testimony shew that the complainants concealed from the Court that they had been informed as to the true ownership of the goods and chattels in the Voshell House.

The most material allegation in the bill, that the defendant, John C. Voshell, "had been permitted to use and dispose of the goods and chattels mentioned in said mortgage," and that he was, at the time the bill was filed "disposing of them, or part of them," is not only emphatically denied in the answer, but the party complainant, William G. Hynson, who made the affidavit attached to the bill, upon the faith of which the Court passed its order, testifies himself that he has "no knowledge whether or not Mr. Voshell has disposed of any of the goods and chattels since the execution of that mortgage."

4th. The utmost [**10]  to which the complainants could possibly be entitled, provided they had established that the mortgaged property would sell for a larger amount than would satisfy the mortgage, would be a decree to sell the property mortgaged, "and pay off the encumbrances, and then satisfy" their "own claims." Rose & Gauss vs. Bevan et al., 10 Md. Rep., 470. Harris vs. Alcock, 10 G. & J., 251, 252.

But the answer and the testimony in this case both show, that the mortgaged property would not sell for sufficient to pay the mortgage, and that its sale by a receiver would be attended by a heavy loss to the mortgagee. The complainants therefore have no interest whatever in the property covered by the mortgage.

But the complainants insist, that under the authority of the case of Rose & Gauss vs. Bevan, 10 Md. Rep., 469, 470, they have a right to have a receiver appointed to sell all the goods and chattels in the Voshell House, without regard to ownership. It is true that the material averments in the bill filed in this case are an exact copy of the opinion of the Court in the case last above cited. But are the facts in the two cases analogous? Not at all. In Rose & Gauss vs. Bevan, the mortgagee,  [**11]  Rose, had allowed a stock of dry goods, (the subject of the mortgage,) contained in the store of Gauss, the mortgagor, to become mixed up with other goods that had been substituted for part of those covered by the mortgage that had been sold, and Gauss "had been permitted to use and dispose of the goods mortgaged to Rose." And at the very time that the bill was filed in that case, Gauss was actually disposing of the goods out of his store, which fact Gauss, in his answer, admitted. This last allegation, the most material in the bill filed in this case, that Voshell was (when the bill was filed) disposing of the goods and chattels named in the mortgage, has been shown by the answer and by the testimony of the party himself who made the affidavit attached to the bill, to be without even the shade of foundation in truth. In this case, instead of goods that are being constantly sold out of a store, the property mortgaged is the furniture of a hotel, not an article of which has been disposed of since the execution of the mortgage, but on the contrary, the hotel was, when the receiver took possession thereof, carrying on its regular business, and has been doing so ever since, except so far [**12]  as said receivers have interfered therewith.

So far from any of the mortgaged property having been disposed of by Voshell, the evidence of Griffith and Kleff, shows that furniture of large value has been purchased by Mrs. Voshell and said Kleff since the date of said mortgage, and that it, together with other furniture that belonged to said Kleff, have been placed by them in the Voshell House. Where then do we find in this case the "stringent necessity," the "imminent danger" the "fraud clearly proved," (3 Md. Rep., 112, 11 Md. Rep., 374,) that are conditions precedent to the appointment of a receiver? Where the ground for an injunction?

But the decision in the case of Rose & Gauss vs. Bevan, is based upon and does not go a step farther than Harris vs. Alcock, (see 10 Md. Rep., 470,) and the former case is one of the authorities relied upon by the appellees in Blondheim vs. Moore, 11 Md. Rep., 370, and therefore, was considered by the Court in that case, and shews the construction that it intended to put upon Rose & Gauss vs. Bevan.

5th. The bona fides of the mortgage claim is not even called in question in the bill, and it is shewn by the mortgagor and the mortgagee,  [**13]  in their answer, to be bona fide; and the complainants' own witness, McShane, further proves it to be bona fide.

6th. The landlord's claim for rent, which has priority over all other claims, and the mortgage claim would cover the value of all the property levied upon in the hotel, except that belonging to the boarders; the complainants, therefore, can have no interest in it whatever. But the major part of the furniture levied upon and appraised in the Voshell House, is clearly proved to be the property of those not parties in this suit.

7th. If the complainants show that Voshell has other property than that named in the mortgage, then they have an ample remedy at law, and the Court below had no jurisdiction in the premises.

No appearance for the appellees.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*92]  BOWIE, C. J., delivered the opinion of this Court.
There is no subject on which this Court has recently, more fully and frequently announced the principles which should govern the action of Courts of Equity, than on the exercise of the power of appointing receivers and issuing injunctions to preserve [**14]  property.
From Blondheim vs. Moore, 11 Md. 365, to Haight & O'Connell vs. Burr, 19 Md. 130, the essential averments of a bill praying for a receiver and injunction, and the course to be pursued, have been broadly and emphatically prescribed. In the case first mentioned, the late learned Chief Justice reduced the result of previous decisions to these five propositions:
1st. The power of appointment is a delicate one and to be exercised with great circumspection.
2nd. It must appear the claimant has a title to the property, and the Court must be satisfied by affidavit that a receiver is necessary to preserve the property.
3rd. There is no case where the Court appoints a receiver merely because the measure can do no harm.
4th. That fraud or imminent danger, if the intermediate possession should not be taken by the Court, must be clearly proved.

 [*93]  5th. That unless the necessity be of the most stringent character, the Court will not appoint until the defendant is first heard in response to the application.
The last two propositions were cited with approbation in Haight & O'Connell vs. Burr, as rules, deduced from an examination [**15]  of all the cases, to which the Courts should adhere.
This appeal is not only taken from the order appointing the receiver and granting the injunction, but also from the order refusing to discharge the receiver and dissolve the injunction upon motion to that effect, after answers filed on oath and testimony taken.
The bill in this case is framed after that in Rose & Gauss vs. Bevan, 10 Md. 466, 470, where it was said "the bill undoubtedly makes a good case," and the Court below refers to that case, as its authority for its action in this. The question is not here, as in that, whether the "receiver was originally properly appointed and the injunction properly issued. There, as in the case of Haight & O'Connell vs. Burr, the appeal being from the appointment of the receiver and issuing of the injunction, the Court assumed the allegations of the bill to be true and sustained the action of the Court below. Here, the answers being filed and testimony taken upon the motion to discharge and dissolve, we have to inquire whether the propositions above laid down can be sustained so as to justify the Court below in refusing to discharge the receiver and continue the [**16]  injunction.
There is no fraud imputed in the bill to any of the parties. The allegation that the defendant, Voshell, has been permitted to use and dispose of the goods, and is disposing of them, is denied by the defendants' answer. It is also denied that the defendant, Voshell, is in possession of the goods.
The hypothesis, "that if the goods and chattels levied upon as aforesaid, be not taken from the possession of the 

 [*94]  said Voshell, they will be disposed of and the complainants subjected to an entire "loss of their claim," must fall with the premises on which it was founded.
The answers of the defendants, being upon oath, must be conclusive on these points at this stage of the proceedings, unless they are overcome by the testimony. Hamilton vs. Whitridge, 11 Md. 128. Bouldin & Others vs. Mayor and City Council of Baltimore, 15 Md. 18, 21, 22. Code Public General Laws, Art. 16 sec. 103.
There is conflicting and contradictory evidence with regard to the possession of the property, but not such as to discredit the answers. The allegation of the disposal of the property by Voshell is wholly unsupported. It is immaterial [**17]  to inquire on this appeal into the value of the property,--whether it is more or less than the incumbrances which are prior to the judgments and executions of the complainants. That is a proper subject for consideration upon final hearing. The argument of the appellees, upon that branch of the cause, anticipates the question.
We are also precluded, by the progress of the case, from considering the question of the appointment of a receiver without notice to and hearing of the defendants. The rule laid down in the cases cited, that the Court will not appoint until the defendant is first heard, unless the necessity be of the most stringent character, is one which can only be enforced upon appeal from the order appointing the receiver.
The case of Rose & Gauss vs. Bevan, relied on by the Court below for its action in this respect, although cited by the appellees in Blondheim vs. Moore, and decided only the term before, was not referred to by the Court as one of the cases from which the leading propositions were deduced, and in that case, although the circumstances were equally stringent, a contrary course was adopted.
We cannot forbear to remark, that the propriety of such a [**18]  course is made manifest by the extraordinary assumption 

 [*95]  of power which the receiver in this case threatened to exercise "unless the matter is settled to-day;" a threat which gave too much color to the argument that the power of the Court of Equity was invoked to intimidate, rather than preserve the property in dispute.
The order of the Court below of the 24th of February, 1866, granting an injunction and appointing a receiver, and also the order of said Court "continuing said order until final hearing or further order," are reversed with costs of this appeal to the appellants, and the cause remanded.
Orders reversed and cause remanded. 

42 of 120 DOCUMENTS 

MARCUS ROSENTHAL vs. LAZARUS FREEBURGER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 75; 1866 Md. LEXIS 88 

November 28, 1866, Decided 

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

The appeal in this case is from an order of the Court below (ALEXANDER, J.,) granting an injunction upon a bill filed by the appellee, praying for the specific performance of an agreement by the appellant, to execute to the appellee a lease for five years, and for an injunction restraining the appellant from any further proceedings under a judgment of restitution obtained against him before a Justice of the Peace. The allegations of the bill and the facts of the case are set forth in the opinion of this Court.  

DISPOSITION:
Order reversed and bill dismissed.  

HEADNOTES:

STATUTE OF FRAUDS: PART PERFORMANCE. -- An agreement by A. to "give B. a lease for five years at a rent of $ 200 a year, payable monthly, exclusive of water rent," is an agreement within the Statute of Frauds, and can only be evidenced in writing, unless there has been something done under it amounting to a part performance so as to take it out of the operation of the statute.

A Court of Equity will deem only such acts done in part performance of an agreement within the statute, as clearly appear to be done solely with a view to the performance of the agreement.

Where the agreement is by the purchaser of the fee to execute such lease to the tenant of the former owner, remaining in possession, the mere continuance of the character which he had for a long time held, cannot be considered a part performance by the tenant so as to take the case out of the statute.  

COUNSEL:
Bernard Carter for the appellant.

1. This agreement having been a verbal one, and not in writing, is void as well in equity as at law under the provision of the Statute of Frauds. See 29 Charles Il., ch. 3, sec. 1. Charlewood vs. Duke of Bedford, 3 Atkins, 497. Clinan vs. Cook, 1 Scholes & Lefroy, 22. Wills vs. Stradley, 3 Vesey, Jr., 378. Clayton vs. Blake, Sm. Le. Ca., 180. Frame vs. Dawson, 14 Vesey, 386. Brennan vs. Bolton, 2 Drury & Warren, 349. O'Reilly vs. Thompson, 2 Cox Rep., 271. Christy vs. Barnhardt, 14 Pa. Rep., 262. 2 Scholes & Lefroy. Geiger vs. Green, 4 Gill, 472.

According [**2]  to the case made by the bill, there was nothing done which amounts to what is termed a "part performance" of the contract. See 1 Story Eq., secs. 761, 762. The appellee continued to pay the same rent as he had done under Williamson, and at most, therefore, he was a monthly tenant, or a yearly tenant, and his rights in that regard were definitely settled by the proceedings in the ejectment.

2. The bill of complaint does not allege that the appellee bound himself to take the premises at $ 200 a year for five years; it only alleges that the appellant bound himself to give a lease for this term at this rent. The agreement being therefore not a mutual one and mutually binding, equity will not specifically enforce it. Geiger vs. Green, 4 Gill, 472.

The terms of this agreement, as set out in the bill, are too meagre and indefinite to enable the appellee to ask for a specific performance. 1 Story's Eq. Juris., 764. The appellant submits, that the order of the Court below granting the injunction should be reversed and the bill dismissed with costs.

John J. Snyder for the appellee argued:

1st. That the bill discloses such a case as will eminently authorize a Court of Equity [**3]  to grant the relief which he seeks by this proceeding.

It will not be denied that if the agreement relied upon in the present case being in parol, was unaccompanied by any act or acts of part performance, equity would not decree specific performance; neither will it be denied that if the non performance on the part of the appellant would not operate a fraud upon the appellee, would a Court of Equity withhold its aid. But how stands the case here? The bill alleges in express terms part performance, and likewise establishes fraud and bad faith on the part of the appellant in seeking to disengage himself from the obligations of his contract with the appellee. This is not such a case as is referred to by appellant's solicitor, and reported in 3 Vesey, Jr., 376, where the Lord Chancellor laid particular stress upon the fact that there was a continuance of the possession of the lessee under the lessor after the agreement was entered into, which took place before the expiration of his original term, and it could not therefore be determined whether the holding was under the old or prospective lease.

The case now under consideration is clearly distinguishable in this, that there is [**4]  a change of proprietorship, a determination of the tenancy between Williamson and the appellee, a fresh and original possession under a new agreement, the tenant assuming the burden of the water rent, which was not imposed by the terms of the preceding tenancy. The Lord Chancellor in delivering the opinion in the above cited case, gives expression to this language: "the delivery of possession by a person having possession, to the person claiming under the agreement, is a strong and marked circumstance." Supposing, therefore, in that case, as in this, it had appeared that there was a change of ownership of the premises leased, the previous tenancy determined and rent paid under the new agreement, in view of the language held, is it to be doubted that the learned Chancellor would have hesitated in granting the relief by a decree for specific performance? But this is not all. Valuable and important services were rendered which constituted an important consideration for the agreement, upon the general doctrine of the interference of Courts of Equity in cases of specific performance of contracts touching lands. See 2 Story's Eq. Juris., sec. 759, 761, 763. The possession here and payment [**5]  of rent were solely and exclusively referable to the contract alleged in the complainant's bill. In Small vs. Owings, 1 Md. Chan. Dec., 369, Chancellor Johnson holds this language: The ground on which the Court proceeds in decreeing the specific performance of a parol agreement in relation to lands is, "that in the case of a clear part performance of such an agreement by one party, it would be a fraud on the other to refuse to perform the agreement on his part; it would be perverting the statute from a shield against, into an instrument of fraud;" and in support of this doctrine he refers to Hamilton vs. Jones, 3 G. & J., 127. Maryland Savings Bank vs. Schroeder, 8 G. & J., 93. Moale vs. Buchanan, 11 G. & J., 314.

2nd. The mutality of the contract will scarcely be successfully disputed in the face of the averments in the bill, the payment and acceptance of rent, the rate of rent and times of payment, and that the appellee entered into possession upon the new agreement.

3rd. That the proceedings in ejectment have no effect whatever upon the equitable rights and pretensions of the appellee. The only inquiry in the present proceeding being, has he, by his bill, presented such [**6]  a case as will justify a Court of Equity in granting relief?

4th. That it would be inequitable and unconscionable to permit a party to an agreement to induce another to do acts and perform services which will work a change in his situation and to his detriment, in the belief and expectation that by so doing greater advantages will be secured, as in this case, where it was designed and agreed that his tenancy should be made more permanent and secured against an abrupt or capricious determination. The statute relied upon by the appellant was designed to prevent frauds, and it could never be the intention, therefore, of the statute to enable or facilitate the practice of such a fraud with impunity.

5th. The subject of the contract, viz: the premises, are located and fixed; the rent is certain and the times of payment defined; the period of the lease established, and its commencement ascertained. The bill is, therefore, not obnoxious to the charge of meagreness, but is stated with such fullness and clearness as to authorize its specific performance with justice and fairness to the parties.  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL,  [**7]  J.  

OPINIONBY:
BARTOL 

OPINION:

 [*79]  BARTOL, J., delivered the opinion of this Court.
This appeal is from an order of the Circuit Court of Baltimore city granting an injunction, and brings before us only the bill of complaint. This alleges that the appellee was, at the time of filing it, in the occupation of certain premises on Pennsylvania Avenue in Baltimore city, which he had so occupied for a number of years, and which he had originally rented of one Williamson, the then owner thereof, at a yearly rent of $ 200, payable monthly. That the appellant purchased said premises from Williamson, promising the appellee that he should be his permanent tenant of the same.
That after the purchase the appellant entered into an agreement with the appellee, by which he bound himself to give the appellee a lease for five years at a rent of $ 200 a year, payable monthly, exclusive of water rent, and that in a few months after the purchase, the appellant gave the appellee notice to quit, and thereupon instituted proceedings before a Justice of the Peace and in a Court of Law, which resulted in a judgment awarding to the appellant as landlord the possession of the premises, because said agreement for [**8]  a five years' lease was void at law, where the relationship was treated as a tenancy at will, or from year to year.
The bill then charges that in equity the appellee is entitled to a decree for a specific performance of this agreement for a lease for five years, and to an injunction 

 [*80]  restraining the appellant from any further proceedings under his judgment of restitution.
The agreement for a lease alleged in the bill, and on which the relief is prayed, is an agreement within the Statute of Frauds, and can only be evidenced in writing, unless there has been something done under it amounting to a part performance so as to take it out of the operation of the statute.
In the case of Spear vs. Orendorf, decided at the present term, this Court had occasion to consider this subject, and to declare what will constitute a part performance of a parol contract so as to take it out of the statute? The principles there stated are conclusive of this case. Here, according to the allegations of the bill, there were no acts done which under the well settled rules of law can be construed as a part performance of the alleged agreement.
The appellee as tenant, continued in possession [**9]  after the purchase by appellant. "This is a mere continuance of the character which he all along filled, and any act which may be thus referred to a title distinct from the agreement cannot be considered as operating to take the case out of the statute." Brennan vs. Bolton, 2 Drury & Warren 354.
"In order to make the acts such as a Court of Equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed." "For if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement." 2 Story's Eq. Jur., sec. 762. See, also, Wills vs. Stradling, 3 Ves. 381. Frame vs. Dawson, 14 Ves. 386.
Considering that this bill does not present a case entitling 

 [*81]  the appellee to relief, the order of the Circuit Court must be reversed, and the bill dismissed with costs.
Order reversed and bill dismissed. 

43 of 120 DOCUMENTS 

CHRISTOPHER F. MILLER vs. ELIZABETH DUVALL ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 47; 1866 Md. LEXIS 86 

November 23, 1866, Decided 

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

This is an appeal from an order of the Court below (ALEXANDER, J.,) dissolving an injunction before granted and dismissing the complainant's bill. The allegations of the bill and facts of the case are stated in the opinion of this Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

JURISDICTION IN EQUITY: INJUNCTION. -- Bill f iornjunction filed by M. to restrain D. from enforcing by execution a judgment against him, rendered by the Court of Common Pleas of Baltimore city, on appeal from a magistrate's judgment in a proceeding by M., under Art. 4, secs. 890 & 896 of the Code of Public Local Law, to oust D. as a tenant holding over, -- the appellate jurisdiction in such cases being conferred on the said Court of Common Pleas by sec. 900 of said Art. 4, to be exercised "in the manner and under the rules prescribed in cases within the ordinary jurisdiction of Justices of the Peace." -- HELD:

That the appellate power in such cases being expressly vested in the Court of Common Pleas, a Court of Equity is necessarily excluded from the exercise of that power by injunction or otherwise.  

COUNSEL:
Samuel Snowden for the appellant argued:

That where in the case of mutual demands one of the parties is insolvent, and holds a judgment against the other, the debts against the holder of the judgment shall be set off against the said judgment. Rowzee vs. Gregg, 6 Littell, (Ky.,) 487. Brazetton vs Brooks, 2 Head, (Tenn.,) 194. Graves vs. Huel, 27 Miss., 419.

In this case it is proved that Duvall is indebted to Miller in the sum of $ 166.66 for four months' rent.

The judgment of $ 90 was a satisfaction for all damages that may have been done to her by the removal of the goods and could not therefore enter into the account. The witness, Duvall, herself proves her own pecuniary condition, and shows that she has nothing except what she may possibly get from her aunt's estate, the principal part of which consisted of negroes, which are now valueless.

H. Stockbridge [**2]  and Thomas J. Warrington for the appellee argued:

1st. That no such case has been presented by the appellant, either by his bill or his proof, as will authorize the interference of a Court of Equity by injunction. The averments contained in said bill are in themselves wholly insufficient, even if maintained by competent proof, but they are not supported by evidence; and in the expressive language of the Judge of the Circuit Court the equities set up are swept away, and the complainant, appellant, is stripped of every merit. There is no testimony to show that the appellee is utterly insolvent; neither is there testimony to show that the Court of Common Pleas rejected the offer of testimony as alleged by the appellant. But if this were even so, it would scarcely be contended that such refusal would furnish a ground for so extraordinary a remedy; mere error in a Court in the admission or rejection of evidence, or because a question of law has been erroneously decided by a Court of Law, will not entitle a party to relief by injunction. No case can be found to sanction such a doctrine. 2 Story's Eq. Jurisdiction, sec. 897. Marine Insurance Co. vs. Hodgson, 7 Cranch, 336, 337. Simpson [**3]  vs. Hart, 1 J. C. R., 95 to 97.

But in this case it is maintained, that the Court was right in ruling out such evidence if attempted to be offered. It is not competent to set off such account against unliquidated damages. Cook vs. Murphy, 7 G. & J., 282. Gibbs vs. Clagett, 2 G. & J., 14 Bl. Ch.

2nd. If the appellant has any such claim as he alleges, his remedy is at law, where it is ample and complete; and where such is the case, equity will not interfere; there is nothing peculiar in said claim so as to distinguish it from the ordinary case in which Courts of Law are invoked to enforce the payment of debts. Cockey vs. Carroll, 344. Drury vs. Conner, 1 H. & J., 221.

3rd. Equity will not relieve against a judgment on the mere ground of a difficulty of making a defence at law, but the case must be one where it was impossible to do so. Dilly vs. Barnard, 8 G. & J., 170.

4th. To justify the interposition of a Court of Equity, there must be some inequitable advantage taken which would render it unconscientious in the party obtaining it to enforce the judgment, and of which the party seeking the aid of equity could not have availed himself at law, or was prevented from [**4]  so doing by accident or fraud of the opposite party, unmixed with any fraud or negligence on his part. Richardson vs. Mayor and City Council of Baltimore, 8 Gill, 433. Briesch vs. McCauley et al., 7 Gill, 190. 3 Story's Equity Jurisprudence, sec. 875.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*50]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The bill of complaint in this case was filed by the appellant in the Circuit Court for Baltimore city, in which he prayed for an injunction to restrain the appellee, Elizabeth Duvall, from proceeding to enforce, by execution, a judgment she had obtained in the Court of Common Pleas of said city.
The allegations in the bill are these: The appellee was the tenant of one C. B. Ferguson, of Washington city, of a house on the corner of Hanover and Conway streets, in Baltimore. During the tenancy of the appellee, Ferguson assigned to the appellant the lease of the property. At the time of the assignment there were two months' rent due Ferguson, amounting to $ 83.33, which he also assigned to the appellant. Having failed to collect the rent due, as he alleges, he [**5]  gave notice to the appellee to quit the premises, which she refused to do. He then instituted proceedings before a Justice of the Peace, who gave judgment against the appellee, and by a warrant of restitution the appellant was put in possession of the premises. From 

 [*51]  this judgment the appellee took an appeal to the Court of Common Pleas, and upon the trial the judgment was reversed and a judgment rendered for the appellee for $ 90 damages and costs. The appellant further alleges, that at the time of the trial and when this judgment was rendered, the appellee was indebted to him for two months' rent beside the rent due and assigned to him by Ferguson, amounting in the whole to $ 166.66, which he was prevented by the Court from proving by way of set-off. He further charges, that the appellee is utterly insolvent, and he would suffer irreparable injury if she is allowed to enforce her judgment while he has a just claim against her for an amount greatly exceeding the amount of her judgment. The Circuit Court granted the injunction, but on the coming in of the answer and upon a review of the evidence, the Court dissolved the injunction and dismissed the bill. From this ruling [**6]  this appeal was taken.
It thus appears that the appellant mainly relies on two grounds to sustain the equity of this complaint: 1st. Because the Court of Common Pleas refused to allow him, at the trial, to prove the rent due him; and secondly, the insolvency of the appellee. At the trial before the justice, which was had in pursuance of the 890th and 896th sections of Art. 4, of the Code of Public Local Laws, judgment was rendered for the appellant for possession and $ 27.77 damages and $ 22.70 costs.
Upon appeal from this judgment, which is provided for by the 900th section of the same Article, the Court of Common Pleas is authorized to entertain jurisdiction "in the manner and under the rules prescribed in cases within the ordinary jurisdiction of Justices of the Peace."
The allegation made by the appellant, that he was prevented, at the trial in the appellate Court, from proving his claim, is unsupported by any evidence in the record. On the contrary, it appears by the docket entries that he 

 [*52]  moved for a new trial, which he thereafter withdrew. In Dilly and Heckrote vs. Barnard, 8 G. & J. 170, 186, this Court said: "It may be laid down as a [**7]  general rule, that a defence cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that Court that the defence ought to have been sustained at law." Again, on page 189 of the same vol., this Court said: "Even therefore in cases where the Court of Equity has concurrent jurisdiction with a Court of Law, as in matters of account, it seems that equity will not relieve on the mere ground of the difficulty of the defence in a Court of Law, but it must be a case where it is impossible for the party to make an effectual defence before that jurisdiction." See 2 Story's Eq. Juris., sec. 897; also 11 U.S. 332, 7 Cranch 332, 3 L. Ed. 362. In a case like this, the appellate power, being vested in the Court of Common Pleas, would necessarily exclude the exercise of that power by a Court of Equity.
The appellant makes no allegation that he was prevented from availing himself of a defence at law by accident or the fraud of the opposite party, unmixed with any fraud or negligence on his part. Measuring the conduct of the appellant in dispossessing the appellee by the verdict of the jury, it would be difficult to reconcile that [**8]  conduct with a just claim for the interposition of a Court of Equity by injunction.
We think the appellant has also failed to establish, by proof, the insolvency of the appellee. There is therefore no error in the ruling of the Circuit Court, and we will sign a decree affirming the decree of that Court, with costs in this Court to the appellees.
Decree affirmed. 

44 of 120 DOCUMENTS 

P. FORNEY SPEAR vs. SAMUEL ORENDORF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 37; 1866 Md. LEXIS 84 

November 22, 1866, Decided 

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

This is an appeal from an order of the Court below, (ALEXANDER, J.,) granting an injunction. The allegations of the bill and the facts of the case are stated in the opinion of this Court.  

DISPOSITION:
Order affirmed and cause remanded with costs to the appellee.  

HEADNOTES:

CONTRACT, -- SPECIFIC PERFORMANCE OF: PRACTICE IN EQUITY: INJUNCTION; LANDLORD AND TENANT. -- The bill of complaint of O. alleged, that O. having been for many years the tenant of S., and being in possession of the premises under a lease from February 1st, 1864, for one year, at a rent of $ 1,100, towards the close of that year it was verbally agreed between them that if O. would pay the increased rent of $ 1,500, S. would execute him a lease for one year with the privilege of two or three, in O's discretion; that O. remained in possession after the termination of the lease of 1864, and paid the increased rent of $ 1,500 "as part and parcel of the agreement aforesaid, in performance and consideration thereof;" that S. having failed to execute the lease according to the agreement, O. notified him that he would enforce its specific performance, at the same time making his election to take the property for the whole three years; and that S. replied by instituting summary proceedings before a magistrate to eject O. from the premises. Whereupon O. filed a bill for the specific performance of the agreement, and for an injunction as incident thereto pending the proceedings. -- HELD:

1st. That if S. had executed the lease, O. would have been bound to pay the rent; on the other hand, if the tenant paid the rent "on the foot of the agreement," S. was bound to execute the lease according to the terms agreed upon.

2nd. That mutuality of a contract means an obligation on each of the parties thereto, to do or permit to be done something in consideration of the act or promise of the other. It does not imply that every stipulation is absolute and unqualified.

3rd. That the allegation of the complainant "that he paid the increased rent of $ 1,500 as part and parcel of the agreement aforesaid, and in performance and consideration thereof, and not otherwise," was equivalent to an averment "that the landlord accepted the additional rent upon the foot of the agreement," which has been held sufficient to require an answer.

4th. That the bill of complainant presented a case which prima facie entitled the complainant to an injunction until the coming in of the answer and further order.  

COUNSEL:
T. B. Horwitz for the appellant.

1st. The bill and exhibits filed therewith do not present a case in which a Court of Equity will decree specific performance, and therefore the Court below was clearly in error in granting the injunction. "As the writ of injunction was granted as auxiliary to the principal relief sought for by the complainant, it follows that the order granting the injunction cannot be maintained, unless the case presented by the bill is of that character which would authorize a Court of Equity, in the exercise of its extraordinary jurisdiction, to enforce the contract. Geiger vs. Green, 4 Gill, 475.

The pretended agreement is so vague and so uncertain that no specific performance of it could be decreed by a Court of Equity.

The complainant has not even alleged any agreement whatever, for it is submitted that it is impossible for any Court to say,  [**2]  under the inconsistent allegations of the bill, what term he claims. Was the Court below called upon to give the appellee the right to occupy the premises in question "another year," or "one or two years," or "two or three years after the first year?" "If an agreement is deficient in either fairness, justice or certainty, its specific execution will not be decreed, and hence a stronger case is required on the part of the plaintiff asking a decree for the specific performance of a contract than is required by him who resists such a decree." Tyson vs. Watts, 1 Md. Ch. Dec., 15. Small vs. Owings, Ib., 370. Smith vs. Crandall, 20 Md. Rep., 501. Stoddert et al. vs. Bowie's Ex'r et al., 5 Md. Rep., 35. Shepherd vs. Bevin et al., 9 Gill, 43. Allen vs. Burke, 2 Md. Ch. Dec., 538, 539.

To enforce the specific performance of a contract so vague, uncertain, equivocal and indefinite in its terms, as that set up by the appellee, would be to make a contract for the parties, which a Court of Equity has "no authority to do." Stoddert et al. vs. Bowie's Ex'r, 5 Md. Rep., 28. Smith vs. Crandall, 20 Md. Rep., 500. Myers vs. Forbes, 24 Md. Rep., 598.

2nd. This alleged agreement lacks the essential [**3]  ingredient of mutuality. "The contract must be mutual, otherwise equity will not execute it, that is, both parties must have, by the agreement, a right to compel a specific performance according to the advantage which it might be supposed they were to derive from it." "And it is now established, that unless there is to be found in the contract this essential ingredient of mutuality, a Court of Equity will not compel its specific execution." Geiger vs. Green, 4 Md. Rep., 476, 477. Tyson vs. Watts, 1 Md. Ch. Dec., 16. Duvall vs. Myers, 2 Md. Ch. Dec., 404, 405.

Upon examining said agreement it will be found to contain, not only the clause giving said Orendorf the privilege of occupying said premises "two or three years from the date thereof," but the unreasonable, inequitable and absurd clause requiring the appellant to repair said premises "to suit the comforts and conveniences" of said Orendorf, an agreement into which the appellant never dreamed of entering. The appellee having been notified to quit said premises at the end of the year of his tenancy, and finding that it was "desirable to him to continue in the occupancy of the said warehouse," at the same rent, rents having [**4]  greatly increased during the year 1865, he determined then to exercise what he calls his "privilege of occupying the premises in question another year," or "one or two years." And it is this pretended agreement, giving the appellee the privilege of occupying said premises "another year" or "one or two years," or "two or three years, in his discretion," and of having the same "repaired to suit the comforts and conveniences" of the appellee, that he now asks a Court of Equity to decree a specific performance of.

"No rule is better established than that every agreement to merit the interposition of a Court of Equity in its favor, must be fair, just, reasonable, bona fide, certain in all its parts, mutual, &c., and if any of these ingredients are wanting, Courts of Equity will not decree a specific performance." Stoddert et al. vs. Bowie's Ex'r, 5 Md. Rep., 35. Mundorf & Wife vs. Kilbourn et al., 4 Md. Rep., 464. Smith vs. Crandall, 20 Md. Rep., 500. Geiger vs. Green, 4 Gill, 475, 476, 477.

3rd. This pretended agreement presents a case clearly within the Statute of Frauds, and in order to take it out of the operation of the statute, it is incumbent on the appellee to shew, not [**5]  only exactly what the contract is that is sought to be enforced, and that it possesses the "essential ingredient of mutuality," but he must also shew a clear part performance of the "identical contract" set up, and that it would be a fraud upon the part of the appellant to refuse to perform his part of the agreement, and that he took possession of the property in question under the agreement, and solely with the view to the agreement being performed. Just the contrary appears by the bill, which alleges that he "continued in possession of the premises" after his lease had expired; that he had occupied the same for several years past, and that for that reason it "was desirable to him to continue in the occupancy" of the same. Small vs. Owings, 1 Md. Ch. Dec., 369. Hamilton vs. Jones, 3 G. & J., 131, 132. Mundorf & Wife vs. Kilbourn, 4 Md. Rep., 462. Smith vs. Crandal, 20 Md. Rep., 501.

4th. Had the alleged agreement been signed by the appellant, and not by the appellee, it would even then have been an "inchoate instrument," and its execution could not have been enforced in equity. Howard et al. vs. Carpenter, 11 Md. Rep., 276, 277.

5th. The alleged agreement being for a less [**6]  term than seven years, it is not necessary to the protection of the appellee in any right that he may possess thereunder, that the same should be in writing. Code, Vol. 1, Art. 24, sec. 21.

All the pretended defences of the appellee to the proceedings instituted by the appellant to obtain possession of the premises in question, could have been fully availed of at law. The Court below had therefore no jurisdiction in the premises, and least of all was there any ground for an injunction.

S. T. Wallis and John H. Thomas for the appellee.

1. The appellee insists that the bill shows a case entitling him to specific performance, and that the injunction was properly incident thereto, upon well established principles of equity Geiger vs. Green, 4 Gill, 475. Allen vs. Burke, 2 Md. Ch. Dec., 534. Brennan vs. Bolton, 2 Drury & Warren, 359. Wills vs. Stradling, 3 Ves., 381-2. 1 Sto. Eq. Jur., sec. 763.

2. That the case of the appellee could not be set up in defence at law, the agreement having been not a verbal lease, but a verbal agreement to execute a written lease.

The appellee will further contend, under the 2nd point: That the parol agreement set up would not have [**7]  sustained at law the term claimed, the Statute of Frauds applying only in the 2nd section to leases for three years from the date of the lease. Brown on Stat. Frauds, 33, 34. 2 Platt on Leases, 4. 2 Washb. on Real Property, 391.

3. That the lease tendered by Spear, shows that the appellee was entitled to a two years' lease, at least, under the agreement, which covers the case.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*41]  BOWIE, C. J., delivered the opinion of this Court.
The appellant having instituted summary proceedings against the appellee, to remove him from premises which he claimed to hold under a parol contract for a lease, the latter filed his bill for specific performance, and as auxiliary 

 [*42]  thereto, prayed for an injunction, from the order granting which this appeal is taken.
The bill alleges that the appellee, being in possession from the 1st of February, 1864, to 1st of February, 1865, under a previous letting at a reduced rent, it was (towards the close of the term) agreed, between the appellant and appellee, that if the latter would pay the former the increased rent of $ 1,500 per annum,  [**8]  the appellant, Spear, would execute to the appellee, Orendorf, a lease of the premises for the term of one year, with the privilege of extending the same two or three years, etc.; that confiding in this agreement, the tenant did not attempt to cause the lease to be reduced to writing for some short time after the period at which the tenancy was to begin, to wit, the 1st of February, 1865, but continued in possession of the premises in the faith that the said Spear would execute the lease at any time when tendered to him, as he had engaged and promised to do; that some time after he was surprised at receiving from Spear for his, the tenant's execution, the paper filed, marked S. O., No. 3, which provided for a lease for one year, with the privilege of two years, and not the privilege of two or three years, etc.; and that the tenant paid the rent of $ 1,500 for the year 1865, notwithstanding which, he has received notice to quit on the 1st of February, 1866, and proceedings at law have been instituted to remove him, which he prays may be enjoined.
The complainant charges he is entitled to a written lease from Spear, for his protection and defence, and for the purpose of giving to him [**9]  a term of three years in the property from the 1st of February, 1865; and if he is not entitled to a term of three years, as he insists he is, he is entitled to a lease for one year from the date aforesaid, with the privilege of a second year, &c.

 [*43]  He avers, that he paid the rent of $ 1,500 for the last year, as part and parcel of the agreement, and in performance and consideration thereof, and not otherwise, and that he hath further carried out the agreement in all particulars, and has remained in and occupied and kept the said premises in such performance and on such consideration only. Wherefore he prays specific performance of the agreement on the part of the said Spear.
The injunction being ancillary to the relief prayed, if the case made by the bill is such that a Court of Equity would not, on final hearing, grant the principal relief upon full proof of the allegations, the injunction should be dissolved. Geiger vs. Green, 4 Gill 472.
It is objected on the part of the appellant, that the contract as charged is uncertain, unreasonable and wanting in mutuality, and therefore should not be performed. The bill professes to set out by specific allegations,  [**10]  and by reference to exhibit No. 2, "the true terms of the agreement and stipulations contracted for" between the complainant and defendant. If such an agreement had been reduced to writing and executed, there can be no doubt it would be sufficiently certain for all purposes. The option of extending the term two or three years, was a privilege to be exercised by the tenant during the term, not to be fixed by him as a part of the lease. Such privileges are not uncommon, and though dependent on the will of one of the parties, they do not impair the mutuality of the contract.
Mutuality of a contract means an obligation on each to do or permit to be done, something in consideration of the act or promise of the other. It does not imply that every stipulation is absolute and unqualified. The landlord, according to the theory of this bill, in consideration of the agreement of the tenant to pay the additional rent of 

 [*44]  $ 1,500, agreed to give him a lease for one year, with a privilege of extending the term to two or three years, etc.
If the landlord had executed the lease, the tenant would have been bound to pay the rent; on the other hand, if the tenant paid the rent "on the foot [**11]  of the agreement," the landlord was bound to execute the lease according to the terms.
In Geiger vs. Green there was no contract; the paper executed by Mrs. Owings was a mere license, without any consideration paid or promised to be paid by Green, "a privilege to be exercised or not, at his pleasure, and imposing no corresponding obligations."
"It is abundantly settled, that if one who is already in possession of land as tenant, verbally contracts with the owner for a new term, his merely continuing in possession after the making of the alleged contract, is not an act of part performance within the meaning of the rule so as to justify a decree for a lease according to the contract. In such a case, the continued holding is naturally and properly referable to the old tenancy, and does not necessarily imply any new agreement between the parties." Browne on the Statute of Frauds, sec. 477, ch. 19. **** "The mere taking or holding of possession is of itself nothing. The question is, quo animo it is taken or held, and this is not allowed to be answered by parol proof of the agreement between the parties. In cases where a tenant continues in possession under an alleged [**12]  agreement for a new tenancy, it is answered by proof of any act on his own part done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of the parties." Ibid, sec. 478.
"The payment of the additional rent is of itself an equivocal circumstance, where a claim is set up of a positive agreement for a new lease, inasmuch as it may be 

 [*45]  attributed to a mere holding from year to year after the expiration of the old lease, or there may be other inducements to its payment. But where the bill to enforce such an agreement alleged that the landlord had accepted the additional rent "upon the foot of the agreement," Lord LOUGHBOROUGH would not allow a plea of the Statute, but required the landlord to answer to the allegation." Wills vs. Stradling, 3 Ves. 378. Browne on Frauds, sec. 479. Lester vs. Foxcroft, 1 White's Equity Cases, (note) 515, in mar.
The contract alleged being sufficiently certain, reasonable and mutual, the only remaining question is, whether there is such an allegation of part performance as will take the case out of the Statute [**13]  of Frauds.
A majority of this Court think the allegation of the complainant, "that he paid the rent of $ 1,500 for the last year as part and parcel of the agreement aforesaid, and in performance and consideration thereof and not otherwise," equivalent to an averment, "that the landlord accepted the additional rent upon the foot of the agreement," which was held sufficient in 3 Ves. 378, to require an answer.
The complainant has therefore presented a case, which "prima facie" entitles him to an injunction until the coming in of the answer and further order.
The order of the Court below of the 8th of February, 1866, is affirmed, and cause remanded for further proceedings with costs to the appellee.
Order affirmed and cause remanded with costs to the appellee. 

45 of 120 DOCUMENTS 

WILLIAM WOODVILLE & OTHERS vs. SETH REED, LEVI EASTON & OTHERS; and, J. PHILIP ROMAN vs. WILLIAM WOODVILLE & OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 179; 1866 Md. LEXIS 94 

November 21, 1866, Decided 

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

The appeals in these consolidated cases are taken from the orders of the Court below, (ALEXANDER, J.,) in the first case appealed from, ratifying certain accounts, allowing J. Dixon Roman the amount of his mortgage claim, and a further order rejecting the allowance in said accounts to J. Philip Roman for his claims as purchaser of certain promissory notes. The substance of the pleadings, and the facts of these cases are so fully stated in the opinion of this Court as to render a further statement of them here unnecessary.  

DISPOSITION:
Orders affirmed and cases remanded.  

HEADNOTES:

PLEADING AND PRACTICE IN EQUITY: CHECK AS EVIDENCE OF PAYMENT: EVIDENCE: EQUITABLE SUBSTITUTION: MORTGAGE, MORTGAGOR, MORTGAGEE: ASSIGNMENT OF MORTGAGE. -- The bill of complaint of W. W. et al., alleged that the firm of R. E. & Co. being indebted to the complainants in about $ 50,000, in the month of June, 1856, gave them and other creditors their promissory notes, endorsed by H. E., the payment of which was extended eighteen or twenty months from July, 25th, 1856, and most of which when due were not paid; that on the 11th of August, 1856, L. E., one of the said firm, executed and delivered to H. E. a mortgage of certain real estate to indemnify him on account of his endorsements, to the benefit of which they were entitled to be substituted; that they have since discovered that prior to the mortgage of indemnity, on the 13th of May, 1856, for certain feigned considerations, L. E. conveyed by way of mortgage, all the property described in the first mentioned mortgage to H. E., who, on the 23rd of February, 1867, assigned the same to J. D. R., to whom, on the 24th of the same month, L. E. and H. E. executed a deed of trust of all the same property, with power to sell and convey the same and pay first the mortgage of May; secondly, to pay all other liens and incumbrances according to their legal priorities; thirdly, to pay all other debts of L. E.; and fourthly, to pay the surplus, if any, to said L. E. The bill charged that the mortgage of May 13th was fraudulent and void, and prayed the same might be set aside, and the premises sold to pay the debts of the complainants, and for a discovery of the consideration of said mortgage and of its assignment. The answer of H. E., admitting the execution of the mortgages, states the mortgage of August to have been made to indemnify him as endorser of the notes of R. E. & Co. for fifty or sixty thousand dollars, and that of May the 13th, to secure the re-payment of a loan of $ 15,000. The answer of J. D. R., making the same admissions, avers that he became the bona fide purchaser of the mortgage of May 13th, paid the mortgagor, by check, the full and fair valuation agreed upon, took the assignment as purchaser and placed it on record. A supplemental bill filed by the complainants charged that J. D. R. was not a bona fide purchaser for valuable consideration, without notice, but that the consideration was insufficient and illegal, and the assignment colorable with notice of the equities of the complainants, the prayer being similar to that of the original bill. The answers to the supplemental bill denied all fraud, and repeated in substance more at large, the averments of the original answers. There was a general replication to the answers and testimony taken. HELD:

1st. That the answers considered merely as pleadings, put the complainants upon the proof of all the allegations material to the relief prayed.

2nd. Where a first answer states the general result of the transactions between the assignor and assignee, and a second answer sets forth the mode of payment, and discloses the particulars by which that result is effected, the answers are not to be considered as involving such contradiction as to deprive them of their legal effect, in throwing the burden of proof upon the complainants.

3rd. That a check given bona fide on a banker having funds to pay it, is prima facie payment in this State if accepted as cash. The subsequent suspension of its payment in consequence of the filing of a bill to set aside as fraudulent a mortgage, in consideration of the assignment of which the check is given, does not cancel the check, but where there is an express agreement with the payee to that effect, postpones its payment until the validity of the mortgage is established.

4th. That the brief interval between the assignment to J, D. R., and the execution of the deed of trust to him by L. E. and H. E. is not alone sufficient to overcome the positive denials of the answers, that the trusteeship was not a part of the original arrangement, and contemplated at the time of the execution of the former.

5th. So also with regard to the alleged intent to protect the property from attachment of the creditors of H. E., imputed by the bill and expressly denied by the assignee; there being no evidence to overcome the answers these allegations remain unproved.

6th. There is not sufficient evidence to subject the assignee to the equitable liens which would have existed against the assignor, if the first mortgage had remained in his hands undisposed of for a valuable consideration.

7th. The claim of the complainants to be substituted to the benefit of the indemnity given by the second mortgage, in priority to the first, as against the assignee, J. D. R., is not established.

8th. That an endorser or surety holding a mortgage for indemnity may, whilst solvent, for a bona fide consideration, assign the mortgage, but when insolvency ensues, the mortgagee's interest in the property is made to yield to the superior equity in favor of the creditors for whom he is surety.

9th. That in the present case, the assignment being complete before the assignee was notified of the claims of the complainants, and the insolvency of the assignor not being established at the date of the assignment, the claim of J. D. R. should be allowed.

AGENCY, -- AGENT: PRACTICE IN EQUITY. -- The claim of J. P. R., in the above recited proceedings, arises on certain notes of R. E. & Co., endorsed by H. E., amounting to $ 19,023.13, including interest, purchased pending said proceedings, and filed by J. P. R. in his own right. The claim was excepted to on the ground that the said notes were a portion, or renewals of a portion, of the notes endorsed by H. E., which were designed to be protected by the mortgage of L. E. to H. E., and were purchased by J. P. R., as agent of H. E., who being liable for their amount, is not entitled to dividends as a creditor. -- HELD:

That the exceptions to this claim are ruled good and the claim rejected.  

COUNSEL:
J. Shaaf Stockett and S. T. Wallis, for Woodville and others, argued:

1st. That the assignment to J. Dixon Roman of the mortgage of May 13th, 1856, was not made bona fide, and that even if bona fide the consideration money was not paid by Roman until after he had notice of lis pendens in this case, by service of process upon him, and when he could have absolutely protected himself, as he in fact did, by countermanding his check for the money. It will, therefore, be maintained that he stood in no better position as against the equities of these complainants than Easton,  [**2]  and may be decreed against, if a purchaser at all, as a purchaser pendente lite, and as Easton might have been. The complainants, as holders of the notes endorsed by Hezekiah Easton, for which he was indemnified by the mortgage of August 11th, 1856, are entitled, it will be argued, to be substituted to the benefits of said indemnification in priority to Easton's mortgage of May 13th, 1856, for his individual debt, and in equal priority against Roman, as against Easton, himself, said Roman not being a bona fide purchaser for value. Merritt vs. Northern R. R. Co., 12 Barbour, 605. Muller vs. Bohlens, 2 Wash. C. C. Rep., 378. Patten vs. Moore, 32 N. Hamp., 382. Jewett vs. Palmer, 7 John. Ch. Rep., 65. Inloes vs. Harvey, 11 Md. Rep., 519. 1 Story's Eq. Jurisprudence, secs. 502, 638. Eastman vs. Foster, 8 Metcalf, 19, 23. 26 Vermont, 308, which adopts the above case. Bank of the U. S. vs. Stewart, 4 Dana, 27. Ware vs. Otis, 8 Greenleaf, 387. Curtis vs. Tyler, 9 Paige, 432, 435. Ten Eyck vs. Holmes, 3 Sandford Ch. Rep., 428. See, also, 20 Conn., 443, and 29 Conn., 42, 43.

2nd. That J. Philip Roman is not entitled to receive a dividend in these cases upon the notes of Reed, Easton &  [**3]  Co., filed herein by him, because the same were purchased by him at fifty cents in the dollar, as the agent of, and for the benefit of, Hezekiah Easton, who was liable as endorser for their payment, and have been thus paid and satisfied to the lawful holders thereof, by or on account of said Hezekiah, and are now in law and equity extinguished, especially against these complainants.

G. W. Dobbin for J. Dixon Roman and J. Philip Roman --

Maintained the correctness of the ruling of the Court below as to the claim of J. Dixon Roman. He argued also, that J. Philip Roman being the holder of the notes, filed by him, with the usual probate, attesting under oath his ownership of them, he must be taken to be their true and lawful owner, and as such, entitled to the dividend upon them, unless it be clearly shown that he is not such owner, and that there was no proof whatever to establish such absence of ownership in him, or any participation in their ownership by Hezekiah Easton.  

JUDGES:
The causes were argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and WEISEL, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*183]  BOWIE, C. J., delivered the opinion of this Court.
The cases of Woodville et al., vs.  [**4]   Reed, Easton, J. Dixon Roman et al., and Woodville & Others vs. Reed, Price & Others, in the Circuit Court for Baltimore city, were consolidated by an order of the 15th of April, 1862.
Subsequently accounts N. & O. were filed, in the former of which the appellee, J. Dixon Roman, as assignee of a mortgage, was allowed his claim in full, and the appellant, J. Philip Roman, as holder of certain notes, dividends "pro rata" out of the residue of proceeds in both accounts.
These accounts were ratified by orders of the 11th of March, 1864, (except as to the claims of J. Philip Roman,) which were rejected. Woodville and others appealed from the ratification and all anterior orders or decrees allowing 

 [*184]  J. Dixon Roman's claims. J. Philip Roman appealed from the rejection of the dividends assigned him.
Originating in the same transactions, and being embraced in the same record, these appeals have been argued together and will be disposed of successively in the same opinion.
The nature of these claims will better appear from a compendium of the bill and proceedings in the several cases.
On the 10th of March, 1857, the complainants and appellants, Woodville and others, as [**5]  creditors of the firm of Reed, Easton & Company, filed their bill against the firm, (consisting of Seth Reed, Levi Easton and William Burgess, of the city of Baltimore,) and Hezekiah Easton, of the State of Pennsylvania, and J. Dixon Roman, Esq., charging that the firm being indebted to the complainants in about $ 50,000 or $ 60,000, on or about the month of June then past, did agree to give, and did deliver to them and other creditors, their promissory notes endorsed by Hezekiah Easton, the payment of which was extended eighteen or twenty-four months from the 25th of July, 1856, and most of which when due were unpaid.
They further charged, that after the execution and delivery of the notes, on the 11th of August, 1856, Levi Easton executed and delivered to Hezekiah a mortgage of certain real estate to indemnify him on account of his endorsement, to the benefit of which they were entitled to be substituted; that they have since discovered that prior to the mortgage of indemnity, on the 13th of May, 1866, for certain feigned considerations, Levi Easton conveyed by way of mortgage, all the property described in the first mentioned mortgage, to Hezekiah Easton, who afterwards, on the [**6]  23rd of February, 1857, assigned the same to J. Dixon Roman, Esq., to whom, afterwards, on the next day, the 24th of the same month, Levi and Hezekiah made and executed a deed of trust of all the same property, with 

 [*185]  power to sell and convey the same, and pay, first, the mortgage of May 13th, 1856; secondly, to pay all other liens and encumbrances according to their legal priorities; thirdly, to pay all other debts of Levi Easton; and fourthly, to pay the surplus, if any, to said Levi.
They charged that the said mortgage was fraudulent and void, prayed the same might be set aside, and the premises sold to pay the debts of the complainants, and that the defendants might answer and make full discovery in regard to all the matters alleged, particularly in regard to the consideration of the mortgage of the 13th of May, 1856, etc., and the consideration for its assignment.
Pending these proceedings, on the 1st of May, 1857, it was agreed between J. Dixon Roman, trustee, and one of the defendants in the above cause, and the solicitors of the complainants, that the trustee should proceed to sell all the property conveyed to him in trust by Levi Easton and Hezekiah Easton, and [**7]  report the same to the Court, and the money arising from said sales should be subject to the final decision of the cause, as the property would have been if unsold. That if the said deed of trust shall be finally decreed to be void, then the trustee shall bring into Court the whole proceeds of sales (after deducting costs and expenses incurred,) to be paid to the parties entitled, and he shall not claim, or be allowed, any commissions as trustee; otherwise, he should be allowed, and the residue distributed to the persons entitled.
The answer of Hezekiah Easton, after admitting the execution of the mortgages of May and August, 1856, and that the latter was made to indemnify him as endorser of the notes of the firm of Reed, Easton & Co., to a very large amount--between fifty and sixty thousand dollars--as to the consideration of the first mortgage, says, all the stocks, bonds and securities therein mentioned, were in fact loaned to the firm in the vain hope of enabling said firm to maintain 

 [*186]  its credit and obligations, the firm expecting to be able to use them, but being disappointed in that respect, the stocks were returned; as to the cash loaned, being the sum of fifteen [**8]  thousand dollars, as recited and secured by said mortgage, he avers, in April or May, 1856, he received from his brother, Levi, most urgent solicitations to aid him in sustaining the firm, which he represented as in serious danger, and he immediately borrowed from the Hagerstown Bank and other banks in that region large sums of money, and went to Baltimore and paid over to his brother the said sum of fifteen thousand dollars.
Mr. J. Dixon Roman's answer to the original bill, filed on the 13th of November, 1857, after admitting the execution of the mortgages, states, that as president of the Hagerstown Bank, the respondent knew that Hezekiah Easton borrowed from that bank five or ten thousand dollars in April or May, 1856, and he was informed and believes he obtained a like sum from two neighboring banks, which loans he understood were designed to aid Levi Easton, his brother, in sustaining the house of Reed, Easton & Co., which was in a tottering condition, etc. That in the fall of 1856, the respondent heard from the friends of Hezekiah that he was deeply involved in debt of his own, and in liabilities for his brother, to a serious amount, and knows his credit was thereby much impaired,  [**9]  and his facilities for obtaining discounts materially diminished. That in December last, and again in January, Hezekiah applied to him to borrow a large sum of money on judgment binding his land in Pennsylvania, which respondent refused. Again in February he made another application and produced the first mortgage, dated May 13th, 1856, and was willing as to that part which secured the repayment of the $ 15,000 to pledge it as security or to sell it absolutely.
The respondent refused to loan, but finally agreed to purchase if he should find on examination that it was a 

 [*187]  just incumbrance or clear title. The following week they met in Baltimore, and the title proving satisfactory, the respondent "then and there finally and bona fide paid to him the full and fair valuation agreed upon, and took the assignment as purchaser, and placed it upon record. Seeing that a trustee must be eventually appointed to sell the mortgage premises, the said Levi and Hezekiah, the next day, vested in the defendant the full legal title to it, by executing the deed of trust mentioned in the bill, and thereby conveyed all the property to be sold, etc.
The appellants, on the 3rd of May, 1858,  [**10]  filed their supplemental bill, charging that J. Dixon Roman was not a bona fide purchaser for a valuable consideration without notice, but that the consideration was insufficient and illegal, and the assignment colorable with notice of the equity of the complainants and others, and prayed he might discover the true consideration, how and when paid, and that they might have the same relief as prayed in the original bill, and the mortgage and assignment might be declared void.
The answer to the supplemental bill, after denying all fraud charged or imputed, responding to the interrogations, what was the actual amount of the consideration given or promised to be given for the mortgage, and whether it was paid in money or by check? says, Hezekiah Easton produced the mortgage of May 13th, 1856, for $ 15,000, and offered to sell the same for thirteen thousand dollars, stating he could well afford to make such a sacrifice, as he would certainly make twice as much by purchasing his endorsements before they became due, at the heavy discount at which they were offered, etc. The defendant agreed to purchase it at the price asked for it, provided when he should go to Baltimore he should [**11]  find it a just incumbrance.
Further answering, he says, he proceeded to Baltimore 

 [*188]  and made a satisfactory examination, etc., and when Hezekiah arrived a day or two afterwards, he announced to him that said examination was satisfactory, and he was prepared to pay the price of $ 13,000, at which he had offered it. The assignment was prepared and executed, and "this defendant thereupon wrote and signed and delivered to him a check upon the banking house of Johnston, Bro. & Co., of Baltimore, for $ 13,000.
"In answer to the enquiry as to what was the object or design for which said check was to be used, this defendant understood and believed it was intended to be used in anticipating the payment of the endorsements of said Hezekiah as aforesaid, and thus avail himself of the heavy discount at which they were offered, and this defendant is informed and believes, and perhaps was present and saw, the said Hezekiah endorse and deliver the said check to J. Philip Roman, then sojourning in Baltimore, to be used by him for such purpose from time to time as said notes might be offered."
The answer further shows, that a few days after returning to Hagerstown, the respondent was summoned [**12]  to answer the original bill of the complainants, (the appellants,) and thereby being first informed the mortgage of the 13th May, 1856, was impeached for fraud in its inception, he wrote to J Philip Roman requesting him not to present the check, (if not already done,) or not to use the money until the validity of the mortgage could be further ascertained; a short time afterwards he met Hezekiah, much disappointed at the frustration of his plans, and although the defendant had scarcely a doubt of its validity, yet he declined to let the check be paid, and thus risk the uncertainty of a law suit.
Finally it was arranged that J. Philip Roman should, with his own money, purchase said endorsed notes, taking a judgment against the said Hezekiah in Pennsylvania, and holding the said check as collateral security.

 [*189]  The defendant agreed that whenever his right to the said mortgage should be established, the said check, with interest from its date, should be paid to J. Philip Roman, to be by him credited on said judgment. The respondent further says, he supposes said check has remained in possession of said J. Philip Roman ever since, and has not been presented or paid, and this [**13]  defendant does not intend it shall be paid until his right to said mortgage shall be established.
A general replication was filed to these answers and a commission issued, under which the several exhibits filed with the bill, and a deposition of Hezekiah Easton, were filed and returned.
The testimony taken under the commission is exceedingly meagre upon the points which are controverted. The answers considered merely as pleadings, put the complainants upon the proof of all the allegations material to the relief prayed. It is conceded, that the consideration for the mortgage of the 13th May, 1856, was $ 15,000, actually advanced by the mortgagee to the mortgagor, and certain stocks, which were afterwards returned. No question, therefore, arises as to the relationship between the original parties to that instrument, but it is sought to affect the assignment by imputing mala fides to the assignee, and want of consideration actually paid "ante litem motam."
The answers of the assignee, although differing in circumstance, are not to be considered as involving such contradiction as to deprive them of their legal effect, in throwing the burden of proof upon the complainant. The [**14]  first answer may be construed as stating the general result of the transactions between the assignor and assignee, when it avers, "that the defendant then and there finally and bona fide paid to him (the assignor) the full and fair valuation agreed upon, and took the assignment as purchaser and 

 [*190]  placed it upon record." The second answer setting out the mode of payment, discloses the particulars by which that result was effected.
A check given bona fide, on a banker having funds to pay it, is prima facie payment in this State, if accepted as cash. The subsequent suspension of its payment, in consequence of the filing of the bill of the complainants, which assailed the original consideration of the mortgage, for which the check was given, did not cancel the check, but its payment was postponed by express agreement with the payee, until the validity of the first mortgage was established. In the meantime the check subserved the assignor's object, in constituting a collateral security for advancements made by another, who engaged to supply funds to be used for the same purposes as the check.
The brief interval between the assignment to J. Dixon Roman and the execution [**15]  of the deed of trust to him by the Messrs. Eastons, is not alone sufficient to overcome the positive denial of the answers, that the trusteeship was not a part of the original arrangement, and contemplated at the time of the execution of the power. So, also, with regard to the intent to protect the property from attachment of the creditors of Hezekiah Easton, imputed by the bill, and expressly denied by the assignee, there being no evidence to overcome the answers, these allegations remain unproved.
There is not sufficient evidence to subject the assignee to the equitable liens which would have existed against the assignor, if the first mortgage had remained in his hands undisposed of for a valuable consideration.
The claim of the appellants to be substituted to the benefit of the indemnity given by the second mortgage, in priority to the first, as against the assignee, Roman, is not supported, in the judgment of a majority of this Court, by the authorities cited.

 [*191]  How far an endorser, who takes a mortgage to indemnify himself as surety, waives his own lien upon the same property previously given, has not been decided by any case in this State. Several cases cited from [**16]  our sister States, tend to establish that doctrine.
The substance of these is, that an endorser or surety holding a mortgage for his indemnity may, whilst solvent, for a bona fide consideration, assign the mortgage, but when insolvency ensues, the mortgagee's interest in the property is made to yield to the superior equity in favor of the creditors for whom he was surety. We are not disposed to extend the doctrine of equitable lien. In the view which we take of this case, the assignment was complete before the assignee was notified of the claims of the appellants, and the insolvency of the assignor was not established at the date of the assignment.
It results from these premises, that the orders of the Court below, allowing the claim of J. Dixon Roman, should be affirmed.
The claim of J. Philip Roman arises on certain notes of Reed, Easton & Co., endorsed by Hezekiah Easton, amounting to $ 19,023.13, including interest, purchased pending these proceedings and filed by the claimant as owner in his own right.
They are excepted to and resisted by the appellees in the second case, on the ground that they are a portion, or renewals of a portion, of the notes endorsed by Hezekiah [**17]  Easton, which were designed to be protected by the mortgage of Levi Easton to him, and were purchased by J. Philip Roman as agent of Hezekiah, who being liable for their amount, is not entitled to dividends as a creditor.
By agreement of the solicitors, the answer of J. Dixon Roman to the supplemental bill is read as evidence, on the hearing of these exceptions, subject to all legal objections. The appellant, J. Philip Roman, denies all agency on 

 [*192]  his part, and claims to be a purchaser for a bona fide consideration.
His counsel in sustaining this position, insists in his brief, that the only evidence in the record legally applicable to this controversy, is the answer of J. Dixon Roman and the testimony of the brokers, the former of which, he conceives to be in complete harmony with the statement of J. Philip Roman.
In a preceding part of this opinion, we have seen J. Dixon Roman's intimate connection with the affairs of Hezekiah Easton, and his ample opportunities of knowing his objects in assigning the mortgage of May, 1856.
Speaking of the design for which his check was to be used, he said "it was intended to be used in anticipating the endorsements of said Hezekiah [**18]  as aforesaid, and thus avail himself of the heavy discount at which they were offered; and this defendant is informed and believes, or perhaps was present and saw, the said Hezekiah endorse and deliver the said check to J. Philip Roman, then sojourning in Baltimore, to be used by him for such purpose from time to time as the said notes might be offered."
This check was dated the 23rd of February, 1857, from which time it remained in J. Philip Roman's possession, to be used as indicated, until it was countermanded some two or three weeks afterwards. Thus, there was an agency established then by this arrangement. After the payment of the check was countermanded, other means were to be supplied to effect the object, when it was agreed "that J. Philip Roman should, with his own money, purchase said endorsed notes, taking a judgment against the said Hezekiah in Pennsylvania, and holding the said check as collateral security."
The final arrangement, by no means conflicts with the original purpose of the purchase for the benefit of Hezekiah Easton. On the contrary it confirms it; why should Hezekiah 

 [*193]  confess a judgment in favor of J. P. Roman for $ 20,000, and leave the check [**19]  in his possession as collateral security, if the purchase of the notes was not on his account?
The theory of the claimant is, that Hezekiah Easton, hearing that the paper could not be paid by the makers at maturity, was extremely desirous that it should be retired from the hands of its then holders before its maturity, upon his being satisfactorily secured in its ultimate payment in full, and to that end did propose to the claimant, that he should acquire the paper and hold the same till the makers thereof could conveniently pay it, in consideration of which he, Hezekiah, agreed to give a judgment bond in Pennsylvania, and did assign to him the check, etc. This is entirely inconsistent with other facts established beyond all controversy.
The makers of the paper were according to the testimony utterly insolvent. There was no hope of indemnity from them. The paper was at a discount of fifty per cent., and there was no alternative for the endorser, beyond the security he had already received, except by purchasing the paper at the discount.
There can be no doubt the check for $ 13,000 was endorsed and delivered to the complainant with the understanding that he was to use it in purchasing [**20]  the paper for Hezekiah Easton. When that was countermanded the judgment was substituted, with the retainer of the check as collateral, to indemnify the agent. This is the only deduction reconcilable with reason.
No inducement existed for the confession of judgment and deposit of the check, unless the arrangement originally founded on the latter for the purchase of the paper, on account of Hezekiah Easton, continued.
Would a debtor, whose paper was selling at one-half its nominal value, indemnify the purchaser, unless he participated 

 [*194]  in some manner in the benefit of the purchase? The enormous profit resulting from the operation was sufficient compensation for the risk, even in the critical circumstances of the endorser, without his insuring the purchaser against loss for an outlay which in no manner benefitted him. The answer of the claimant is overcome by the weight of testimony and pregnant circumstances.
It follows from what has been said, that in the opinion of this Court, the orders of the Court below in the first case appealed from, ratifying the accounts allowing J. Dixon Roman the amount of the mortgage of the 13th of May, 1856, and the decrees and orders on which [**21]  said accounts are based, must be affirmed with costs to the appellee in this Court; and so much of the order of the 11th of March, 1864, as rejects the allowance in said accounts to J. Philip Roman is affirmed, with costs as aforesaid to the appellees, and the cases are remanded for further proceedings.
Orders affirmed and cases remanded. 

46 of 120 DOCUMENTS 

JOHN PAINE vs. RICHARD FRANCE AND FRANCIS MORRIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 46; 1866 Md. LEXIS 85 

November 2, 1866, Decided 

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

This was a motion filed in a cause heretofore decided in this Court, (see Paine vs. France et al., 25 Md. Rep., 163,) praying the Court "to re-open the decree heretofore passed therein and to re-hear the cause." 

DISPOSITION:
Motion overruled.  

HEADNOTES:

PRACTICE IN COURT OF APPEALS: MOTION TO RE-OPEN FINAL DECREE AND RE-HEAR THE CAUSE. -- The Court of Appeals having by final decree affirmed a decree of the inferior Court overruling exceptions to certain evidence and dismissing the complainant's bill, the appellant filed a motion "to re-open the decree heretofore passed therein and to re-hear the cause." -- HELD:

That where it appears to the Court that the purposes of justice would not be advanced thereby, nor the complainant entitled to relief under an amended bill, a final decree dismissing the bill will not be re-opened for the purpose of remanding the cause under Art. 5, sec. 28, of the Code.

COMITY BETWEEN STATES. -- A Court of Equity in Maryland will not entertain a suit based upon a contract or transactions involving a violation of the laws of her sister States within their limits.  

COUNSEL:
Reverdy Johnson and Richard T. Merrick for, and J. Mason Campbell and Milton Whitney against the motion.  

JUDGES:
The motion was heard by BOWIE, C. J., BARTOL and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*46]  BARTOL, J., delivered the opinion of this Court.
The Court have considered the motion filed in this case by the appellant, "to re-open the decree heretofore passed therein and to re-hear the cause," and have carefully examined the opinion heretofore pronounced, together with the record and notes of argument, and have, upon consultation with the other members of the Court who did not sit at the hearing or participate in the former decision, come to the conclusion that the motion ought not to be granted.
In the judgment of the Court there was no error in their ruling upon the questions decided.

 [*47]  The suggestion that the Court ought not to have passed a final decree, but that under the Code, Art.  [**2]  5, sec. 28, the cause ought to have been remanded without affirming or reversing, so that the complainant might proceed under an amended bill, would be entitled to great weight if it appeared to this Court that the purposes of justice would thus be advanced, or that he would be entitled to relief under an amended bill.
The record contained an agreement setting forth that by the laws of all the other States, the sale of lottery tickets within their limits was forbidden. And in the opinion of this Court, this admission presents an insuperable obstacle to the complainant's recovery under any state of pleading.
A Court of Equity in Maryland will not entertain a suit based upon a contract or transactions involving a violation of the laws of our sister States within their limits.
The complainant in this case therefore would not be entitled to relief in respect to the sales of lottery tickets out of the limits of Maryland; his case would not be aided by an amendment of the bill so as to make it conform to the evidence offered.
Motion overruled. 

47 of 120 DOCUMENTS 

WILLIAM A. MARBURG vs. LEWIS MARBURG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

26 Md. 8; 1866 Md. LEXIS 82 

November 1, 1866, Decided 

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

This action was brought by the appellee against the appellant to recover the value of goods sold and delivered by the former to the latter.

1st Exception. At the trial of the cause an account showing the amount due from the appellant to the appellee was offered in evidence by the latter and was admitted to be correct. The appellee further proved by a competent witness, that he resided in Frankfort on the Main, and that the monies shewn to be due by said account were, by agreement between the parties, always payable to the appellee in florins, at Frankfort aforesaid; and that for the purpose of such payments remittances were always made to him by bills of exchange on Europe, which were received and sold by him and the nett proceeds thereof, at Frankfort, credited in the appellant's account. The appellee also proved by a competent witness, that at the time of the trial the rate of exchange for bills on Europe, proper to remit to Frankfort, was eighty-eight cents per florin in currency, and that by "currency" was understood legal tender notes; and upon cross-examination the witness also proved, that if bills were purchased and [**2]  paid for in gold the rate of exchange would vary very little, if at all, from the legal par of a florin, which is forty cents. The witness further stated that it then required two hundred and twenty-one dollars in currency to buy one hundred in gold; that the florin was a silver coin used in circulation at Frankfort; and that transactions in exchange were then usually carried on in currency.

The appellee offered the following prayer: "If the jury find from the evidence that the plaintiff resides in Frankfort on the Main, in Europe, and shall further find that the indebtedness shewn to be due him by the defendant by the bill of particulars, and admitted by the defendant, was payable in florins at Frankfort aforesaid, then the jury ought to give to the plaintiff by their verdict, such sum as will at this time, according to the current rates of exchange, pay the said indebtedness in florins at Frankfort aforesaid."

The defendant prayed the Court to instruct the jury as follows, viz:

"The defendant denies that the money demanded of him by the plaintiff was payable in Frankfort on the Main. But if the jury shall find said money was payable in Frankfort, as contended for on [**3]  the part of the plaintiff, he will insist that the sum ascertained by the jury to be due on account in florins, is to be converted into current gold or silver money of the United States, after the rate of forty cents per florin, and as there is no evidence that the rate of exchange at the time said money was payable, was against the city of Baltimore and in favor of Frankfort, nothing is to be allowed in damages for the non-payment of balance due in Frankfort."

"The defendant objects to the admissibility of the evidence offered in regard to the rate of exchange, where a bill on Frankfort is proposed to be purchased in depreciated paper money."

The defendant also prayed the Court to instruct the jury, "That in estimating the damages to be allowed to the plaintiff, they should ascertain what sum in gold or silver current money of the United States would, at this time, after the current rate of exchange in the purchase of exchange with gold or silver money of the United States, pay to the said plaintiff, at Frankfort, the sum in florins which the jury shall find due from defendant to the plaintiff, and that their verdict ought to be for such sum of money."

The foregoing [**4]  prayers of the defendant having been rejected, he then prayed the Court to instruct the jury:-- "That if, in making up their verdict, they shall convert the sum in florins, due to the plaintiff from the defendant, into paper money issued by the United States, and usually termed greenbacks, or legal tender paper, and allow to the plaintiff such sum of paper money as at the present rate of exchange will purchase a good bill of exchange on Frankfort, for the amount in florins so ascertained to be due from the defendant to the plaintiff, then they shall render their verdict specifically for the said sum of money, payable in said description of paper money."

The Court below, (MARTIN, J.,) granted the prayer of the plaintiff and rejected the prayers of the defendant, and also overruled his objection to the admissibility of evidence, to which rulings the defendant excepted.

2nd Exception.--The jury, after retiring, came into Court and found a verdict for the plaintiff for "$ 28,546.23 in currency," and the Court declined to receive said verdict and instructed the jury that their verdict should be for so many dollars and cents, and the jury then found a verdict in dollars and cents [**5]  simply. The defendant then excepted to the rejection of the first verdict and the instruction given by the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

JUDGMENT ON DEBTS CONTRACTED IN A FOREIGN COUNTRY. -- A creditor suing here for an amount payable to him in a foreign country in the currency of that country, is entitled to recover in the currency of this country an amount sufficient to produce the sum of the debt where it was made payable, or in other words an amount equal to what he must pay to remit the debt to the place where it was payable; and the amount so recoverable should be computed according to the rate of exchange at the time of the trial or judgment.

JUDGMENT ON DEBTS CONTRACTED IN A FOREIGN COUNTRY: CODE, ART. 32, SECS. 1 & 3. -- The above principle is in no way inconsistent with or affected by sec. 1 of Art. 32 of the Code, recognizing the coinage of the United States as the currency of this State, or by the 3rd sec. of the same Art. requiring all judgments to be entered in dollars and cents.

MERGER OF FOREIGN DEBT BY JUDGMENT. -- The specific character of a foreign debt, as such, is lost by the recovery of a judgment upon it here. In such a case the debt merges in the judgment, which presumptively ascertains the liability of the debtor according to the law of the contract, and by the recovery of the judgment it becomes a domestic debt of record, in all respects subject to the law of the forum.

PRACTICE IN COURT OF APPEALS: CODE, ART. 29, SEC. 39. -- By the express provisions of the Code, Art. 29, sec. 39, the Court of Appeals of Maryland has no power to reverse a judgment upon the ground that it is entered for a larger sum than is claimed in the declaration. 

COUNSEL:
Thomas S. Alexander for the appellant.

The appellant insists there is error in the judgment of the Court below for the following reasons:

1. The Code XXXII. adopts as the currency of the State the coins of the United States at their nominal values as regulated and established by Congress; and by sec. 3 all judgments are to be rendered in dollars and cents. The debt due from the defendant to the plaintiff in florins is therefore to be converted into dollars and cents according to the par of exchange established by Congress, that is to say, after the rate of forty cents per florin ascertained to be due as aforesaid.

The provision in the Code is copied from the Act of 1781, ch. 16, to declare what foreign gold and silver coin shall be deemed the current money of the State. Sterling money is made convertible into current money at the rate of one hundred and sixty-six pounds, thirteen shillings and four pence, current money, for one hundred pounds sterling, and therefore, in 4 H. & McH., 199, Purviance vs. Neave, it was adjudged that [**6]  judgment might be entered for sterling money although the Act had expressly declared that all judgments shall only be rendered in current money at the rate and value aforesaid. Hence, it is apparent that the verdict and judgment in the present order might have been rendered in florins, the rate of commutation being fixed by law.

2. The case above referred to shows that no allowance ought to be made for any difference existing between the par and the actual rate of exchange as an equivalent for the cost of transferring money due from this country to the country where it is payable, and it is believed the same conclusion will be corroborated by an inspection of the records of our Courts; and our rule is in this respect consistent with that which prevails in New York, as is shown by Martin vs. Franklin, 4 Johns., 124, Schofield vs. Day, 20 Johns., 102. And in Massachusetts as is shown by Adams vs Cordis, 8 Pick., 260. Alcock vs. Hopkins, 6 Cush., 484. Lodge vs. Spooner, 8 Gray, 166. Duvall vs. Farmers Bank of Maryland, 9 G. & J., 41. In which last case it was held that where the contract is made for payment of so many dollars, without more, it is to be understood that the party is [**7]  to pay dollars of account of the United States as regulated and fixed by Congress.

In Story's Confl. of Laws, secs. 308-9, it is conceded that such should be the rule where the par is established by law, and that Lord Eldon was of that opinion in Cockerell vs. Barber, 16 Ves., 461.

3. But if any allowance is to be made for the difference between the par and the actual rate of exchange, between the country where payment is demanded and the country where payment ought to have been made, such allowance is to be adjusted according to the rate of exchange current at the time of the default made in payment, agreeably to the terms of the contract. The defendant is under no obligation to transfer, and consequently under no obligation to pay, the charge for transferring to Frankfort the money which may be recovered against him at Baltimore. In an action against the vendor for not returning goods sold, or against the vendee for not accepting goods purchased, the measure of damages is the difference between the contract price and the current value of the goods at the time and place appointed for delivery or acceptance. Williams vs. Wood, 16 Md. Rep., 258. Williamson vs. Dillon, 1 H.  [**8]  & G., 445.

No respect whatever is paid to the current value of the goods at the time of trial. Nor is anything allowed for the difference in exchange, between the place where payment is to be made and the place where suit is brought; there is no difference in principle between such cases and the case of an action brought for default in payment of the prices for goods sold and delivered at the time and place appointed for payment. If in any case the difference between the par and actual exchange becomes an element in the assessment of damages, the estimate must be according to the current rate prevailing at the time of the default made, and not at the time of trial.

4. The more important error is in the conversion of the metallic florin into its equivalent of paper money issued under authority of Congress. This paper is not current money of the United States. It is not an equivalent in all cases for current money. It was issued in payment of certain description of debts due by the United States, and is made a tender in payment of other descriptions of debts due to the United States, and of debts treated as domestic debts in contradistinction to foreign debts. Now it is claimed [**9]  that the debt due by the defendant to the plaintiff is a foreign debt, and that the plaintiff is not bound to accept paper money in payment thereof. But the judgment recovered to enforce payment of the debt must partake of the original character of the debt, and upon the hypothesis of the plaintiff is only to be satisfied by a payment in gold or silver coin.

With what color of justice can a party insist on commuting into paper his debts, which is payable in coin, who denies his obligation to receive payment of his debt in paper money? And where is the law which establishes the supposed disparity in value between the metallic currency and paper issued by authority of Congress? And where the law which compels the debtor to pay his debt in paper either at par or according to any scale of depreciation whatever? The privilege of making payment in paper is personal to the debtor. It extends to certain class of debts only. It is limited in its discretion. It may be withdrawn at the pleasure of Congress, and on its withdrawal the debt, whether evidenced by open account or bond, or judgment, will become payable in metallic currency alone. The conclusion therefore is, that every contract [**10]  for payment of money, unless it is specially stipulated to the contrary, must be understood to be a contract for payment of so much of current money of account of the United States. Lodge vs. Spooner, 8 Gray, 166. And judgment, in the event of a suit brought to enforce that contract, must be rendered for a certain sum in current money, and payment or satisfaction of that judgment must be made in current money, unless at the time of payment the law shall authorize a tender of payment in another medium. If, then, the judgment in this case had been rendered in current money of the United States for such sum as would be equivalent at par, or after the rate of exchange prevailing at the time of breach of contract, for the number of florins due from defendant to the plaintiff, and with interest thereon from the time of breach, as damages for the detention of the debt, perfect justice would be done to the plaintiff, since he might, on his theory, insist on payment being made to him in coin of the United States, or in foreign coins made current by Act of Congress, and at their established values. On the other hand, the grossest wrong will be perpetrated against the defendant if the present [**11]  judgment is allowed to stand. Upon the theory of the plaintiff, that his debt was a foreign debt, he may insist on payment of his judgment in gold or silver, and as the commutation was effected at the rate of two hundred and twenty-one in currency for one hundred in gold, he will, in the event of an affirmance of the judgment, realize more than double of the sum really due to him.

The same result would follow from a repeal of the tender laws before the actual payment of the judgment.

And at the present moment, and assuming that the judgment may be satisfied by payment in paper at its par value, the plaintiff would realize by such payment an equivalent for upwards of $ 20,000 in satisfaction of his demand, which was somewhat over $ 12,000; gold having fallen from 2.21 at the time of the trial, to 1.37 at the present moment.

5. The conclusion from the foregoing positions is: that the Court erred in refusing the prayer tendered by the defendant; in granting the instruction asked for by the plaintiff; in rejecting the first verdict returned by the jury; and in entering the judgment simply for so much money.

If it was competent for the jury to commute the debt, payable [**12]  in gold, into paper at a depreciation, it was eminently proper that they should say that the damages had been assessed in paper at a depreciation, and the verdict having been so rendered, the defendant was aggrieved by the rejection of that verdict. The only conceivable reason for rejecting the first verdict is, that the law recognizes no such money as paper currency, and that no valid judgment could have been entered on such verdict. The inconsistency in the rulings of the Court may therefore be thus summed up: The jury were directed to assess damages against the defendant by a process of exaggeration, of which it was declared the law would tolerate no foot-print in its judgment.

The records of the General Court show many actions where the damages claimed were pounds sterling, the declarations following the case of Barn. and Adol. In no case has there been any other rule but to allow £  100 to $ 166, or £  1 to $ 4.44.

I. Nevett Steele for the appellee.

1. It will be contended for the appellee, that his prayer was properly granted by the Court below. That prayer asserts the proposition of law that in an action to recover for the breach of an agreement to pay a certain [**13]  sum in foreign money, at a designated place in a foreign country, the verdict should be for such an amount as would produce or place the sum due at the point where the plaintiff is entitled to have and receive it. Upon principle this proposition is manifestly right. The law, in awarding damages for breach of contract, ordinarily seeks to give the plaintiff indemnity, and nothing more or less. Any other rule than that adopted by the Court below must, in all cases where the rate of exchange between the country in which the suit is brought and that where the money is payable is not precisely at the legal or nominal par, give less or more than an indemnity to the plaintiff, and thus do wrong to him or to the defendant, according as the rate of exchange is against or in favor of the country where the suit is depending. To hold that the plaintiffs, in such cases, are to recover the precise sums due, according to the legal par of the foreign money, and without reference to the rate of exchange, would be to strike out of the contracts the agreement to pay the money abroad, and treat them as if they were ordinary domestic debts.

While there is some conflict in the cases on this subject,  [**14]  it is believed that the rule laid down in this prayer is sustained by the decided weight of authority. Cash vs. Kennion, 11 Vesey, 314, 318. Atkinson vs. Braybrook, 4 Campbell, 380. Scott vs. Beavan, 2 Barn. & Adol., 78, 85; (22 Eng. C. L. Rep.) Grant vs. Healey, 3 Sumner, 523. Lee vs. Wilcocks, 5 Serg. & Rawle, 48. Delegal vs. Naylor, 7 Bing., 460, (20 E. C. L., 208.) Lanusse vs. Barker, 3 Wheaton, 101, 147. Woodhull vs. Wagner, 1 Baldwin, 296, 302. Smith vs. Shaw's Adm'r, 2 Wash. Crt. Ct. Rep., 167, 168. 3 Kent's Com., 117. Pars. on Bills and Notes, 369, 367, Code, Art. 31--same as Act of 1785, Bryden vs. Taylor, 2 H. & J., 396.

2. The first prayer of the appellant, which besides requiring the jury to convert the florins into gold and silver money of the United States, asserts the proposition that the rate of exchange at the time when the money was payable, was the true measure of damages, is in direct opposition to the prayer of the appellee just examined under the first point. If the law of the first point is correct, then this prayer of the appellant was properly rejected. The objection to that part of this prayer, which required the jury to give by their verdict only the [**15]  gold value of the florins, will be considered under the next point.

3. The appellant's objection to the admissibility of evidence, and his second prayer, may properly be considered together, as they both present the proposition that the jury were to look exclusively to the gold value of florins and the gold price of exchange, in making up their verdict. The objection to this proposition is, that it would require the amount of the verdict to be ascertained in one kind of money, while the verdict would be payable in another; and this objection, it is believed, cannot be successfully answered. It is matter of public history, and is also shown by the evidence in this cause, that at the time of the trial below gold had become an article of merchandize, and had ceased to circulate as money; it was bought and sold, not only by the public, but by the Government itself; laws were passed by Congress regulating contracts for its purchase and sale; all values and prices throughout the country were ascertained and fixed in currency, and the whole business of the country was conducted with paper as the circulating medium. The law authorized payment of the verdict in this depreciated legal tender [**16]  paper, and in the condition of things existing at the time of the trial, a verdict for the gold value of the florins, instead of paying the plaintiff's debt at Frankfort, would have paid very little more than a third of it. This would clearly have been unjust. While this second prayer of the appellant conceded the law that the plaintiff ought to have such a sum as will purchase a good bill on Frankfort for the amount of his debt, it prevented him from getting such sum by having the damages ascertained in a kind of money in which the verdict would not be paid to him. By assessing the damages according to the rate of exchange in currency, the appellee would get precisely the sum which would pay his debt in Frankfort, according to contract, and nothing more. He would not gain a dollar.

The prayer of the appellant sought to have damages assessed according to a money standard, which had no practical existence in the country at the time of trial, and this with the object that the verdict should afterwards be paid, (if paid at all,) according to a much lower money standard. The prayer carefully abstained from making the verdict payable in gold, which was the only thing, (if it could [**17]  have been done legally,) which would have made the prayer correct. Act of Congress, Feb., 1862, sec. 4. 12 Statutes at Large, 345.

4. The third prayer of the appellant was properly rejected, and the jury were properly directed to find their verdict in "dollars and cents," and not in "currency" or in any particular "description of paper money."

The Court had no power to have the verdict given in any thing else than dollars and cents. The law directed in what it should be paid, and as the law gave the appellant the right to pay the verdict in the particular "description of paper money," referred to in the prayer, and which the jury meant by the word "currency," the appellant was not injured by the action of the Court below, in rejecting his prayer and refusing to receive the verdict of the jury as originally found.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*19]  COCHRAN, J., delivered the opinion of this Court.
This suit was brought by the appellee to recover a balance due for goods sold to the appellant at Frankfort on the Main. The debt stated in the bill of particulars to be 26,317.44 florins is [**18]  admitted, and it appears that this sum, by an agreement between the parties, was to be paid to the appellee in florins, at Frankfort, the place of his residence.
All the important questions presented by the exceptions relate to the rule for ascertaining the amount recoverable in the money or currency of this country, in satisfaction of the debt payable at Frankfort, and for the purpose of disposing of them as a whole, without regard to their order, we propose to consider and determine the general character and operation of the rule for ascertaining the extent of the creditor's remedy in that class of cases.
This subject has been discussed in America as well as in the English Courts, and the same doctrines, as we think, have been finally settled in both. In Cash vs. Kennion, 11 Ves. 314, where a debt contracted in Jamaica was made payable in London, Lord ELDON held that the debtor was bound to pay the expense of remitting the money; "that if a debtor agrees to pay £  100 in London on a given day, he ought to have that sum there on that day. If he fails in that contract, wherever the creditor sues him, the law of that country ought to give him just as much as he [**19]  would have had if the contract had been executed."
This rule was adopted in Delegal vs. Naylor, 20 Eng. C. L. Rep. 199, and also in Scott vs. Bevan, 22 Eng. C. L. Rep. 28. The best considered of the American cases are in strict accordance with these authorities. STORY, J., in Grant vs. Healey, 3 Sumn. 523, 10 F. Cas. 978, said, "that whenever a debt made payable in one country is sued for in another country, the creditor is entitled to receive the full sum necessary to replace the money in the country where it ought to have been paid, with interest for the delay, for then, and then 

 [*20]  only, is he fully indemnified for the violation of the contract. In every such case the plaintiff is, therefore, entitled to have the debt due to him first ascertained at the par of exchange between the two countries, and then to have the rate of exchange between those countries added to or subtracted from the amount, as the case may require, in order to replace the money in the country where it ought to be paid." This doctrine he propounds as one founded on principles of reciprocal justice. In the case of Lee vs. Wilcocks, 5 [**20]  Serg. & Rawle 48, the Court declares the settled rule to be, "where foreign money is the object of the suit, to fix the value according to the rate of exchange at the time of trial;" and the same rule was applied in Smith vs. Shaw, 22 F. Cas. 659, 2 Wash. C. C. 167.
The New York and Massachusetts cases, referred to by the appellant in support of a computation based upon the par of exchange, were reviewed in Grant & Healy, and were rejected as authorities on that point. The best considered cases bearing on this question are collated in 3 Kent's Com., 317, note, and in 2 Par. Notes & Bills 370, and the rule deduced from them is, that a creditor suing here for an amount payable to him in a foreign country, in the currency of that country, is entitled to recover an amount sufficient to produce the sum of the debt where it was made payable; or, in other words, an amount equal to what he must pay to remit the debt to the place where it was payable. It will also be seen from the authorities referred to, that the amount recoverable should be computed according to the rate of exchange at the time of the trial or judgment. This principle in both particulars [**21]  must, in our opinion, be applied to the present case, and we hold, accordingly, that the appellant was entitled to a judgment for an amount which, at the time of trial, would have enabled him to realize the amount of his debt in florins, at Frankfort.
Assuming this standard or measure of his claim in the money or currency of this country to be the true one, we 

 [*21]  do not find that it is in any way affected by the 1st sec. of Art. 32 of the Code, recognizing the coinage of the United States as the currency of this State, or by the 3rd sec. of the same Art., requiring all judgments to be entered in dollars and cents. The appellant was entitled to a judgment for an amount that would pay his debt at Frankfort, and in that particular the judgment recovered appears to have been entered in conformity with the requirements of the Code. Both of these provisions were taken from the Act of 1812, ch. 135, and the Court was not at liberty to disregard them and enter the judgment for money in other denominations than those prescribed.
The suggestion of the appellant that this is a foreign debt, and that the judgment recovered upon it shall partake of the original character of the debt and [**22]  be payable only in gold or silver coin, is not consistent with the facts in the case, nor with the principles upon which we have said the judgment was recoverable. It proceeds on the theory that the recovery here of a judgment on a foreign debt, as distinguished from a debt originated and made payable in this country, does not bring the debt so recovered within the legal operation and effect of the Acts of Congress authorizing the issue of notes of the United States as lawful money, and making them a legal tender for all debts within the United States, except for duties on imports and interest on the public debt. According to the ordinary rules of legal reasoning, the specific character of a foreign debt, as such, is lost by the recovery of a judgment upon it here. In such a case the debt merges in the judgment, which presumptively ascertains the liability of the debtor according to the law of the contract, and by the recovery of the judgment it becomes a domestic debt of record, in all respects subject to the law of the forum.
The consistency of these Congressional Acts with the Constitution of the United States was conceded by the counsel of the respective parties, and assuming [**23]  them to be 

 [*22]  free from objections on that ground, as under the circumstances we are required to do, it follows that the appellant was at liberty to satisfy any judgment obtained against himself, by payment made in the currency authorized by those Acts. Treating the judgment, therefore, as one that the appellee could not compel the appellant to pay in coin, and as one that the appellant could satisfy in currency, it is evident, in view of the principles upon which we have said that the judgment was recoverable, that it should have been entered for an amount which, subject to the appellant's privilege of paying in currency, would then have been sufficient to enable the appellee to realize his debt in florins at Frankfort. By no other method known to our practice could the full recoverable amount of his claim have been ascertained and adjudged to him; he was therefore at liberty to show, by competent evidence, the ruling rate at which exchange in the paper currency of the United States could then be effected. The suggestion that the judgment is erroneous because it is entered for a larger amount than was claimed in the declaration, cannot affect the disposition of the case on [**24]  this appeal. Under sec. 39, Art. 29, of the Code, this Court has no power to reverse a judgment upon that ground. It is there expressly declared, that "no judgment shall be reversed in the Court of Appeals because the verdict was rendered for a larger sum than the amount laid in the declaration."
It will be seen from this expression of our views on the whole case, that none of the exceptions taken by the appellant to the rulings of the Court below can be sustained.
Judgment affirmed. 

48 of 120 DOCUMENTS 

THE PHILADELPHIA, WILMINGTON & BALTIMORE RAIL ROAD COMPANY vs. ROBERT KERR & OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 521; 1866 Md. LEXIS 76 

July 19, 1866, Decided 

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

This was an action by the appellees against the appellant to recover damages for loss and injury sustained by them from a collision caused by the over-running and sinking of a canal boat loaded with lime owned by them, by the steam ferry boat "Maryland," plying between Havre-de-Grace and Perryville, on the Susquehanna river. The plaintiffs, in their declaration, averring due care on their part, charge the collision to negligence and carelessness on the part of the defendant. The defendant, in its pleas, denies the wrong and injury imputed to it, and in turn charges a want of care and diligence upon the plaintiffs, and issue was joined on said pleas.

Exception.--At the trial of the cause the captain of the canal boat, (who was one of the plaintiffs,) testified that he left Morgan's wharf, situated on the west side of the Susquehanna River, about five hundred yards north of the wharf of the steamer at Havre-de-Grace, on the morning of the 24th of May, 1862, in clear daylight, bound south; that in about half an hour after the canal boat had got under way, the steamer Maryland, in her course from Perryville to Havre-de-Grace, and [**2]  when about two hundred and fifty or three hundred yards east of its wharf at Havre-de-Grace, struck the side of the canal boat and stove it in; that he was standing at the helm, in charge of the rudder, that he did not see the Maryland until she was within one hundred yards of the canal boat, that he could not have done anything to get out of the way, that the breeze was so light that the canal boat was moving down the river at only about two miles an hour, and that he could not have controlled her by the rudder, and was obliged to let her drift; that he had no idea that the steamer would strike the boat until she did strike, as he considered that it was the business of the steamer to keep clear of the sailing vessel. The witness also stated that he had been in the habit, for ten years, of navigating the Susquehanna near Havre-de-Grace, and that he knew that the steamer was in the habit of crossing the river, with the railroad cars, many times every day, and that he knew her course. He also testified, that from Morgan's wharf, and from the helm of the canal boat, there was a clear, unobstructed view in every direction; that he did not look out for the Maryland; that he never looks [**3]  out for steamers; that there was no special lookout on the canal boat; that there were two hands on deck, but no notice was given him of the approach of the steamer; that he had two anchors on board, but that he did not throw out either. He further stated, that if an anchor had been thrown out it would have stopped the boat in twenty or thirty feet.

There was proof that the steamer was in her usual track; that her engine was reversed before the collision, although not in time to prevent it; but her motion was then slow. The time occupied by the steamer in passing from wharf to wharf, when the river is unobstructed, was proved to be from six to seven minutes.

It was proved that the steamer crosses the river ordinarily about twenty-four times in a day, carrying trains of passengers and freight cars. Her length is two hundred and thirty-six feet, breadth thirty-six feet, and her engines eight hundred horse power. She has two pilot houses; but the view up the river, from the forward pilot house, when crossing the river from Perryville to Havre-de-Grace, is shut off by the train of cars on the starboard side of the steamer's upper deck. As soon as the canal boat was seen, the [**4]  captain of the steamer ordered the engines to be reversed. The captain testified that there was a breeze from the north, quite sufficient to have enabled the canal boat to pass to the stern of the steamer. There was no special lookout on the steam boat, and it was proved, that if a lookout had been stationed at the steamer's bow, he could have seen whatever was in the river, up to Morgan's wharf.

Mr. Moore, a mariner, said, that the canal boat could easily have gone round the stern of the steamer, and that he always avoided the steamer, and that, in his opinion, a man of ordinary prudence, when in command of a sailing vessel there, would keep a constant watch for the steamer, and that in this case, if there was not sufficient breeze to propel the canal boat, the captain should have dropped his anchor, which would have prevented the collision.

The plaintiffs and defendant each offered three prayers, all of which were rejected; and the Court gave an instruction, laying down to the jury two rules for their guidance:

1. That it was the duty of the defendant to exercise the utmost care and diligence, which it was in its power to employ, considering the nature of the business [**5]  in which it was engaged.

2. That if the injury to the canal boat could have been prevented by the exercise of such care and diligence on the part of the defendant, in the use and management of the steamboat, then the plaintiffs are entitled to recover, unless the jury shall find that the accident could have been avoided by the exercise of ordinary care and diligence on the part of those in charge of the canal boat.

To the instructions given by the Court, the defendant excepted, and the verdict and judgment being for the plaintiffs, appealed to this Court.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

RAIL ROAD & STEAMBOAT COMPANIES, -- LIABILITIES OF: "ORDINARY CARE AND DILIGENCE:" PRAYERS & INSTRUCTIONS TO THE JURY. -- The owners of a loaded canal boat over-run and sunk by the steam ferry boat, Maryland, while the latter was crossing the Susquehanna river, from Perryville to Havre-de-Grace, sued the Phil. Wil. & Balto. R. R. Co., the owner of the steamer, for damages, averring due care on their part, and charging the collision to the negligence of the defendant, who, in its pleas, denied the wrong, and charged the want of care to the plaintiffs. Each offered evidence of want of care on the part of the other. -- HELD:

1st. That the rule laid down to the jury by the Court below for their guidance, viz: "that it was the duty of the the defendant to exercise the utmost care and diligence which it was in their power to employ, considering the nature of the business in which they were engaged," was too rigorous.

2nd. That the defendant was "required to exercise such reasonable care to avoid injury to the plaintiffs, as ordinary prudence would suggest," that is, "such a degree of care and attention as experience has found reasonable and necessary to prevent injury to others in like cases."

3rd. The expression "ordinary care and diligence" is comparative, and always bears a direct relation to the particular circumstances of each case, the increasing probabilities of danger requiring a corresponding increase of care and vigilance to avoid it.

4th. That any failure, by one engaged in the pursuit of his own occupation or business, to observe precautionary rules established by competent authority to guard against accidents and prevent injuries to others, is in legal contemplation, a want of ordinary care.  

COUNSEL:
Wm. Schley and Thos. Donaldson, for the appellant:

1. In an action on the case to recover damages at law, for injuries caused by a collision, the plaintiff cannot recover, if his own negligence contributed, in any degree, to produce the collision. He must establish two propositions of fact, firstly, that there was want of due care on the part of the defendant; and no want of care on the part of the plaintiff. The onus as to both facts, is on the plaintiff. Vanderplanck vs. Miller, 1 M. & M., 169, 22 Eng. C. L. Rep., 280. Pluckwell vs. Wilson, 5 Carr & Payne, 375, 24 [**6]  Eng. C. L. Rep., 368. Turley vs. Thomas, 8 Carr & Payne, 103, 34 Eng. C. L. Rep., 312. Woolf vs. Beard, 8 Carr & Payne, 373, 34 Eng. C. L. Rep., 435. Thorogood vs. Bryan, and Callin vs. Hills, 8 Man. Gr. & Scott, 114, 65 Eng. C. L. Rep., 114. Hawkins vs. Cooper, 8 Carr & Payne, 473, 34 Eng. C. L. Rep., 485. Sells vs. Brown, 9 Carr & Payne, 601, 38 Eng. C. L. Rep., 245. Smith vs. Smith, 2 Pick., 621. Irwin vs. Sprigg, 6 Gill, 200. Lane vs. Crombie, 12 Pick., 177. Owings vs. Jones, 9 Md. Rep., 108. Harlow vs. Hamiston, 6 Cow., 191. 3 Am. Law Reg., 565, (N. S.)

2. In the navigation of the Susquehanna river at Havre-de-Grace, by a canal boat, passing over the known and accustomed track of the steamer Maryland, the captain of the canal boat (having knowledge of the fact that said steamer was accustomed to pass from wharf to wharf, many times during every day, and that she was a large and powerful steamer, and that, from the absence of a sufficient breeze, he had no control of the canal boat, but was obliged to let her drift) was bound to exercise more than ordinary care and diligence. The defendant's prayers, it is true, presented the hypothesis of want of ordinary care on the part [**7]  of the plaintiffs, in any material respect; but it was in connection with the proposition that the defendant was only bound to ordinary care. The instruction makes a wide distinction. Whilst holding the defendant to the utmost care possible, it limits the duty of the plaintiffs to mere ordinary care.

The counsel for the appellant maintain, that under the circumstances, the plaintiffs were under the same obligation of care and diligence as was the defendant. The ordinary rules of navigation, on the high seas, have no controlling application to this steamboat engaged in the special service of passing on a prescribed route, from wharf to wharf. Steves vs. The Oswego & S. R. R. Co., 18 N. Y., 422. Wilds vs. Hudson R. R. Co., 2 Amer. Law Reg., N. S., 422. Wright vs. Malden, R. R. Co., 4 Allen's Rep., 283. Balto. & Susq. R. R. Co. vs. Woodruff, 4 Md. Rep., 242.

But not only did the instruction thus discriminate in the required degree of care, but practically shifted the onus from the plaintiffs upon the defendant. The plaintiffs were not required to prove affirmatively that there was no want of care on the part of the canal boat; but the instruction, as given, cast upon the defendant [**8]  the burden of establishing that there was want of ordinary care on the part of the plaintiffs. Harlow vs. Hamiston, 6 Cow., 191. Lane vs. Crombie, 12 Pick., 177, cited and adopted in Irwin vs. Sprigg, 6 Gill, 206. 35 Md. Rep., 422. 23 Conn. Rep., 439.

4. The rules properly applicable in cases of bailment, to carriers of passengers, carriers of freight, &c., and the rules of the Admiralty Court properly applicable in cases of collision on the high seas, ought not to be applicable in the present case. This is an action at law, the steamer a ferry boat travelling on a prescribed route, from wharf to wharf, not engaged in ordinary navigation, nor having the option to select her route. Nor should the canal boat be regarded as a vessel lying at her moorings in a harbor would be regarded, when struck by a steamer entering the harbor. The canal boat was here in motion, and those in charge of her had notice of the danger, and voluntarily encountered it.

Henry Stockbridge, for the appellee:

There is but a single question presented to this Court for its adjudication, viz., what degree of care is it incumbent upon those to exercise who have charge of a steamboat like the "Maryland,  [**9]  " plying with great velocity across the track of slow moving craft, whose only motive power is the sluggish current and the uncertain wind?

Cases involving this question have often been before the Courts both of admiralty and common law jurisdiction, and the principles governing them are the same in both.

The only distinction between the rule of common law and that of admiralty, on the question of care and negligence in cases of collision, is, that at common law, the party complaining cannot recover if it appear that he in any wise contributed to his own loss.

The Courts, in passing upon these cases, have sometimes been unfortunate in their use of language, and spoken of care and negligence as slight, ordinary, extraordinary and gross. The meaning of these terms "is not fixed or capable of being so," (16 Howard Rep., 474,) since the "ordinary care" of one person would be most gross and culpable negligence on the part of another. No Court, for example, would permit a heavy, powerful and swift steamer to traverse a crowded channel with the "ordinary care" and vigilance which it would require of a dug-out or rowboat in the same locality. And no more does any Court permit [**10]  a steamer, "traversing waters where sailing vessels are often met with," to proceed with the ordinary lookout and caution employed and exercised by the same steamer upon the high seas. Genesee Chief vs. Fitzhugh, 12 How., 463. Culbertson vs. Shaw, 18 How., 587.

In this last case the Supreme Court, from the locality of the vessels alone, required "the utmost vigilance."

But the other elements which, equally with locality, make the utmost care imperative upon those whom those elements surround, are set forth in other cases adjudicated by the same Court.

In the P. & R. R. Co. vs. Derby, 14 How., 486, 487, it is laid down, that any negligence on the part of persons entrusted with the management of the "powerful but dangerous agency of steam," is "gross" negligence, and "public policy and safety require that they be held to the greatest possible care and diligence."

The same Court expressly re-affirms this doctrine as applicable to steamboats as well as locomotives, in 16 Howard, 474, 476, Steamboat New World vs. King, and declares it to rest, "not only on public policy, but on sound principles of law."

It is true, that in both these cases the rights and injuries [**11]  of a passenger, a gratuitous passenger, constituted the case before the Court; but surely "public policy" views all persons alike, and requires no more caution against injuring those on board the craft that does the injury, than those pursuing their lawful business on thronged thoroughfares or public waters. In neither of the cases did the Court base its decision upon the fact that it was a passenger that was injured; in neither was there any relation springing from a contract, express or implied, and upheld by an adequate consideration; yet, from the single fact that the agency of steam was employed, the U. S. Supreme Court held the parties employing that agency, in both cases, "to the greatest possible care and diligence."

In St. John vs. Paine, 10 How., 583, the Court lay down with great care the rules governing steamers in their approach to sailing vessels, and though they do not use the terms, "utmost care," "greatest possible care and diligence," which they have used elsewhere, they make it the imperative "duty of the steamer to adopt such precautions as will prevent a collision." See, also, Steamer Oregon vs. Rocca, 18 How., 572, 573. Culbertson vs. Shaw, 18 How., 587.  [**12]  Newton vs. Stebbins, 10 How., 606. 1 Parsons' Maritime Law, 201. Kelsey vs. Barney, 2 Kernan, 429. The Rose, 2 Wm. Rob., 3.

Absolutely effective care or caution is required. This, if not the utmost possible, is the utmost necessary care. In Liverpool Steamship Co. vs. Randall, 21 How., 383, the Court not only review and affirm the foregoing decisions, making it obligatory upon sailing vessels to keep on their course when approaching steamers, and upon the steamers to use whatever care is necessary to prevent collision, but show that the degree of care which a steamer is bound to exercise, increases with the increase of the liability to collision, culminates with the crisis of the peril, and ceases only when the occasion for its exercise has passed, or the means of avoiding injury have been exhausted.

In the case now before the Court, no element was wanting which tended to increase the amount of caution which the law required the defendant to exercise.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*529]  COCHRAN, J., delivered the opinion of this Court.
The opinion recently delivered by this Court in the case of The  [**13]   Balto. & Ohio R. R. Co. vs. Breinig, applies to, and practically decides, the main point raised by these exceptions. The jury here, as in that case, were instructed by the Court that "it was the duty of the defendant--now appellant--to exercise the utmost care and diligence which it was in their power to employ, considering the nature of the business in which they were engaged." Had the case been one of injury to a passenger while in course of transportation by the cars or boat of the appellant, this instruction would have 

 [*530]  been appropriate, for in that class of cases the carrier, as was said in Balto. & Ohio R. R. Co. vs. Worthington, is bound to exercise the highest possible degree of care in all things affecting the safety of the passenger. This case, however, is a different one. The effort is to recover damages resulting from a collision of the appellant's steamboat with a canal boat belonging to the appellees, and by which the canal boat and cargo were totally lost. The canal boat had started from her berth and was on her way, under a light wind, down the Susquehanna river, and while holding her course, was struck by the steamer Maryland and sunk. The steamer [**14]  belonged to the appellant and was used in transporting its engines, cars and passengers across the Susquehanna between Perryville and Havre-de-Grace. Both boats were on a common highway, engaged in avocations wholly independent of each other, and without any relation of contract or trust upon which any special duty from either to the other could be predicated, each was in the pursuit of a lawful business, and their relations were in all respects precisely like those disclosed in Breinig's case. Under these circumstances the appellant, as was said in the case referred to, was not subject to a rule so rigorous as this instruction prescribes, but "was required to exercise such reasonable care to avoid injury to the appellees as ordinary prudence would suggest," that is, "such a degree of care and attention as experience has found reasonable and necessary to prevent injury to others in like cases." This is what is understood by the terms "ordinary care and diligence." It should not be forgotten, however, that these terms are comparative, and always bear a direct relation to the particular circumstances of each case. The increasing probabilities of danger require a corresponding increase [**15]  of care and vigilance to avoid it. "The degree of vigilance which the law exacts, by the requirement of ordinary care, must vary with the probable consequences of negligence, 

 [*531]  and also with the command of means, to avoid injuring others, possessed by the person on whom the obligation is imposed. Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care. Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party's power, ordinary care requires almost the utmost degree of human vigilance and foresight." Kelsey vs. Barney, 2 Kern. 425. And it may be said, in general, that any failure by one engaged in the pursuit of his own occupation or business, to observe precautionary rules or regulations established by competent authority, to guard against accidents and prevent injuries to others, is in legal contemplation, a want of ordinary care. It matters not whether the business be prosecuted on land, on the water, or upon both, the established rules for regulating the course of conduct on either, so far as [**16]  they relate to the safety of others, should be duly regarded to satisfy the first requirement of ordinary care.
It follows from the views expressed that the appellees' first and second prayers were properly rejected. They required of the appellant a degree of care and diligence not warranted by the nature of the case, and in that respect their rejection was proper.
The 1st and 2d prayers of the appellant, we think, were also defective. They are too general and fail altogether to direct the attention of the jury to important facts which it was proper for them to consider in passing on the question of negligence. It is unnecessary to refer to the evidence contained in the bill of exceptions further than to say that it sustains this objection to those prayers. In our opinion there was no error in rejecting them. The judgment will be reversed and a procedendo awarded.
Judgment reversed, and procedendo awarded. 

49 of 120 DOCUMENTS 

DAVID W. NAILL ET AL. vs. RACHEL MAURER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 532; 1866 Md. LEXIS 77 

July 19, 1866, Decided 

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

The bill in this cause was filed on the 22nd of March, 1861, by the appellee, as widow of Paul Maurer, for an assignment of dower, damages for its detention, and for discovery. It states that the appellee was married to said Maurer in 1852, and that he died in 1853, seized of a large real estate in Baltimore city, and in Carroll and Frederick counties; that he died intestate, and that parcels of said lands are in possession of some of the defendants as his heirs-at-law, and of the other defendants; and the bill prays for the relief as above stated, and for general relief.

The answers admit the allegations of the bill, but set up the defence that prior to the marriage of the appellee with said Maurer, they entered into a marriage contract, whereby each mutually agreed not to claim during the marriage, or after the death of the other, any interest whatever in the property or estate of the other. The contract was exhibited with the answers.

It was proved on the part of the appellee, that at the time of her marriage with said Maurer, she was in reduced circumstances, and was his housekeeper, and that since his death, she had [**2]  been living in a condition of actual want; that she knew nothing of business, and was hardly able to to understand the meaning of such contract if read to her.

It was also proven on the part of the appellants, by Basil Root, that he prepared the ante-nuptial contract in question, and was present at its execution; that during the preparation of it, he had repeated conversations with both parties, in the presence of each other, and that Maurer said he had settled on his wife the sum of $ 4,000, including a ground-rent, to which Mrs. Maurer, (then Rachel Bond,) assented, and expressed herself satisfied, saying further, that the marriage contract was not necessary, as she would never trouble Maurer's estate.

It was also shown that said Paul Maurer died seized of real estate worth $ 54,262.50; and further proved that the said marriage contract was found among the papers of the said Maurer after his death, and that the same had not been lodged anywhere for record, and in fact, there is no legal proof that it was ever lodged for record anywhere until the year 1857, in Carroll county.

The Court below decreed that the appellee was entitled to the relief prayed, and referred the [**3]  cause to the auditor to state an account in conformity with its decision. From this decree the present appeal was taken.  

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

HUSBAND & WIFE: DOWER, -- WHEN BARRED BY ANTE-NUPTIAL AGREEMENT: CONTRACT, -- CONSIDERATION: CODE, ART. 93, SEC. 289: CODE, ART. 16, SEC. 30: JURISDICTION IN EQUITY IN CASES OF DOWER. -- Husband and wife had agreed in writing, before marriage, that neither would claim during their marriage, or after the death of the other, any interest whatever in the property or estate of the other. After the death of the husband, the wife filed a bill for the assignment of dower in the real estate of the husband, and for damages for its detention. The defendants, heirs-at-law of the husband, in their answers, by way of defence, relied on the ante-nuptial agreement. There was no evidence of fraud or imposition practiced upon the wife in the procurement of the agreement, but on the contrary, it was proved that it was made in contemplation of marriage, in good faith, and by competent parties. -- HELD:

1st. That the agreement or contract cannot be avoided for want of consideration; that either the reciprocal stipulations of the contract or the proposed marriage would constitute a consideration, in every way sufficient to render the contract valid and binding.

2nd. That the legal operation of the contract is not affected by Art. 93, sec. 289 of the Code; that is a simple statutory declaration, that a settlement of property by jointure or otherwise, on a woman by her husband, before marriage, shall bar her of dower in his lands.

3rd. That this is not a case of a settlement or jointure, but of a contract between competent parties, executed in good faith, and upon a good consideration, by which the wife has expressly relinquished all right to claim any estate or interest in the property of her deceased husband.

4th. That the power of the wife to bind herself by such a contract, in equity, must be admitted, and it cannot be doubted that this contract constituted an equitable bar to the claim sought to be enforced by this bill.

5th. That the 30th sec. of Art. 16 of the Code, giving Courts of Equity concurrent jurisdiction with Courts of Law in cases of dower, does not confer the simple jurisdiction of a Court of Law, or limit Courts of Equity by rules applicable to proceedings at law, but authorizes them to determine and finally adjudicate claims for dower by the principles and rules of equity. 

COUNSEL:
S. T. Wallis and Edward Israel for the appellants:

The effect of the ante-nuptial contract, if valid, is determined, to some extent, in the case of Maurer vs. Naill, 3 Md. Rep., 324, on an appeal from the Orphans' Court, between the same parties. The Court below decreed for the complainants.

The appellants contend, that the ante-nuptial contract in question was fairly and voluntarily entered into by the complainant when sui juris, and, being such, divested and divests her of all claim of dower, without reference to the amount of the consideration which she may have been satisfied to accept instead of dower, or to the extraneous circumstances set forth in the opinion of the Court below, and by which its judgment appears to have been controlled. That they are no more in the position of parties seeking to enforce specific performance than any other defendants, in any case, who set up the complainant's contract as against pretensions in the bill which are inconsistent with it. On the contrary, the complainant is in [**4]  the attitude of seeking to impeach her own deed, and is, therefore, subject to the onus which attaches to that proceeding. 1 Washburne on Real Property, 263 to 270. 1 Bright on Husband & Wife, 447-48. 2 Sugden on Vendors, 219. Power vs. Sheill, 12 Eng. Ch. Rep., 147. S. C., 1 Molloy, 296. Dyke vs. Randall, 13 Eng. L. & E. Rep., 411. Stilly vs. Folger, 14 Ohio, 610. Cauley vs. Lawson, 5 Jones' Eq. (N. C.) 134. Findley vs. Findley, 11 Grattan, 437. Mory vs. Michael, 18 Md. Rep., 227. Roper on Husband & Wife, 470, &c. Gelser vs. Gelser, Bailey's Eq. Rep., 389. 11 Md. Rep., 419. 1 Code, Art. 16, sec. 30.

George H. Williams and Joseph L. Brent, for the appellee:

I. To bar a widow of dower in this State, some estate should be settled by her husband by jointure or settlement before marriage. 1 Code, Art. 93, sec. 289. In this case there is no proof of any such settlement.

The marriage agreement, relied on in the answers, does not satisfy at law the requirements of the Code, it being, at best, nothing but an agreement, and its specific performance is practically sought to be enforced in this case. This a Court of Equity will not do, because its legal existence is not fairly [**5]  established. Though executed before justices, there is no evidence that the husband ever acted upon it, or proof that he ever designed to act upon it. The failure to record it, and keeping it in his desk privately, is presumptive proof that he did not mean to act upon it. The recital in the paper that she was in possession of property both real and personal, is not true, even the deed of the ground-rent of $ 24 per annum, though dated before the marriage, is found not recorded at his death, and there is no proof even of its delivery to her in his lifetime, before or after marriage. Power vs. Shiel, 1 Molloy's Rep., 296. 12 Cond. Eng. Ch. Rep., 148. McContee vs. Teller, 2 Paige, 511.

Even if the legal existence of the paper be established, yet it does not, on its face, express itself to be in lieu of dower, and the provision for the wife is not only inadequate, but it could not have been fairly and intelligently entered into, and a Court of Equity will not permit nor lend its aid to so monstrous and unreasonable an agreement to bar one of the most highly favored of legal rights. On the one side, the proof is of a widow in a state of destitution and supported by charity, on the [**6]  other, an estate of upwards of $ 54,000, in which she is entitled to dower sought to be defeated by a pretended marriage agreement, and a deed of $ 4000 worth of property not delivered.

II. At common law a woman had no ability, by any ante-nuptial contract, to bar herself of her claim to dower in the lands of her intended husband.

The estate of dower was created and fostered by the ancient policy of the law; and even a jointure regularly settled on the woman, in anticipation of marriage, did not, by the common law, divest her of her dower. But by the 27th Henry 8th, it was first provided that when an estate in lands was secured to a wife by way of jointure, previous to marriage, it should bar her claim of her dower, but if the jointure was settled on her during her coverture, she had the election of accepting the jointure, or of enforcing her dower.

This statute was in force in Maryland--see Kilty's Statutes --and provides the only method by which, antecedent to marriage, the woman can be barred of her dower. But sec. 9 of this statute regarded the right to dower as a valuable right, and that the jointure accepted by the wife was the consideration for her waiving her [**7]  title, and in case of the failure of any property settled on her by way of jointure, she was then remitted to her original title of dower for compensation.

And this principle has been constantly asserted and maintained by the Courts. Hastings vs. Dickerson, 7 Mass., 153. Gibson vs. Gibson, 15 Mass., 105. Vance vs. Vance, 21 Maine, 366. Blackman vs. Blackman, 16 Ala., 634. Whitehead vs. Middleton, 2 How., (Miss.,) 692. 1 Washburn on Real Prop., 270. Roper on Husband & Wife, 470.

Our Code, in adopting the provisions of this statute, extended this principle of compensation to devises of personal as well as real property, made by the husband to the wife in lieu of her dower and thirds, by declaring that if she accepted the devise, she should be considered a purchaser for a fair consideration. Sec. 288, Art. 93.

III. But assuming that the deposition of Basil Root is competent testimony, then this ante-nuptial agreement does not contain a true statement of the contract between the parties. Root states that Maurer claimed that, including a ground-rent, he had settled four thousand dollars upon the appellee, who assented to his statement.

It does not appear how such settlement [**8]  was made, how secured, or whether it has ever been effective, or produced anything for the support of the appellee.

Whatever the agreement was, it rested in parol, and the record establishes beyond peradventure, that it was never carried into execution.

Even the ground-rent has failed, for the deed, not being recorded in the lifetime of the grantor, nor ever having been shown to have passed out of his possession, or to have been delivered, is insufficient to vest the wife with the legal title.

But, by the statute of frauds, no parol agreement can be set up to defeat the complainant's right of dower in lands, and hence, even if the parol contract were established with clearness, it must fail, but it is too vague to be recognized, even if valid. Roper on Husband & Wife, 471-2. Harding vs. Hull, 5 H. & J., 478.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*537]  COCHRAN, J., delivered the opinion of this Court.
This bill was filed by the appellee for an allowance of dower in the real estate of which her husband, Paul Maurer, died seized. The appellants admit the material allegations 

 [*538]   [**9]  of the bill, but aver, by way of defence, that her right to dower was barred by an ante-nuptial contract with her husband, a copy of which they exhibit with their answer. As both sides concede, the question to be decided depends upon the true operation and effect of that instrument. We have considered, with much diligence and care, the circumstances under which this contract was executed, as well as the relations previously and then existing between the contracting parties; and we find, apart from those portions of the evidence covered by exceptions taken in the Court below, enough to satisfy us that the contract was entered into in good faith, and with a full and clear understanding of the purpose contemplated by its terms. There is not the slightest evidence that its execution was induced by imposition or fraud, or that the appellee was, from any cause, incompetent to bind herself by its stipulation. The contract was made in contemplation of marriage, and, as clearly appears, was intended to bar or prevent the acquisition thereby of any right by either in the property of the other, in order that the marriage proposed might take place. The main object in view was the consummation of [**10]  the marriage, and it was to that end that the contract was executed. It seemed almost impossible to view the contract as founded on any other consideration, although the reciprocal character of the stipulations might be held to constitute one sufficient to make the contract binding and effective. But whether the marriage they proposed be expressly mentioned as a consideration or not, we think it must be regarded as such within the purview and meaning of the contract; and we accordingly hold that the contract cannot be avoided on that ground, nor can its legal operation be affected by the 289th section of Art. 93 of the Code. That is a simple statutory declaration, that a settlement of property by jointure or otherwise, on a woman by her husband, before marriage, shall bar her of dower in his lands; but it goes no further, and cannot be said to deprive 

 [*539]  her of the power to bar her right to dower by any other form of ante-nuptial contract. It amounts to nothing more than a declaration of the effect of the settlement in that class of cases. This, however, is not the case of a settlement or jointure, but of a contract, by which the appellee has expressly relinquished all right [**11]  to claim any estate or interest in the property of her deceased husband; a contract executed in good faith by parties legally competent, and, as we have said, sustained by a good consideration. Her power to bind herself by such a contract, in equity, must be admitted, and we do not doubt that this contract constitutes an equitable bar to the claim sought to be enforced by this bill. The authorities upon this point are full and conclusive. In Dyke vs. Randall, 13 Eng. L. & E. Rep. 404, the Lord Chancellor, in distinguishing an equitable from a legal bar of dower, says: that as to an adult, it may depend upon contract, and "that there is no doubt you may bar any possibility; you may deal with your rights in this Court, of whatever nature they may be, by contract fairly entered into." In the case of Cauley vs. Lawson, 5 Jones Eq. 132, an agreement between parties contemplating marriage, "that neither, after the death of one, should claim anything belonging to the other before marriage," was held sufficient in equity to bar the right to dower; and so, also, in Findley's Ex'rs vs. Findley, 52 Va. 434, 11 Gratt. 434, it was said that parties,  [**12]  when about to contract the relation of husband and wife, "may by agreement vary or wholly waive the right of property which would otherwise result from the marriage." The case of Gelser vs. Gelser, 1 Bailey's Eq. Rep., 387, is also in point. The agreement there, as here, was, that neither of the parties, upon the death of either, should claim any interest or estate in the property of the other; and this agreement was determined to be an equitable bar to the claim of dower.
This is not a case in which specific performance of the contract is sought by the appellants, as the appellee suggests, 

 [*540]  but one in which she seeks relief in violation of an agreement by which she is equitably bound; an agreement which, unimpeached, attaches to and suspends, or extinguishes the right or claim she seeks to have enforced; and it was therefore necessary for her, in making out a case upon which the relief sought could be granted, to show some defect in the contract upon which it could be declared void. This has not been done, and her claim to dower in her husband's property must, upon this record, be treated as barred by the contract. The 30th sec. of Art. 16 of the Code, giving Courts [**13]  of Equity concurrent jurisdiction with Courts of Law in cases of dower, cannot affect this disposition of the case. That section, as we understand it, does not, in giving jurisdiction to Courts of Equity in such cases, confer the simple jurisdiction of a Court of Law, or limit the Courts of Equity in adjudicating claims for dower, by rules applicable only to proceedings at law. According to our construction of this provision, Courts of Equity are authorized to proceed according to the usual course in such Courts, and to determine and finally adjudicate claims for dower, by the principles and rules of equity; and in our opinion, where proceedings are had in equity to enforce a claim for dower the equities of the case should be considered and decreed upon accordingly.
Upon this consideration of the case, we shall reverse the decree of the Court below, and dismiss the bill without costs.
Decree reversed and bill dismissed. 

50 of 120 DOCUMENTS 

THE CECIL BANK vs. WILLIAM HEALD, G. SPURRIER, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 562; 1866 Md. LEXIS 79 

July 19, 1866, Decided 

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

This was an action brought by the appellant against the appellees to recover the sum of $ 3,438.85 alleged to be the proceeds of certain promissory notes sent by them to Josiah Lee & Co., endorsed, "for collection," which sum it was also alleged the said Lee & Co. had paid over, when collected, to the appellees, in payment of their own pre-existing debt. The facts are sufficiently stated in the opinion of this Court. The questions which have been passed upon by this Court on this appeal, arise upon exceptions taken by the plaintiff to the rulings of the Court below, (MARTIN, J.,) as to the inadmissibility of certain evidence offered by the plaintiff, and rejecting the prayers of the plaintiff, and granting those of the defendant.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

PROMISSORY NOTES: RIGHTS OF BONA FIDE HOLDER OF NEGOTIABLE PAPER FOR VALUABLE CONSIDERATION, WITHOUT NOTICE. -- The Cecil Bank enclosed to J. L. & Co., of Baltimore, certain promissory notes endorsed "for collection." The notes being payable in Jersey City were remitted by J. L. & Co., endorsed "for collection," to a bank in that city, which having made the collections and deducted therefrom the amount due the bank by J. L. & Co., remitted the balance by check on a New York bank to J. L. & Co., payable to their order. On the 30th of October, 1860, J. L. & Co. failed, and on the 31st endorsed said check in blank and sent it to S. H. & E. in part payment of a debt due them by said J. L. & Co. The Cecil Bank sued S. H. & E. to recover the proceeds of the check. -- HELD:

1st. That the check being a negotiable instrument, though given in part payment of such a debt, if it was received in good faith and without any notice of the right or claim of the Cecil Bank, by S. H. & E., they were entitled to the benefit of the payment.

2nd. That the general principle of commercial law, that a bona fide holder of a negotiable instrument for a valuable consideration without notice, will be protected against the antecedent equities of the original parties, is fully established, as also the doctrine that the holder will be protected where the instrument is applied in payment of an antecedent debt, regarding such antecedent debt as a valuable consideration.

PRACTICE: EXCEPTION, -- WHEN TO BE TAKEN: PRESUMPTIONS: WAIVER. In the process of the trial certain evidence having been offered by the plaintiff and objected to by the defendants, and the objection sustained, was not pressed, but prayers were submitted on both sides. In the argument on the prayers, the plaintiff's counsel stated, that before the jury he would rely upon the said evidence, which being objected to by the defendants, and the objection sustained, the plaintiff excepted. -- HELD:

That the exception was not taken in proper time, and it will be presumed that the objection was waived. 

COUNSEL:
J. Mason Campbell and George H. Williams, for the appellant, argued:

That the Act of 1836, chap. 97, authorizing special partnerships in this State, prohibits any such as to banking, and that the business of the appellees having been proved to be that of banking, all the appellees are liable as general partners; that even if the terms of the partnership were known to the appellant [**2]  prior to the payment over of the check, it would make no difference, but that of such knowledge there was no evidence; and that the money of the appellant having been carried into the funds of said banking house in payment of a debt due to it, theretofore existing, all the partners are equally liable for its return.

That in collecting said notes, Lee & Co. were special agents of the appellant for the purpose of collection, and had no other power or duty in regard to them but to collect and pay over; and that no knowledge of Lee & Co., as to a special partnership of the appellees, affects the appellant, unless the partnership was specially connected with, or had reference to, the matter of the special agency.

That their fraud in appropriating the property of the appellant to pay therewith a debt antecedently existing from them to the appellees, could not transfer the property to the appellees, and the withholding of the same by the appellees, after demand, makes them participants in the fraud.

That to obtain a title to the funds of appellant, the appellees must, at the time of so receiving, have given some consideration therefor, or some new credit, or extended some old [**3]  credit on the faith of such payment; and that receiving it simply in payment of an antecedent debt, will not enable them to acquire title. T. Wilson & Co. vs. Smith, 3 How., 763. (Id.,) 1 How. S. C. Rep., 235. Bank of Metropolis vs. New England Bank, 6 How., 212. McBride vs. The Farmers Bank, 25 Barb., 658. Cecil Bank vs. Farmers Bank of Md., 22 Md. Rep., 148. 4 Abbott's Dig., 88. Wieser vs. Dennison, 6 Selden, 68, 76. 3 Kent's Com., 27. Girard vs. Pratt, 2 Stark., 57. Buller vs. Harrison, Cowp., 565. Cranch vs. White, 27 Eng. C. L. Rep., 438. Coddington vs. Bay, 20 Johns., 637. Farrington vs. Franklin Bank, 31 Barb., 187. Bramwell vs. Becket, 31 Maine, 205. Lawrence vs. Stonington Bank, 6 Conn., 521. Goodman vs. Simonds, 20 How., 370. Andrews vs. Shott, 10 Barr., 447.

That Lee & Co. having failed and closed their banking house on the 30th, and having the next day transferred their business and mail matter to the appellees, anything received thereunder was not received in due course of business; it was rather received in an unusual and extraordinary course of business; and their knowledge that Lee & Co. were bankers and collecting agents sufficed of itself after their failure [**4]  to put the appellees, to whom everything was transferred, upon enquiry as to true ownership.

For the aforegoing reasons, the Court erred in admitting the evidence, to which the appellant objected in the first bill of exceptions, and in rejecting the appellant's prayer, and granting the prayers of the appellee.

Also, that the Court erred in rejecting the evidence of Gerard Gover set forth in the third bill of exceptions. The whole was rejected, part was certainly good; it brought home the knowledge of the failure of Lee & Co., and the transfer of all the business, on the very day this check was received and paid to the appellees, and thereby rebutted the proof that it was received either in good faith or in due course of business by them; and the Court, in denying the right of the plaintiff to give this proof, denied the right to disprove what the appellees, in their second prayer, considered vital to their defence, and what the Court, in like manner, considered vital in granting the prayer. The proof was admissible whether the witness knew of his own knowledge or not, any thing of the delivery over of the check in question; the transfer of all the business of the day carried [**5]  with it, either full knowledge of everything relating to the business of the day, or put them upon enquiry; and the accepting the transfer of Lee & Co's business on that day, obliged the appellees to do, with regard to the business of that day, everything that Lee & Co. should have done; this check, that day received, instead of sending to its lawful owner, they wilfully and fraudulently appropriated, with what the law imputes as full knowledge, and the evidence of said Gover was directly to establish this point.

Thomas S. Alexander and Theo. B. Horwitz, for the appellees:

1st. The appellee, Heald, was a special partner in the firm of Spurrier, Honeywell & Evans. But it was claimed on the part of the plaintiff, that a limited co-partnership, for the purpose of banking, was not legalized by the Code, Art. 72, and that by the general rule of law, Heald was responsible, as general partner, for all the debts of the partnership. To meet this pretension the defendants proved, that at the time of the commencement of business relations between the two firms, the firm of Josiah Lee & Co., (through whom the plaintiff was obliged to claim,) had notice of the terms of agreement of co-partnership [**6]  of Spurrier, Honeywell & Evans. This evidence was objected to by the plaintiff, but the objection was overruled, and the evidence was given to the jury.

And at a later stage of the cause, the Court, by rejecting the plaintiff's prayer and granting the first prayer on the part of the defendants, virtually instructed the jury that at the time of dealing between the two firms, Josiah Lee & Co. had notice of the terms of agreement under which the firm of Spurrier, Honeywell & Evans was carrying on business, and that neither the former firm, nor any person claiming through that firm, could charge Heald with any greater responsibility than he had assumed by said agreement. Story on Agency, secs. 140, 451. Weiser vs. Dennison, 10 N. Y. Rep., 77. Story on Contracts, secs. 203, 206. Gow. on Part., 4. Story on Partnership, secs. 128, 74 & 18, 19. Collyer on Partnership, secs. 98, 387, 388, 389. Winship and others vs. The Bank of the U. S., 5 Peters, 561, 564. Willis vs. Dyson, 1 Starkie, 164, (2 Eng. C. L. Rep., 340.) Galway vs. Matthew, 1 Campbell, 405. Leavitt vs. Peck, 3 Conn. Rep., 128. Hastings et al. vs. Hopkins et al., 28 Vt., 116, 117, (2 Williams.)

2nd. In response to the [**7]  second instruction given, the jury have found that the check remitted by the Merchants and Traders Bank to Josiah Lee & Co., was endorsed and paid over by the said firm to the defendants, and that said payment was accepted by the defendants in good faith, in due course of business, and without any notice of the pretended right or claim of the plaintiff to said check.

The plaintiff's prayer (which was rejected) insisted, that if the notes offered in evidence were specially endorsed by the plaintiff to Josiah Lee & Co., and that said firm received from its correspondent in New Jersey, on account and in part of the proceeds of said notes, the check in question, and that said check was paid over to the defendants, and that the defendants received the money therefor, then the plaintiff was entitled to the verdict, although the said payment over was on account of an indebtedness of the said Josiah Lee & Co. to the defendants, theretofore existing, and by necessary implication, although such payment was received in good faith, in due course of business and without notice of the pretended right or claim of the plaintiff.

The appellees insist, that the plaintiff's prayer was rightly [**8]  overruled, and the second prayer offered on the part of the defendant was rightly granted. It is not to be overlooked, that the check in question was payable to Josiah Lee & Co., and was remitted expressly in payment of a balance due to that firm by the Merchants and Traders Bank.

That a payment made in discharge of a pre-existing indebtedness, received in good faith, in due course of business, and without notice of the right or claim of the third person to the money so paid, will be a good payment as against such third person. Goodman vs. Simonds, 20 Howard S. C., 371, 372. Magee vs. Badger, 35 Barbour, S. C., N. Y., 264. McCreedy vs. Robert Cann, 5 Harrington, (Del.,) 175. Dixon vs. Dixon, 31 Vt., 455, (2 Shaw.) Bank vs. Chambers & Frost, 11 Richardson S. C. Rep., 661. Bank of the Republic vs. Carrington & Others, 5 R. I., (2 Ames,) 520. N. Y. Marbled Iron Works vs. Smith, 4 Duer, 377. Carlisle vs. Wishart, 11 Ohio, 191, 192. Williams vs. Little, 11 N. H., 70, 71. McCasky vs. Sherman, 24 Conn., 612. Roxborough vs. Messick et al. 6 Ohio N. S., 452, 453. Gwynn & Co. vs. Lee et al., 9 Gill, 141, 142. Ellicott vs. Martin, Love & Co., 6 Md. Rep., 515, 516. Swift vs. Tyson, 16 Peters,  [**9]  14, 20, 21, 22. 2 Parsons on Notes & Bills, 84.

3rd. It will be apparent that the objection taken by the defendants to the testimony of Gerard Gover, as disclosed by the third bill of exceptions, was taken to the statement by the witness "that on the 31st of October, 1860, all the mailed letters of the firm of Josiah Lee & Co. and the business of the firm of that day were handed over to the defendants." This, we say, will be apparent, as well from the structure of the entire exception as from the statement in the first exception that the plaintiff proved at the trial, "that Josiah Lee & Co. had failed on the previous day, and were utterly insolvent, and had never resumed business." After this proof had been admitted, without objection, it is not to be imagined that the defendants would have objected to the statement by this witness, that the firm of Josiah Lee & Co. "failed and closed its banking house on the 30th of October, 1860," and if the objection had been made, it is yet less credible that the plaintiff would have acquiesced in the objection. But the objection being made and the witness having further stated that he could not speak of the delivery of the check in question,  [**10]  as of a fact within his own knowledge, the objection was renewed and acquiesced in and the witness was withdrawn, and, as a necessary consequence, the statements were excluded.

At a later stage of the trial, that is, after the examination of the witnesses had been closed, and the prayers had been submitted, in the course of the argument thereon, the counsel for the plaintiff stated, that he would, in his argument before the jury, rely on the above statement of the witness as proof that the said check had not been passed over "in due course of business." The counsel for the defendants insisted, that the said statement was not in evidence in the cause. He stated, further, that at the time of the examination of said witness, the defendants had in Court witnesses by whom they would have explained any unfavorable inferences which could have been drawn from the statement of the witness, and if their objection had been overruled they would have examined said witnesses to that point. And said counsel further offered to permit said testimony to go to the jury, provided said rebutting testimony was also permitted to go to the jury. But the Court rejected the tender so made by the defendant's [**11]  counsel, declaring that the said statement, so made by the witnesses, was inadmissible as evidence and was to be treated as out of the case, to which declaration and opinion of the Court, and its refusal to permit the said statement to be used as evidence before the jury, the plaintiff excepted.

The exception was, therefore, taken to the refusal of the Court to permit the plaintiff to use, as evidence, the statement of a witness which was objected to when made, and had been withdrawn in consequence of such objection.

The plaintiff did not ask leave to re-examine the witness, upon the ground of misapprehension as to the effect of the withdrawal of the witness in the face of the objection. Nor did he accept the offer of the defendants to withdraw the objection, on condition that their rebutting evidence should be admitted. The pretension was, that the statement was properly in evidence and might be used as such, and the Court decided, simply, that it was not in, and could not be used as evidence.

It is submitted:

1st. That this decision is not subject to revision or appeal.

2d. That it was properly made. By acquiescing in the objection made by the defendants,  [**12]  the plaintiff avoided a decision thereon by the Court, and his withdrawal of his witness under the circumstances, ought to be attended with the same consequences as if the evidence had been formally excluded.

3d. But if the exception had been taken to the formal exclusion of the statement as inadmissible evidence, it could not be sustained. It was not shown that the check was paid to the defendants at or after the time when it is alleged the mail matter of the day was handed over to them. And if the payment of the check and delivery over of the mail matter had been contemporaneous, the defendants would have had no notice of the pretended right of the plaintiff to the check, nor of any fact which would have put them upon inquiry. The letter enclosing the check stated that the remittance was made for balance in the hands of the remitters, belonging to Josiah Lee & Co. And it was not shown that the defendants had any notice of dealings between the plaintiff and Josiah Lee & Co. Unless, therefore, it can be maintained that the delivery by a failing house of its mail matter for the day to a favored creditor, obliges the latter to take notice of and enquire into the state of accounts [**13]  between that house and all its customers, and deprives a creditor of the house of his right to accept payment out of funds prima facie belonging to and in the actual possession of the house, the evidence tendered must be deemed inadmissible.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*571]  GOLDSBOROUGH, J., delivered the opinion of this Court-- BARTOL and COCHRAN, J., dissenting:
The appellant instituted suit in the Superior Court of Baltimore city, to recover from the appellees the sum of $ 3,438.85 alleged to be the proceeds of certain promissory notes sent to Josiah Lee & Co., specially endorsed "for collection.' These notes were payable in Jersey city, New Jersey, and were transmitted by Lee & Co., to J. S. Fox, Cashier, and endorsed "for collection." They were collected by Fox, as Cashier of the Mechanics and Traders Bank of Jersey city, who, after deducting from the amount collected a balance due by Lee & Co. to said Bank, remitted the residue by check on the Continental Bank of New York. This residue is the amount claimed by the appellant.
This check was remitted to Josiah Lee & Co., made payable [**14]  to their order, dated the 29th of October, 1860, and received on the 31st of the same month. Lee & Co. endorsed it in blank and sent it, on the last named day, to the appellees, who applied it in part payment of a debt due by Lee & Co. to the appellees.

 [*572]  Lee & Co. failed on the 30th of October, the day before they sent the check to the appellees, and on an investigation of their affairs they were found to be utterly insolvent.
At the trial, the plaintiff proved that the defendants, as bankers, were partners under articles of co-partnership by which they were associated for the purpose of conducting "a banking, bank note, exchange, bill broking and stock business." It also appeared that William Heald, one of the alleged partners, had contributed $ 30,000 as special partner, and that he had stated his intention not to draw his share of profits, but to suffer them to accumulate for the benefit of Spurrier, one of the defendants, his son-in-law, and Spurrier's children, who were his, Heald's, grandchildren.
In the progress of the trial, three exceptions were taken by the appellant to the ruling of the Court. The first relates to the objection to evidence offered by the [**15]  appellees that Lee & Co. had notice of the terms of agreement for special partnership between the appellees, the appellant insisting that such proof would not affect it; the Court overruled the objection and admitted the evidence.
The second exception was taken by the appellant to the ruling of the Court rejecting its prayer and granting the two prayers of the appellees.
The third exception was taken because the Court declared the evidence of Gerard Gover, offered by the appellant, inadmissible, and that it was to be treated as out of the case. The circumstances attending this exception will be noticed in treating of it.
In disposing of the questions presented by these exceptions we shall reverse the order of them, and first consider the third exception. This exception was not, in fact, taken until the prayers of the respective parties had been submitted. No exception was taken to the opinion of the Court when first announced; the appellant, therefore, must be presumed to have waived its objection. The ruling of the Court was fully 

 [*573]  justified under such circumstances. See Davis vs. Patton, 19 Md. 120, and the cases there cited.
The second exception [**16]  involves the ruling of the Court in granting the appellees' second prayer. It is important, in this connection, to recur to the appellant's cause of action. The suit was brought to recover from the appellees the amount received by them on a check of the Mechanics and Traders Bank of New Jersey, on the Continental Bank of New York, payable to the order of Josiah Lee & Co., by them endorsed in blank, and given to the appellees in part payment of an antecedent debt due by Lee & Co. to the appellees.
This check was, therefore, a negotiable instrument; and though given in part payment of such a debt, if it was received in good faith and without any notice of the right or claim of the appellant to the proceeds of the check, we think the appellees were entitled to the benefit of the payment. The appellant cannot complain of the prayer as granted. It submitted to the jury to find the facts deemed essential by the Court to the appellees' defence.
The general principle of commercial law, that a bona fide holder of a negotiable instrument for a valuable consideration, without notice, will be protected against the antecedent equities of the original parties, is fully sustained by numerous [**17]  authorities, and they uphold the doctrine, also, that the holder will be protected when the instrument is applied in payment of an antecedent debt, regarding such antecedent debt as a valuable consideration. In Swift vs. Tyson, 16 Peters S.C. 1, the Supreme Court declared: "We are prepared to say, that receiving it in payment of, or as security for, a pre-existing debt, is according to the known usual course of trade and business; and why, upon principle, should not a pre-existing debt be deemed a valuable consideration?" Again the Court say: "The question has been several times before this Court, and it has uniformly been held, that it 

 [*574]  makes no difference whatsoever as to the rights of the holders, whether the debt, for which the negotiable instrument is transferred to him, is a pre-existing debt, or is contracted at the time of transfer. In each case he equally gives credit to the instrument." In quoting with approbation these extracts, we adopt the law there announced, so far only as it is applicable to the facts of this case. We are not to be understood as expressing any opinion upon the right of a holder of a negotiable instrument received by him "as security [**18]  for a pre-existing debt."
The case of Swift and Tyson was elaborately argued, and the authorities, both in England and in this country, carefully collated and reviewed in the opinion of the Supreme Court.
In the case of Goodman vs. Symonds, 20 How. S.C. 343, decided in 1857, the case of Swift and Tyson is recognized in the following emphatic language: "A well defined and correct exposition of the rights of a bona fide holder of a negotiable instrument was given by this Court in Swift vs. Tyson, (16 Peters 1,) as long ago as 1842, and we accept that exposition relative to the point under consideration, on the present occasion, as one accurately defining the nature and character of the title to those instruments which such holder acquires when they are transferred to him for valuable consideration."
In Goodman vs. Harvey, 4 Adol, & Ellis 870, Lord DENMAR said: "Where the bill of exchange has passed to the plaintiff without any proof of bad faith in him, there is no objection to his title." We have only to reverse the parties to make this decision applicable to the case at bar. See Ch. on Bills, 12th Ed., 257.  [**19]  
The Superior Court having properly granted the appellees' second prayer, ruled correctly in refusing to grant the prayer of the appellant. And a majority of this Court having sanctioned the ruling of the Court in granting the appellees' second 

 [*575]  prayer, it is unnecessary to pass upon the question of notice contained in the first exception, or the question of partnership embraced in the appellees' first prayer.
Judgment affirmed. 

51 of 120 DOCUMENTS 

DANIEL MCCANN ET AL., ADMRS., &c., vs. SLOAN & CALDWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 575; 1866 Md. LEXIS 80 

July 19, 1866, Decided 

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

This action was brought by the appellees against the appellants, as administrators of James H. Nussear, on the 18th of June, 1863. The declaration contained the common money counts, a count for work done, and also a count on a promissory note. The defendants pleaded, 1st, non-assumpsit; 2nd, non-assumpsit infra tres annos; 3rd, actio non accrevit infra tres annos; and 4th, plene administravit. At the trial several exceptions were taken on both sides,--those of the appellants only need be stated.

First Exception. The plaintiffs proved the grant of letters of administration on Nussear's estate to the defendants, on the 14th of November, 1859; and then offered in evidence this certificate from the Register of Wills, dated August 20th, 1861:

"It is hereby certified, that it appears from the docket of accounts against the estates of deceased persons, being one of the records of this office, that an account against the estate of James H. Nussear, deceased, amounting to $ 374.43, and due to Sloan and Caldwell, (which is said to be lost or mislaid,) was regularly passed and recorded in the words and figures following, to [**2]  wit: "Date, 1859, No. 29; name of the deceased--James H. Nussear; names of the creditors--Sloan and Caldwell; character of the claims--account; amount of claims--$ 374.43." The Court admitted this certificate to go to the jury for the purpose only of proving notice to the defendants, that such an account had passed the Orphans' Court. At the time of offering this evidence, the plaintiffs' attorney stated he had served a notice on the defendants' attorney, directed to the defendant, Daniel McCann, requiring him to produce at the trial the cause of action, being the original account passed by the Orphans' Court, and delivered to him by the plaintiffs, and that he had failed to produce it. The Court decided this notice was served in time.

The plaintiffs then offered the bond of the defendants, given as administrators, for the purpose of showing their joint liability, and the Court allowed the paper to be read to the jury, subject to exceptions to be raised on their prayers.

The plaintiffs then undertook to prove their claim, and to lay a foundation for the introduction of the plaintiffs' book, and to prove the handwriting of the entries therein by Featherstone, their clerk,  [**3]  at the date of the entries; they offered proof by Ray, that Featherstone was salesman and book-keeper for the plaintiffs in 1859, and that he understood he was dead; that he had heard from all his friends and acquaintances, that he had died in some place in Virginia; heard a year ago that he was dead; saw him frequently, and missed him in April, 1861. They further offered to prove by Martin, that he knew Featherstone, that he left Baltimore in April 1861, that he told witness he was going South, and he missed him in April, 1861; he went South, and witness heard from his friends and relations that he was killed in the Confederate service; heard so from Featherstone's uncle. The Court decided this evidence sufficient to authorise the plaintiffs to introduce evidence, that the entries in their books were in the handwriting of Featherstone, their clerk, and to this ruling the defendants excepted.

2d Exception. [The plaintiffs then made an ineffectual effort to prove their claim by the introduction of their books, as stated in their two exceptions. These need not be referred to further than to state, that the rulings of the Court expressly threw out all the evidence in support of [**4]  the plaintiffs' claim, and up to this stage of the trial there was no proof, whatever, of any claim on their part.]

The plaintiffs then offered in evidence a promissory note, proved to have been executed by the intestate in their favor, dated January 29th, 1859, payable at one day after date, for $ 176.75. They then proved by Martin, that he knew McCann, one of the defendants, and that witness, in company with Caldwell, one of the plaintiffs, met McCann on the 25th of March, 1861, on the street, when Caldwell asked him, (McCann,) why he had not paid the plaintiffs' claim; to which McCann answered, he had not collected sufficient assets; witness then asked the plaintiff why he did not cite the defendant before the Orphans' Court; the defendant said he had been cited before the Court, and that the plaintiff would have got his claim long before, if he had not done so; that the claim was perfectly good; that he got six months from the Court, and could get six months more. On cross-examination, he said he recollected the conversation, and the date of it, because he took a memorandum thereof at the time, which he produced, and is as follows:

"On the 25th day of March, 1861, Mr.  [**5]  S. R. Caldwell and myself met Dan. McCann, corner of Gay and Second st.; Mr. C. asked why the Nussear balance was not paid. Mr. McC. said he had not collected sufficient yet. I asked Mr. C., why he did not cite him to Court; Mr. McC. said he had done so, and had he not, he would have paid him his money before this, the claim was good; that he, McC., had got six months and could get six months more of the Court."

To all of which evidence the defendants objected as being inadmissible to remove the bar of the Statute of Limitations as against the co-administratrix, Mrs. Nussear, or to prove the original indebtedness of the deceased to the plaintiffs; which objections the Court overruled, and the defendants excepted.

3d Exception. The plaintiffs then offered in evidence a certified copy of the first administration account of the defendants, as administrators, passed in the Orphans' Court on the 27th of August, 1861, and showing a balance due the estate of $ 3,727.20, for the purpose of proving assets in the hands of the defendants; to which the defendants objected, and insisted that a full record from the Orphans' Court must be tendered. The Court overruled the objection, and [**6]  allowed the account to go to the jury, and to this ruling the defendants excepted.

4th Exception. The plaintiffs then proved by O'Neill, that he called upon Mrs. Nussear, one of the defendants, in reference to the plaintiffs' claim, about December, 1863, and she referred him to McCann, and said she knew nothing about it, that it was under his charge.

Two prayers were offered by the plaintiffs, and four by the defendants. The Court rejected the prayers on both sides, and gave the instruction as set forth in the opinion of this Court. The defendants excepted to the rejection of their prayers and to the instruction given by the Court.

The case was tried in January, 1864, and the jury rendered a verdict in favor of the plaintiffs for $ 459.43, and the defendants moved for a new trial, and in arrest of judgment, for the reasons stated in the record. The Court overruled both motions, and the defendants appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

LIMITATIONS, -- WHEN BARRED BY PROMISE OR ACKNOWLEDGMENT OF ONE OF TWO JOINT ADMINISTRATORS: EVIDENCE. -- In an action against joint administrators to recover a claim alleged to have been due by their intestate, a promise or acknowledgment by one of them is sufficient to remove the bar of the Statute of Limitation as against both, provided the existence of the claim has been established by proof aliunde, especially where such promise or acknowledgment is made before the statute has operated upon the claim.

Such promise or acknowledgment cannot, however, be relied upon for the purpose of establishing the existence of the debt as against the administrator, who is not a party to the promise -- proof aliunde being indispensable for that purpose.

PROCEDENDO. -- Where the judgment below has been for the plaintiffs, and is reversed on the defendants' appeals, and it appears from the plaintiffs' exceptions contained in the records, that the ruling of the Court below thereby excepted to was correct, there is no ground for granting a procedendo. 

COUNSEL:
O. Miller, for the appellants:

1st. There is error in the Court's instruction to the jury in this, that the jury were told by it, in effect, that the admission or acknowledgment of one of two administrators was sufficient to remove the [**7]  bar of the Statute of Limitations pleaded in this case. Kent vs. Wilkinson's Adm'rs, 5 G. & J., 497. Gardiner & Bowling vs. Hardy & Sims, 12 G. & J., 384. Hesson vs. Hesson, 14 Md. Rep., 8. Caruthers vs. Mardis, 3 Ala., 599. Forsyth vs. Granson, 5 Wend., 561. Atkins vs. Tredgold, 2 Barn. & Cress., 23. Tullock vs. Dunn, 21 Eng. C. L. Rep., 478. Connoway vs. Spicer, 5 Harrington, 425. McCullough vs. Dawes, 22 Eng. C. L. Rep., 385. Scholey vs. Walton, 12 Mees & Wels., 509. Cayuga Bank vs. Bennett et al., 5 Hill, 336. Lane vs. Doty, 4 Barb., 535. 14 Wend., 93. 24 Ala., 474, 475.

2nd. The prayer is also wrong, inasmuch as it assumes that the acknowledgment testified to by the witness, Martin, was not only sufficient to remove the bar of the statute, but also to establish the existence of the debt without any proof thereof aliunde. See same authorities as above, and also Wood vs. Howell, 5 H. & J., 60. Miller vs. Dorsey, 9 Md. Rep., 323. Quynn vs. Carroll, 10 Md. Rep., 208. Seighman vs. Marshall, 17 Md. Rep., 569. Oakes vs. Mitchell, 15 Md. Rep., 360. 7 Conn. Rep., 172. 2. Const. Rep., 767, (S. C.) Chapman vs. Dixon, 4 H. & J., 527.

3rd. Under the plea of plene administravit, the [**8]  onus of proving assets is on the plaintiff, and he must produce the record of the proceedings in the Orphans' Court. A mere copy of an account passed on the 27th of August, 1861, and which purports on its face to be the first and not the final account, without any other evidence, is not sufficient proof of assets in a suit commenced in June, 1863. The prayer was therefore erroneous in assuming there was sufficient proof in the case from which the jury could find assets in the hands of the defendants. Seighman vs. Marshall, 17 Md. Rep., 569.

4th. The prayer was also erroneous in instructing the jury that the plaintiffs were entitled to recover without stating on what account. The note was in evidence, but limitation was a clear bar to that, as there was no evidence whatever that it formed part of the account passed by the Orphans' Court. By the instruction, the jury were left at large to include in their verdict this note as well as the account.

5th. For the same reason as stated in the preceding points, there was error in the Court's ruling in the second and third exceptions, which in fact raise only the same questions which are raised on the prayers.

A. H. Hobbs, for [**9]  the appellees:

1. It is clear that the promise of one of two or more joint administrators will remove the bar of the Statute of Limitations, and especially will it so operate if the promise is made before the statute applies. 7 Gill, 102. 2 Smith's Lead. Ca., 387, 388, (5th Ed.) 4 Cow., 494, 495. 2 Monroe, 131. 4 Id., 37, 38. 5 J. J. Marshall, 257. 12 B. Monroe, 409. 15 John., 4. 19 Wend., 493. 16 Mass., 429.

2. It is submitted, that the principles enunciated by these authorities, if traced to their legal conclusion, will be efficient to establish the original demand. When a claim is barred by limitations, the bar may be removed by a new promise within three years before the institution of suit. When the statute operates upon a claim, it is presumed, in legal contemplation, to be extinguished; if it is a joint demand, the joint liability is severed, destroyed. A new promise, however, "reanimates the old promise, and imparts vitality to the remedy." In the case of a single bill, for instance, over twelve years standing, the bar may be removed by a new promise, or by any recognition of the existence of the claim, and the law would raise the assumpsit; but, in that case, the [**10]  action would be brought on the new promise, and the single bill would be used merely as an inducement to the action. The new promise does, in effect, therefore, establish the original demand. The same extent of power, the same measure of authority, it is thought, is requisite in both cases. And it is further submitted, that co-administrators, acting separately, have greater powers than one of two or more joint contractors, one co-administrator represents the whole estate, and can, it is conceded, do many things conclusively binding on the estate he thus represents; whereas, joint contractors must all concur. Co-administrators, like joint tenants, are possessed "per my et per tout."

3. There can be no reasonable doubt that the admission of an administrator is evidence sufficient, not only to remove the bar of the Statute of Limitations, but to establish the original demand. 1 H. & J., 109. 4 H. & J., 529, 530. 21 Pick., 243, 245. The admission of a trustee is binding on him. 3 Gill, 484, and 9 Gill, 220.

4. Having shown the effect of the declarations of a sole administrator on the estate of his intestate, let us see what difference, if any there is, when there are two or more [**11]  administrators. Joint or "co-executors are regarded in law as an individual person, and by consequence, the acts of any of them, in respect to the administration of the effects, are deemed the acts of all, for they have a joint and entire authority over the whole property." "Hence, a release of a debt by one of several executors is valid, and shall bind the rest." 2 G. & J., 226. (And the same law applies to co-administrators. 2 Wms. on Executors, 854.) 6 Md. Rep., 210. 1 Md. Rep., 190, 191 and 195, and 10 Md. Rep., 247. 8 Texas Rep., 336. 35 Maine, 280. 8 Blackf., 172. 4 Harrington, 457. 4 H. & McH., 391.

The admission of a sole executor or administrator is sufficient to establish the original demand, and as co-executors or administrators, however numerous, are but one person in law, each representing the whole estate, does it not legitimately and logically follow that the admission of one of the co-executors has the same binding force and efficacy; I liken it to the case of partners, the partnership being established, the declaration of any one of the firm is evidence against all.

And the argument is strengthened when the fact is McCann made the admission before the statute [**12]  had operated upon and extinguished the claim; he thereby created no new liability, but simply recognized an existing demand. Ellicott vs. Nichols, 7 Gill, 102, 103, 104.

Again, his declarations are evidence, because he was the "acting administrator," and Mrs. Nussear, the co-defendant, when applied to by witness, O'Neill, in December, 1863, admitted she knew nothing about the claim, referred him to McCann, and said the whole business was under McCann's charge. He was then authorized to speak, not only for himself, but as her recognized agent, and as well as by virtue of his "entire authority over the whole property."

5. But suppose what is above stated does not receive the approbation of the Court, still the declarations of McCann are evidence and entitle the appellees to an affirmance as to him. 1 Greenleaf Ev., secs. 171, 172, 174. 1 Ch. Pl., 52. App. vs. Driesback, 2 Rawle, 301.

6. The administration account offered in evidence was competent and proper to show assets in the hands of the administrators; it was the first and only account passed by the Orphans' Court, and was at least prima facie evidence that the appellants had the sum of $ 2,951.90 in their hands due [**13]  the estate of the deceased. No suitor is bound to show more than a prima facie case till his opponent exhibits countervailing evidence. 4 Md. Rep., 173. Gould on Pl., ch. 3, sec. 193. See also, 2 Greenleaf Ev., sec. 347. Furthermore, McCann, in the conversation in the presence of the witness, Martin, admitted there were sufficient assets to pay and satisfy the claim. Here the appellees close the argument of the case as presented by the record, and respectfully ask that the judgment be affirmed.

Now, although the judgment of the Court of Common Pleas was in favor of the appellees, which prevented their appealing, yet, as it is possible, this Court may reverse the judgment of the Court below, it is thought best to bring to the notice of the Court the evidence offered by the appellees of the handwriting, original entries, and subsequent death of the book-keeper and salesmen, referred to in the record. I think I am justified in asking this under the decision in Long & Byrn vs. Crawford, 18 Md. Rep., 226. The evidence offered ought to have been submitted to the jury, leaving it to them to say whether the entries therein referred to were "original entries," in the proper handwriting [**14]  of the book-keeper, and whether the book-keeper subsequently died. It was a question of fact, legitimate and proper, for the consideration of the jury. And it is further insisted, that by presumption of law, the entries were original in the absence of all evidence to the contrary.

Should the Court, therefore, determine to reverse the judgment, it is hoped it will also pass upon the appellees' first, second and third exceptions, as it may prevent a second appeal.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*584]  BARTOL, J., delivered the opinion of this Court.
This case turns mainly upon the decision of the question raised by the appellants' second exception, as to the admissibility of the evidence of the witness, Martin, whereby it was sought to charge the defendants by proof of the acknowledgment of McCann made to the plaintiffs. The same question is also presented by the Court's instruction to the jury contained in the appellants' third exception.
The suit is against the appellants as administrators of James H. Nussear, deceased, to recover a sum of money alleged to be due to the appellees, from their [**15]  intestate in his life time. Limitations were pleaded, and the evidence was offered for the two-fold object of establishing the existence of the debt, and of removing the bar of the statute.
The Court below admitted the evidence and instructed the jury: "If they find from the evidence that the defendants, Daniel McCann and Susan Nussear, have been duly appointed administrators of the estate of James H. Nussear, deceased; that the plaintiffs exhibited an account against the estate of the deceased amounting to the sum of $ 374.43, which was duly passed by the Orphans' Court of Baltimore city, and that one of the plaintiffs, on the 25th of March, 1861, had the conversation with Daniel McCann, one of the defendants, detailed by the witness, Martin, and if the jury shall further find from the evidence, that the defendants are in possession of assets, to be administered, sufficient in hand, that then the plaintiffs are entitled to recover."
It appears from the proof that the appellees qualified as administrators on the 14th of November, 1859. On the 29th of November, 1859, an account was passed by the Orphans' Court, of the appellees against James H. Nussear, deceased, 

 [*585]  for $  [**16]  374.43, and a memorandum or record thereof was made by the Register, under Code, Art. 93, sec 114, in a book kept for the purpose. It is plain, from the certificate of the Register, that the 29th of November, 1859, was the date when the account was passed by the Orphans' Court. What the date of the account was when due, or what were the items composing it, does not appear; it was not produced at the trial. The registry of the claim was evidence of notice of the same to the administrators, and as such the certificate was properly admitted. Seighman vs. Marshall, Adm'r, 17 Md. 550, 569. But it was not evidence to establish the claim as against the appellants in this suit.
There was proof given of a promissory note signed by James H. Nussear, the defendants' intestate, dated January 29th, 1859, for $ 176.75, in favor of the appellees; but there was no evidence that this note formed any part of the account and claim exhibited to, and passed by, the Orphans' Court, or that the administrators had any notice thereof. In the conversation between the appellee, Caldwell, and McCann, testified to by the witness, Martin, no allusion was made to the note. That conversation [**17]  must, therefore, be understood as relating only to the account, that being the only claim exhibited to the Orphans' Court, or of which the defendants appear to have had notice. The note was clearly barred by limitations, and there being no evidence of any promise or acknowledgment with regard to it, the plaintiffs were not entitled to recover thereon; and we do not understand the instruction of the Court below as comprehending the promissory note.
We now proceed to consider the question presented, so far as relates to the account. The evidence of the entries in the plaintiffs' books having been rejected, there was no proof in the cause to establish the account, except the declarations of McCann, testified to by Martin. We are correct, therefore, in saying that those declarations were offered for the double 

 [*586]  purpose of establishing the claim, and of taking it out of the operation of the Statute of Limitations. Are they competent evidence for that purpose?
In Forbes vs. Perrie's Admr., 1 H. & J. 109, which was a suit against a sole administrator, it was held by the General Court that a count against an administrator as such, was supported by evidence of his promise [**18]  to pay a debt of the intestate.
In Chapman vs. Dixon's Admx., 4 H & J. 527, and Quynn vs. Carroll's Admrs. d. b. n., 10 Md. 197, it was decided that a promise or acknowledgment by a sole executor or administrator, will take a case out of the statute.
But the question whether, if there are two or more administrators, the promise of one will take the case out of the statute, seems not to have been decided in Maryland. In Kent's Adm'r vs. Wilkinson, 5 G. & J. 497, 499, the question is stated in the opinion of the Court, but not decided. And in Quynn vs. Carroll, 10 Md. 197, though the question was elaborately argued at the bar, the Court expressed no opinion upon it, (see page 209.) When we look outside of the State, there is considerable conflict of authority. In Tullock vs. Dunn, 1 Ry. & M. 416, (21 Eng. C. L. Rep. 478,) it was ruled by ABBOTT, C. J., that an express promise by one executor would not take a case out of the statute as against the others, and this decision was followed in Scholey vs. Walton, 12 Mees and Wels., 509, in a note on page 514: several American cases are [**19]  referred to, and many more are cited in the argument of the appellee in Quynn vs. Carroll, 10 Md. 197, 205, 206. Unquestionably, the current of decisions in this country is in accordance with the ruling in Tullock vs. Dunn.
In Hammon vs. Huntley, 4 Cowen 494, the contrary is asserted; but in the Cayuga Bank vs. Bennett, 5 Hill 236, before the same Court, the expression of WOODWORTH, J. in 

 [*587]  Hammon vs. Huntley, 4 Cowen, is called "obiter;" see, also, McIntire vs. Morris' Admrs., 4 Wend. 90; Lane vs. Doty, 4 Barbour 535; Peck vs. Botsford, 7 Conn. 172, and Pitts vs. Wootens' Exrs., 24 Ala. 474, where this question is considered. The cases in all the States are, however, not in harmony. The contrary was held in Emerson vs. Thompson, 16 Mass. 429, and in Hords' Adm'rs vs. Lee & others, 4 Monroe, (Ken.,) 36.
We concur in what was said by Judge COWEN, in 5 Hill 240, "that the reasoning of Judge Mills, in the case cited from 4 Monroe, seems to raise a serious doubt whether [**20]  denying the force of personal representatives, or any one of several, to admit or to act in respect to any matter which concerns the estate, be not equivalent to saying that they are mere naked agents. They are clearly a good deal more. It has often been held that they are trustees with more than the ordinary powers incident to that character, for one may sell or convert the whole estate without the consent of the others." See Beall vs. Hilliary, 1 Md. 186, &c., Mitchell vs. Williamson, 6 Md. 210, and Gardener & Bowling vs. Hardy & Simms, 12 G. & J. 365, where the powers of executors and administrators are considered.
Although there is much conflict of authority on the point, and it must be conceded, that the current of decisions both in England and in this country is the other way, we perceive no good reason why a promise or acknowledgment by one executor or administrator, where there are several, should not operate to remove the bar of the Statute of Limitations, especially when made before the statute has operated upon the claim.
But we are clearly of opinion that this can only apply where the claim is established [**21]  by proof aliunde, and that such promise or acknowledgment cannot be relied on for the purpose of establishing the existence of the debt as against the other administrators.

 [*588]  The law seems to us to be correctly stated in 2 Smith's Lead. Cases, (5th Ed.) 388, note, where it is said: "Executors have joint authority and power touching debts due by the testator, and if you prove aliunde, that the claim sued upon was a debt of the testator, you lay a ground for admitting the acknowledgment of one to be evidence against the other; thus, if you prove that it was a debt due by the testator, an acknowledgment by one would take the case out of the Statute of Limitations against both, and against all. Johnson vs. Beardslee, 15 Johns. 3. But for the purpose of proving the fact whence the joint interest and power arise, viz: for proving that it was a debt due by the testator, the confession of one is not evidence in a suit against both. Hammon vs. Huntley, 4 Cowen 493.
This must be understood, however, with reference to what has been before said, as to whether the acknowledgment has been made before or after the statute has operated.  [**22]  In the latter case it would seem a promise or acknowledgment of one of several co-administrators would not bind the others. See Ellicott vs. Nichols, 7 Gill 85, 102.
In this case, the declarations of McCann, being offered for the purpose of establishing the existence of the debt, were inadmissible, and for that reason there was error in the Court's instruction. The judgment will therefore be reversed.
We are of opinion that the Court below ruled correctly in excluding the evidence of entries in the plaintiffs' book, contained in the first and second exceptions of the plaintiffs, for the reason that it did not appear from the evidence that the same was a book of original entries; there is, therefore, no ground for a procedendo.
Judgment reversed. 

52 of 120 DOCUMENTS 

JACOB N. SHAUCK vs. THE NORTHERN CENTRAL RAILWAY COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 462; 1866 Md. LEXIS 71 

July 17, 1866, Decided 

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

The appellant instituted this suit on the 1st day of August, 1863, to recover damages for a personal injury sustained by him while engaged as brakesman in the employ of the defendant. All errors in pleading were released, and the case tried upon the facts as presented at the trial.

At the trial of the cause, the plaintiff offered evidence tending to show that while in the employ of the defendants, as brakesman, and while acting as such, he was injured by the wheel of a car, belonging to the defendant, running over and cutting off his arm; and that the accident was attributable to the defective condition of the engine to which the train was attached. It was in proof, that on the day preceding this accident, a bolt connected with the steam valve of the engine had broken, and the engine had been sent to the defendant's shop to be repaired. The workmen at the shop were unable to extract this broken bolt, and on the morning of the accident the engine, without being repaired, was sent out attached to a freight train, on which the plaintiff was brakesman. When the engine was brought out of the shop in the morning it worked badly,  [**2]  and was used that day in consequence of the other engines being all in service. The nature of the injury to the engine was such as to cause it to jerk and work irregularly in starting or stopping the train, because of the steam leaking through the valve when it should be shut off. Although the engine was defective on leaving the defendant's depot on the morning in question, it was not so much so as not to be manageable with care, but prior to the accident it had become unmanageable in consequence of said broken bolt working out on the road. The engineer of the train, on arriving at Cockeysville, had found Lewis, the defendant's master of machinery, there, and reported to him the condition of the engine, and the said Lewis requested him to try and get the train to York, some forty miles distant, but to do his best not to injure anybody.

The defendant then offered evidence to show, that Clark, the superintendent of the defendant's road, Lewis, its master of machinery, Cole, the foreman of its machine shops at Bolton, and the men employed under him, and Davis, the assistant master of machinery, and those employed at the Bolton depot in despatching the defendant's trains, were competent [**3]  and faithful men and officers; that the number of engines in the service of the defendant at that time accomplished all the work the defendant had for them to do, but were working to their full capacity; and that the said engine was in good order up to the day preceding the day of the accident, and was put in good order again afterwards merely by replacing the broken bolt with a new one, and that the defect in the engine was not communicated to Cole, the foreman of the defendant's shops, prior to its leaving town on the morning of the accident.

After the foregoing evidence had been given to the jury, the following prayers were offered on the part of the plaintiff:

1st. "If the jury find from the evidence that the injury sustained by the plaintiff was caused by the negligence of the defendant in not supplying a proper locomotive, or by negligence of the defendant in not selecting competent and careful agents, the plaintiff is entitled to recover such damages as the jury shall believe to be a fair indemnity for the injury received, and the suffering caused thereby."

2d. "If the jury find from the evidence that the plaintiff was thrown from one of the cars of the defendant [**4]  [No. 27,] and lost his arm thereby, and that he was so thrown by reason of a defect in the machinery of the engine which was known to the master of machinery of the defendant before the occurrence of said injury; and shall further find that such defect was not remedied and said engine not repaired because of the negligence of the defendant in not having a sufficient number of locomotives to supply the place of locomotive No. 27, while the same should be laid aside to be repaired, then the plaintiff is entitled to recover in this action such damages as the jury shall be of the opinion he may be entitled to have by reason of the loss of his arm and the pain and suffering caused thereby."

3rd. "It was the duty of the defendant to procure the machinery, materials and men, necessary to equip and run the road, and if the jury find that the defendant was injured in the manner stated in the declaration, in consequence of the failure of the defendant to provide a sufficient engine to run on said road with safety to the persons employed on said train of cars, or by the failure of the defendant to employ competent agents to superintend and furnish proper locomotives, or to run the same,  [**5]  then the plaintiff is entitled to recover."

4th. "The plaintiff prays the Court to instruct the jury, that there is evidence in this case on which it is competent for the jury to find that the defendant had notice of the defective condition of the engine (No. 27) at the time it was started from the Bolton depot, on the morning of the 22nd of August, 1860, as stated in the evidence."

5th. "That there is evidence in this case on which it is competent for the jury to find that the injury to the plaintiff was sustained because of the omission of the defendant to provide a sound locomotive for the train of cars on which the plaintiff acted as brakesman at the time of the said injury; and if the jury further find that the plaintiff, when he started on said train of cars on that occasion, had no notice of the defective condition of said locomotive, then the defendant is liable in this action, provided the jury find that said injury was occasioned by the failure of the defendant to provide a sound locomotive for the train of cars aforesaid."

6th. "The plaintiff prays the Court to instruct the jury, that if they find, from the whole evidence aforesaid, that the plaintiff was [**6]  injured, in the manner stated in the evidence, because of the failure of the defendant to keep engine No. 27 in a sound condition at the time it left the Bolton depot with a train of cars attached, on which the plaintiff was riding; and if they further find that plaintiff was brakesman on said train of cars, and had no notice of such defective condition of said engine when he started on the trip, in the course of which he was injured, as stated in the evidence, then the defendant is liable in this action, provided the jury further find that on said 22nd of August, 1860, the defendant, by its agents, used the said engine No. 27 in its defective condition, because it had no other engine to substitute therefor."

The defendant then offered the following prayer:

1. "If the jury shall be satisfied from the evidence that the plaintiff, at the time and place when and where he suffered the injury complained of, was a brakesman in the employ of the defendant, and acting in his capacity as such, and that said injury was occasioned by engine No. 27 being out of repair, and that said engine was in running order until the 21st of August, 1850, and that an accident then happened to said [**7]  engine which made repairs necessary before she could go into service again, and that owing to the negligence of other servants of the company in its workshops, whose duty it was to see that none but engines in fit condition should be put into service or used, the said engine was sent out on the morning of the 22nd of August, 1860, without proper repairs, and that the plaintiff in consequence sustained the injury of which he complains, then that the plaintiff is not entitled to recover, unless he shall satisfy the jury, by evidence, that in selecting the employees or servants through whose negligence the accident occurred, the defendant did not use reasonable care in procuring for its operations faithful and competent employees; and that the plaintiff has offered no evidence that the defendant did not exercise all reasonable care in the selection of the said servants, or in procuring for its operations sound machinery and faithful and competent employees."

The Court (MARTIN, J.,) rejected all of the plaintiff's prayers, and granted the prayer of the defendant; and the propriety of the Court's action in this respect forms the basis of the present appeal.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

EMPLOYER AND EMPLOYEE: RAIL ROAD COMPANIES, -- THEIR DUTIES AND RESPONSIBILITIES: NEGLIGENCE OF FELLOW SERVANT. -- When several persons are employed in the same general service and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employer is not responsible.

The limit of the duty of a railroad company to its employees, is to exercise ordinary and reasonable care in procuring for its operations sound machinery, and faithful and competent employees, and while it is responsible for the omission to perform these duties, it does not guarantee their safety from the consequences of the carelessness or neglect of its other employees engaged in the same general business of operating the road.  

COUNSEL:
Robert [**8]  J. Brent and Michael A. Mullin, for the appellant:

I. The general rule of law is, that when injury is inflicted on one servant by the negligent act of his fellow servant, the common master is not responsible. In Ohio, this proposition has been denied, but it is affirmed by nearly all the authorities. Priestly vs. Fowler, 3 Mees. & Wels., 1. Farwell vs. Boston & Worcester R. R., 4 Metc., 4. Brown vs. Maxwell, 6 Hill, 592.

These are the leading English and American cases, which have been followed by numerous others, and by this Court in O'Connell vs. Balto. & Ohio R. R., 20 Md. Rep., 212.

II. But this general rule has these limitations, that the master must be free from blame, that he must provide suitable machinery, and that when he employs his servants on dangerous work, he must take all reasonable precautions to guard them from danger. These limitations are asserted in the cases quoted above, as well as in the following: Patterson vs. Wallace, 1 Macq., 748; (28 Eng. L. & E. Rep., 50.) Brydoun vs. Steward, 2 Macq., 30. Barton Hill Co. vs. Run, 3 Macq., 288. Snow vs. Housatonic R. R. Co., 8 Allen, 441. Keegan vs. Western R. R., 4 Seldon, 175.

The case of Holmes vs.  [**9]  Clarke, 31 L. T. Exch., 355, is the latest decision, having been rendered in 1862, and is also reported in 2 Amer. Law Reg., 107. Marshall vs. Stewart, 33 Eng. L. & E. Rep., 1. Canser vs. Taylor, 10 Gray, 274. Byron vs. Telegraph Co., 26 Barb., 39. Hayes vs. Smith, 2 Wins., (28 Ver.,) 59.

III. But the Court in its rulings on the appellant's prayers Nos. 2 and 3, refused to declare the responsibility of the appellee, in case the jury believed that the accident resulted from its own negligence. This is pushing the exemptions of corporations beyond the adjudicated cases, and it is not supposed that the law of this proposition will be maintained, but that it will be justified upon the ground, that there was no evidence that the appellee was guilty of any negligence. The evidence contained in the bill of exceptions shows, that this justification is incomplete. It shows, that on the day previous to the accident a bolt attached to the steam valve of the engine had broken; that the engine was sent to the company's work-shop in Baltimore for repairs; that before it was repaired, and notwithstanding its serious defect was known to the company's assistant master of machinery, he was compelled [**10]  to send the engine, which could hardly be managed by hand, in its dangerous condition, because the company had provided no other locomotive to spare; that at Cockeysville, the engineer found Mr. Lewis, the company's master of machinery, and reported to him the condition of the engine, but Mr. Lewis told him to go ahead, and try and not injure anybody. That there was then no general superintendent of the company, but that Mr. Lewis was appointed master of machinery by the president.

The appellee then proved, that all its agents were competent and faithful men, which would seem to negative the fact that the accident was caused by their negligence; that the company had provided a sufficient number of engines to do all the work it had for them, working to their full capacity. The accident was caused by the inability of the engineer to control his engine, owing to the defect of the steam valve, of which the appellant was ignorant.

Under this state of facts, the Court took the case from the jury, holding that there was nothing from which the jury might infer negligence on the part of the appellee. It is claimed that this was error.

An engine unsuitable and dangerous is sent [**11]  out from the company's principal work-shop, with the consent of its chief machinist present, for the reason that there was no other to send, though the company required that a train should run, and while on the road, the master of machinery is informed of the same defect, and his only statement is to go ahead, and try and hurt no one. The engineer was not to blame for the accident, nor was the master of machinery or his assistant; for, according to the proof, they were competent and faithful men, and only sent a train with the best and only engine they had in obedience to orders. These facts might satisfy a jury of the negligence of the corporation. In ruling that these fact implied no negligence on the part of the company, but only on the part of the employees, the Court omitted from its consideration the fact, that a corporation can only act through its servants; that it never acts directly in the superintendence of its active business, and that the negligence of its chief officers, in any particular branch of service, may be its own negligence, and not the negligence of a fellow servant of the appellant.

The master of machinery and his assistant, representing the company in [**12]  matters of machinery, he was an agent, and in loco principalis; not a fellow servant of the appellant, but his superior. Wright vs. E. N. Cent. R. R., 28 Barb., 80. Little Miami R. R. vs. Stevens, 20 Ohio, 415. Walker vs. Balling, 22 Ala., 294. Dixon vs. Rankin, 1 Am. R. R. Cases, 569. Patterson vs. Wallace, 1 Macq., 748; (28 Eng. L. & E. Rep., 50.) Railroad Co. vs. Keary, 3 Ohio St. Rep., 201. R. R. Co. vs. Collins, with Redfield's Notes. Am. Law Reg., March, 1866, p. 266, et seq.

Notice to the agent of the corporation, whose duty it is as such agent to act on such notice, is notice to the corporation. This was a foreign corporation, and had no superintendent in Maryland, as appears by the record. Its master of machinery was its highest officer. 4 Paige, (N. Y.,) 136, 137. 3 Conn., 164, 166. 2 Hill, 451, 463. 3 Hill, 262, 274, 275. 1 Md. Ch. Dec., 398, (affirmed in 5 Md. Rep., 156.)

The responsibility of the company for its own negligence being established, then, the extent of that responsibility does not depend on a special contract, but is implied by the general policy of the law. Derby vs. Phila. & Read. R. R., 14 How. U. S., 486.

J. Mason Campbell and Daniel M.  [**13]  Thomas, for the appellee:

The defendant's prayer presents these two propositions:

1st. That where a railroad company provides sound and sufficient machinery for its service, which subsequently gets out of repair, and by the negligence of its servants in allowing such machinery, without the default or knowledge of the company, to be used while in that condition, a fellow servant is injured, the company will not be held responsible for such injury, unless it be shown, that in selecting its employees or servants, it did not use reasonable care in procuring faithful and competent persons.

2nd. That the subsequent unfitness of the machinery, or the negligent act of the servants of the company in a particular instance, are not, in themselves, evidence of a failure of the company to exercise such reasonable care, but these facts, coupled with the knowledge of such subsequent unfitness, and with a failure to provide suitable and sound machinery, may be considered by the jury in passing upon the question of the negligence of the company.

The counsel for the appellee contend for the correctness of both these propositions:

1st. The law applicable to cases of this sort [**14]  has undergone a thorough examination in the most respectable tribunals in this country and in England. It is simply the case of an injury sustained by a servant through the negligence of a fellow servant.

If the engine in question was unfit for use, it was negligence in the persons in control of the defendant's depot to allow it to be used. In the nature of things the company must commit a discretion in such cases to some of its officers or servants, and the abuse of that discretion by persons who have been selected with proper care will not render the company liable. The authorities are numerous to show, that in such cases the master is not responsible where he has exercised ordinary care in the selection of his servants, and in providing proper machinery. This doctrine as first laid down in Priestly vs. Fowler, 3 M. & W., 1, has been affirmed by many subsequent decisions, among others by Hutchinson vs. Railway Co., 5 Exch., 343. Wigmore vs. Jay, 5 Exch., 354. Tarrant vs. Webb, 86 Eng. C. L. Rep., 797. Roberts vs. Smith, 2 Hurls. & Nor., 113. Ormond vs. Holland, 96 Eng. C. L. Rep., 102.

In Tarrant vs. Webb, JERVIS, C. J., says: "The rule is now well established, that no [**15]  action lies against the master for the consequences to a servant of the mere negligence of his fellow. That, however, does not negative negligence in every case. The master may be responsible where he is personally guilty of negligence; but certainly not where he has done his best to get competent persons. He is not bound to warrant their competency." And, in Roberts vs. Smith, WILLIS, J., expressly desired it might be understood, that the Exchequer Chamber ordered a new trial "upon the ground that there appeared to have been evidence of the personal interference and negligence of the master." The same principle is laid down by the House of Lords, in the case of the Bartonshill Coal Co. vs. Reid, 3 McQueen, 266, where Lord CRANWORTH. C., says: "with reference to the law of England, I think it has been completely settled, that in respect of injuries occasioned to one of several workmen engaged in a common work, (and I know of no distinction whether the work be dangerous or not dangerous,) the master is not responsible if he has taken proper precautions to have proper machinery and proper servants employed." In the subsequent case of Searl vs. Lindsey, 103 Eng. C. L. Rep., 428, the same [**16]  question again arose in the Court of Common Pleas, and was fully discussed in all its bearings, and in view of all the latest decisions upon the subject, and the same conclusion was there arrived at. The latter case is important to be noticed, because there the attempt was made to introduce the distinction taken in some of the Courts of this country, between the case of a servant injured by the negligence of a fellow servant of equal grade with himself, and the case of a servant injured by the negligence of a fellow servant of superior grade to himself, and exercising control over him. The plaintiff was third engineer of the defendant's steamship, called the "Ireland," and was injured through the negligence of the chief engineer under the following circumstances: The screw of the "Ireland" was put into gear by means of a patent winch which required six men to work,--three at each handle. In the course of a voyage, whilst the plaintiff and others were at the winch, one of the handles came off in consequence of the want of a nut or pin to secure it, and the result was, that the men at the other handle were overpowered, and one of them (the plaintiff) grievously injured. The chief engineer [**17]  on board was a person named Simpson, who was admitted to be a competent workman. It was his duty to see that the machinery (which was in proper condition at the commencement of the voyage) was kept in order; and his attention had been called to the state of the winch several times, but he had omitted to remedy the defect. The Court was unanimously of opinion that the plaintiff could not recover, and WILLIAMS, J., said: "I think there was no foundation for the argument that Simpson, the chief engineer of the vessel, and the plaintiff, stood in any other relation towards each other than that of ordinary fellow servants. Then, applying the rule of law which is now firmly established, the common employer is not liable to either for an injury sustained through the negligence of the other. In order to take this case out of the ordinary rule, it was contended that here there was negligence on the part of the employees themselves. In order to make that out, there must be reasonable evidence to show that they were to blame, either in respect to their not having provided proper machinery and appliances, or not having retained competent workmen. I do not find any evidence at all of any default [**18]  in either of these particulars. If the winch was out of order, it was owing to Simpson's negligence. There was no evidence, nor any suggestion, that Simpson was not a perfectly competent engineer." And the opinions of the other judges were all to the same effect.

This citation of cases will show that the principle of law asserted by our prayer is firmly established in England. And that the same principle is recognized and adopted by the Courts of leading authority in this country, will appear by reference to the cases of Ryan vs. The Rail Road, 11 Harris, (Pa.,) 384. Seaver vs. The Rail Road, 14 Gray, 466. Gilshannon vs. R. R. Co., 10 Cushing, 228. Buzzell vs. Manufacturing Co., 48 Maine, 113. 20 Barbour, 450. KeeRgan vs. R. R. Co., 4 Seldon, 175. Coon vs. Syr. & Ut. R. Co., 6 Barbour, 231.

In the case of O'Connell vs. The Baltimore & Ohio Railroad Company, 20 Md. Rep., 212, this Court has adopted the same principle to the full extent of our prayer; and were the same question now open for discussion, we submit, that the cases of Searle vs. Lindsey, in the Common Pleas of England, and the Bartonshill Coal Co. vs. Reid, in the House of Lords, (published since the decision in [**19]  O'Connell's case,) would abundantly confirm this Court in its views, as then expressed.

2d. We come now to the second proposition involved in the defendant's prayer, and contend, that the subsequent unfitness of the machinery, or the negligent act of the servants, in a particular instance, are not, in themselves, evidence of a failure of the Company to exercise all reasonable care in the selection of its servants, or in procuring for its operations sound machinery. In other words, the mere fact of an engine, previously sound, becoming unsound on a particular day, is not, of itself, evidence of that subsequent unsoundness being known to the company. And the mere fact of an officer of the company, selected with due care, being guilty of a particular act of negligence, is not, in itself, evidence of the company's knowingly employing an officer who is unfit for his position. If this be so, and the cases already cited show that it is, then there was no evidence in this case from which the jury could find "that the defendant did not exercise all reasonable care in the selection of its servants, or in procuring for its operations sound machinery and faithful and competent employees.  [**20]  " And if there was no such evidence, it was the duty of the Court so to instruct the jury. The evidence was, that "the number of engines in the service of the defendant at that time, accomplished all the work the defendant had for them to do," and that this particular engine "was in good order up to the day preceding the day of the accident, and was put in good order again afterwards, merely by replacing the broken bolt with a new one." So that not only was there no evidence of the defendant's failure to supply sufficient and sound engines for its work, but there was positive evidence to the contrary. It is true, the plaintiff's evidence went to show that "this was the only engine that could be procured for this service that morning, there being no other locomotive to spare." But this fact is of no importance without connecting it with evidence of some necessity for dispatching the train that morning, of so urgent a character that it could not wait till a sufficient engine could be procured, or until this one could be repaired. Nor would the existence of such an urgent necessity on this particular morning help the plaintiff's case, unless he had further shown that the emergency was [**21]  one that might reasonably have been anticipated by the defendant, and against which it was bound to provide in advance. Of this fact there was not only a lack of proof on the part of the plaintiff, but the defendant had offered evidence to the contrary by showing that "the number of engines in the service of the defendant at that time accomplished all the work the defendant had for them to do."

We submit, therefore, that there was a total lack of evidence from which the jury could find that the defendant was in default for not providing a sufficiency of engines for its work, even if the plaintiff could have availed himself of such an objection. But it has been decided in England that a servant cannot take the objection that the company has not provided enough engines for its operations. Skip vs. Rw. Co., 9 Exch., 223.

Nor was there any evidence to go the jury from which they could find "that the defendant did not exercise all reasonable care in the selection of its servants." On the contrary, the defendant's evidence showed that it did exercise such reasonable care, as it was in proof "that Clark, the superintendent of defendant's road, Lewis, its master of machinery, Cole,  [**22]  the foreman of its machine shops at Bolton, and the men employed under him, and Davis, the assistant master of machinery, and those employed at the Bolton depot in despatching the defendant's trains, were competent and faithful men and officers."

In view of this positive proof, unrebutted by evidence to the contrary, it was the duty of the Court below to instruct the jury that there was no evidence on this point. This view is supported by all the cases before cited, as they are all based upon the theory that particular acts of negligence on the part of the employer's servants, do not justify an inference that they had not been selected with reasonable care by the employer. The cases even go further than this, and show that particular acts of negligence in the officers employed are not even evidence of the incompetency of such officers. Frazier vs. Penn. R. R. Co., 2 Wright, 104.

Still less, therefore, would they furnish evidence of the employer's knowledge of such incompetency. And we refer further in this connection, to the case of Toomey vs. R. R. Co., 91 Eng. C. L. Rep., 148, 149, where a non-suit was affirmed because (though there was some evidence that the defendant's [**23]  servant was negligent) there was not evidence enough to take the case to the jury; and to the cases of Wilds vs. Hudson River R. R., 2 Am. L. R., (N. S.,) 80, 81. 6 Gill, 205-6. Cotton vs. Wood, 98 Eng. C. L. Rep., 566. Skip vs. Rw. Co., 9 Exch., 223. Coonan vs. Rw. Co., 4 Hurls. & Nor., 787. Briggs vs. Taylor, 28 Verm., 180. 6 Md. Rep., 457. The board of directors represent the company. 42 N. H., 225.

3d. If the foregoing views be correct, then the plaintiff's prayers were all properly rejected. 1st. Because there was no evidence to support them. See Keech vs. The B. & O. R. R. Co., 17 Md. Rep., 47, where this Court rejected an instruction asked for, "there being no evidence in the cause upon which it could be based." 2nd. Because the legal propositions embodied in each and all of said prayers are in conflict with the cases hereinbefore cited. To note these objections in detail would only be a repetition of the views already submitted.

The 5th and 6th prayers are further objectionable, because they introduced as an element in the case the question of notice, on the part of the plaintiff, of the condition of the engine. If the fact of his not having notice could in any way [**24]  affect the case, (which we deny,) there was no evidence from which the jury could find or infer such want of notice. But rather, there is the highest possible presumption to the contrary. It is impossible to believe that he could have been ignorant of the fact that there was something wrong about the engine when it started on its trip. It is in proof by the plaintiff's own witnesses, that when it was brought out of the shop that morning "the engine could hardly be managed by hand," and that "the nature of the injury was such as to cause it to jerk and work irregularly in starting or stopping the train, because of the steam leaking through the valve when it should be shut off; and the defendant's evidence on this point was, that though the engine, on leaving the depot that morning, was defective, "it was not so much so as not to be manageable with care." The jury, therefore, could only have found him ignorant of the condition of the engine by convicting him of gross and inconceivable stupidity, of which there is no evidence. If the question of notice be material to the case, it matters not whether he had or had not notice before starting, if such notice was communicated to him afterwards [**25]  and before the accident, and in time for him to leave the train. And that he must have become aware of the engine being unmanageable before arriving at Cockeysville, where its condition was reported to Mr. Lewis, can hardly be disputed; and if so, he had an opportunity there of refusing to go any further upon the train, in which case, the accident would not have happened.

The sixth prayer is open to the additional objection that it not only requires the Company to furnish sound engines in the first instance, but to keep them in sound condition ever afterwards.

All except the 4th of these prayers are further objectionable, because they leave out of view altogether the question of the exercise of due care on the part of the plaintiff. Even if the jury were to find all the facts contained in those several prayers, the plaintiff would not be entitled to recover, without further showing that he had exercised due care himself. Irwin vs. Sprigg, 6 Gill, 205. 29 Conn., 208-9. 1 Allen, (Mass.,) 187. Wilds vs. Hudson River R. R. Co. 2 Am. L. R. (N. S.,) 80. Counter vs. Couch, 8 Allen, (Mass.) 437.

The plaintiff's 4th prayer presents a single question of fact to the jury, and if [**26]  it were unexceptionable in other respects, would be objectionable for that reason, as it tends thereby to give undue prominence to that fact. Adams vs. Capron & Gwynn, 21 Md. Rep., 186.

The 1st and 2nd prayers are further objectionable because they allow too great latitude to the jury in making their estimate of damages. Stockton vs. Frey, 4 Gill, 414-412.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*478]  BARTOL, J., delivered the opinion of this Court.
All errors of pleading having been released, the questions to be decided on this appeal are presented by the facts stated in the bill of exceptions, and the prayers offered at the trial; these, in our opinion, bring the case within the principles lately adopted by this Court in O'Connell vs. Balto. & Ohio R. R. Co., 20 Md. 212; after a careful examination of the cases, the rule of law was there stated to be that "when several persons are employed in the same general service and one is injured by the carelessness of another, though the negligent 

 [*479]  servant in his grade of employment is superior to the one injured, the employer is not responsible.  [**27]  "
This principle was first announced in Priestly vs. Fowler, 3 Mees. & Wels. 1, and a few years afterwards it was adopted in Farwell vs. The Boston & Worcester R. R. Co., 4 Metcalf 49, and in the able opinions delivered in those cases was placed upon reasons that seem to us to be entirely satisfactory. It has been followed by the great current of authorities both in England and this country, and may now be considered as a part of the Common Law.
It is immaterial to consider whether this principle is based upon the implied contract of the parties, or whether it must be considered as resting upon grounds of public policy which make it unreasonable in such cases to apply the doctrine of respondeat superior.
It is now established that the limit of the duty of the company to its employees, is to exercise "ordinary and reasonable care" in procuring for its operations sound machinery and faithful and competent employees, and while it is responsible for the omission to perform these duties, it does not guarantee their safety from the consequences of the carelessness or neglect of its other employees engaged in the same general business of operating the road.  [**28]  
Without entering into a discussion of the reasons on which this principle is founded, or a particular analysis of the numerous cases cited in argument, all of which have been carefully examined, we are of opinion that this case is governed by the decision in O'Connell vs. The Balto. & Ohio R. R. Co., and that there was no error in the rulings of the Superior Court upon the prayers.
Judgment affirmed. 

53 of 120 DOCUMENTS 

GEORGE W. TINGES vs. RICHARD H. MOALE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 480; 1866 Md. LEXIS 72 

July 17, 1866, Decided 

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

This was an action by the appellant against the appellee to recover compensation for alleged services, as a broker, rendered the latter in effecting a sale of a house. The declaration contained two counts, one a general count for work done, the other a special count for the usual broker's commissions for procuring a purchaser for the defendant's house at a price which the defendant accepted. The case was submitted to the Court for determination, without the intervention of a jury. The facts of the case, and the arguments of counsel on a motion to dismiss the appeal, are sufficiently stated in the opinion of this Court. The Court below (KING, J.,) gave judgment for the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

REAL ESTATE BROKERS, -- SALES BY, AND ACTION BY, AGAINST VENDOR FOR COMMISSIONS. -- Where a real estate broker reports an offer for property to his principal without stating by whom the offer is made, and afterwards a sale of the same property is effected through another broker at the same price first reported, and to the same purchaser, and he receives a commission therefor, the first broker cannot recover in an action against the vendor for the commissions, unless it appears that the latter at the time of the sale was aware of the facts above stated, or that notice of the same was given him by the plaintiff before the completion of the contract with and payment of commissions to the second broker. 

COUNSEL:
Arthur George Brown and F. W. Brune, for the appellant:

The appellant is entitled to recover upon the principle laid down in the case in 2 Md. Rep., 71, viz: that his negotiation with the purchaser, and the approval of the property, and offer of a price, which he secured from him and reported to the appellee, were the foundation, and indeed the procuring cause of the sale made by the latter,  [**2]  and that the nondisclosure of the purchaser's name, under the circumstances, and the employment, agency and payment of another broker in the same matter, did not deprive the appellant of his right to recover compensation for his services. Keener vs. Harrod, 2 Md. Rep., 70 to 73. Beale vs. Cresswell, 3 Md. Rep., 200-1. Russell on Factors and Brokers, 48 Law Lib., 160. Murray vs. Currie, 32 Eng. Com. Law Rep., 641. Wilkinson vs. Martin, 34 Ib., 267. Van Lien vs. Byrnes, 1 Hilton, 133, et seq. Goodsfield vs. Robinson, Ib., 425. Chilton vs. Butler, 1 E. D. Smith, 151. Goldsmith vs. Obermeyer, 3 Ib., 122. Morgan vs. Mason, 4 Ib., 637-8.

Benjamin F. Horwitz, for the appellee:

1st. The claim of brokers for commissions is fully examined in Russell on Factors and Brokers, 48 Law Library, pages 104 to 110, marginal pages 154 to 164. "The right of a factor or broker to his commission is regulated in one of three ways, either, first, by statute, or secondly, by special contract, or thirdly, by the usage of trade." Russell on F. and B., 48 Law Lib., marg. p. 154. And in Read vs. Rann, 21 Eng. Com. Law Rep., 106, Lord TENTERDEN says: "the broker's claim to commission depends on the custom.  [**3]  " Sir JAMES PARKE, says: "the claim of the plaintiff (broker) rests on the custom and not on a quantum meruit;" and BAYLEY, J., says: "the plaintiff claims to be paid, not according to his actual labor."

In this State there is no statute on the subject; in this case, there is no pretence of a special contract. The claim of the plaintiff must, therefore, rest on custom or usage. The only proof on the subject of usage, is that of the plaintiff's witness and partner, Scharf, who says: "that he had been for years engaged in business as a real estate broker or land agent, and that two and one-half per cent. is the usual commission for sales of real property." All the witnesses who speak on the subject of the sale in this case--Moale, Reinicker and Jackson--say, Jackson made the sale. The declaration of the plaintiff alleges that he was employed by the defendant "to sell" the property, and that he, in pursuance of such employment, procured a purchaser for said property at a price which the defendant accepted therefor," not alleging that he made the sale, nor even that he named the purchaser to the defendant, and not alleging when or how the defendant accepted the price, nor through whom,  [**4]  nor by whose agency, nor that he ever made an offer to the defendant for any one. It is submitted, therefore, as there is no proof on the subject of usage attempted to be introduced in this case, which would entitle Tinges to any compensation, either for the alleged service counted on in the declaration, or for the acts which he proved that he performed in this matter, that it cannot be contended that he has even a foundation for a claim to compensation from Moale. Foley vs. Woodside, 6 Md. Rep., 37.

2nd. But suppose that Mr. Russell and Lord Tenterden and the other authorities are wrong, and that a broker can recover commissions on a quantum meruit, then it is submitted, that the reasoning of his Honor, Judge KING, in his able and elaborate opinion, is conclusive, and is fully sustained by all the authorities as well as by all the usages which are shown by those authorities to have been proved at the trial of the different cases to exist in England or in this country, including the usage in the city of Baltimore. Russell on Factors and Brokers, 48 Law Library, 104 to 110. Broad vs. Thomas, 20 Eng. Com. Law, 62. Read vs. Rann, 21 Eng. Com. Law, 106. Murray vs. Currie, 32 Eng.  [**5]  Com. Law, 641. Wilkinson vs. Martin, 34 Eng. Com. Law, 267. Burnett vs. Burch, 38 Eng. Com. Law, 256. Ludlow vs. Carman, 2 Hilton, (N. Y.,) 107. Chilton vs. Butler, 1 E. D. Smith, 150. Keener vs. Harrod & Brooke, 2 Md. Rep., 63. Beale vs. Cresswell, 3 Md. Rep., 196. Canby vs. Frick, 8 Md. Rep., 163.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*483]  WEISEL, J., delivered the opinion of this Court.
The appellant was plaintiff below. He sued the appellee at law for services, in the shape of commissions, as a real estate broker. A case was docketed by consent, and upon appearance and issues of fact was, with the consent of the parties, submitted to the determination of the Court, and judgment was rendered for the defendant.
With a view to bring the cause to this Court on appeal, the proof was embodied in a bill of exceptions, concluding with a motion by the plaintiff's counsel to the Court "to decide that the plaintiff was entitled to recover, inasmuch as it appeared from the evidence that the plaintiff was employed by the defendant to procure a purchaser for his dwelling house, and in the course of this employment he called the [**6]  attention of Mr. Reinecker (the purchaser) to the house, showed him the property and secured an offer from him, which the defendant subsequently took, and that the negotiation between the plaintiff and the said purchaser was the foundation on which the sale made by the purchaser rested." The Court refused so to decide, but proceeded, in the form of an opinion, to state the facts as shown by the proof, and to apply to them certain principles of law and adjudicated cases; upon the consideration of which, judgment was pronounced for the defendant. To the refusal to decide agreeably to the plaintiff's motion, and to the judgment as given, the exception was taken by the plaintiff. The opinion of the Court, incorporated in the bill of exceptions, thus becomes a part of the record before us, and it sets forth the facts as either found by the Court or proved upon the trial, with its view of the law as applicable thereto.
The appellee filed a motion to dismiss this appeal, which was heard in connexion with the argument on the points 

 [*484]  presented by the briefs. The motion to dismiss took the ground, that inasmuch as this cause was heard and decided below since the Constitution of 1864 [**7]  went into operation, and that by the 6th sec. of Art. 4, of said Constitution, the parties to any cause might submit the same to the Court for determination without the aid of a jury, the jurisdiction of the Court, in such cases, was limited and restricted, and as no appeal was specially given, none therefore lay. It was also contended, in support of the motion, that the record does not disclose what question of law was raised or made in, and decided by, the Court below; and that, therefore, this Court has nothing before it for its review. See 1 Code, Art. 5, sec. 12.
The provision of the Constitution authorizing the parties to a suit at law to submit facts to the trial and determination of the Court, without the aid of a jury, cannot be regarded as restricting the jurisdiction of the Court, or as conferring upon it a special jurisdiction. There is no superadded jurisdiction of a limited or restricted character to the general jurisdiction of the Court, but a mere authorised change, in certain cases optional with the parties, in the mode of trying facts, already a part of its general jurisdiction. But this change does not enlarge the subject matter of appeals. With the facts [**8]  as found by the Court below, upon such a submission, this Court has no more to do upon appeal than if they had been found by the jury. It is only upon the law arising upon facts, as admitted by the pleadings, or agreed by the parties, or found, or to be found, by the jury, (or by the Court when substituted for the jury,) and raised in the modes adopted in our practice, that this Court has to deal in appeals from judgments of Courts of Law; and when such questions appear by the record to have been raised and decided below, the right of appeal is undoubted, and is secured by the general language of the 3rd sec. of Article 5th of the Code of General Laws.

 [*485]  In this case, we cannot examine the facts in evidence in the bill of exceptions with a view to adjudge whether the finding by the Court was, or was not, correct. As to that branch of the case, no appeal lies, and we entertain none. If a question of law has been raised upon them below for decision, and that appears from the record, it is our duty to examine and pronounce upon it. We can look to the character of the facts in proof only so far as may be necessary or proper to understand and apply the law in question.
In this [**9]  case, had a jury been impanelled, and an instruction prayed in the language of the motion that was addressed to the Court, it would have been rightly rejected as not covering the whole case.
The Court was asked, in the form of a motion, to adopt what was stated in it as the law of the case, and to decide it accordingly. But the whole matter being before the Court, first to ascertain from the proof the facts, and then to apply the law to the state of facts as found, it was the duty of the Court to disregard and reject the proposition of law as presented in the motion if deemed erroneous, and to decide the case in conformity with the views which it would otherwise entertain. The opinion of the Court succinctly states the principle which governed it in the decision, viz: "If a broker who first procures a purchaser, reports his offers to his principal without identifying the person from whom they come, he cannot recover commissions in case of a subsequent sale through another broker at the same price, to the same purchaser, unless it appears in evidence that the seller knew this fact, or that notice was given him by the plaintiff before the completion of the contract and payment of commissions [**10]  to the second broker." We are of opinion that this was a correct exposition of the law in such a case, and that the judgment of the Court should be affirmed. If there be but one broker employed, he can with safety withhold the name of the purchaser until the sale shall have been made. But as 

 [*486]  the employment of one broker does not preclude the employment of another to procure a purchaser for the same property, it becomes, therefore, the duty of the broker who procures one, and who looks to the security of his commissions, to report the name and offer to his principal, that the latter may be notified in time and thus put upon his guard before he pays the commissions to either.
Before leaving this case, it may be proper to observe that in cases like this, of submission to the Court without the aid of a jury, more care or precision should be adopted in raising the questions of law for the decision of the Court below, that upon appeal parties may not lose the benefit of appeal, or this Court be left to gather them from the opinion of the Court below, or the course of the trial there.
Judgment affirmed. 

54 of 120 DOCUMENTS 

GEORGE H. WILLIAMS, TRUSTEE OF H. POLLACK, vs. MOSES COHEN, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 486; 1866 Md. LEXIS 73 

July 17, 1866, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Superior Court of Baltimore city, as a Court of Equity:

The object of the bill in this case was to set aside a deed or release of a bond of conveyance made, as is alleged, in contemplation of insolvency, by Pollack to Cohen, on the 26th of December, 1850. It states the purchase by Pollack of the defendant, Cohen, of a warehouse in Gay street in Baltimore city, for the sum of $ 8,000, of which $ 3,700 was paid, and $ 4,300 remained due; and that Pollack, with the knowledge and co-operation of Cohen, expended $ 3,781.91 thereon in repairs, &c.; that Pollack being betrothed to the daughter of Cohen, the intercourse between them was so confidential, that the latter knew and was apprized of the in solvency of Pollack, and under the pretence of procuring a security for debts due to him from Pollack, for purchases of dry goods, obtained his signature to a release of the bond given to him by Cohen, obliging the latter to convey to him the property on full payment; that at the time of signing said release, Pollack was insolvent, and Cohen told him he could not "get through;" that no consideration then passed, and the recital thereof was false, and that said Cohen did not [**2]  even give up the unpaid promissory notes which remained of those given for the purchase of the property; and further, that the release was obtained by the unbounded confidence which Pollack had in Cohen, and without his even reading it, and at a time when Pollack "had no reasonable expectation of being exempted from liability to execution on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws," and that Cohen knew it; and that the release is therefore void, and that the title to the property hath become vested in the complainant as trustee in insolvency.

The bill further states, that shortly after said release, Pollack failed, and he could not pay thirty cents on the dollar, and to dispose of the remnant of his goods to advantage, he sent them, with Cohen's knowledge and approbation, to Wheeling, when he, Cohen, attached them in transitu for a pretended balance of indebtedness, and so, in fact, possessed himself of all of Pollack's assets, to the exclusion of all other creditors, and that Pollack applied in insolvency, and the complainant was duly appointed his trustee. The prayer of the bill was, that the release should be declared [**3]  void, the property sold, and that Cohen should receive no dividend until he should bring into account the proceeds of the attachment. With the bill were filed as exhibits the bond of conveyance and its release designated respectively as Exhibits H. P., No. 1, and H. P., No. 2, and the insolvent and Cohen were made defendants.

The answer of Cohen insists, that the said property was bought by him for the insolvent, at his instance and request, for a place of business, but denies that the repairs and improvements alleged in the bill were made with his co-operation; it admits the betrothal, but avers that the property was re-purchased by him at the request of Pollack, because of the difficulty of collections, and to give him financial ease; that he agreed to buy the property at $ 10,000, or for $ 7,000 over and above the $ 3,000 due on the mortgage upon it, and which $ 7,000 was to be paid by crediting the balance due on the property, then by crediting notes of Pollack held by him, and the balance in payments as they might be needed; that all these were made, leaving unpaid and unsecured a considerable amount on open account for merchandise sold him; that he had not, until some time [**4]  afterwards, any suspicion of the pecuniary insufficiency of said Pollack, and continued to sell to him without distrust; and for that reason the agreement of re-purchasing was not put in writing until the 26th of December, 1860, and after all the purchase money had been paid. He denies that at said time Pollack was insolvent, on the contrary, he avers that he expected him to be able to meet all his engagements, and he bought the property with that assurance. The answer, however, admits, that at the time of this transaction, the unpaid notes were not returned, but that they were not withheld from any fraudulent design, but were considered as extinguished.

That the price paid was a full price, and as much as any one would have given, and that he has since been obliged to pay two mechanic's liens thereon for $ 360. He denies that Pollack signed the release of the bond without reading it; on the contrary, he avers that it was fully read and explained to him at the time of its execution and delivery; that in February, 1861, he found that Pollack required an extension, and though a creditor for $ 4,000, he would, from Pollack's representations, have given it, had other creditors assented;  [**5]  that he afterwards discovered these representations to be untrue, and he told him he had lost confidence in him, and would give him no further credit; that his daughter had determined to break the engagement, and he approved the determination, because of the loss of confidence; but not desiring to prosecute or annoy, he signed a composition paper, the agreement therefor being provisional, and others not signing, it "fell through;" that being in Pittsburg in May, 1861, he received a letter from his son, stating that Pollack was moving his goods, and that he believed they had been forwarded to Pittsburg, and on the basis of this information he attached, as he had a right to do, and that it is for the Court in Pittsburg to say whether the same was or not properly brought; and he puts the complainants to the proof as to the application in insolvency, of which he knows nothing.

Pollack answers, admitting all the allegations of the bill.

A commission was issued, and before the commissioner the insolvency of Pollack was admitted, and the appointment of the complainant as trustee; also the assignment by Pollack of all surplus of his estate, who was then examined as a witness. He [**6]  proved the purchase of the property, the amount expended on repairs and improvements, amounting to $ 3,781.98 thereon, under Cohen's advice. He also proved his betrothal to Cohen's daughter, and that he was then worth about $ 6,000; that he afterwards became embarrassed, and gave Cohen a statement in writing of his affairs, and shewed him his books, prior to which Cohen had loaned him money; that at the time of said loans he gave Cohen, as security, the bond of conveyance for the property and the notes he had paid on account of the purchase; that about the end of December, 1860, Cohen gave him a statement of his indebtedness to him, amounting to $ 13,000, and he proposed to take the property at $ 10,000 as security, and give him a lease of five years on it, after which it was to be returned; that he, Pollack, was satisfied, and executed what he supposed to be such a paper, complainant's exhibit H. P., No. 2, without reading it; that this paper was already prepared at the office of Cohen's attorney, and from Cohen's statements, he, Pollack, supposed it a security, and was not aware he had signed a deed; that at the time of executing said paper, he owed $ 29,000, on which he then could [**7]  not have paid fifty cents on the dollar; that Cohen was aware of his condition, and remarked, that he feared he could not get through, and at one time mentioned that he though he was solvent. The following interrogatory was then propounded to the witness: "At the time of the execution of the said paper, the complainant's exhibit H. P., No. 2, had you any reasonable expectation of being exempted from liability to execution, on account of your debts or responsibilities, without petitioning for the benefit of the insolvent laws?" To which he replied, "I had none; I had no money to pay any liabilities, all that I had was invested in this property, (that conveyed in H. P., No. 2,) and in old stock, and old debts," &c.

The witness further proved, that Cohen retained the bond and the twenty-seven notes which were paid on account of the purchase; that the recital of the consideration in exhibit H. P., No. 2, is not true, and that nothing, at the time of the execution thereof, was delivered or tendered to him by said Cohen or any one else; that his inducement to execute it was, that he supposed it a security for money lent, and from the relationship existing between them, he supposed Cohen [**8]  would extricate him from his difficulties; that the object of improving the property under Cohen's advice was, that he might also live there after he was married, and Cohen refused to consent to the marriage because of embarrassments; and that his condition grew worse, and it ended in insolvency. On cross-examination he stated, that Cohen bought the property for him at his request.

William Geahring, book-keeper to Pollack, proved that Pollack was insolvent in August, 1860, and December, 1860; that Cohen, in October, 1860, examined Pollack's books and into his affairs; that the expenditures on the property were on account of the intended marriage, and made under Cohen's supervision; that Cohen sold Pollack trash as goods, and charged the highest prices for them; and that, and his confidence in Cohen, caused Pollack's insolvency; that he had often warned Pollack, but the acquaintance with the daughter induced the confidence. On cross-examination he stated, that in October, 1860, Cohen knew Pollack's assets better than Pollack himself; and that he, or a member of his family, examined the stock on hand every week.

James M. Cunningham, a witness produced by Cohen, proved that [**9]  Pollack was insolvent in the summer and autumn of 1860; that he went into his service as clerk in February, 1860, and he thought him insolvent a very short time afterwards.

James Hodges proved, that on the 7th of February, 1861, Pollack's paper was sold at two per cent. a month, a heavy and extraordinary rate at that time.

A mass of other testimony was taken which becomes immaterial in consequence of this Court's considering in its decision the single question of Pollack's solvency or insolvency on the 26th of December, 1860, the date of the release of the bond of conveyance, exhibit H. P., No. 2.

The Court below, (MARTIN, J.,) dismissed the complainant's bill with costs, and filed the following opinion:

"It is apparent that there is to be found in the case no evidence of fraud, in fact, and a careful examination of the testimony has satisfied me, that the complainant has failed to establish the proposition that Herman Pollack, at the time he executed the deed of release in question, had no reasonable expectation of being exempted from liability from execution on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws.  [**10]  As this proposition lies at the foundation of the case as presented by the complainant, and he has failed to establish it, the bill must be dismissed irrespective of various questions which were raised in the argument, and in reference to which it is not necessary to express an opinion."

From the decree dismissing the bill, the complainant appealed.  

DISPOSITION:
Decree affirmed with costs to the appellee.  

HEADNOTES:

DEED MADE IN CONTEMPLATION OF INSOLVENCY: ACTS AND DEEDS OF DEBTOR WHERE VOID OR VOIDABLE. -- ART. 48, SEC. 7 OF THE CODE, is in the following words: "Any confession of judgment, and any conveyance or assignment made by any insolvent under this Article for the purpose of defrauding his creditors, or giving an undue preference, shall be void, and the property or thing conveyed or assigned shall vest in the trustee, and all acts done by a petitioner before his application, when he shall have had no reasonable expectation of being exempted from liability to execution, on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws, shall be deemed to be within the meaning and purview of this section." On an appeal from a decree dismissing a bill filed to set aside a deed of release as an undue preference within the meaning of the above Art. and section. -- HELD:

1st. That this section, taken as a whole, unquestionably contemplates a class of cases in which the acts of an insolvent, before his application, cannot be avoided, notwithstanding his actual insolvency at the time the acts were done.

2nd. That the words "no reasonable expectation of being exempted," &c., clearly imply a knowledge or belief on the part of the insolvent of his inability to pay his debts; for without such knowledge or belief, he would necessarily be presumed to have a reasonable expectation of being exempted from execution, without applying for the benefit of the insolvent laws.

3rd. If, however, a conveyance of property is made by a debtor to a creditor to satisfy or secure a debt, at a time when the debtor knows or believes himself to be insolvent, and does not expect to be relieved from execution for his debts without the aid of the insolvent laws, the necessary presumption would be, that the conveyance was executed with a view of applying for the benefit of the insolvent laws; and in such a case the conveyance would be void within the meaning of this provision of the Code.

4th. That this section contemplates as void or voidable only such acts of a debtor in derogation of the rights of his creditors as may be done by him when he knows or believes himself to be insolvent, and has no reasonable expectation of exempting himself from execution, without the aid of the insolvent laws; or in other words, only such acts as the debtor may be presumed to have done in derogation of the rights of his creditors, with a view of applying for the benefit of the insolvent laws.  

COUNSEL:
George H. Williams, for the appellant, argued:

That there was but one question involved in the cause that was at all essential to its decision, and that was: Had Pollack, on the 26th of December, 1860, a reasonable expectation of being exempted from liability to execution on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws? (See 1 Code, Art. 48, sec. 7, p. 345.) He contended, that to this question, from the evidence in the cause, there could be but one answer,--that he could have had no such expectation, and, therefore, the deed or release must be set aside as fraudulent and void. That where a deed is impeached for fraud, the party charged will not be allowed to prove any other consideration than that stated. Union Bank vs. Gratz,  [**11]  1 H. & G., 175.

P. McLaughlin, for the appellees, insisted:

1st. That as the transaction was consummated for more than one year before the filing by Pollack of his petition for the benefit of the insolvent laws, it cannot be impeached by the trustee as an undue and improper preference. 1 Vol. Code, Art. 48, sec. 6, p. 45.

2nd. That as there is no evidence of fraud in fact, and as the deed is clearly good, and as there is no ground for denouncing it as an undue and improper preference, for the reason already stated, the complainant, as trustee, acquired no right whatever in the property embraced in said deed.

3rd. Even if the deed could be successfully assailed under the said 7th section of the Code, by establishing, as a matter of fact, that said Pollack, when he made said deed, had no reasonable expectation of being exempt from liability to execution on account of his debts or responsibilities, without petitioning, &c., yet there is no sufficient evidence to establish the fact.

The only evidence in support of this allegation is, that of the defendant, Herman Pollack, and he, to the best of his ability, endeavors to support this idea.

But Herman Pollack's [**12]  testimony, even if it were not contradicted and entirely outweighed, is not admissible for the following reasons, viz:

1st. The objection to his competency, on the ground of interest, has not been satisfactorily removed.

2d. The objection, on the ground of policy, to so much of his testimony as seeks to impeach his own deed, exhibit H. P., No. 2.

3d. But apart from these exceptions, his answers to the interrogatories-in-chief are flatly contradicted, as we think we have shown, by his answers to the cross-interrogatories; his testimony is, therefore, felo de se.

4th. His accounts rendered, his representations to Mr. Cohen, his letters, all show that he was either himself deceived as to his true condition, or that he was willing to deceive other persons. He is, at least, a witness whose credibility is open to much suspicion.

5th. Besides all this, he had every reason to hope that his betrothal to the daughter of Mr. Cohen would be followed by marriage, and it was not until long after the deed was made that he had any reason to suppose that he would not be the accepted son-in-law of a man who was able to help him, and who, as shown by the testimony of Solomon [**13]  Cohen, and indeed by his own evidence, had in various ways manifested his willingness to serve him, until he came to the conclusion that he was not a true man.

6th. There is no allegation of any fraud in fact, and the evidence shows that Mr. Cohen was a creditor for a large amount over and above the value of Pollack's interest in this property, and that the price allowed was the full value. Unless the deed can be successfully denounced as an undue preference to the creditor of the maker, it must be sustained as valid. But the evidence shows that the making of the deed was merely the consummation of an agreement made as early as October, 1860, and further, that on the basis of said agreement cash advances were subsequently made to the amount of upwards of $ 2,600, as shown by defendant's exhibit M. C., No. 3, leaving a large merchandise account unpaid, and leaving the lent note for $ 1,443.99, of Strauss, Hartman & Co., unprovided for. Surely, if the object had been, on either side, to give an undue and improper preference to Cohen as a creditor, the excess of the price above the liens on the land would have been applied in payment, pro tanto, of a larger amount of indebtedness [**14]  than due and unsecured.

7th. "Liability to execution," if imprisonment for debt were not now abolished, would naturally be construed as referring to the person. But if, with the change of the law, we construe the word "execution" as referring to property, we must still give to the words "without petitioning," &c., their full and proper signification. It imports necessity, at least apparent necessity, for resort to this measure of relief as the only resource. The condition of the party must be known to have been hopeless, or if he himself cherished hopes, the state of his affairs must be shown to have been such that no reasonable man in his condition, in view of all the surrounding circumstances, could have entertained any hope of extricating himself from execution, or that he, himself, could have had no reasonable expectation, which is all the same as saying that no sane man could have hoped for any other alternative.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*496]  COCHRAN, J., delivered the opinion of this Court.
This bill was filed for the purpose of setting aside a deed of surrender and release, executed by Herman [**15]  Pollack to Moses Cohen, on the 26th of December, 1860, upon the alleged ground, that Pollack was then insolvent, and that the deed to Cohen, one of his creditors, was an undue preference within the meaning of sec. 7, Art. 48 of the Code. It is admitted that Pollack did not apply for the benefit of the insolvent laws until the 18th of February, 1862, about fourteen months after the date of the deed. There is no pretence that the deed was executed for an insufficient consideration, or that it was fraudulent in fact; and we have, therefore, to decide the simple question, whether it was executed by the grantor when he had "no reasonable expectation of being exempted from liability to execution on account of his debts without petitioning for the benefit of the insolvent laws."
The 7th section of Art. 48 of the Code, taken as a whole, unquestionably contemplated a class of cases in which the acts of an insolvent before his application cannot be avoided, notwithstanding his actual insolvency at the time the acts were done. It is not difficult to imagine a case where one, knowing himself to be insolvent, might, nevertheless, very reasonably conclude, from the state of his credit, the increasing [**16]  

 [*497]  profits of his business, or enhancing value of his property, that he could protect himself from liability to execution and pay his debts in full. If in such a case as this, the debtor should part with a portion of his property to satisfy pressing claims, or should convey it to a creditor in satisfaction of an existing debt for the purpose of maintaining his credit, and enabling him to provide for the eventual payment of all his debts, without incurring liability to execution on account thereof, such a conveyance could not reasonably be said to fall within that class of acts declared to be void by this section. It would, in fact, be the case of one, who, notwithstanding his insolvency and subsequent application for the benefit of the insolvent laws, nevertheless, had a reasonable expectation of being exempted from liability to execution, and whose act could not be impeached as within the meaning of this provision. The terms "no reasonable expectation of being exempted, &c., clearly imply a knowledge or belief on the part of the insolvent of his inability to pay his debts, for, without such knowledge or belief, he would necessarily be presumed to have a reasonable expectation [**17]  of being exempted from execution without applying for the benefit of the insolvent laws. If, however, a conveyance of property is made by a debtor to a creditor to satisfy or secure a debt at a time when the debtor knows or believes himself to be insolvent, and does not expect to be relieved from execution for his debts without the aid of the insolvent laws, the necessary presumption would be, that the conveyance was executed with a view of applying for the benefit of the insolvent laws; and, in such a case, the conveyance would be void within the meaning of this provision of the Code. Our conclusion is, that this section contemplates as void or voidable, only such acts of a debtor in derogation of the rights of his creditors as may be done by him when he knows or believes himself to be insolvent, and has no reasonable expectation of exempting himself from execution without the aid of the insolvent laws, 

 [*498]  or expressing the same proposition in equivalent terms, only such acts as the debtor may be presumed to have done in derogation of the rights of his creditors, with a view of applying for the benefit of the insolvent laws.
The provision in question was codified from the [**18]  Act of 1854, chap. 193, sec. 7, which in substance and effect is the same as the 6th sec. of the Act of 1816, chap. 221, and the construction given to it here corresponds with that given to the Act of 1816, in the cases of Hickey vs. Farmers Bank, 5 G. & J. 377, Crawford vs. Taylor, 6 G. & J. 323, and Dulaney vs. Hoffman, 7 G. & J. 170.
It was, therefore, necessary for the appellant in making out a case, upon which this deed could be set aside, to show that Pollock not only knew, or supposed himself to be, insolvent at the date of the deed, but that the circumstances under which it was executed, were such that he could not reasonably have expected to pay his debts in full, or avoid liability to execution on their account otherwise than by means of the insolvent laws. This, in our opinion, the appellant has failed to do. The evidence of Pollock's condition at the date of the deed does not show that he then knew, or supposed himself to be, insolvent. The strongest evidence on that side of the case is that of Pollock, himself, who, upon his examination in July, 1862, says, that at the time the deed was executed he was in [**19]  debt to the amount of about $ 29,000, and that he could not, at that time, have paid more than fifty cents in the dollar; but he does not say that he then knew he was unable to pay more. It is true that Geahring and Cunningham, his employees, both state that they thought him insolvent during the latter part of the year 1860; but Pollock testifies that shortly previous to, or in October, 1860, he believed himself to be worth about $ 6000; and the statements of his pecuniary condition, made up in August, 1860, and February, 1861, by the assistance of Geahring and Cunningham, neither of which were substantially 

 [*499]  impeached or contradicted, show that he was solvent at both of these dates. Judging of his condition in December, 1860, by inferences from events subsequently occurring, it might be supposed that he was then insolvent; but the question of his insolvency at that time cannot properly be determined in that way. The evidence shows that the usual course of trade and business was much deranged during the first half of the year 1861, by the political troubles then commencing, and that commercial confidence, at all times a necessary condition of prosperous trade, gave place [**20]  to general suspicion and distrust. How far this condition of things was the occasion of Pollock's suspension in May, 1861, does not clearly appear, but it is evident that his embarrassments were very much increased. But whether solvent or insolvent when the deed was executed, Pollock's own testimony shows that he then believed himself able to pay his debts in full. In the spring of 1861, some months after the date of the deed, he made an effort to obtain an extension of the time for payment of his debts, and he says that his idea then was that if Cohen had not forced payment of the claim due to him, and the troubles of the country had not increased, he could have gotten through his difficulties and paid every dollar of his liabilities. He also denies that he had any intention, or that he even expected at that time, to apply for the benefit of the insolvent laws.
Much of the testimony contained in the record has no material bearing upon the question to be decided, and it has not been noticed for that reason; but that to which we have more particularly referred, was sufficient in our opinion to justify the conclusion reached by the Court below. It shows that the grantor, at the date [**21]  of the deed, had an expectation of being exempted from execution for his debts, which, so far as we can see, was not unreasonable, and there is an entire absence of evidence to show that it was executed with a view 

 [*500]  to his ultimate insolvency and release under the insolvent laws.
Decree affirmed with costs to the appellee. 

55 of 120 DOCUMENTS 

SAMUEL S. COSTON vs. LEAH COSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 500; 1866 Md. LEXIS 74 

July 17, 1866, Decided 

PRIOR HISTORY:
 [**1]  WRIT OF ERROR to the Criminal Court of Baltimore city.

Leah Coston, on behalf of Simon and Washington Coston, as mother and next friend, petitioned the Criminal Court of Baltimore city for the writ of habeas corpus to be directed to Samuel Coston, commanding him to produce before said Court the bodies of Simon and Washington Coston, alleging that they had been "illegally arrested," and were then "held in custody" by him. The writ was issued on the 6th of May, 1865, and made returnable on the 17th of the same month, and was returned served on the 9th. Coston appeared in Court on the 17th with said Simon and Washington, and returned that he held them as apprentices, and filed as part of said return copies of the indentures by which he held them.

To this return the following pleas, in substance, were filed on behalf of the petitioner:

1st. That the parents of said children were not summoned to be present at the binding.

2nd. That the said children, at the time of said binding, were not the children of free negroes, but were born in slavery, and that both they and their mother were the slaves of the defendant until set free by the Constitution of 1864, and that the detention [**2]  of said children under the color of apprenticeship, as returned, was a detention in slavery or involuntary servitude contrary to said Constitution.

3rd. That at said binding, the parents were able to support said infants and keep them employed so as to teach them habits of industry, and were still so willing and able.

The counsel for the appellant then filed the following exceptions to the above pleas:

1st. Because the matters of said proposed traverses are not matters of fact set forth in said returns.

2nd. Because the said several matters are immaterial and irrelevant to the sufficiency of the return.

3rd. That the said proposed traverses relate to matters of fact not properly triable upon these writs, and proper if material for the Orphans' Court of Somerset county.

They therefore prayed the Court that they be not received, which prayer the Court overruled; whereupon a demurrer was filed by them and issue joined thereon. The demurrer having been overruled, the Court decided that the said pleas were sufficient to bar the respondent from the detention of the children, and passed an order discharging them from his custody, and delivered them to their parent [**3]  named in the petition. From this decision a writ of error was sued out through the Circuit Court of Baltimore city, and brought to this Court.  

DISPOSITION:
Writ of error dismissed.  

HEADNOTES:

APPEAL AND WRIT OF ERROR, -- WILL NOT LIE IN MARYLAND IN CASES OF HABEAS CORPUS. -- A writ of error may be brought in both criminal and civil cases, and has no peculiar power which gives it a wider range or greater effect than an appeal in the latter.

That an appeal will not lie from an order of an inferior Court, upon a petition for a habeas corpus, on the ground that the decision is not a final judgment, has been settled by the decisions in Bell vs. The State, 4 Gill, 304, and Coston vs. Coston, 23 Md. Rep., 271; and the force of these decisions is in no degree impaired where the attempt is to review the order of the inferior Court by writ of error. 

COUNSEL:
William S. Waters and William Schley, for the plaintiff in error:

A writ of error will be allowed in Maryland in every case where it would be allowed at common law, whether an appeal would lie or not. Code, Art. 5, sec. 4. Evans' Pr., 424, 428. 3 Bac. Abr., 325, (note) 330. Bouvier's Inst., 69, 537, 545. 2 Williams' Saunders, 100, 101, note 1. Will the writ of error lie in this case?

1st. This is a final judgment. It will be conceded, that no writ of error will lie unless the judgment is final. "A writ of error lieth when a man is grieved by an error in the foundation proceeding, judgment or execution in a suit, but without a judgment, or an award in the nature of a judgment, no writ of error does lie." Coke Lit., 288, b. Boyle vs. Zackarie, et al., 6 Peters, 655, 656.

The question as to what is a final judgment has been much considered. The only requisite to finality in a judgment is, that it should dispose of the whole subject matter in controversy. 9 Petersdorff Abr., 3 (note.) Holmes vs. Jennison,  [**4]  14 Peters, 562, 563. Metcalfe's case, 11 Coke, 38, 40.

No Court could, by its judgment, have disposed more completely of an entire matter in controversy than has been done in this cause. Independent of the question of a want of jurisdiction, which will be considered hereafter, the judgment is, in form and substance, a final judgment.

2nd. This judgment is given in a suit or action. "A suit is any proceeding in a Court of Justice by which an individual pursues that remedy in a Court of Justice which the law affords him." Holmes vs. Jennison, 14 Peters, 566. A writ of habeas corpus has been decided to be a suit. See case last cited, and Yates vs. The People, 6 Johns., 337. Ableman vs. Booth, 21 How., 506.

3rd. The judgment here is upon proceedings in conformity with the common law. In the case of The City of London, 8 Co., 127, it is said, that a writ of error would not lie because there could be no demurrer or issue joined.

Art. 43, sec. 13, of the Code, authorises pleadings, and in this cause the whole question is decided upon demurrer. The pleadings are by the common law, and a regular judgment entered thereupon. The great difficulty in England, where the question [**5]  of the right to the writ of error in case of habeas corpus has been considered, is that there was no regular form of judgment entered. Nothing was done but to endorse the remittitur upon the back of the writ. Lord HOLT, in order to obviate this objection in the case of the Aylesbury men, ordered the judgment to be entered in form. 8 Hargrave's State Trials, 167. Queen vs. Patty, 2 Ld. Raym., 1115. 2 Salk., 304.

4th. The decision in this case is not in the exercise of a discretion, as it is a judgment upon a matter of right. 2 Ld. Raym., 1115. 2 Salk., 304. Harg. St. Tr., 167. Dean & Ch. of Dublin, 1 Strange, 536. 8 Mod., 27. 2 Bro. Par. Ca., 554. 6 Johns., 338. 14 Peters, 561. 21 How., 506.

The possibility of a review, by this Court, of proceedings under writs of habeas corpus, is considered in the case of Ex parte O'Neil, 8 Md. Rep., 229.

William Daniel, A Stirling, Jr., and Henry Stockbridge, for the defendant in error:

I. Of the writ of error:

1. A writ of error will not lie at common law upon a habeas corpus. City of London, 8 Coke, 253. King vs. Dean & Ch., &c., 8 Mod., 27. Queen vs. Patty, 2 Ld. Rdym., 1116. 1 Strange, 543. 2 Bro. Par. Ca., 554. 1 P.  [**6]  Wms., 349. 2 Salk., 503. 14 East., 32, (note.) 8 Harg. St. Tr., 90. 14 Howell St. Tr., 806. Yates vs. People, 6 Johns., 410 to 430. Holmes vs. Jennison, 6 Peters, 627 to 630. Com. Dig., Titles, "Pleader--Error," 3 B., 7.

2. The writ will not lie where the proceeding does not conform to common law proceedings. Groenvelt vs. Burrell, 1 Salk., 144 & 263. 1 Ld. Raym., 469. Savage Manf. Co. vs. Owings, 3 Gill, 499.

3. The writ will not lie where the decision rests in the discretion of the Court. Marine Ins. Co. of Alexandria vs. Hodgson, 14 Peters, 626. 6 Cranch, 206. Armstrong vs. Wright, 1 Ruff. & Hawk., 93. Bard vs. Lansdale, 2 Binn., 80.

4. The writ lies only from a final judgment. Co. Lit., 288, 127, a. & 128, b. 11 Coke, 38. 14 Peters, 626.

5th. The decision upon habeas corpus is not final or conclusive. Ex parte Burford, 3 Cranch, 447. Ex parte Bollman & Ex parte Swartwout, 4 Cranch, 101, &c. Bell vs. State, 4 Gill, 304.

6. Appeal will not lie upon habeas corpus. Coston vs. Coston, 23 Md. Rep., 271.

7. Where an appeal or writ of error lies, the judgment is binding until reversed. Ex parte Watkins, 3 Peters, 193. 4 Gill, 304. A judgment on habeas corpus [**7]  is not thus binding. 4 Gill, 304. Ex parte Partington, 13 M. & W., 678.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*504]  BOWIE, C. J., delivered the opinion of this Court.
A writ of error may be brought in criminal as well as civil causes. It has no peculiar power which gives it a wider range or greater effect than an appeal in the latter. They are but different modes of accomplishing the same thing. The review of judgments of Courts of original and inferior jurisdiction, by a Court of appellate jurisdiction. The one is by a writ 

 [*505]  originally issued out of chancery, but now from the Courts having chancery jurisdiction directed to the Courts whose alleged error is proposed to be reviewed; the other by prayer for an appeal, entered within the time and in the manner prescribed by law, and it may be safely said that in this State, in all civil cases, an appeal and writ of error lie "in consimili casu." A suit and final judgment is as necessary in one case as the other.
In the case of the Matter of the Petition of Samuel J. Coston, decided by this Court at the April term, 1865, (reported in 23 Md. 271,) [**8]  it was held, that the order of a judge or Court, upon a petition for a habeas corpus, could not be a subject of appeal, because it was not, in legal acceptation, "a judgment or determination of any Court of Law, in any civil suit or action," from which alone appeals would lie. This decision was founded on a similar ruling in the case of Bell vs. The State, 4 Gill 301, in which this Court declared that the writ of habeas corpus was a proceeding summary in its character, addressed to the discretion of the judge or tribunal to whom the application was made, so far as the discharge of the party is concerned; a proceeding where, in many cases, the evidence upon which the judgment is founded, cannot be presented to the appellate Court, and is not final and conclusive."
That decision condensed the reasoning of the adjudged cases in England for a century past, and was several years subsequent to the case of Holmes & Jennison, 14 Peters, relied on by the appellants, and must be assumed to have been settled law, since the Court did not deem it necessary to refer to authorities to sustain their conclusion. The force of that decision is not [**9]  impaired in any degree by the new mode of bringing up the question, as it was not founded on matter of form, but matters of substance. If it were not superfluous to add another to the arguments already urged, it might be said, the main object of the writ of "habeas corpus ad subjiciendum," 

 [*506]  as a writ of right, which is to release immediately from unlawful personal restraint, is counteracted by converting it into a suit, subject to all the delays and expenses incident thereto.
Although the petitioner should be released by the order of the judge or Court to whom he made application, if that order is subject to revision and reversal by an appellate Court, the final judgment, to be of any avail, must deprive the petitioner of the right of petitioning again; whereas, the right of petitioning for a habeas corpus, is unlimited in its nature, and the application may be renewed toties quoties, as long as the petitioner is confined, and a judge or Court can be found to whom he may address his prayer for relief.
It is conceded by the appellant's counsel that no writ of error will lie unless the judgment is final. This Court has said in the case of Bell vs. The State,  [**10]   the judgment in habeas corpus is not final. All the English authorities, from Coke to Holt, were reviewed by Chief Justice KENT in the case of Yates vs. The People, 6 Johns. Rep., the result of which he sums up in the following energetic and eloquent apostrophe:
"I now submit to the candor and judgment of this Court, whether I have not sufficiently shown that, by the English law, a writ of error will not lie in this case. We have the unanimous opinion of the Court of C. B. in the time of Lord COKE. We have the resolutions of the House of Commons in the reign of Queen Ann. We have the opinion of the Court of K. B. in the time of George I., and lastly, we have the sanction of Lord Ch. B. COMYNS, and all this without a single case, or decision, or precedent, or opinion, to oppose such a stream of authority. What intelligent person can then doubt of the law? **** The doctrine was laid down in Lord COKE's day, as of course, as being then the known and established law. The principle is of immemorial standing. It has become the uncontroverted maxim of ages."
Although this opinion was not sanctioned by a majority 

 [*507]  of the Senate of N. Y., they being divided [**11]  as twelve to sixteen, yet, much the greater portion of the Bench concurred with Ch. KENT.
The case of Holmes vs. Jennison, 14 Peters 540, was a writ of error brought on the order of the Supreme Court of Vermont, remanding on habeas corpus the plaintiff in error, who had been committed on the Governor's warrant, to be surrendered to the Canadian authorities as a fugitive from justice. The Supreme Court of the United States was divided on the question of jurisdiction, so that no decision was pronounced in the case. In announcing their opinions several of the judges expressed their views on the question, whether a writ of error would lie in such a case.
TANEY, C. J., STORY, MCLEAN, WAYNE and CATRON, concurred in favor of a writ of error. BALDWIN dissented, others were silent. The Chief Justice placed his opinion on the ground that there was a judgment of the highest Court of the State of Vermont, formally and fully entered on its records, declaring the prisoner was legally held under the authority of the State law, which was precisely one of the cases in which the writ of error is given in the 25th section of the Act of 1789. That "the validity of the Governor's [**12]  warrant was the only question before the Supreme Court of Vermont, and that question was certainly finally settled.
The writ of error was granted at the instance of the prisoner, "in favorem libertatis," under what was considered the established construction of the Act of 1789, in parallel cases, such as petitions for mandamus and writs of prohibition, which were held to stand on the same principles, and were construed to be "suits" in the meaning of the Acts of Congress. No such analogy exists in our legislation.
Appeals in cases of mandamus being the subject of express and distinct provision, without the remotest allusion to the writ of habeas corpus in the provisions for appeal or writ of error.

 [*508]  In the case of Ableman vs. Booth, 62 U.S. 506, 21 How. 506, 16 L. Ed. 169, the Supreme Court of Wisconsin discharged a prisoner, committed by a commissioner of the United States, for a violation of the Fugitive Slave Law. After rendering their judgment, before the writ of error was sued out, the State Court entered on its record, that in the final judgment it had rendered, the validity of the Act of Congress of September 18th, 1850, and [**13]  February 12th, 1793, and the authority of the marshal to hold the defendant in his custody under the process mentioned in his return to the writ of "habeas corpus," were respectively drawn in question, and the decision of the Court in the final judgment was against their validity respectively. The whole proceedings show, there was an attempt upon the part of the State Courts to supersede and annul the authority of the United States, by declaring the law unconstitutional and arresting the action of its officers and Courts, under semblance of the right to issue a writ of "habeas corpus," and the United States had to assume jurisdiction to vindicate its authority.
It is not inappropriate to remark, that the decisions in the Supreme Court of the United States, above referred to, may be considered as turning upon the statutes of the United States providing for appeals or writs of error from the decisions of State Courts, in all cases in which the Constitution or laws of the United States made in pursuance thereof, are drawn in question, and the decision was against their validity.
If writs of error in such cases did not lie, the authority of the United States would depend entirely [**14]  upon the judicial decisions of the judges of the State Courts.
Independently of this consideration, the authority of these cases cannot control the series of decisions to the contrary in the State Courts. After collating all the cases, Hurd, a late writer on habeas corpus, says: "The current of authority in the State Courts is, that a review of a decision on 

 [*509]  habeas corpus, independently of statutory provisions, cannot be had by writ of error or appeal, and that, on the ground that the decision is not a final judgment; for which he cites, Bell vs. The State, 4 Gill 301. Russell vs. The Commonwealth, 1 Penrose & Watts 82. Wade vs. Judge, 5 Ala. 130. Howe vs. The State, 9 Mo. 690. 2 Cal. 424.
This objection, constituting the appellee's first point, goes to the jurisdiction of this Court over the subject matter, and being in our judgment well taken, makes it unnecessary, as well as improper, to consider the other points raised by the briefs of the respective parties.
Writ of error dismissed. 

56 of 120 DOCUMENTS 

STATE OF MARYLAND vs. JOHN BOYLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 509; 1866 Md. LEXIS 75 

July 17, 1866, Decided 

PRIOR HISTORY:
 [**1]  WRIT OF ERROR to the Circuit Court of Howard county.

The writ of error in this case was sued out by the State. It appears from the record thereby brought up, that Boyle was indicted at a special term of the Circuit Court for Anne Arundel county, held in May, 1865, for the murder of Thomas H. Watkins, committed on the 25th of March, 1865, and upon his suggestion and affidavit this case was, on the 25th of May, 1865, removed to the Circuit Court for Howard county, to be held on the first Monday of September then next, for trial. He was then tried and convicted in the Circuit Court for Anne Arundel county on two other indictments, one for larceny and the other for an assault with intent to murder, and on the 22d of June, 1865, by judgment of that Court, was sentenced to the penitentiary for four years in one case, and five in the other, and under these sentences was, on the same day, taken to and confined in the penitentiary.

On the 20th of September, 1865, at the September term of the Circuit Court for Howard county, to which the indictment for murder had been removed, the judge of that Court, on motion of the State's Attorney, issued a writ of habeas corpus, directed to the [**2]  warden of the penitentiary, commanding him to have the body of John Boyle, "with the day and cause of his being taken and detained," before him, the said judge, on the 26th of September, 1865, "to do and receive all and singular those things which the said judge shall then and there consider concerning him in this behalf, and have here this writ." On the return day the warden came into Court with Boyle in his custody, and made return to the writ in open court, "that the said John Boyle is now in Court, and annexed herewith is a copy of the warrants by which he is held in custody," being copies of the judgments of the Circuit Court for Anne Arundel county, before referred to.

The State, by its attorneys, then moved the Court that the custody of Boyle be transferred and handed over to the sheriff of Howard county, in order that he might be tried on the said indictment for murder. At the same time, and before hearing this motion, Boyle, by his counsel, moved to quash the writ of habeas corpus, and prayed the Court to remand him to the penitentiary, alleging as a reason, the previous judgments in Anne Arundel county, his confinement thereunder, by reason whereof he had been unable [**3]  to prepare for his trial, the non-expiration of these sentences, and that he could not be lawfully tried until the periods of confinement under those sentences shall have expired.

The Court overruled the State's motion and sustained that of the prisoner, and thereupon ordered and adjudged that Boyle be remanded to the custody of the warden aforesaid.

Afterwards, on the 20th of October, 1865, the State, by its attorney, made application to the Hon. JOHN E. SMITH, judge of the Circuit Court for Howard county, sitting in equity, for a writ of error, alleging as ground of error the above action of the Court, in the matter of a prosecution of the State against Boyle, on an indictment for murder. Upon this application, without any order of Judge SMITH, as equity judge, granting it or ordering the writ upon the same day, as stated in the record, the said State produced (to whom non constat) the writ of the State of Maryland for the correction of errors, commanding that the judgment aforesaid, so as aforesaid rendered, with all things thereunto relating, be transmitted to the Court of Appeals for the State of Maryland, the tenor of which said writ is as follows:

"To the Honorable [**4]  John E. Smith, Circuit Judge of Howard county, greeting, &c. Because in the record and proceedings, and also in the rendering of judgment to quash the return of the warden of the Penitentiary of Maryland to the writ of the said Court, commanding him to bring into said Court the body of one John Boyle, to be tried in the said Court on a prosecution of the said State of Maryland, against the said John Boyle, for murder, &c., in the said Circuit Court, held before the said judge at September term, 1865, and in rendering judgment that the said John Boyle be restored to the custody of the said warden of the Penitentiary, manifest error, as it is said, hath happened, to the great damage of the State of Maryland, as of its information and complaint of George W. Sands, its attorney, hath appeared, and as it is right that the error, if any hath been, should be duly corrected, and full and speedy justice done to the said State of Maryland, in this behalf, &c., &c.: Therefore you are hereby commanded, that if the judgment aforesaid be therein given, that the record and proceedings aforesaid, with all things thereunto relating, you send to the Court of Appeals, &c., &c.

W. W. WATKINS, Clerk.  [**5]  "

Upon the writ this record has been brought to this Court. At the hearing of the cause, the counsel for the defendant in error moved that the writ of error be quashed or dismissed:

1st. On account of the defects on the face of the writ.

2nd. Because the judgment or determination of the Court below was one from which no writ of error lies.  

DISPOSITION:
Writ of error quashed.  

HEADNOTES:

WRIT OF ERROR: JURISDICTION OF COURT OF APPEALS. -- Since the Court of Chancery was abolished, the power of granting writs of error resides in the judges of the Circuit Courts, sitting in equity; without such writ issued by a competent tribunal, the Court of Appeals has no jurisdiction or power to review a judgment rendered by a Circuit Court in a criminal case.

WRIT OF ERROR: JURISDICTION OF COURT OF APPEALS: PRACTICE IN COURT OF APPEALS: MOTION TO QUASH WRIT OF ERROR. -- A paper purporting to be a writ of error, which, on inspection, did not appear to have been issued or authorised by the Circuit Court, sitting in equity, but appeared to be issued and signed by the clerk of said Court, without the attestation of the judge, and not authenticated by the seal of the Court, was quashed by the Court of Appeals on motion of the defendant in error.

HABEAS CORPUS. -- From the judgment of the Circuit Court upon a writ of habeas corpus, no writ of error lies; this results from the nature of the proceedings, being a matter resting in the discretion of the Court below, and also from the nature of the judgment, which is not, in legal acceptation, "a judgment or determination of a Court of Law in any civil suit or action," from which alone appeals or writs of error would lie.  

COUNSEL:
O. Miller, for the defendant in error on the motion to quash.

The defendant in error, by his counsel, moves the Court to quash the alleged writ of error in this case, and in support of this motion it is respectfully argued and submitted:

1st. That the writ does not show upon its face that it was issued by the Judge of the Circuit Court for Howard county, sitting in equity, to whom the application for it was made. It is not under seal, nor is it issued and tested like any other original writ, nor does it purport to come from any Court or any competent source or authority. The Code, Art. 5, sec. 4 provides, that "writs of error may be sued out in civil or criminal cases as heretofore practiced in this State." A writ of error is an original writ issuing out of Chancery, and whilst the High Court [**6]  of Chancery was in existence in this State was always issued out of that Court. The mode of proceeding was by an application to the Chancellor, and the writ itself always disclosed on its face that it was issued by the Chancellor. When that Court was abolished, and its jurisdiction transferred to the Circuit Courts and the Courts of Baltimore city, the mode of obtaining the writ has always been by an application to the equity side of the Circuit Courts, or to some Court in Baltimore city having equity jurisdiction, and in all such cases, like every other original writ, the authority of the Court issuing it appears on its face. Such has been the uniform practice in Maryland from the earliest times. When issued, the writ is to be served upon the clerk of the Court which has rendered the erroneous judgment, who allows it, as a matter of course, and transmits a transcript of the record, with the writ of error attached, to the Court of Appeals, under the seal of his Court, as in cases of appeals. No precedent for any such writ, as is in this record, can be found in any of the cases which have come up to this Court on writs of error. The clerk has no authority vested in him to issue a writ [**7]  of error. As establishing the practice, the forms of the writ in this particular in several cases will be given from the original records in this Court; they can be multiplied to any extent.

In the case of State vs. Buchanan, 5 H. & J., 317, the writ concludes thus:

"Witness the Honorable William Kilty, Chancellor, this sixteenth day of April, eighteen hundred and twenty-one.

(Seal.)   Test:--RAMSEY WATERS,

Reg. Cur. Can."

In the case of Ann Hammond vs. The State, 14 Md. Rep., 135, which was a writ of error to the Circuit Court of Frederick county, issued from the equity side of that Court, the conclusion is:

"Witness the Honorable Madison Nelson, Judge of our Circuit Court, sitting as a Court of Equity, the 9th day of February, A. D., 1857. Issued the 10th day of March, 1857.

(Seal.)   EDWARD SHRIVER, Cl'k.

Allowed this 11th day of March, 1857.

M. NELSON,   (Seal.)

In the case of Ford vs. The State, 12 Md. Rep., 514, which was a writ of error to the Criminal Court of Baltimore city, the writ was issued from the Circuit Court for Baltimore city, and it concludes thus:

"Witness the Honorable William Geo. Krebs, Judge of [**8]  the Circuit Court for Baltimore city, this eighth day of November, A. D., 1858. Issued the 4th day of December, 1858.

W. H. H. TURNER, Cl'k

Circuit Court for Baltimore city."

See also on this point: 2 Harr. Ent., 667, and 2 Ev. Harr., 425. Evans' Prac., 424, 429. State vs. Buchanan, 5 H. & J., 329. 2 Wm's. Saunders, 100, note 1. 2 Tidd's Prac., 1196, 1198.

2nd. But if the writ be in proper form it must be quashed, because no final judgment has been rendered in the Court below. No writ of error can be brought but on a final judgment, or on an award in the nature of a judgment, for the words of the writ are si judicium reddidum sit. The order of the Court below, remanding Boyle to the custody of the warden, is no final judgment disposing of the indictment for murder; that indictment is still left pending and undisposed of, and Boyle can be tried upon it when he shall have served out his present sentence in the Penitentiary. In the case of State vs. Buchanan, it was strongly urged that a writ of error would in no criminal case lie at the instance of the State, but that it was at all times the privilege of the accused alone. The Court, however, decided the State had [**9]  the right to sue out the writ as well as the accused; that the right was reciprocal. Now, if the State can maintain this writ before final judgment, then if the decision had been adverse to Boyle on his motion, and the Court had ordered him to the custody of the sheriff and to be put on his trial, he could have stopped the trial by writ of error before final judgment, and brought up for review, before being tried, the action of the Court in this respect. Would the writ of error in such a case have been sustained by this Court? The cases are clear, and the current of authorities unbroken, that a writ of error will not lie against any interlocutory judgment before final judgment is given. Boteler & Belt vs. State, 7 G. & J., 109, 112. Keirle & Walker vs. Shriver, 11 G. & J., 405. Evans' Prac., 429, 436. Ray vs. Fitch, 1 Root, 290, 181. Carpenter vs. Childs, Id., 181. Gleason vs. Chester, 1 Day, 27. 3 Bac. Abr., 325, "Error," 2, and cases there cited. Coke Litt., 288, b. Ringgold's Case, 1 Bland, 8. 1 Chitty's Cr. Law, 787. 1 Arch. Cr. Pl., 198, 198-5.

But it may be urged that this writ can be maintained, because of the judgment on the writ of habeas corpus, which finally disposes [**10]  of that writ. In that event, (if a writ of error lies in such a case,) it is respectfully submitted, that this Court is confined to the consideration of the writ of habeas corpus and the return thereto, and the action of the Court below thereon. The return to the writ that the party is confined in the Penitentiary by the final judgment and sentence of a Court of competent jurisdiction, is clearly sufficient and justified the Court below in quashing the writ and remanding the party to the custody of the warden. Code, Art. 43, sec. 11. Act of 1862, ch. 36. Bell vs. State, use of Miller, 4 Gill, 301,--an appeal from a decision of a judge of an inferior Court in a case of habeas corpus. See also Heard on Habeas Corpus, 562, 566.

A. Randall, Attorney General, for the State:

1. In reply to the first point of the defendant in error on the motion to quash, the State relies upon the Code, Art. V., sec. 1, which provides that "an appeal may be taken from a Court of Law or Equity by application to the clerk, *** and upon such application, if made within the time prescribed by law for taking such appeal, the clerk (register, commissioner or justice,) to whom the same is made, shall [**11]  enter a prayer of appeal upon his docket or minutes of proceedings and transmit the papers or a transcript of the record as hereinafter required."

Section 3 of the same Art. provides for appeals "from any judgment or determination of any Court of Law in any civil suit or action, or in any prosecution for the recovery of any penalty, fine or damages;" and sec. 4 provides, first, for appeals in cases of petition for freedom and mandamus, and then provides, that "writs of error may be sued out in civil or criminal cases as heretofore practiced in this State." This does not mean that the formalities then observed should still be literally conformed to, but that they should be substantially observed as far as the changes in our Constitution and laws will allow. It is not now necessary that the writ should show upon its face that it was issued by the Circuit Court in equity, or by the judge of that Court. The certificate of the clerk is sufficient evidence that the writ was duly authorized. Sec. 29 of the same Art. directs, that "upon any appeal being taken in a Court of Law or Equity, or any writ of error sued out, the clerk shall make out and transmit to the Court of Appeals a full [**12]  transcript of the record," &c. And in cases of appeals from Orphans' Courts similar duties are devolved upon the registers. Upon this point see also 3 Bac. Abr., 341, title "Writ of Error."

The assertion that the position contended for on the other side is established by the uniform practice in Maryland from the earliest times, cannot be maintained. See the case of the State vs. Buchanan, 5 H. & J. 329. On the contrary, it is said on page 331 of the opinion in that case, "from that time to the present, the uniform practice under that Act, (Act of 1713, ch. 4,) has been for the clerk to send up the transcript of the proceedings under his hand only, and the seal of the Court, together with the writ of error, as is done in this case, unaccompanied by the signature of the judge to the return of the writ."

2. In answer to the second point of the defendant in error, viz., that if the writ be in proper form it must be quashed because no final judgment has been rendered in the Court below, the State maintains that the position is utterly inconsistent with the language of secs. 18 & 42 of Art. V. of the Code. Sec. 18 provides expressly for appeals or writs of error taken from "any [**13]  order of the Court antecedent to final judgment," &c.

But the decision of the Court below was not interlocutory, it was final quoad the matter before the Court. If the position of the other side be sustained, there can be no final judgment in matters of this kind. Ware vs. Richardson, 3 Md. Rep., 505. Ld. Proprietary vs. King, 1 H. & McH., 83. Cummings vs. The State, 1 H. & J., 340. 3 Bac. Abr., 337, & Id., 339, 340. Heard on Habeas Corpus, 569, 570. Butler, et al., vs. Chew, 7 G. & J., 112.

Thos. S. Alexander, for the defendant in error, in reply:

1st Objection. A motion to dismiss a writ of error is in the nature of a plea to the jurisdiction. 3 Bac. Abr., 320, 321.

The writ must contain the warrant of the higher Court to review the decision of the inferior Court. The writ in this case is also defective and lacks validity for want of a seal, and because it is not properly tested.

The former practice was that the original writ, with the great seal attached, was returned to the Court of Appeals with the record. It is a matter of grave question whether the change in the practice is authorized, by which the transmission of the original writ is dispensed with.  [**14]  

The seal of the judge granting the writ is, at all events, essential to its validity. Even an exception signed by a judge, without the seal, (scrawl,) is held to be no exception. Milburn vs. State, 1 Md. Rep., 1. Ellicott vs. Martin, 6 Md. Rep., 509.

2nd Objection. That there was no final judgment.

The order remanding the prisoner was only a postponement of the trial. The merits of the application were not determined at all. The case cited on the other side, of 7 G. & J., 112, is an authority for our position. If the 3rd sec. of Art. 5 of the Code be interpreted as broadly as contended for on the other side, there could be no decision in the matters referred to, which might not be appealed from.

Writs of error stand as before the adoption of the Code; they "may be sued out in civil or criminal cases as heretofore practiced in this State."

Sec. 18, of Art. 5, does not authorize a writ of error in any case of a judgment not final.

The case cited of Thompson vs. McKim, 6 H. & J., 302, has, in consequence of the loose statement of the law decided, been much abused and misunderstood. Many unnecessary and improper appeals have been the consequence, which had [**15]  to be summarily dismissed. The Court, in one instance, intimated that a repetition of a particular case of abuse would be visited on the counsel.

The case of Coston vs. Coston, (ante p. 500,) is a case in which the right of appeal from the judgment of the Circuit Court upon the writ of habeas corpus was fully considered, and it was there decided that no such appeal would lie. The like of the present case has happened but once in Europe,-- never before in America, and cannot be of frequent occurrence.  

JUDGES:
The motion to quash was first heard, and was argued before BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*519]  BARTOL, J., delivered the opinion of this Court.
Two grounds were urged in the argument of this case in support of the motion to quash or dismiss this writ of error. First, on account of defects on the face of the writ. Secondly, because the judgment or determination of the Court below was one from which no writ of error lies. Considering that the first objection was fatal, this Court sustained the motion and ordered the writ to be quashed, and delivered the following opinion:
"It was decided in Buchanan's case 5 H. & J. 317, that a writ [**16]  of error may be sued out by the State as well as by the prisoner in a criminal case. The writ is an original writ issuing out of chancery, directed to the Court of Law, by whose judgment the alleged error has been committed. Formerly, in Maryland, such writs usually, if sued out of the high Court of Chancery, were granted by the chancellor and verified by his attestation. Since the Court of Chancery was abolished, the power of granting writs of error resides in the judges of the Circuit Courts sitting in chancery. Without such a writ, issued by a competent tribunal, this Court has no jurisdiction or power to review a judgment rendered by a Circuit Court in a criminal case. In this case the supposed writ of error, upon which the proceedings of the Circuit Court have been brought before us for review, appears upon inspection 

 [*520]  not to have been issued by any competent tribunal. It does not appear to have been issued or authorized by the Circuit Court sitting as a Court of Chancery, but was issued and signed only by the clerk without the attestation of the judge, and is not authenticated by the official seal. There is no authority given by the Code or by any statute to the Clerk [**17]  to grant a writ of error; nor is the writ before us in conformity with the established practice in Maryland.
No precedent has been cited by the Attorney General to sanction the proceeding in this case; for this reason the writ of error must be quashed.
Whether the judgment or determination of the Circuit Court upon the writ of habeas corpus is such a final judgment as may be brought up for review on a writ of error properly issued, is a question of more importance, upon which the Court does not now express any opinion. It will be considered and decided before the case is finally disposed of, because upon its decision may depend the future action of the State's officers in determining whether they will obtain another writ of error from the proper Court and in proper form."
This question has been since examined and maturely considered, and this Court is of opinion that from the judgment of the Circuit Court upon the writ of habeas corpus, no writ of error lies. This results from the nature of the proceeding, being a matter resting in the discretion of the Court below, and also from the nature of the judgment, which is not, in legal acceptation, "a judgment or determination [**18]  of a Court of law in any civil suit or action," from which alone appeals or writs of error would lie.
This subject has been very fully considered in the case of Coston vs. Coston & others, decided at the present term, and in the opinion delivered by the Chief Justice the reasons and authorities controlling our judgment are fully stated, considering them as applicable to this case; we are of 

 [*521]  opinion that no writ of error could be maintained in the present case. We express no opinion upon the point decided by the Circuit Court, as we have no jurisdiction of the cause, and upon that point no argument has been heard.
Writ of error quashed. 

57 of 120 DOCUMENTS 

WILLIAM J. BRYSON vs. WILLIAM S. RAYNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 424; 1866 Md. LEXIS 68 

July 14, 1866, Decided 

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

The bill in this case was filed on the 24th of December, 1863, by the appellant against the appellee. The object of the bill was to compel the appellee to return to the appellant nineteen shares of the stock of the Powhatan Steamboat Company, transferred to him as collateral security for the repayment of a loan. The facts of the case sufficiently appear in the opinion of this Court. The Court below (MARTIN, J.,) dismissed the bill of complaint on the ground that the case presented no fact authorizing the interposition of a Court of Equity; from that decree this appeal was taken.  

DISPOSITION:
Decree reversed with costs to appellant, and cause remanded.  

HEADNOTES:

BAILMENTS: PLEDGE, PLEDGOR AND PLEDGEE: SALES OF HYPOTHECATED STOCK. -- Where the pledgor of hypothecated stock, in writing signed by him, expressly authorizes the pledgee to sell the pledge in case it is not redeemed by a day specified, or to give the same "to any broker to sell on that day," and the pledge is not redeemed on the day specified, a sale made by a broker thereafter, at private sale, for the full market price of the stock at that date, is in conformity with the authority and valid.

But where there is no such special authority given the pledgee to sell the hypothecated stock on failure to redeem, and the pledgee, upon default, causes the same to be offered at the board of brokers and becomes the purchaser thereof, and continues to hold it, he will be regarded as still maintaining the character of bailee and holding the pledge to secure the payment of the loan, with interest, and will be required to account for all dividends on the stock in the meantime received by him.

BAILMENTS: PLEDGE, PLEDGOR AND PLEDGEE: JURISDICTION IN EQUITY. -- Although a pledge is not technically a mortgage, the subject of it not having been assigned or transferred by an instrument known to the law as such, with a condition of defeasance, yet, where it is given as a security for debt, it partakes of the nature of a mortgage, and is subject to many of its incidents, and there can be no good reason why equity should withhold its aid from the pledgor, seeking a return of the pledge in a case where the law cannot afford the relief sought.

In a case like the present, a pledge of the stock of an incorporated company, where the shares have been transferred upon the books of the corporation, and stand in the name of the pledgee, as legal owner, the law falls short of the remedy asked, and to which the pledgor is entitled, and equity alone can afford relief.

If a pawnee has two remedies, to sell at law after default and notice, or to foreclose in equity, no reason exists why a pledgor should not be furnished with the equitable remedy to redeem.

Where the bill of complaint of the pledgor also prays for an account of receipts and dividends, although the law could afford a remedy by assumpsit if a recovery of the receipts and dividends were sought alone, equity has also jurisdiction, and more particularly where the relief could not have been effected at law but by a multiplicity of suits.  

COUNSEL:
George H. Williams, for the appellant, contended:

That the appellant, as mortgagee, has a clear right to redeem, and to an account, unless he has been foreclosed in some mode recognized by law, and that these shares were mortgaged, not pledged. Ryal vs. Roberts, 3 Barnard, 38. Huntingdon vs. Mather, 2 Barbour, S. C., (N. Y.,) 542. Story on Bailments, sec. 287. That a bill to redeem will lie. Patchen vs. Pierce, 12 Wend., 61. Charles vs. Stevens, 3 Denio R., 33. 2 Story Eq.  [**2]  , secs. 1032, 1008. 2 Kent Com., 582, 583. Hart vs. Ten Eyck, 2 Johns. Ch. Rep., 100.

That though a decree for sale for foreclosure is not necessary, yet the stock must be sold upon due notice to the mortgagor of the time and place of sale, and at public auction after advertisement in the public newspapers, to give the debtor a chance to be present to see if the sale be fairly conducted. 4 Kent's Com., 139, sec. 58. 2 Kent's Com., 583, sec. 40. 16 New York Rep., (2 Smith,) 399, 400.

A sale at a brokers' board will not suffice. Castello vs. City Bank, 1 N. Y. Legal Observer, 25. See this case in 4th Abbott's N. Y. Digest, 553, 554. Brown vs. Ward, 3 Duer's Rep., 663. Rankin vs. McCullough, 12 Barbour, 107.-- Story on Bail., 286, 287. Story's Eq. Jur., 1031, 1032.

That the sale of the nine shares, and the attempt to sell the ten shares by private sale and private arrangement are illegal; that as to the ten shares yet held by Rayner, the decree must be for their restoration and for an account of the dividends; and that as to the nine shares, the decree must be for the return of nine other shares if it can be proved before the auditor that he has them, or full compensation [**3]  for their value on proof, with a like account for dividends. Torry vs. Bank of Orleans, 9 Paige, 649, 653.

Even if this was a pledge, yet the remedy is in equity to redeem and for an account of dividends. Hasbrouck vs. Vandervoort, 4 Sandford N. Y. Rep., 78.

That as equity will enforce a contract to mortgage personal property, so ought it to entertain a bill to redeem it when mortgaged. Trieber vs. Burgess, 11 Md. Rep., 464.

Benjamin F. Horwitz, for the appellee, contended:

1st. That if the complainant was entitled to relief, then he has an ample remedy at law, and there is no jurisdiction in a Court of Equity to grant him relief.

The deposit of the stock in this case was a pledge, and not a mortgage. The pledgee had the possession of the pledge, with a special property. He had a right to detain it as a security for his debt, but the general ownership remained with the pledgor. The pledgee had no right to sell until he had first demanded payment of the pledgor, who could redeem, at any time before sale, on tender of the amount due. In the case of a mortgage of a chattel, the entire title passes to the mortgagee, and the interest of the mortgagee becomes absolute,  [**4]  if the property mortgaged be not redeemed at a fixed time; which, however, may be defeated in a Court of Equity. Story on Bailments, secs. 286, 287. Story's Eq. Jur., secs. 1030, 1031, 1032. Cortelyou vs. Lansing, Adm., 2 Caines' Cases in Error, 202. Jones vs. Smith, 2 Vesey, Jr., 378. Wilson vs. Little, et al., 2 Comstock, 443.

In such a case the remedy is at law, either by an action of trover or assumpsit, usually the former; the pledgee, after tender and refusal, being treated as a wrong-doer, and as having converted the property. Story on Bailments, secs. 339, 341. Story's Eq. Jur., sec. 1032. Cortelyou vs. Lansing, Admr., 2 Caines' Cases in Error, 211. Jarvis vs. Rogers, 15 Mass., 389. Stearns vs. Marsh, 4 Denio, 227. Sedgwick on Measure of Damages, 365. Clark vs. Gilbert, 5 Bing. N. S., 356. Thomas vs. Waterman, 7 Metf., (Mass.,) 230.

The aid of a Court of Equity may be invoked by a pledgor, in certain special cases, that is, provided there is a discovery required and demanded as essential and necessary for the complainant's case, or where there are mutual conflicting or complicated accounts, which are too large or too complicated to be adjusted in a Court of Law, but [**5]  in those cases the jurisdiction is entertained solely on the ground either of "discovery" or "account," two separate and well recognized grounds of equity jurisdiction. The necessity, however, must be apparent and real, and not used as a subterfuge in order to change the proper and recognized jurisdiction. Equity sometimes entertains jurisdiction in cases where the thing pledged has been assigned by the pledgor, but even then, only where a "discovery" is necessary and required, as in case the assignee cannot find out the sum due in order to make a tender.

As to the rule which entitles a Court of Equity to interfere in cases where an account is asked for, see, Frietas vs. Dos Santos, 1 Y. & J., 574. King vs. Rosset, et al., 2 Y. & J., 33. Dinwiddie vs. Bailey, 6 Vesey, Jr., 372. Oliver vs. Palmer, 11 G. & J., 442, 443. Lawson, et al. vs. Davis, 7 Gill, 345. Story's Eq. Jur., secs. 458, 506. As to the rule in cases of assignment, see, Kemp vs. Westbrook, 1 Vesey, Sr., 278. Adair vs. Winchester, 7 G. & J., 114.

In this case, however, there was no assignment, and there is no discovery required or asked for, consequently no good reason can be assigned for resorting to a Court [**6]  of Equity. The remedy is ample and complete at law, "a Court of Law," in the language of Chancellor KENT, (2 Caines' Cases, 211,) "having complete jurisdiction over the subject;" and it is submitted, the learned judge below was correct in dismissing the bill for want of jurisdiction, which he did after full argument, and after a deliberate examination of the question.

2d. The sale of the nine shares of stock was made bona fide, after full notice to the pledgor, and it was a sale made at the time, and in the mode chosen by himself, in the paper marked "defendant's exhibit No. 12," and it is, therefore, unimpeachable, even if that question were before this Court on the complainant's bill, which, it is submitted, is not the case.

The evidence shows that the complainant knew of both the sales at the times they were respectively made, and he proves them by his own witnesses, Wheedon and Scott, and yet does not ask to have them set aside, or refer to them in his bill in any way. On such a bill no such relief could be granted, and the Court can only decree according to the allegations contained in the bill and the prayer for relief. The prayer for general relief does not cover such [**7]  a case. Legal vs. Miller, 2 Vesey, Sr., 299. Lord Walpole vs. Lord Orford, 3 Vesey, Jr., 413 & 416. Scudder vs. Young, 25 Me., 153. Hobson vs. McArthur, 16 Peters, 182. Smith vs. Smith, 4 Johns. Ch. R., 281. Story's Eq. Pl., sec. 42.

3d. No decree could, under any circumstances, pass in this case in reference to the nine shares, as Mr. Wheedon, the owner thereof, and the party who has received the dividends thereon, which was known to and proved by the complainant himself, is not made a party to this suit. Buchanan vs. Torrence, 11 G. & J., 342. Cromwell vs. Owings, 6 H. & J., 10.

4th. The sale of the ten shares of stock was made at the very highest and best market price, after due notice, as contained in defendant's exhibit No. 7, and after every effort to sell on the part of the stock brokers, which mode of sale, to wit: by broker, was indicated by the complainant, as shown by defendant's exhibit No. 12, to be the one preferred and chosen by himself; the broker was, therefore, the party making the sale; he occupied the same relation towards the parties as a trustee appointed by a Court of Equity, and the pledgee had a right to purchase the stock from him, the pledgor's [**8]  chosen agent of sale. But if it be looked upon as a sale made by Rayner himself, yet if it be further considered that under the circumstances of the case, he was obliged unwillingly to purchase the stock in order to save himself, which the complainant's own witnesses show to be the fact, then such a sale, if it were not supported and upheld by a Court, would be voidable only and not void absolutely, and could not be so treated by the complainant, who is shown to have had notice of it, and who, therefore, would be obliged to ask in his bill to have it set aside as preliminary to any relief he might seek. Williams' Exrs. vs. Marshall, 4 G. & J., 376. Richards vs. Jones, 3 G. & J., 163. 1 Code, 446, secs. 12 & 13. Jackson vs. Walsh, 14 Johns., 407. Harrington vs. Brown, 5 Pick., 521.

5th. The enhancement in the value of the stock since the sales is no ground for setting them aside, and can only be looked at as furnishing evidence of bad faith on the part of the complainant. Davis vs. Simpson, 5 H. & J., 149. Tyson vs. Mickle, 2 Gill, 376.

6th. That if the complainant had any remedy, it has been lost by reason of his being of full age, under no disability, and with a full knowledge [**9]  of the transactions lying by for years, and acquiescing in the sales. Davis vs. Simpson, 5 H. & J., 149. Williams vs. Marshall, 4 G. & J., 376. Story's Eq. Jur., sec. 1032.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*430]  WEISEL, J., delivered the opinion of this Court.
In the cases of the President and Directors of the Maryland Fire Insurance Company and the Baltimore Marine Insurance Company against William F. Dalrymple, decided at the present term, this Court fully considered the duties and responsibilities of the pledgee of stocks taken and held as collateral securities for loans made to the pledgor. In those cases we decided that a sale of such stock at the public stock 

 [*431]  board, no fraud appearing in the transaction, was a valid public sale in Maryland; that if the pledgee purchased at such sale, and afterwards continued to hold the stock, he was to be regarded as still standing in the relation of bailee, and responsible for all the duties and liabilities incident to it, or, in other words, the bailment was not, by that act alone, broken up and destroyed.
In the cause now under consideration there were two loans to [**10]  the appellant by the appellee, in February and April, 1861; one of $ 1000 upon a pledge of ten shares of the Powhatan Steamboat Company; the other, of $ 945 on a pledge of nine other shares of stock of the same company. Loan papers were executed in the usual form, and the borrower failing to comply with the terms, the appellee applied for payment. With regard to the nine shares and the loan which they were given to secure, Mr. Bryson, in writing signed by him, expressly authorized the appellee to sell them in case they were not redeemed by a certain day named in the authority, and if not redeemed on that day, he was "authorized to give the stock to any broker to sell on said day." The money not being paid on the day specified, the appellee afterwards handed the stock to a broker to make sale of the same. The broker effected this at private sale and for the full price that the stock then commanded in the Baltimore market. The nett proceeds, however, failed to pay the debt by $ 51.43, of which, with a statement of sale, the appellant was duly notified.
The only question which can arise as to this particular transaction is, whether the written authority to sell authorized the pledgee [**11]  to sell at private sale or any way, by a broker, the nine shares. In the absence of this special authority, according to the rulings of this Court in the cases referred to, it would have been the duty of the pledgee to have disposed of the stock at public sale, after a reasonable notice to 

 [*432]  the public of the time and place of sale, or at the public stock board. We think the paper referred to was intended to enlarge the power, and to enable the pledgee to sell at private sale and without notice; otherwise, it would have been unnecessary, as the power to sell at public sale existed without it, and a prompt sale by the broker on the day he received it for the purpose would not admit of notice. We construe it as a general authority to sell by a broker at private sale or in any other way, and are of opinion that the sale made by the broker of the nine shares as proved by him was in conformity with its terms and valid. This disposes of so much of the case as relates to those shares, and as to them the relief sought was properly denied.
The other lot of ten shares was offered at the brokers' board and purchased in for the appellee, Rayner, who, according to the proof of Mr. Clagett,  [**12]  the clerk of the Powhatan Steamboat Company, still holds them. Mr. Rayner asserts that by the sale he became the owner of them, and that he is entitled to all dividends since, and not liable to account for the same. This assertion of right and claim is at variance with what we have decided in the cases against Dalrymple already referred to, and we regard him as still maintaining, as to these ten shares, the character of a bailee. They must be considered still as collaterals in his hands to secure the payment of the thousand dollar loan and all interest upon it, all moneys and dividends received upon them by Rayner, whilst in his hands, to be properly accounted for by him.
But he contends, through his counsel, that if the appellant is aggrieved his remedy was ample at law, and that equity can afford him no relief. This position is based upon the technical distinction between a mortgage and a pledge, it being conceded that if the stock had been mortgaged the right to redeem in equity would be indisputable, but as the relation between bailor and bailee is a legal relation, and only a 

 [*433]  qualified property passed to the bailee by the transfer of the stock to him,  [**13]  the remedy for any violation of the contract or tortious dealing with the property is, at law, by an action of trover or assumpsit; and the learned judge below, adopting this view, and considering that there was nothing in the case that could properly work a change of the jurisdiction, dismissed the bill of the complainant on this ground. In this, we think, he committed an error, and that the complainant was entitled to the relief he sought as to the ten shares of stock.
Although a pledge is not technically a mortgage, the subject of it not having been assigned or transferred by an instrument known to the law as such, with a condition of defeasance, yet it is given in certain cases, as in this, as a security for debt, and, therefore, partakes of the nature of a mortgage. It is also subject to redemption. The pledgor, on payment of the debt or tender, is entitled to a return of the identical property pledged, and there can be no good reason why equity should withhold its aid for this purpose in a case in which the law cannot accomplish it. Where the article pledged is a specific chattel, the law can afford an ample remedy by replevin if the pledgee retains the possession, or by [**14]  trover or assumpsit in case he has parted from it. But in a case like the present, that of stock of an incorporated company, when the shares have been transferred upon the books of the corporation and stand in the name of the pledgee as legal owner, the law falls short of the remedy asked and to which the pledgor is entitled. Equity alone, in such a case, can afford relief by an order of re-transfer. If a pawnee has two remedies, to sell at law after failure and notice, or to foreclose in equity, (2 Kent's Com., 582, 583,) no reason exists why the pledgor should not be furnished with the equitable remedy to redeem.
The bill in this case also prayed for an account of receipts 

 [*434]  and dividends, and although the law could afford a remedy by assumpsit if a recovery of the receipts and dividends were sought alone, equity has also jurisdiction, and more particularly where the relief asked by the bill could not have been effected at law but by a multiplicity of suits. Story's Eq. Jur., secs. 442,457. The cases of Ryal vs. Roberts, Barnard, 38, Hart vs. Ten Eyck, 2 Johns. Ch. 100, and cases there referred to. Hasbrouck vs. Vandervoort, [**15]  4 Sand. 78, are fully to the point, whilst that of Wilson vs. Little, 2 Comst. 448, does not conflict with the law as applicable to this case.
The appellant is, in our opinion, entitled to the relief he asks as to the ten shares of stock. We will reverse the decree of the Court below with costs to the appellant, and remand the cause for further proceedings accordingly.
Decree reversed with costs to appellant, and cause remanded. 

58 of 120 DOCUMENTS 

REBECCA M. THOMPSON & OTHERS vs. HENRY YOUNG & OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 450; 1866 Md. LEXIS 70 

July 14, 1866, Decided 

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

The bill in this case was filed by the residuary devisees of the late Joseph Young, deceased, for the settlement of his estate under the will. There are but two questions arising on this appeal, both of them questions of construction, and neither of them requiring a further statement of details than is made in the opinion of this Court.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

WILL, -- CONSTRUCTION OF. -- By the last clause of his will, Y. devised the rest and residue of his estate in trust, that the same should be sold after the death of his wife, and that the trustees should pay, out of the proceeds, "unto my (his) brother W's children the sum of one thousand dollars each, when and as they shall respectively arrive at age," &c., with limitation to survivors, &c. He then adds: "And after paying the above sum of five thousand dollars unto and amongst my brother W's children, or the survivors or survivor of them, then I do hereby order and direct my trustees and executors, and the survivor of them, to pay the surplus of the moneys arising from the said sale or sales unto and amongst the legal representatives of my beloved wife, Elizabeth." It appeared in evidence that there were more than five children of W. -- HELD:

1st. That the general intent in favor of the children of W. must control the particular intent with regard to the amount devised. The will must be construed as if the reference to the amount had been omitted.

2nd. That the legal representatives of Elizabeth Young, standing in equal degree to said Elizabeth, would take per capita and not per stirpes. 

COUNSEL:
O. Miller, for the appellants:

1. It may be assumed, as shown by the testimony, that William Young's seven children had been born and were living at the time of the death of the testator. John Young, however, who is one of them, and who was called by the appellees, deposes, that he does not think the testator knew of the two youngest children. The testator, he says positively, never saw them. This evidence, to which there can be no exception taken, certainly lays the broadest foundation, outside of the will, for the inference which is inevitable from the terms of it, viz: that the testator intended to give legacies of $ 1,000 each to five children of William, and no more, and that he intended that the whole amount of his bequests to that family should not exceed $ 5,000.  [**2]  Whether he would have given $ 1,000 to each of the seven, if he had been aware that there were so many, is not the question, as the Court below seems to have supposed. As to the admissibility of the evidence referred to under this point, see Gibbs vs. Gale, 7 Md. Rep., 76. Stokeley vs. Gordon, 8 Md. Rep., 496.

That point it is quite as impossible for the Court to determine, as to decide whether he would not have made the several legacies less, had he supposed that his brother had children enough to absorb so large a sum as $ 7,000, if he gave them $ 1,000 each. The Court cannot supply the testator's want of knowledge, or speculate as to what he ought to have done, or would have done, if he had been better informed. The judicial province is to determine what he actually did, and in arriving at such determination the Court is bound to look at the surrounding extrinsic facts known to the testator, and concerning which he acted. And that, as a matter of fact, he did not know of, or intend to provide for, more than five of his brother's children, is shown collaterally by the conduct of the witness, John Young, himself, ante litem motam. The Court will find that in 1858, he assigned [**3]  his own interest to the Baltimore Life Insurance Company, and that in his assignment he speaks of the bequest as having been of $ 1,000 to "each of the five children" of William Young. This was thirty-four years after the testator's death, and with all the knowledge derived from the assignor's relation to the parties, he having been twenty-four years old when Joseph Young died.

The appellants will regard the construction of the will as definitely settled in their favor by the extrinsic proof.

Construing the will, however, by itself, in connection with the single fact that William Young had seven children, the appellants will further contend, as matter of law, that the clause by which the testator limits his bounty to $ 5,000, in all, controls the whole bequest. The Court below seems to have considered that his brother's children were exclusively the objects of the testator's favor, and that his language ought to be enlarged and altered, as a matter of course, to admit as many of them as possible. It will be contended, on the other hand, that the testator manifestly intended to benefit his wife's representatives by a devise to them of the whole residue of his estate, less [**4]  only $ 5,000, and that there is no principle upon which the Court is authorized to construe the will "as if five had been written seven," to their detriment. The case is entirely different from the ordinary one in the books, where there is simply a bequest of a named sum, e. g., to each of the three children of A. B., when, in fact, A. B. has four children, but no gross amount is named. There the bequest would be void for uncertainty, and the residuary devisee would receive more than it was the manifest intention of the testator to give him. Here, the testator himself sums up the amount he intends to be deducted from the residue, and the Court can divide it among the seven, if it should not think, in view of John Young's evidence, that the youngest two children were excluded. This settlement would reconcile the conflict between the clauses, if the Court, after considering that evidence, should believe any conflict to exist. Ogle vs. Connor, 4 Md. Ch. Dec., 425. Lesley vs. Lake, 1 Beav., 151. Hampshire vs. Pearce, 2 Ves. Sr., 216, Iglehart vs. Kirwan, 10 Md. Rep., 559. 1 Roper on Legacies, 143, 144. Sherratt vs. Bentley, 2 Mylne & Keen, 149. Lynch vs. Hill, 6 Munf., 114. 1 Brevard,  [**5]  419, 420. Chase vs. Loockerman, 11 G. & J., 206.

2. The second question is one entirely between the appellants themselves, and requires the Court to determine how "the legal representatives of Elizabeth Young" are to take, inter se.

Mrs. Young had two sisters, one of whom was the mother of the appellant, Charles Horne, and the other was the mother of Mrs. Thompson, and Joshua and Charles R. Barney, the other appellants. Are these "representatives" to take equally, or is Mr. Horne entitled to the one-half, in the right of his mother, leaving the others to divide the remaining half between them? Is the word "representatives" merely a description of a class, or does its use involve the further consequences that those who compose the class must take the precise shares they would have taken had the property been Mrs. Young's? The solicitor for the appellants, representing all the parties, is not entitled, and does not assume to make any concessions for Mr. Horne, who asserts his rights amicably, as the Court shall determine them to exist. Subject to this explanation, he respectfully suggests:

1. That the words "legal representatives" do not mean executors or administrators.  [**6]  2 Jarman on Wills, 39, 41, (marg.) Green vs. Howard, 1 Bro. Ch. Rep., 133. Butler vs. Stratton, 3 Id., 367. Rayner vs. Mowbray, 3 Id., 234. 1 Roper on Legacies, 126 to 129. Alder vs. Beall, 11 G. & J., 123. Maddox vs. State of Md., 4 H. & J., 539. Levering vs. Levering, 14 Md. Rep., 30.

2. That as the complainants are all of the same degree of relationship to Mrs. Young, the general rule applicable to their case is that of equality of distribution, and particularly where there are words pointing in that direction, as the words "unto and amongst" may fairly be construed to do. 2 Jarman on Wills, 47, 48, (marg.) See also authorities cited under the last point.

A. H. Hobbs, for the appellees:

In order to arrive at the proper and correct interpretation of the will of Joseph Young, we must assume for the purposes of argument, that there are now seven children of William Young, claiming each $ 1,000. The deceased children, in legal contemplation, are represented here by the survivors. The legacies became vested immediately on the death of the testator. Lark, &c., vs. Linstead, 2 Md. Rep., 425, 428. Spencer vs. Robins, 6 G. & J., 507. 1 Jarman on Wills, 756, 757, &c.

The [**7]  legacies having thus vested, and on the subsequent death of Joseph and Joshua, accrued to the survivors, Henry Young and others, who are the objects of the testator's bounty, what did the testator intend they should receive? He directed his executors "to pay, or cause to be paid, to his brother William Young's children, the sum of one thousand dollars each." Here is a gift in language too clear for dispute. It is certain, definite and beyond all reasonable doubt. If there was no other clause in the will in reference to this legacy, I suppose no one would for a moment question the right of these appellees to receive the full sum of $ 7,000. Is there, then, any clause or word in the will sufficiently clear and positive to overthrow and set aside the force and effect of the language in which the gift is bestowed? It is contended that because the testator, in a subsequent part of the will, directs that after "paying the above sum of $ 5,000 unto and amongst my brother William Young's children," and then the residue over to certain other persons, that this equivocal language is to over-ride and nullify the clear and positive terms conferring the gift. By the universal experience of mankind,  [**8]  and the unvarying teaching of the law, equivocal or doubtful language must always give place to certain guarded terms, for the obvious reason that it is most likely to lead to correct conclusions; and it makes no difference in what part of the will the repugnant or apparent contradictory clauses are placed, the well recognized canon of interpretation is, we must take the whole paper and deduce therefrom such conclusion as will, if possible, gratify the intention of the testator, seizing, as a matter of course, the strong, positive language as land-marks and guides to the desired end. Reduced to the wholesome necessity of finding the testator's intention from the will, shall we discard the plain, positive terms employed by him, and as a preference and choice, rely upon vague, indefinite language? Shall we make choice of the lesser and reject the greater light, when light is the object of our inquiry? It is truly said by a learned teacher of the law, that "it must not be understood that because the testator uses in one part of his will words having a clear meaning in law, and in another part words inconsistent with the former, that the first words are to be cancelled and overthrown.  [**9]  "

"A contrary principle is now fully established, that the general intent, although first expressed, shall overrule the particular." Jesson vs. Wright, 2 Bligh, 56. 11 G. & J., 206, 207. 1 Phillips' Ch. Rep., 536, (English.) 2 Comst., 78. Redfield on Wills, 416. 16 Ves., 45. 2 Clarke & Finnelly, 36. Baldwin Rep., 459.

That the testator's "leading intent" was to give to each of his brother William Young's children, in esse, at the date of the will, $ 1,000, I think clear. This same principle of construction is very forcibly and clearly expressed by Chief Justice MARSHALL in the case of Smith vs. Bell, 6 Peters, 69, wherein he is reported to have said, "where there are two intents inconsistent with each other, that which is primary will control that which is secondary,"--the primary intention was to give $ 1,000 to each of the children.

The Court will observe that where the testator uses the words, "the above sum of $ 5,000," it is the first and only mention made of that sum; he had not "above" used any such language, showing clearly, I think, that he supposed there were but five children of his brother William surviving at that time, and the purport of the words, "the [**10]  sum of $ 5,000," was simply and plainly to represent the number of five children. The bill in this case is predicated on the notion that there were but five children, and assumes that the sum of $ 5,000 represents the number of children, that is, $ 1,000 to each.

If the testator had said,--to the five children of my brother William, I give and bequeath the sum of $ 1,000 each, and it was ascertained after his death, there were seven, it would, on positive authority, be too clear for argument; but if what the appellees insist to be the fact, and what the bill alleges and sets forth, that the testator designed the language he employed to stand in the place of designating the number of children, does not the same conclusion necessarily follow?

Keeping in view the important fact that there are seven children claiming the bounty of the testator, I will proceed to present the case in another aspect.

Each of the children must receive $ 1000, or the will is void for uncertainty. We cannot accomplish the impossibility of giving $ 1000 to each of seven children if there are but $ 5000. Nor can your Honors undertake to say which five of the seven children the testator intended [**11]  as the objects of his bounty. These are the impossibilities growing out of the construction which the appellants seek to enforce. Our theory makes all plain and easy. It is well settled that when a certain sum is given to each of several persons and the number is erroneously stated, each of the persons take the sum named, disregarding altogether the numerical restriction. Yeates vs. Yeates, 16 Beav., 170. Daniel vs. Daniel, 3 De Gex & Smail, 337. 2 Jarman on Wills, 108, 109, &c. Garvey vs. Hilbert, 19 Ves., 125.

I submit, therefore, upon general principles, as well as on these special authorities, that the decree of the Court below ought to be affirmed.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*457]  BOWIE, C. J., delivered the opinion of this Court.
The construction of a clause of the last will and testament of the late Joseph Young, of Baltimore city, is the subject of the appeal in this case.
The testator made his will on the 26th of June, 1823, devising to certain trustees and their heirs, after the death of his wife, all the rest, residue and remainder of his estate, real, personal and mixed, not [**12]  therein before devised, and among other provisions devised as follows, viz: "In trust that they, or the survivor of them, with all convenient speed after the death of my wife, shall set up and expose to public sale, after giving notice, etc., all my said estate, etc., "and out of the monies arising from said sale or sales to pay, or cause to be paid, unto my brother William Young's children the sum of one thousand dollars each, when and as they shall respectively arrive at age, and in case they, or either of them, shall happen to die before he, she or they shall have attained the age of twenty-one years, or day of marriage, then the part or share of him, her or them so dying to go and be distributed amongst the survivors or survivor of them, share and share alike; and after paying the above sum of five thousand dollars unto and amongst my brother William Young's children, or the survivors or survivor of them, then I do hereby order and direct my trustees and executors, and the survivor of them, to pay the surplus of the monies arising from the said sale or sales unto and amongst the legal representatives of my beloved wife, Elizabeth Young." The testator died in 1824, without children [**13]  or their descendants, leaving a widow (who survived until 1862,) and two brothers, William and John Young. William had, at the time of the execution of the 

 [*458]  will, and at the death of the testator, seven children, but it is doubtful whether the testator knew of the existence of the two younger children of William, as he never saw them.
The appellants, claiming under the residuary clause of the will, relying upon extrinsic proof, and construing the will in connection with the fact that William Young had seven children, contend that, as a matter of law, the clause by which the testator limits his bounty to $ 5,000, in all, controls the whole bequest; that the testator manifestly intended to benefit his wife's representatives by a devise to them of the whole residue of his estate, less only $ 5,000, and there is no principle by which the Court can construe the will as if "five" had been written "seven," to their detriment; that this is not a case where the will would be void for uncertainty, unless the restrictive clause is rejected, as the testator sums up the amount to be deducted from the residue, which the Court can divide among John Young's children as it may think [**14]  them entitled, which would reconcile the clauses, if after considering the evidence, they should think any conflict exists.
The appellees' theory is, that the restrictive clause, being in conflict with the general intent of the will, according to the authorities, should be rejected, and that each of the seven children of William Young, who survived the testator, is entitled to the sum of $ 1,000, making an aggregate of seven, instead of five thousand dollars, to be deducted from the residue.
The Court below adopted this view, hence this appeal. There is a second question as to the principle of distribution of the surplus among the appellants, which will be considered in its order.
There is no exception to the evidence offered by the complainants; indeed, both parties rely on it to show the number of the children of William Young at the execution of the will and the death of the testator, and the ambiguity 

 [*459]  being one which arises from extrinsic circumstances, such testimony was necessary and clearly admissible.
The leading cases relied on by either party, with few exceptions, are collected in the elementary writers, and the rules of construction deduced from them, so [**15]  that it is too late to say any of such cases is an "obiter dictum."
This Court, in the case of Chase vs. Lockerman, 11 G. & J. 185, 205, adopts some of the general rules of interpretation laid down by the English authors on Wills and Testaments thus: "In 2 Wms. on Exr's, 711, speaking of bequests to children in a class, the author says: generally speaking, every person who, at the time of the testator's death, falls within the described class of children, will be entitled. But where it appears from express declaration, or clear inference from the will, that the testator intended to confine his bequest to those only who answered the description at the date of the instrument, such intention must be carried into effect. A Court of Equity, however, is always anxious to include all children in existence at the time of the death of the testator, and particularly when he stands in the relation of parent to the legatees," etc.
In the same case, this Court declared: "It is a well established rule in the construction of wills, that where there is a general and particular intent apparent upon the face of the will, the general intent, although first expressed, shall [**16]  control and overrule the particular intent.
Thus, in 2 Wms. on Ex'rs, 714, it is said, it must not, however, be understood, that because the testator uses, in one part of his will, words having a clear meaning in law, and in another part, words inconsistent with the former, that the first words are to be cancelled or overthrown. A contrary principle is now fully established in the doctrine already considered, that the general intent, although first expressed, shall overrule the particular intent. 11 G. & J. 185, 206.

 [*460]  The English authorities on this subject, say: "It often happens that a gift to children describes them as consisting of a specified number, which is less than the number found to exist at the date of the will." In such cases it is is highly probable that the testator has mistaken the actual number of the children; and that his real intention is that all the children, whatever may be their number, shall be included. "Such, accordingly, is the established construction, the numerical restriction being wholly disregarded." "Indeed, unless this were done, the gift must be void for uncertainty, on account of the impossibility of distinguishing [**17]  which of the children were intended to be described by the smaller number specified by the testator." 2 Jarmyn 108, in mar. Roper on Legacies, 1 Vol. p. 143.
These rules of construction are as much as possible to be harmonized.
The general intent is not to be sacrificed to the particular, because by gratifying the latter the rule of necessity may be avoided.
The presumption of law is in favor of the children as a class. Although the testator in this case was not the parent, being an uncle, and dying without children, it must enure to the benefit of the legatees, pro hac vice; he stood in "loco parentis." The testator must be regarded as contemplating his nephews and nieces with equal affection, and intending their equal advantage; his will not distinguishing them in any manner as individuals. He spoke of them and treated them as a whole. Standing to him, as nearest of kin, (except his brothers, who were excluded by the express terms of the will in favor of the children of his brother William,) the children must be assumed to be next in his affections.
The argument that the testator, by his subsequent mention of the sum of five thousand dollars, thereby limits [**18]  his bounty to that sum, and furnishes the means of avoiding 

 [*461]  uncertainty, is founded upon the assumption that the amount of the legacy was the principal and the number of the legatees the secondary consideration, reversing the rule cited by this Court with approbation from 2 Wm's Exrs., in 11 G. & J. 185, 206, and controlling the general intent in favor of the children by a particular intent with regard to the amount.
This Court cannot depart from the well established rules of construction in this respect. The will must be construed as if the reference to the amount had been omitted.
The second question presented by the brief of the counsel for the appellants, whether the surplus or residue should be divided "amongst the legal representatives" of Elizabeth Young, per capita or per stirpes, is resolved by a reference to a few well known authorities.
The appellants, by an agreement in the record, have submitted the distribution among the legal representatives of Elizabeth Young, deceased, as if the exceptants had formally prayed an appeal. It appears from the account referred to, that the auditor has assigned to Charles R. Horne, one-half of [**19]  the nett balance. The case of Levering vs. Levering does not, we think, apply to the distribution of the surplus in this. This Court placed their decision in that case upon a clear intention to give to the children of one daughter, the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, whether it might happen to be the one leaving the largest or smallest number of children. Vide 14 Md. 30, 39.
In the will under consideration, there is no standard of distribution. The residuary legatees are described in general terms. It is clearly established that these words, "legal representatives," mean next of kin when used in the connection they are found in. Vide 2 Jarmyn 41, (mar.) If the equivalent words had been used, the rule of distribution would have been that established by the testamentary system in cases of intestacy, the testator, not having designated 

 [*462]  the proportions of the residue, or the persons among whom it should be divided. The parties entitled taking according to their respective relationship, if standing in equal degree, "per capita;" if in unequal degrees,  [**20]  "per stirpes."
The words of the bequest in this case do not indicate any purpose to make a different distribution, and where the will is silent the general law of distribution should prevail. Vide, Roper on Wills, 126. The appellants, standing in equal degree to Elizabeth Young, would take per capita. We find no error in the decree below, and, therefore, affirm the decree. But, inasmuch as the appellants have submitted their rights to the decision of this Court, we think the distribution of the surplus by the auditor should be corrected in conformity with the principles above mentioned. We, therefore, remand the cause, that the account distributing the residue may be modified.
Cause remanded. 

59 of 120 DOCUMENTS 

THE NORTH BALTIMORE BUILDING ASSOCIATION vs. WILLIAM Q. CALDWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 420; 1866 Md. LEXIS 67 

July 13, 1866, Decided 

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

The appeal in this case is from an an order of the Circuit Court for Baltimore city, setting aside a sale made by a trustee under proceedings to foreclose a mortgage.

The report of the trustee discloses the fact that on the 20th day of October, 1859, he sold the property mentioned in the proceedings, "to the North Baltimore Building Association," (the mortgagee,) "it being the highest bidder," &c. On the 11th day of November, 1859, certain exceptions to the ratification of the sale were filed, which it is unnecessary to notice, as they were not relied on in argument.

On the 15th day of December, 1865, certain additional exceptions to the ratification of the sale were filed, which it was agreed should be considered as having been filed prior to the remanding of the commission, the additional testimony having been taken, in point of fact, with regard to these exceptions. The first of these last mentioned exceptions, to wit: "Because the said trustee, as agent for the said Building Association, bid for and purchased the property mentioned in these proceedings," is the only exception that need be here noticed.  

DISPOSITION:
Cause remanded.  [**2]  

HEADNOTES:

TRUSTEE'S SALE: PURCHASE BY TRUSTEE AS AGENT FOR ANOTHER. -- A trustee appointed by a Court of Equity to sell real estate is not only precluded from purchasing at such sale for his own benefit; the rule is equally imperative that he cannot be permitted to buy as agent for another person.  

COUNSEL:
William A. Stewart, for the appellant, argued:

1. That the true principle is, that a trustee, executor or other person, acting in a fiduciary capacity, shall not purchase at his own sale so as to obtain a benefit of or advantage to himself. The authorities cited by the appellee, do not go beyond this point, and no respectable decision can be found which goes to the extent of saying, that such a person may not, under certain circumstances, bid for another. Williams' Exrs. vs. Marshall, 4 G. & J., 376.

2. The rule on the subject in this State is, that in sales under decrees, the Court is the vendor, and the trustee is merely the agent, his duty being to obtain the best price which he can for the property directed to be sold. In this case there can be very little doubt but that the Court would have passed an order, if applied for, directing the property to be sold at private sale to the purchaser, on the terms reported, and it is but just and proper that the sale, made in in good faith by the trustee, should be ratified, because the Court should now do what it would have authorized at the time to have been done. Andrews vs. Scotton, 2 Bland, 629. Cunningham vs. Schley, 6 [**3]  Gill, 229. Sewell vs. Costigan, 1 Md. Ch. Dec., 208. Goldsborough vs. Ringgold, Id., 239. Harrison vs. Harrison, Id., 331;--affirmed in 9 Gill, 412. Brooks, Trustee, vs. Hays, 24 Md. Rep., 507.

The mode of making sales in England by masters in chancery is quite different from that practiced in this State by trustees, and this distinction is clearly pointed out by Chancellor BLAND, in the case of Andrews vs. Scotton, 2 Bland, 643 to 646.

Robert D. Morrison and John H. Warner for the appellee.

As to the general rule that a purchase by a trustee, at his own sale, will be set aside at the instance of any party in interest, where the setting aside of the sale would leave all parties in the same status as before the sale, see Davoue vs. Fanning, et al., 2 Johns. Ch. R., 251. Brothers vs. Brothers, 7 Iredell Eq., 150. Richardson vs. Jones, 3 G. & J., 184. Mason vs. Martin, et al., 4 Md. Rep., 124. Ricketts vs. Whittington, et al., 15 Md. Rep., 46, and cases cited in the opinion of the Court. Bell vs. Webb, 2 Gill, 163. Wormley vs. Wormley, 8 Wheaton, 441. Story on Sales, sec. 211.

As to the incapacity of a trustee to purchase at his own sale as agent for another, see,  [**4]  Lewin on Trusts, ch. 19, p. 376. Ex parte Bennet, 10 Vesey, Jr., 381. Hawley vs. Kramer, 4 Cowen, 734, et seq. Ex parte Darcy, 6 Ves., 626. Atty. Gen. vs. Dudley Cooper, 148. Ex parte James, 8 Ves., 348. 2 Kent's Com., (6th Edition,) 618. Story on Agency, 199, 200.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*423]  BOWIE, C. J., delivered the opinion of this Court.
The single question in this case is, whether it is compatible with the duty of a trustee, appointed by decree of a Court to sell real estate, to bid for and purchase the property for a third person at a public sale of the same, under the decree.
It is admitted, that the general principles of law preclude a purchase by the trustee for his own benefit, but it is contended the rule extends no further, and no decisions to the contrary are to be found in this State. The general rule of law and equity, and its reasons, are very concisely and clearly expressed by Chancellor KENT, in his Commentaries. 2 Vol. 6th Ed., p. 618.
"An agent, acting as such, cannot take upon himself, at the same time, an incompatible duty. He cannot have an adverse interest or employment.  [**5]  He cannot be both buyer and seller, for this would expose his fiduciary trust to abuse and fraud." Also, Story on Agency, 199, 200. Among other reasons assigned for setting aside a sale, where the trustee appeared as a bidder, was this, viz: "If the trustee appeared at the auction professedly as a bidder, that would operate as a discouragement to others, who, seeing the vendor ready to purchase at or above the real value, would feel a reluctance to enter into the competition, and so the sale would be chilled. Ex parte Lacey, 6 Ves. 625, 627. Lewin on Trusts, 377, note e.
In the last authority, it is laid down as a legal conclusion, 

 [*424]  as a trustee cannot buy on his own account, it follows that he cannot be permitted to buy as agent for a third person; the Court can, with as little effect, examine how far the trustee has made an undue use of information acquired by him in the course of his duty in the one case as in the other." Vide 10 Vesey. Ex parte Bennett, 383, 393. 2 Johns. Ch. 252. 4 Cowen 734. It needs no elaboration to enforce these views or to show the antagonism between the interest of the [**6]  vendor and the vendee. Although the facts of this case do not warrant, (and the counsel of the caveators expressly disclaim all imputation of improper motive in the trustee,) yet, the principle is too important to be departed from in the most unexceptionable cases. The order of the Court below will, therefore, be affirmed, with costs of this Court to the appellee, and the cause remanded.
Cause remanded. 

60 of 120 DOCUMENTS 

JACOB GOTWALT AND WIFE vs. GEORGE C. NEAL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 434; 1866 Md. LEXIS 69 

July 13, 1866, Decided 

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

The bill in this case was filed by the appellants in the Court below to have set aside two deeds alleged to have been executed by the appellant, Jacob, without consideration, and under duress of the appellee, and to have an account taken of certain personal property taken possession of by the appellee under the same instrument, and sold by him.

The bill states that the appellant, Jacob, who was a clerk and salesman in the dry-goods store of the appellee, was, about the 3rd or 4th of December, 1860, arrested at the instance of the appellee and led to the office of the appellee's attorney, and there, in a back room, falsely accused by the latter of embezzling the money of his employer, the appellee. A paper was then prepared by this attorney "assigning away the household furniture and a house in the town of York, Pennsylvania," to the appellee, and tendered to him for execution. He objected that this property had been purchased with his wife's money, and he had, therefore, no right of disposition of it. But the alternative being set before him of going to jail upon this false charge or executing the paper, he, under [**2]  the circumstances, and under duress, executed the paper and was then permitted to depart. The next day, while at his boarding house, a messenger from the appellee desired him to return to the attorney's office and execute another paper, the first being mistaken in date, and being still "under the same influences," he accompanied this messenger and did execute a second paper which he did not read, but which he understood to be only a more formal paper than the other. It was also alleged that the appellee said that no use should be made of these papers until after an account of his stock had been taken in the succeeding February, which promise had not been carried out.

The appellants afterwards filed their petition for an injunction to restrain the appellee from disposing of the real estate conveyed under these deeds; and with this petition they also filed as exhibits, a copy of the first deed executed by the appellant, Jacob, and a copy of the record of proceedings on a judgment of the Court of Common Pleas of York county, Penna., confessed by the appellant, Jacob, in favor of the appellee. Execution had been issued on this judgment, and personal property of the appellant, Jacob,  [**3]  to the amount of $ 579.22, sold thereunder. The second deed executed by the appellant, Jacob, was filed as an exhibit to the answer of the appellee. The warrant of attorney to confess the judgment above mentioned is alluded to in the petition, but not in the bill.

The answer of the appellee, which was required by the bill to be, and was, under oath, states the circumstances of poverty and distress under which the appellant, Jacob, first applied to the appellee for employment, and his engagement by the appellee at the compensation of three dollars per week, which, during the seven years of his employment had been increased to eight dollars per week. It then states the circumstances that led to the discovery by the appellee that the appellant, Jacob, a trusted clerk, had been systematically and for a long time stealing large sums from him, and the detection of the thefts by the ordinary expedient of marked money. It denies an arrest in fact of the appellant, Jacob, who, freely and without menace, accompanied the appellee to the office of the latter's attorney, and there openly confessed that he had been for years stealing from the appellee; that his embezzlements amounted in the [**4]  aggregate to between $ 5000 and $ 6000, with which he had purchased property in York, Pennsylvania; and it avers that the appellee, at the request of the appellant, Jacob, and in consideration of the latter reimbursing him as far as practicable for these abstractions, agreed not to prosecute the charge, and thereupon, the appellant, Jacob, freely, without any threats, and under no duress, executed the deed of the property in York in part reimbursement of the appellee; that this deed having been post-dated, the appellee sent for the appellant, Jacob, next day, to execute another deed, and that he came freely and executed the second deed, and likewise the confession of judgment before referred to, professing to be anxious to atone for the injuries done by him to the appellee, and to save himself from disgrace, as well as to be truly penitent; that no agreement was made that these papers should not be immediately availed of; that a great part of the personal property in the house in York had, however, been removed by the appellant, Jacob, by collusion with his tenants, and the real estate itself had been sold under a judgment recovered by a certain William Gilberthorp against the appellant,  [**5]  Jacob, in York, Penna., and the appellee had become the purchaser thereof at the sheriff's sale, and that the jurisdiction of the Superior Court of Baltimore was objected to in the premises.

Exhibit C, filed with the answer, is a copy of the proceedings on this judgment of Gilberthorp. From this judgment an appeal had been taken, but was afterwards withdrawn. A list of judgments against Jacob Gotwalt, returned by the sheriff of York county, shows that the appellee's judgment had priority after Gilberthorp's, and he was accordingly treated by the sheriff as entitled pro tanto to his lien. The return of the sheriff was excepted to by a subsequent judgment creditor of Jacob Gotwalt, but it does not appear that these exceptions were sustained.

A commission was issued and testimony taken, much of which, in the view taken of the case by this Court, is unimportant.

It appeared in evidence that the appellant, Jacob Gotwalt, had been for seven years in the employ of the appellee, and had been considered worthy of trust and confidence; that the appellee having discovered considerable discrepancies between his accounts of stock and accounts of sales, and having been led by circumstances [**6]  to suspect that Gotwalt had been systematically defrauding him, and appropriating to his own use, from day to day, a portion of the money received by him from his sales of goods, resorted to the ordinary expedient of sending a pretended purchaser to his store with marked money, who purchased goods to a certain amount, and paid for the same with the marked money; that Gotwalt, in a ticket making a return of said sale, returned $ 2.50 less than the amount then paid him, and that one hour thereafter a $ 2.50 gold piece was found upon his person, which was identified as one of the marked pieces paid him by said pretended purchaser; that Gotwalt having been induced by Lutz, a detective, to go to the office of R. S. Matthews, the attorney of the appellee, was met there by the appellee and one Fisher, his uncle, who remained in the front office of said Matthews, while Gotwalt was taken into the back room by Matthews and informed that he was suspected of defrauding his employer, and asked if he was willing to submit to being searched; that having consented, he was searched, and the marked coin found upon his person by the said Matthews, who then informed him of the other evidences of his guilt [**7]  in his possession; that Matthews further stated to him, that "Mr. Neal had no wish to prosecute him or to involve him in any trouble on account of these embezzlements, but that every consideration for his own sake, no less than for Mr. Neal's, ought to indue him to do justice to the latter," and that this was said in connection with a proposition that Gotwalt should indemnify Neal for his losses by executing the papers referred to in the bill of complaint.

It further appeared, that on the same occasion, after Gotwalt had returned from the back room, Neal stated to him that "he did not want to prosecute him, that he had no ill-will against him, that he only wanted to secure himself against loss, and if he could do that, and should afterwards discover, on taking account of sales, that his loss was not so great as he thought it was, that he would reimburse him whatever was due him;" that afterwards, on the same occasion, Gotwalt said, "that he did not want to be prosecuted," when Matthews again assured him that "Mr. Neal had no wish to prosecute him, that he felt nothing could be gained by it, that it would be taking up his time, and as he had no ill-feeling against him at all, such [**8]  as would prompt him to prosecute him, all that he wanted was to get back his property, and that Neal was entitled to have it, and that he, Gotwalt, ought not to hesitate a moment about it.

It further appeared, that without further inducement, Gotwalt executed the papers referred to; that a day or two after, some informality having been discovered in said papers, and Gotwalt having been sent for, went to Matthews' office, and the informality being explained to him, and being asked if he was willing to execute others, said that he was, and did execute them; and that at the same time, Gotwalt executed a confession of a judgment in Neal's favor to cover the furniture in the house at York.

The Court below, (MARTIN, J.,) decided that Mrs. Gotwalt had no interest in the case, not being a party to the deed, and that whatever might be the circumstances under which the first deed was executed, the execution of the second deed was unconstrained and voluntary, and on that ground, by decree of Sept. 21st, 1863, dismissed the bill of complaint with costs. From that decree this appeal was taken. There was a motion by the appellee to dismiss the appeal.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

DEED EXECUTED TO COMPOUND A THREATENED PROSECUTION FOR EMBEZZLEMENT: ILLEGAL CONTRACT, -- ENFORCEMENT OF: DURESS: IN PARI DELICTO POTIOR EST CONDITIO POSSIDENDIS. -- A bill was filed by a grantor to set aside his own deed, upon the allegation that its execution was procured by duress. It appeared in evidence that in the first instance inducements were offered to procure the execution of the deed, which the complainant contended amounted to duress or menace; but it also appeared that the deed, as at first executed, being found defective, the day after a similar deed, in which the defect had been cured, was executed by the complainant, on which occasion no such inducements whatever were offered. -- HELD:

1st. That whatever might have been the effect of the circumstances attending the execution of the first deed, in view of the evidence relating to the execution of the second, so far as the case rests upon the allegation of duress, the complainant was not entitled to relief.

2d. The law is well settled that contracts made in violation of law cannot be enforced; when, however, such contracts have been executed by payment of the money thereon, or the conveyance and delivery of property, the rule, which seems to be best established both by the weight of authority and reason, is to refuse to grant relief and leave the parties where they have placed themselves; in such case the maxim "in pari delicto portior est conditio possidendis" applies.

3d. The above rule and maxim are applicable to a case where a deed executed "for the purpose of compounding a threatened prosecution for embezzlement," is sought to be set aside by the grantor on the allegation that it was executed under duress. 

COUNSEL:
W. M. Addison [**9]  and W. Shephard Bryan, for the appellants:

First. The confessions of the answer show that the first deed was executed under duress; and for the purpose of compounding a threatened prosecution for embezzlement. It is, therefore, void. Wildey vs. Collier, 7 Md. Rep., 2731. Story's Equity, secs. 239, 294, 298, 300. Osbaldiston vs. Simpson, 13 Simons, 513. St. John vs. St. John, 11 Vesey, 535, 536. Hatch vs. Hatch, 9 Vesey, 298. 2 Kent's Com., 466, 467. Gardiner vs. Lewis, 7 Gill, 377, 396.

Second. It is also evident, that when the other papers were executed a day or two afterwards, Jacob's mind was still controlled by the same influences, and that they were executed for the same purpose of escaping prosecution. They are, therefore, void also.

Third. These facts appearing by the answer, it is unnecessary to consider the testimony, as that could not avail against the defendant's own admission.

Fourth. It is competent for the complainants to read these portions of the answer in proof without making the residue of it evidence. 3 Greenleaf's Evidence, sec. 281.

Fifth. The other portions of the answer cannot be read in evidence by the defendant. Code, Art. 16, sec.  [**10]  103.

Sixth. But even if the other testimony could be considered, it would be found that Mr. Matthews' testimony harmonizes with the answer, and Fisher's testimony cannot establish any thing so improbable as that Jacob executed the papers voluntarily. Confessions of Jacob, obtained in the manner stated in the case, could not be adopted as a basis for the judgment of a Court of Justice.

Seventh. The record in the Gilderthorpe suit from York county cannot have the effect of establishing the validity of the deed. If the deed was obtained by duress, &c., &c., the title is bad and cannot be sustained by another title to the property subsequently acquired. The record was excepted to by the complainant in the Court below as evidence, and the exception was sustained by the Court, and no appeal taken from that decision.

Eighth. Neal was already clothed with the legal title by virtue of his deed, and purchased nothing at the sheriff's sale. It was his own property (in law) which was sold, and he was merely paying off the incumbrance of a judgment when he paid the money to the sheriff.

Ninth. The Court below ought to have cancelled the papers and directed a reconveyance of [**11]  the real estate. It ought also to have directed an account of the property seized and sold under the judgment, and of the rents and profits of the real estate, and ought to have decreed payment to the complainants of the amount ascertained to be due.

Tenth. Mrs. Gotwalt was a proper party to the bill, as the real estate was hers in equity.

Thos. S. Alexander and R. S. Matthews, for the appellee:

On the motion to dismiss they referred to the Act of 1864, ch. 322. On the appeal they argued:

1. That the appellant, Mrs. Gotwalt, clearly has no interest in the proceedings. Her rights, whatever they may be, are entirely unaffected by the execution of the deeds by her husband, to which she was not a party.

2. The evidence taken in the cause shows, incontrovertibly, that the appellant, Jacob, had been guilty of embezzling large sums of money belonging to his employer. In fact, there is nothing in the whole record to the contrary, except his own unsworn averment, while his open confessions, made in the presence of the appellee, of Mr. Matthews, and of Mr. Fisher, as sworn to positively by each of them, prove conclusively, not only the fact, but the amount, of these [**12]  thefts by him, and the disposition made by him of their proceeds in the purchase of the house and furniture in York. The evidence of Crome, that nine years previously to his examination, the appellant, Jacob, had $ 3,500, is nothing to the contrary. He does not state how he knows this money came through Mrs. Gotwalt, and that this house in York was bought with it. But the question is, whether the appellant, Jacob, was guilty of this embezzlement from his employer.

3. That where a servant has embezzled the property of his employer, a deed executed by him for restoring this property to the latter is founded upon a valid and valuable consideration in equity, however it may be at law. "He who seeks equity must do equity." The appellant, Jacob, could, therefore, only be relieved upon tendering to the appellee full reparation for the thefts committed by him. But this may be made plainer by another consideration. The evidence not only shows conclusively that the appellant, Jacob, committed these thefts, but, also, that the very property which he conveyed to the appellee was purchased by their produce, namely, the appellee's money. Under such circumstances equity would treat the appellant,  [**13]  Jacob, as a trustee for the appellee, and compel him to convey the property to the appellee. Admitting, therefore, duress, which is denied, the appellee would have on his side not only the law, but the better equity of having a right to the property which his money had bought, while the appellant, Jacob, had only the inferior equity of having been compelled by the appellee to execute a conveyance, which a Court of Equity would have obliged him to execute on application of the appellee. If ever a party should be left to his remedy at law, it is this case, where a detected thief, who has made part restitution to the party whom he has robbed, asks to have that reparation annulled, upon the ground that he made it unwillingly; see 1 Story Eq., sec. 298. He refers with approbation to the doctrine of the civil law upon this head, and cites from the Pandects, an instance precisely similar to this, where restitution cannot be demanded, as where the property is given by a thief ne proderetur. Roy vs. Duke of Beaufort, 2 Atk., 193. Hamilton vs. Cumming, 1 Johns. Ch. Ca., 52. Roberts vs. Gibson, 6 H. & J., 127.

4. The appellee claims under the second deed; the first deed executed on the first [**14]  day was admitted to be defective. Now duress is of two kinds, duress of imprisonment, and duress per minas. "The first, is where a man actually loses his liberty. The second, is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason." 1 Bl. Com., 131. It is not pretended that the duress exercised over the appellant, Jacob, was of this second kind. Now, was the appellant, Jacob, under compulsion by actual loss of liberty when he sealed and delivered the second deed? Admitting that he was illegally imprisoned on the first day, the evidence of Crome and Fisher clearly demonstrates that his going back to Mr. Matthews' office to execute the second deed was as voluntary as his remaining there to do it was unconstrained by the appellee, or anybody present. The same considerations apply to the supposed extortion of the confession of judgment, which was done on the second day.

5. But the appellee has not only obtained the legal title to the property in question upon a fair and meritorious consideration, and without duress from the appellant, Jacob, and not only the better equity to retain it against him, but he has also [**15]  the legal estate therein conveyed to him by the regular execution of a judgment of a Court of competent jurisdiction, all objection to which judgment was withdrawn by the appellant, Jacob. Assuming the exceptions to the sheriff's return, made by Small, Bender & Co., to be ascertained by a Court in York, the appellee would only be obliged to pay up the balance due of purchase money therefor, and out of his general estate primarily. If the property, on his failure to do so, were resold, and brought more than he had given for it, he, upon the ground, in any event, of his part performance of the terms of sale, would be entitled to the difference between his original bid and the sum actually realized, and not the appellant, Jacob. But if the appellant, Jacob, has any interest in these exceptions, he must litigate them in the Court at York. If he has none, he is bound by the sale to the appellee.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, and WEISEL, J.,--the case being heard at the same time on the motion to dismiss, and on the merits.  

OPINIONBY:
BARTOL 

OPINION:

 [*444]  BARTOL, J., delivered the opinion of this Court.
We concur with the judge of the Superior Court in the opinion [**16]  that the allegation of duress, in procuring the deed and warrant of attorney in this case, is not supported by the proof.
Whatever may be said of the transactions at the office of Mr. Matthews, which took place on the 4th of December, 1860, when the first deed was executed, there is no evidence of any duress being used on the following day to induce the complainant to execute the deed of that date.
So far as appears from the evidence, the execution of that deed was a voluntary act on the part of Gotwalt, unconstrained by any duress, compulsion or menace, and so far as the 

 [*445]  case rests upon that averment in the bill, we are of opinion relief was properly refused by the Court below.
It appears from the evidence, that Gotwalt, who was the clerk and salesman of Neal, was accused of having embezzled large sums of money of his employer, and without meaning to pronounce a judgment upon his guilt, (which we are not now called on to do,) we are compelled to say, from the evidence in the record, the appellee had strong grounds to believe the charge to be true, and his object in demanding the deed was to obtain indemnity or reparation for his loss, which Gotwalt appears to have consented [**17]  to give without other motive than a desire to make reparation for the wrong, combined with the hope of escaping a criminal prosecution.
It is impossible to doubt, from the evidence in the record, that this last was the chief consideration moving Gotwalt to the execution of the deed. The inducement being a promise by Neal not to prosecute, Neal, in his answer, says: "that he did consent to abstain from prosecuting the said Gotwalt for defrauding him and for the embezzlement of the money, in consideration of the said Gotwalt reimbursing him, as far as practicable, for the loss sustained at said Gotwalt's hands."
And Matthews says, in his testimony, "he (Gotwalt) said he did not want to be prosecuted, and I told him that I had already assured him that Mr. Neal had no wish to prosecute him, that he felt nothing could be gained by it," &c.
We think it very clear, from an examination of the whole case, that the first deed was executed "for the purpose of compounding a threatened prosecution for embezzlement;" and that the same purpose continued and induced the execution of the papers on the 5th of December. The appellants have contended that for this reason they are void, and ought to [**18]  be cancelled, and the question is whether Gotwalt is entitled, on this ground, to have the relief prayed. This question will be considered without regard to the frame of the bill, no exceptions having been taken for want of sufficient 

 [*446]  averments; and besides, if it should appear from the proof that the complainants are entitled to relief on this ground, the case might be remanded and the necessary amendments to the pleadings be allowed.
In considering this question we put Mrs. Gotwalt out of view, because not being a party to the deed, she has no interest in the controversy; her rights, whatever they may be, are unaffected by the deed, and we, therefore, exclude from our consideration, as inadmissible, all the evidence bearing on that part of the case.
The law is well settled that contracts made in violation of law cannot be enforced. See Wildey vs. Collier & Wife, 7 Md. 273, and authorities cited in the opinion of the Court.
When, however, such contracts have been executed by the payment of the money thereon, or the conveyance and delivery of property, and application is made to a Court of Equity, by one of the parties to the contract, to grant him [**19]  relief by ordering the money to be repaid or the property to be returned, the rule which seems to be best established, both by the weight of authority and reason, is to refuse to grant relief and to leave the parties where they have placed themselves. In such case the maxim applies, in pari delicto potior est conditio possidendis.
In Collins vs. Blantern, 2 Wilson 341, cited by this Court in Wildey vs. Collier, a bond given for the compounding of a felony was avoided by plea setting forth the illegality of the consideration for which it was given; it was held that where money has, in fact, been paid upon such consideration, it cannot be recovered back again, because in pari delicto, &c. Ld. Ch. J. WILMOT said: "Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again;--you shall not have a right of action when you come into a Court of Justice in this unclean manner to recover it back."

 [*447]  The same doctrine is supported by many authorities; these are cited by Kent in his Commentaries, vol. 2, 467, notes, and [**20]  in Story's Equity, vol. 1, sec. 298, notes.
After a careful examination of the cases on this subject, we are satisfied that the great current of authority supports the doctrine laid down in Collins vs. Blantern, although it may not be possible to reconcile all the cases.
In Neville vs. Wilkinson, 1 Bro. Ch. 547., Lord Chancellor THURLOW is reported to have said, "that in all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover at law; and that the reason was, that if Courts of Justice mean to prevent the perpetration of crime, it must not be by allowing a man who has got possession to remain in possession, but by putting the parties back to the state in which they were before."
Mr. Justice STORY, referring to the words of THURLOW, Ld. Ch., says: "But this is pushing the doctrines to an extravagant extent, and effectually subverting the maxim in pari delicto potior est conditio defendentis. The ground of reasoning upon which his lordship proceeded is exceedingly questionable in itself, and the suppression of illegal contracts is far more likely, in general, to be accomplished by leaving [**21]  the parties without remedy against each other, and by thus introducing a preventive check naturally connected with a want of confidence, and a sole reliance upon personal honor. And so accordingly the modern doctrine is established." 1 Story's Eq. Jur., sec. 298.
We think this criticism of Lord Thurlow's reasoning is very just, and we may add that the broad and unqualified terms used by the Lord Chancellor do not seem to have been demanded by the case before him, nor justified by the decisions to which he referred, especially not by the case of Bromley vs. Smith, 6 Doug. 696, decided by Lord Mansfield.
Among the cases we have examined, bearing on this subject, is, The Inhabitants of Worcester vs. Eaton, 11 Mass. 368, 

 [*448]  decided in 1814. In many of its features, that case bears a striking analogy to this. It was an action at law to recover a parcel of land, the demandants claimed under a deed from Betsey Flagg. The defendants claimed under a prior deed from the same person, which was impeached on the ground that it had been executed upon the consideration, and for the purpose of preventing a criminal prosecution of the grantor. [**22]  The fact was established and the transaction was declared to be in violation of law. But it was held that Betsey Flagg, being particeps criminis, could not maintain an action to vacate the deed, and the demandants claiming under her were alike precluded from recovery. In a very able and elaborate opinion delivered by PARKER, Chief Justice, the cases are examined and the law is thus stated.
"There have been some cases in England which look as if in all instances where a party has paid money upon an illegal transaction, he may recover it back again in an action for money had and received. But it is now unquestionably settled there, that an action for money so paid, cannot be maintained where the parties are really in pari delicto; and upon looking into all the cases upon the subject, some of which have already been referred to, it will appear that a distinction is maintained between those cases in which one of the parties has, by an illegal act, taken an advantage of, and oppressed the other, and those in which it is not possible to distinguish between the parties as to the degree of their criminality. Thus, where usury has been paid, it is considered that the lender has availed [**23]  himself of the distress of the borrower and has violated the law to extort from him more than the lawful rate of interest. In this case, an action for money had and received will lie for the excess. In the cases of Smith vs. Bromley, 6 Doug. 696, and Browning vs. Morris, 7 Cowp. 790, the doctrine as laid down by Lord Mansfield, is, that where certain acts are made unlawful by statute, to 

 [*449]  protect unwary and ignorant people from oppression and extortion, there, although both parties are guilty of violating the law, yet, they are not equally guilty, and that in such cases the party from whom the money is exacted shall recover it back from him who practices the oppression. Such are the cases of usury, of money paid to a creditor by a bankrupt to procure his signature to a certificate, and money paid contrary to the laws regulating lotteries. But that in all acts which are unlawful on account of their immorality or because they are hostile to public policy, there the parties to the act are in pari delicto, and potior est conditio defendentis.
"This distinction seems to have been ever afterwards observed in the English Courts,  [**24]  and being founded in sound principle, is worthy of adoption as a principle of Common Law in this country."
In the same case it was held that a party seeking to vacate a deed of lands on the ground that it was executed upon an unlawful consideration, stands in the same position as a party seeking to recover back money paid upon such consideration.
"A deed of bargain and sale signed, sealed, acknowledged, delivered and recorded, is an actual transfer of the land to the grantee as much as the delivery over of a sum of money, or of a personal chattel is a transfer of either of those."
Being of opinion in this case that the complainant, Jacob Gotwalt, is not entitled to relief upon any of the grounds suggested, we will sign a decree affirming the decree of the Superior Court, but without costs.
Decree affirmed. 

61 of 120 DOCUMENTS 

MICHAEL SLATTERY, GUARDIAN OF MARY J. MCGRATH, vs. JAMES SMILEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 389; 1866 Md. LEXIS 64 

July 12, 1866, Decided 

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

The petition was filed in this case on the 7th of October, 1865, by the appellee against the appellant, who is a priest of the Roman Catholic Church, of the city of Baltimore, and who had been, on the 25th of October, 1862, duly appointed the guardian of Mary J. Magrath, an orphan and an infant, alleging that the appellant had been so appointed guardian at the request of the great-grandmother of the child, and against the wishes of the mother, and claiming that he, the petitioner, was uncle to the child, and as such had a right to the guardianship, and praying the removal of the appellant and the appointment of himself, the appellee, as guardian.

To this petition the appellant answered, denying any right in the petitioner, as uncle, to the guardianship, and denying that he, the respondent and appellant, had been appointed without the mother's consent, &c.

Testimony was then taken orally in open Court, and the case argued, and the opinion of the Court announced, but not filed until some days afterwards, and so far the proceedings were "summary," but the Court afterwards filed their decree, and the respondent appealed and [**2]  asked to have the proceedings made "plenary," and that the testimony be taken down in writing. The appellant then offered his answer upon oath, which the Court refused to receive.

The testimony so taken was, in effect, as follows: The relationship existing between the parties, as stated in the petition, having been established, it was proved that the appellant was a priest of the Roman Catholic Church, about fifty years of age, and of irreproachable character--some of the witnesses testifying that he was, in every way, well qualified for the trust to which he had been appointed, and others expressing the contrary opinion, and assigning as reasons therefor that the appellant was unmarried, without a domestic establishment, a parish priest charged with the care of an extensive parish, with a large congregation, and liable at any time to be removed to a different field of labor.

Other witnesses testified to the excellent moral character of the appellee, his fitness for the guardianship of the infant, his niece; that he was a married man, his wife being also a cousin of the infant, and well suited and willing to assume its care.

It was also proved that the infant was living [**3]  in the boarding school of the Sisters of Charity, at St. Joseph's, Barre street, Baltimore, where, as far as was known, she was well fed and clothed, and otherwise well treated and cared for.

The Orphans' Court, on the 9th of November, 1865, passed an order, that "being convinced that it has the power to revoke, and that it would be for the best interest and happiness of the ward to revoke the letters of guardianship in said case, it orders and decrees that the letters of guardianship in said case, heretofore granted and committed to said Michael Slattery, as guardian of said Mary J. McGrath, be and the same are hereby revoked, and that the said James Smiley, who is the nearest of kin to the said ward, be and he is hereby appointed the new guardian," &c.

From this order the guardian first appointed appealed.  

DISPOSITION:
Decree reversed.  

HEADNOTES:

GUARDIANS, -- APPOINTMENT AND REMOVAL OF: CODE, ART. 93, SEC. 232: APPEALS: CODE, ART. 5, SEC. 29. -- Upon a true construction of Art. 93, sec. 232, of the Code, any application for the removal of a guardian must allege improper conduct on the part of the guardian, either in relation to the care and management of the property or person of the infant; and to authorize the removal such allegation must be sustained by proof.

The act of the Court in making an appointment of guardian, being the act of a Court of competent jurisdiction, ought to be supported by every legal intendment, assuming, as must be done -- the first appointment being brought in question incidentally -- that it was legally and properly made.

The comprehensive language of Art. 5, sec. 29, of the Code, relating to appeals from orders, &c., of Orphans' Courts, is certainly broad enough to embrace orders removing guardians. 

COUNSEL:
Robert C. Barry, for the appellant, argued:

1st. That under the distinctions of "summary" and "plenary" proceedings, under the Maryland Code of General Law, Art. XCIII., 249, 250, and Art. V., 40, the course pursued by the counsel for the appellant was correct, and his answer on oath ought to have been received.

2nd. That if said answer [**4]  on oath was properly rejected, this case is duly here under the summary proceedings and appeal, and must be considered by this Court.

3rd. That the petitioner, the uncle of the child, has no legal right to the guardianship of the child; the right of administration is given by positive law, Code, XCIII., 18 to 33; but no right to guardianship exists except in the child's parents.

4th. A guardian may be removed for improper conduct, or, upon the application of the guardian, his letters may, in the discretion of the Court, be revoked. Code, XCIII, 186, 187, 188, 189, 194 and 232. But in this case there is no improper conduct imputed, and there is no ground for the exercise of a discretion in the removal; legal discretion is not "whim," nor is it "prejudice;" Lord Coke defines it to be: "To know, through the law, what is just." See Wharton's Dic. of Juris., title "Discretio."

Henry Stockbridge and John H. Ing for the appellee:

The appellee contends that the appointment of guardians, the revocation of their authority, and all matters connected therewith, are, by the laws of Maryland, confided solely to the Orphans' Courts in the exercise of their sound judicial discretion,  [**5]  and that from their action, in the exercise of such discretion, no appeal will lie. Code of General Laws, Art. 93, sec. 189, p. 658, showing the jurisdiction of the Court to be vested, "for any cause," in cases of "revocation." "The exercise of the discretion of a Court is not cause of error, or matter from which an appeal will lie." Wall's Ex'r vs. Wall, 2 H. & G., 79. Thomas vs. Doub, 1 Md. Rep., 324. Ellicott vs. Warford, 4 Md. Rep., 86. Salmon vs. Pierson, 8 Md. Rep., 298. Falconer vs. Regelier, 6 Md Rep., 552. Ex-parte Shipley, 4 Md. Rep., 497. Hebb vs. Hebb, 5 Gill Rep., 509. Compton vs. Compton, 2 Gill Rep., 253.

But if an appeal would lie, this case is not one in which the decision of the Orphans' Court should be reversed. The death of the mother of the ward, Mary Jane Magrath, in fact, changed entirely the position and necessities of said Mary. Before that, the guardian, (though nominally in law the guardian both of her person and property,) was, in fact, but the trustee of her estate while her mother retained the custody and control of her person; sent her to school when she saw fit and withdrew her at her pleasure. But the death of that mother left the legal guardian [**6]  the sole custodian of the person as well as the trustee of the estate. This new class of duties, thus devolved upon the guardian, most unquestionably should lead the Court to require different qualifications in the person selected to discharge those duties, from what would have been previously required. The Rev. Father, from the necessities of his position, could never afford the child a home.  

JUDGES:
GOLDSBOROUGH, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*393]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The appeal in this case is taken from an order or decree of the Orphans' Court of Baltimore city, passed on the 9th day of November, 1865, revoking the guardianship of the appellant, and appointing the appellee guardian to Mary Jane McGrath. The case was heard on petition, answer, replication and the testimony set out in the record.
The jurisdiction of the Orphans' Courts to remove a guardian is derived from the 232nd section of the 93d Article of the Code. That section provides that the Orphans' Courts "may, on the application of an infant, or any person in his behalf, suggesting improper conduct in any guardian, either in relation to the care and management of the property or person [**7]  of any infant, inquire into the same, and at their discretion remove such guardian," &c.
The appellant was appointed guardian in October, 1862, and the petition of the appellee was not filed until the 7th day of October, 1865. There was no appeal from the order of the Orphans' Court by which the appellant was appointed 

 [*394]  guardian; and this Court said, in the case of Lefever vs. Lefever, 6 Md. 472, that the act of the Court, in making an appointment of guardian, being the act of a Court of competent jurisdiction, ought to be supported by every legal intendment, assuming, as we are bound to do, that the first appointment, coming before us thus incidentally, was legally and properly made. But the point before us is the propriety of the Court's action in revoking the guardianship of the appellant. By the 232nd section of the 93d Article, any application to remove a guardian, according to our construction of that section, must allege improper conduct on the part of the guardian, either in relation to the care and management of the property or person of the infant; and such an allegation must be sustained by proof.
We have examined the appellee's petition [**8]  and find no allegation whatever of improper conduct on the part of the appellant since his appointment. Whatever influence the facts set out in the petition might have had upon the action of the Orphans' Court when the appellant was appointed, we are not called on now to decide. But the appellee contends that the removal of the appellant was within the discretion of the Orphans' Court, and, therefore, no appeal will lie. By the 29th section of the 5th Article of the Code, it is provided that "in all decrees, orders, decisions and judgments made by the Orphans' Courts, the party who may deem himself aggrieved by such decree, order, decision or judgment, may appeal to the Court of Appeals," &c. This comprehensive language will certainly embrace this case, especially as the petition does not allege, or the evidence show, any improper conduct on the part of the appellant, therefore, the discretion exercised by the Court was not a sound, legal discretion, but arbitrary and subject to review by this Court on appeal.
Finding that there was error in the decree of the Orphans' 

 [*395]  Court, the same will be reversed with costs in both Courts to the appellant, and the petition dismissed.  [**9]  
Decree reversed. 

62 of 120 DOCUMENTS 

JOHN G. BRENDEL & WIFE vs. JOHN G. STROBEL & WIFE, ET ALS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 395; 1866 Md. LEXIS 65 

July 12, 1866, Decided 

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

The appellants filed their bill in the Circuit Court of Baltimore city on the 2nd day of February, 1864, stating that the said John G. Brendel sues as well for himself as all other creditors of John H. Muller, deceased; that the said Muller was, in his lifetime, indebted unto him in the sum of $ 1,560 for board, from the 19th day of March, 1857, being ten years, less seven days, at $ 3 per week; that the said Muller being seized of a lot of ground in said city, departed this life on the 12th of March, 1857, leaving a last will and testament, by which he devised all his estate to his wife, Margaret A. Muller, for her life, and after her death one-third thereof to each of his daughters, Gesche M. Grane, wife of John H. Grane, Becky D. Brendel, wife of the complainant, and Catharine M. Strobel, wife of John G. Strobel, and appointing his said wife executrix of his will; that the said wife having also died, and two of the daughters having renounced, letters of administration with the will annexed, were granted to Henry Waltzen; that the personal estate of said Muller is insufficient for the payment of his just debts, and they are advised [**2]  that the creditors are entitled to be paid out of his real estate; that it would be for the interest and advantage of the parties interested to sell said property, and after payment of the debts to divide the balance. The bill then alleges a refusal to sell on the part of the defendants, and prays for a decree for the sale of said lot.

An interlocutory decree was passed, and a commission issued, which was returned without testimony. The defendants answered admitting all the averments of the bill except as to the claim of complainant, which they resist. On the same day an agreement for sale was filed, and a decree for the sale passed, all equities between the parties in regard to the distribution of the fund being reserved for further consideration. A sale was made and reported by the trustee. On the 30th of September, 1864, an order was passed referring the case to the auditor, who, on the 23d of November, filed a report and account with the testimony taken before him, in which he allowed the claim of the complainant, to wit: $ 1,560. To the allowance of which claim the defendants excepted, and as one of the exceptions, relied upon the statute of limitations, and also asked leave [**3]  to amend their answer so as to plead the statute of limitations, and on the 9th day of January filed a formal plea of the statute. On the 31st day of January, the Court filed an opinion rejecting the claim of the complainant, and remanding the case to the auditor to state a further account in conformity therewith; from which order the appellant and his assignee, Joseph Fink, appealed.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

PLEADING IN EQUITY: LIMITATIONS: WAIVER. -- Where the answers to a creditor's bill fail to set up the defence of limitations, such omission is a waiver of the defence, and it cannot be relied on afterwards by way of exception to the auditor's report and account.

PLEADING IN EQUITY: LIMITATIONS: AMENDMENT OF ANSWER. -- At the time of filing such exception it is too late to amend the answers by incorporating therewith the plea of limitations.

PLEADING IN EQUITY: LIMITATIONS: LAPSE OF TIME. -- An agreement of the parties for a decree reserving the equities in regard to the claim of the complainant, will not admit of a construction for the introduction of other than meritorious defences, among which the lapse of time and staleness of the demand may be taken into consideration in passing upon the merits of the claim

EVIDENCE: ASSERTION OF FORMER CLAIM BY PARTY DISAPPOINTED IN RECEIVING A LEGACY IN LIEU THEREOF. -- The claim of the complainant filed with his bill in February, 1864, and for the payment of which he prayed for the sale of the real estate of the alleged debtor, his father-in-law, was an account for the board of the father-in-law, who died in March 1857, and who had lived with the complainant for ten years preceding his death. The evidence of the complainant, who was examined as a witness in his own case, was, that nothing was said in reference to board between him and the deceased during the life of the latter, and no charge made therefor, he believing that it would be all made right at the death of the latter, and if not then, at the death of the mother-in-law, who died in 1863; and that he would never have made such charge if the father-in-law and his family had "treated him properly." -- HELD:

1st. That such evidence is entirely insufficient to establish the claim of the complainant.

2nd. That a party failing to receive compensation for a supposed claim, by way of a devise or legacy, cannot be remitted to the assertion of the claim, the existence of which has not been legally proven.  

COUNSEL:
Samuel Snowden, for the appellant.

The appellant will contend, that the order of the Circuit Court is erroneous for the following reasons:

1st. That there being no proof of an express agreement that no compensation was ever intended to be made, the law implies a promise on the part of the testator to pay for the board and lodging furnished to him during his life time, whatever it is reasonably worth, although Brendel may have hoped to be compensated therefor at the death of the testator by a devise or legacy. Dougherty vs. Whitehead, 31 Missouri, 255. Roberts vs. Swift, 1 Yates, 209. Snyder and Wife vs. Castors, 4 Yeates, 354. James vs. Bixby, 11 Mass., 34. Baxter vs. Gray, 3 Manning & Granger, 771, 42 Eng. C. L. Rep., 402. Jacobsen vs. The Exrs. of [**4]  Le Grange, 3 Johns., 199. The furnishing of the board by Brendel, and its value, is fully proved.

2nd. That the defendants, having in their answer relied upon the merits as against Brendel's claim, could not afterwards plead or rely upon the statute of limitations. McMechen vs. Chase, (note,) 1 Bland, 85. Welch vs. Steuart, 2 Bland, 41. McKinney vs. McKinney, 8 Ohio N. S., 423. Chalmers vs. Chalmers, 4 G. & J., 439. Banks vs. Williams, 19 Md. Rep., 36.

3rd. That even if the statute of limitations were allowed as a defence in the case, it did not begin to run until the grant of letters of administration on the estate of John H. Muller, and would not, therefore, bar the claim of Brendel. Fishwick vs. Sewell, 4 H. & J., 393. Haslett vs. Glenn, 7 H. & J., 17. Angell on Lim., secs. 54 & 62.

4th. That the lapse of time cannot be relied on in this Court as a defence to the claim of Brendel, because it was not made by way of exception to the auditor's report and account in the Court below. Code, 1st Supplement, Art. 5, Sec. 1.

John J. Snyder, for the appellees, argued:

1st. That the said claim of the complainant is barred by the statute of limitations, and that said [**5]  plea has been properly pleaded. The account charges for board, washing and ironing from the 19th of March, 1847, to the 12th of March, 1867. This suit was not instituted until the 2nd of February, 1864.

2nd. That assuming said plea has not been formally pleaded as contended by the appellant, still it was perfectly competent for the appellees to urge the lapse of time by way of objection to the ratification of the auditor's account, in which it was allowed, and that, therefore, the exception must prevail. Besides, the reservations in the agreement for the sale of said property of the solicitors incorporated in the decree, seem to embrace all defences which could be set up against the claim of the complainant. Walter vs. McDonald, 2 Md. Ch. Dec., 248. Hepburn's Case, 3 Bland, 110. Story's Eq. Pl., 756, 759, 761. 2 Story's Eq. Jur., sec. 1521. (note.)

3rd. That the complainant has entirely and utterly failed to make good his claim. It never was the design of the appellant to make any charge for board, &c., &c., against the decedent either at the time he went to live with him, or any time during his lifetime, nor indeed until after the decease of Mrs. Muller, which occurred in [**6]  1863. Nor did the decedent ever expect to pay therefor. And the appellant never would have demanded payment "if the sisters had treated him properly." For nearly seventeen years the appellant slept upon his rights, if he ever had any, and never even pretended to have a claim against Muller. The claim here is an after thought of the appellant and is wholly devoid of merit and without legal sanction. Under such circumstances, and where it is most manifest that both parties understood that no payment was to be made for the board, &c., &c., the law will not imply a contract to pay. There is nothing to show that there ever was a promise or request in point of fact, or legal intendment on the part of the decedent on the one hand or the appellant on the other. Stockett vs. Johns & Wife, 10 G. & J., 578. Lee vs. Lee, et al., 6 G. & J., 316. Negro Franklin vs. Waters, 8 Gill, 228. Osborne vs. Govs. of Guy's Hospital, 2 Str., 728. 4 Dallas, 171. 1 Esp., 187. Bartholomew vs. Jordan, 20 Johns., 28. 5 Johns., 271. 11 Adol. & Ell., (39 Eng. C. L. Rep., 138.) 3 Bos. & Pul., 249. 1 Parsons on Cont., 371.  

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

OPINIONBY:
WEISEL 

OPINION:

 [**7]  
 [*400]  WEISEL, J., delivered the opinion of this Court.
The bill was filed by the appellant, as creditor and heir, and with it, as part thereof, was exhibited the account or claim of Brendel. The defendants, all adults, answered, admitting everything alleged, excepting the existence of the complainant's claim. That they fully denied. The parties agreed to a decree, "all equities in regard to the complainant's claim to be reserved for further consideration." A decree with such reservation was accordingly passed. Sale was made, reported and finally ratified, and the cause referred to the auditor to state an account upon proofs to be taken by him. The auditor reported his account, with the proofs taken by him, allowing the complainant's claim. Exceptions were filed, first, because of the want of sufficient evidence to establish the claim; secondly, because, if it existed it was barred by limitations.
At the same time the defendants filed a petition for leave to amend their answer in order to add to it the plea of limitations. This application was set down for a hearing, and although the record shows no hearing was had, yet the plea was filed. The Court below did not pass distinctly [**8]  on this branch of the case, but determined the controversy on its merits. Nor does it appear to this Court that we should dispose of the question of limitations necessarily. We think, however, that it is proper to say, that this defence, not having been set up in the answers, was thereby waived, and could not be relied upon afterwards by way of exception to the audit. Welch vs. Stewart, 2 Bland 37, 41. It was also too late to amend the answer by incorporating the plea. The agreement of the parties for a decree, reserving the equities in regard to the claim, will not admit of a construction for the introduction of other than meritorious defences, among which the lapse of time and the staleness of the demand may be taken into consideration in passing upon the merits of the claim.

 [*401]  We concur with the Court below, that the evidence reported by the auditor is entirely insufficient to establish the claim of the complainants. Brendel's own proof distinctly disproves it. There was no contract to charge for board, and no intention to do so. No thought of charging the bill ever occurred until after Mrs. Muller's death, and that was induced by some idea of ill-treatment [**9]  by Muller or the family, probably having reference to some disappointment of a legacy. If so, it was a mere matter of hope or expectation, there being no proof whatever that there existed between him and Muller any understanding that he was to receive a legacy for his board. Nor can he be remitted to a claim which never existed. In this, as well as in other respects, is the case unlike that in Baxter vs. Gray, 42 Eng. C. L. Rep. 402, where the surgeon was remitted to his right to make good and recover an existing claim.
The auditor also allowed out of the general fund the sum of $ 100 for defendants' solicitor's fee, upon the authority of an agreement filed in the cause between the solicitors of both parties. The parties, being adult, could so agree.
The Court below considered that this was improperly allowed out of the general fund, although no specific objection was taken to the allowance, and disproved of it. Whatever views might be entertained as to the true construction of the agreement, the parties affected by the decision on this item of the account have not seen proper to appeal from the order of the Court below, and we can do no more than affirm it.  [**10]  
The order passed by the Court below, sustaining the exceptions to the audit in the particulars mentioned by him, (and concurred in by this Court,) and remanding the proceedings to the auditor with instructions to state an account in conformity therewith, is accordingly affirmed.
The costs of the appeal to be paid by the appellants.
Order affirmed and cause remanded. 

63 of 120 DOCUMENTS 

JAMES H. CONOLLY & FLORENCE MCCARTHY vs. WILLIAM R. RILEY & PHILANDER C. RILEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 402; 1866 Md. LEXIS 66 

July 12, 1866, Decided 

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

The appellees, the complainants below, filed their bill in equity on the 10th of February, 1866, charging as follows:

That your orators being the holders and owners of certain promissory notes of James H. Conolly, which had matured and not been paid, heretofore, on the second day of December, 1865, instituted suit in the Superior Court of Baltimore city, against the said Conolly, and on the tenth day of January, 1866, recovered judgment thereon, for the sum of $ 1,043.67, with interest from the 14th day of December, 1865, and costs, on which they caused a writ of fieri facias to be issued on the 19th day of January, 1866, as will appear by a short copy of the docket entries in said cause marked "Exhibit A," herewith filed as a part of this bill.

And your orators further charge, that within six days after the institution of said suit, to wit, on the 8th day of December, 1865, the said James H. Conolly, fraudulently combining with a certain Florence McCarthy, who was formerly a partner of the said Conolly, to prevent your orators from realizing the said judgment, which they were then about to obtain, executed a bill of sale [**2]  bearing the date last aforesaid, which was recorded among the chattel records of Baltimore city, professing, for a pretended consideration of $ 625.90, to convey to the said McCarthy, all the stock in trade, goods and chattels, and personal property of every kind whatsoever, in the store-house and dwelling, number 22 South Sharp street, in the city of Baltimore, as by a certified copy thereof marked "Exhibit B," herewith filed as a part of this bill, will more fully appear.

And your orators further aver, that even if any part of the consideration named in said bill of sale was paid, which, however, they believe and charge was not done, that the said bill of sale was nevertheless not made and executed in good faith, but was a device and contrivance of the said Conolly and McCarthy to cheat, hinder, delay and defraud your orators of their just debt aforesaid; that the said Conolly continued to use as his own, all the property, and to manufacture and sell the goods professing to have been conveyed as aforesaid, and to appropriate the proceeds thereof to his own use; and that said bill of sale is as against them, fraudulent and void.

And your orators further charge, that when [**3]  the sheriff, to whom said writ of fieri facias had been directed, went for the purpose of levying the same upon the goods in the said store of the said Conolly, number 22 South Sharp street, and which were being manufactured, sold and used by him as aforesaid, the said Conolly, to consummate his fraudulent purposes aforesaid, informed the said sheriff that said bill of sale had been executed, and that said McCarthy claimed all of said goods by virtue thereof, and the said officer refused to proceed further in the execution of said writ.

And your orators further charge, that they are unable to discover any property of the said Conolly, other than that professing to have been conveyed as aforesaid, out of which it is possible for them to realize their said judgment, and that unless the said Conolly and McCarthy are restrained from selling and disposing of the same, even that will soon be beyond the reach of your orators, and without the interposition of this Honorable Court your orators are remediless in the premises.

The bill was verified by the affidavit of one of the complainants and certified by a notary public of the city of Washington, the certificate being attested by [**4]  the notarial seal. A short copy of the judgment and a copy of the bill of sale, referred to in the bill, were filed therewith as exhibits.

The prayer of the bill was for an injunction "commanding and strictly enjoining the said James H. Conolly and Florence McCarthy, their agents and employees, not to sell, dispose of, remove or interfere with any of the goods now in the store, No. 22 South Sharp street, or any other property professing to have been conveyed by the said Conolly to the said McCarthy, by deed bearing date the 8th day of December, 1865, and not to retain or withhold any of said property from the receiver hereafter to be appointed," &c.

The Court (ALEXANDER, J.,) granted the injunction as prayed, and the respondents appealed.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

PLEADING IN EQUITY: BILL FOR INJUNCTION: EVIDENCE. -- A party filing a bill for an injunction must exhibit, with the bill of complaint, such evidence of his claim as will satisfy the Court of his right to proceed in that mode to obtain relief.

A short copy of a judgment duly certified by the clerk of the Court in which the judgment is rendered, with the further certificate that the docket entries in the case do not show that the judgment has been satisfied either in whole or in part, according to the usual course of practice, when filed as an exhibit with the bill, is considered sufficient for the purposes of the bill.

PLEADING IN EQUITY: ALLEGATION OF INSOLVENCY. -- A bill for injunction alleged that C., fraudulently combining with McC. to prevent the complainants from obtaining satisfaction of their judgment against C., executed a bill of sale of his stock in trade, goods and chattels, in his store and dwelling, for a pretended consideration of $ 625.90, and that if any part of this consideration was paid, the bill of sale was nevertheless not executed in good faith, but was a device to cheat the complainants, and prevent their obtaining payment of their debt. It also alleged that C., notwithstanding the bill of sale, retained possession of the property therein mentioned; that he continued to use and dispose of it as his own, and appropriate the proceeds to his own use; and further, that the complainants were unable to discover any property belonging to C. other than that mentioned in the bill of sale. -- HELD:

1st. That the allegations of the bill were sufficient to authorize the granting of an injunction, enjoining C. and McC., their agents and employees, not to sell, dispose of, remove, &c., any of the property attempted to be conveyed, &c.

2nd. That an allegation that the property of a debtor is beyond the reach of legal process by his creditor, is as effective in the way of inducing a Court of equity to exercise its extraordinary restraining power as an allegation of insolvency would be.

3rd. That under the facts stated in said bill, the allegation that no other property of the debtor could be found than that mentioned in the bill of sale, must be taken as equivalent to an express allegation of insolvency.

PLEADING IN EQUITY: NOTARY PUBLIC OF THE DISTRICT OF COLUMBIA, -- AUTHORITY OF HIS ACTS IN MARYLAND: PRESUMPTIONS. -- Where the affidavit to a bill for injunction was made before a Notary Public of the District of Columbia, in respect to whose legal competency to administer the oath, there was no evidence on either side. -- HELD:

1st. That the certificate of the administration of the oath, and authentication of it by the notarial seal, are facts from which, it may be presumed that these acts were done in the regular exercise of powers conferred by the laws of the District.

2nd. That in the absence of proof of the statutory qualifications of the notary to administer the oath, it would, according to the practice in this State, be supported by the presumption that he had the same power, under the laws of the District, as that class of officers have under the laws of this State, or, in other words, that the laws of the District in that respect are the same as our own.  

COUNSEL:
O. Miller for the appellants.

1st. There is no sufficient evidence of indebtedness exhibited by the complainants. The copy of the docket entries is of no avail. Nusbaum vs. Stein, 12 Md. Rep., 316. Blondheim vs. Moore, 11 Md. Rep., 373. Mahaney vs. Lazier, 16 Md. Rep., 73.

2nd. The bill nowhere alleges that the property conveyed by the bill of sale, at any time, belonged to Conolly.

3rd.  [**5]  The charge of fraudulent combination, not being founded on any fact or circumstance, is too vague and general to overcome the positive oath of McCarthy to the bona fides of the consideration, which is exhibited as a part of the complainant's bill. Nusbaum vs. Stein, 12 Md. Rep., 321. (Opinion of Court.)

4th. The statement of the complainants' belief, that the consideration mentioned in the bill of sale was not paid, without setting forth the grounds of the belief, or some fact which might show that it was probable, is not sufficient to induce the extraordinary exercise of the powers of a Court of Equity. McElwain vs. Willis, 9 Wendell, 561. Champlin vs. New York, 3 Paige, (N. Y.,) 573.

5th. There is no charge that Conolly is insolvent.

6th. The injunction was ordered and issued February 10th, 1866, and prohibited the defendants from disposing of any of the goods at that time in the store No. 22 South Sharp street. The bill of sale was executed December 8th, 1865. It is not alleged that the goods conveyed by the bill of sale are the same as those in the store at the issue of the injunction. Non constat that they had not all been removed, and an entirely new stock put [**6]  in their place. The answers aver that they had been, to a considerable extent, but the bill gives no information on this head.

7th. The statements of the bill are not sufficiently verified. It is sworn to by one of the complainants before a notary public in Washington city, but there is no statute or principle of law which authorizes a notary, not appointed by the Governor of Maryland, to administer an oath to be used in Maryland, except in cases of a commercial or maritime character. 1 Code, "Conveyancing," 136. Jacob's Law Dic., "Notaries Public."

8th. The general conclusion is, that the complainants have not stated a case which entitled them to the order appealed from; and further, that they have not furnished the prima facie evidence required by law to support the case which was stated.

John H. Thomas, for the appellees:

1. Proof of the complainants' claim is never required as preliminary to the issuing of an injunction. "Exhibit A," a properly authenticated short copy of a judgment in favor of the complainants, was sufficient prima facie proof. The signature to a promissory note, the correctness of an open account or any other claim of the complainant is never [**7]  proved at this stage of the cause.

2. The bill need not be sworn to at all, if accompanied by such prima facie proof as entitled the complainant to the confidence of the Court. Negro Charles, &c. vs. Sheriff, Exr., &c., 12 Md. Rep., 279.

3. A notary public is, however, recognised by the law of nations as a public officer competent to administer oaths for all purposes except under special statutes. Our law expressly authorizes the acknowledgment of deeds, and affidavits of their consideration to be made before him. 1 Code, 132 & 137.

4. The bill expressly avers, that the consideration named in the deed was not paid. But even if it was paid, the averment is, that the deed was not made and executed in good faith, but was a device and contrivance to cheat the complainants. A valuable consideration will not make it good as against creditors if it was not executed bona fide. Twine's Case, 3 Coke's Rep., 81. 1 Story's Eq. Jur., sec. 369. Glenn vs. Randall, 2 Md. Ch. Dec., 220. Powles vs. Dilley, Id., 119. Grover vs. Grover, 3 Md. Ch. Dec., 29, 34. Glenn vs McNeal, Id., 349, 352. Anderson vs. Tydings, Id., 167, 172. Brinton vs. Hooke, Id., 477, 480. Rich vs. Levy, 16 Md. Rep.  [**8]  , 78, 85.

5. It is not necessary to state the circumstances on which a complainant relies as evidence of fraud. They constitute his proof, not his pleadings. If necessary, however, they are sufficiently stated in the bill.

6. The bill alleges that the complainants could not discover any property out of which they could realize their judgment, other than that covered by the bill of sale. It is immaterial to them, under such clrcumstances, whether Conolly was actually insolvent or not. He had nothing which they could reach. In no other points of view were they interested in his condition. Their equities would not have been strengthened by an allegation that he was insolvent.

7. The object of the bill being to set aside a fraudulent conveyance, the injunction to prevent the property from being put beyond the creditors' reach, while they were pursuing their remedy, was proper as ancillary thereto. Hyde vs. Ellery, 18 Md. Rep., 501.

8. The bill alleges, that when the sheriff went to the store for the purpose of levying the execution, Conolly, to consummate the fraudulent purposes of himself and McCarthy, said that McCarthy claimed all of the goods then in the store, by [**9]  virtue of the bill of sale. If any goods were there other than those covered by the deed, Conolly, acting for himself, and as agent of McCarthy, used the bill of sale in consummation of their fraudulent plan to protect all of the property from execution. The fact of their intermingling property which was exempt from execution with property which was liable thereto, rendered it all liable. The injunction was, therefore, properly made to cover all of it. Hyde vs. Ellery, 18 Md. Rep., 496.

S. T. Wallis, also for the appellees:

The grounds of objection to the bill in this case, as furnishing proper foundation for an injunction, are two-fold: 1st, as to the allegations of the bill; and, 2d, as to their verification. They will be considered in their order briefly:

1st. It is objected that there is no sufficient allegation that the bill of sale impeached, conveyed the property of the grantors, and was without consideration. It is admitted, that there is an allegation of mala fides in the conveyance, but that impeachment is regarded as overruled by the affidavit of bona fides accompanying the execution of the instrument.

By a long succession of familiar cases, of which [**10]  some are cited under the fourth point in the opening argument of the appellees, it has been established, that a deed, to be valid as against creditors under the statute of Elizabeth, must be not only for a valuable consideration, but bona fide. The one requisite is as indispensable as the other. If, therefore, the bill sufficiently charges either of those requisites to have been wanting in the case at bar, it must, quoad hoc, support the prayer for an injunction effectually.

Now the allegation here, as to mala fides, is of the most specific and direct character, viz: "The said bill of sale was nevertheless not made and executed in good faith, but was a device and contrivance, &c., to cheat, hinder, delay, and defraud your orators." It is followed up by the further charge, that the grantor continued to use and sell the property, after the pretended conveyance, as if it had never been executed, and to apply the proceeds to his own use. It is not easy to understand how the imputation of "vagueness" can attach to these averments. They are, in part, the very language of the Statute of Elizabeth, in describing the fraudulent purpose of the conveyance, and they set out in words the very [**11]  act--the appropriation of the proceeds to the use of the grantor--by which the purpose of fraud was consummated. They state this case in connection with the previous and subsequent averments, viz: that Conolly, being sued, did, in order to prevent Riley from realizing the fruits of the judgment which he was about to recover, combine fraudulently with McCarthy to execute this conveyance, and did execute it to cheat and defraud Riley; that under cover of the fraud he applied the property, and the proceeds of the property conveyed to his own use, as if no deed had been executed, and when the sheriff came to take the property in execution, set up McCarthy's title and prevented the officer from levying under his writ. If this be not explicit and definite, and ample enough as a case of fraud which requires the relief prayed, it would seem difficult to imagine one.

But it is suggested, that so far at least as McCarthy is concerned, the charge referred to is too vague and general to overcome his oath of bona fides accompanying the bill of sale. It is said to be "not founded on any fact or circumstance." The counsel for the appellees are not aware of any case in which the facts and circumstances [**12]  are required to be set forth in order to fortify a charge of fraud. Fraud is a conclusion of law from facts, and is, therefore, sufficiently charged as fraud simply, or as fraud of the particular nature alleged to have been committed, especially when it is a statutory fraud, charged in the words of the Statute. It is not at all analogous to cases in which "irreparable injury" is charged, and the facts showing the irreparableness of the injury are required to be submitted to the Court in the bill. There the averment is of a conclusion of fact, and the Court requires the specific facts in order to form its own conclusion, instead of trusting that to the complainant's judgment and conscience. But in this case the allegations as to McCarthy are broad enough to meet any requirement. He is charged with "fraudulently combining" with Conolly to prevent the complainants from realizing their judgment, by the execution of the bill of sale to him. It is further charged, that the bill of sale was "a device and contrivance of Conolly and McCarthy to cheat, hinder, delay and defraud the complainants of their just debt," &c. What stronger "facts or circumstances" than these could possibly be alleged?  [**13]  If the oath of bona fides attached to the conveyance is sufficient to counter-balance these allegations, surely it can countervail any. The Court, in the case in Nusbaum vs. Stein, 12 Md. Rep., 321, cited by the appellants, can certainly have meant to establish no such doctrine by the suggestion, that the affidavit of bona fides to a mortgage was "a circumstance not entirely to be disregarded," where there was no production, or even prima facie proof, of the claim of the complainants? In the present case there is such prima facie proof in the short copy of the judgment and proof sufficient to authorize the issuing of an execution to another county, under our Statute, and always regarded in equity, so far as the experience of the appellees' counsel has gone, as sufficient to prove a debt before the auditor, except where full proof is demanded. The reasoning in 12 Md. Rep., 321, allowing an ex parte affidavit to be prima facie sufficient, even where there was a question of appointing a receiver, (which is always graver than that of an injunction,) certainly would admit a short copy of a judgment as equally effective. The rule in equity, as laid down by Chancellor Bland, and approved [**14]  by this Court, simply requires, in cases of this sort, prima facie proof "sufficient to cause belief, and to induce the Court to trust the bill for the truth of its statements." Jones vs. Magill, 1 Bland, 180. Salmon vs. Clagett, 3 Bland, 162. Negro Charles vs. Sheriff, 12 Md. Rep., 279.

The indebtedness in question, then, being sufficiently shown, in limine, and the averment of combination and fraud being so full and specific, it is respectfully submitted, that the bill states a case of mala fides against McCarthy as well as Conolly, justifying the ancillary relief prayed and granted. Hyde vs. Ellery, 18 Md. Rep., 501.

But the averment of want of consideration for the conveyance is not believed to be any more open than that of mala fides to just criticism. As will be seen by reference to the bill, it is distinctly averred, that the consideration was "pretended," and that the complainants "believe and charge" that no part of the consideration was paid. It is simply impossible for a party to charge any fact which he did not see or know personally upon any other ground than what, on analysis, will be found to be belief. Nor do the rules of equity pleading require him to do [**15]  more than believe what he charges, provided he believes it so thoroughly as to take the responsibility of charging it. Under the Act of 1864, chap. 306, authorizing the attachment at law on original process, the plaintiff can obtain his writ of attachment on swearing that he "has reason to believe that the defendant" has committed, or is about to commit, certain frauds. In this very case, if the complainants had charged the absence of consideration as a fact, roundly, they would only have been required to swear that the bill was true to "the best of their knowledge and belief." The idea of requiring a complainant to set forth the grounds of his belief as to such a fact as the non-payment of a consideration is, it is submitted, a novel one in practice, and could not be admitted without disparaging nine-tenths of the decrees of our Courts of Equity in cases of this nature.

It is submitted, that the cases from Wendell and Paige, cited under the fourth point of the appellants, do not furnish any ground for such a doctrine.

The objection that the property is not sufficiently averred to have belonged to Conolly appears to be equally untenable. The bill of sale, itself, is made [**16]  part of the bill, and would certainly seem to estop both grantor and grantee from denying that it passed the property of the grantor as between them. The interest in the debts, &c., is, in fact, described in words by Conolly, as my "interest." The complainants, in addition, are entitled to every reasonable intendment of their bill, and it is requiring what is hardly reasonable, to ask the Court to intend that Conolly is charged with conveying anybody's property but his own, to cheat his creditors, or that McCarthy's fraudulent combination with him was to cheat them out of what did not belong to Conolly, and was not liable for his debts. It is specifically charged that Conolly "continued to use" the property "as his own" after the conveyance, as if the bill of sale had not been executed; and it is further charged that the complainants have been unable to discover "any property of said Conolly other than that professing to have been conveyed.

With these allegations, it is submitted, that the point is too clear for further discussion.

2nd. As to the verification of the bill:--It is supposed that the oath taken before a notary is not sufficient. The sort of verification, and [**17]  the purpose of it, required by Courts of Equity, have been already alluded to, and are fully set forth in the case cited from Negro Charles vs. Sheriff, 12 Md. Rep., 279. It cannot be argued with any plausibility that an oath made by a complainant to a bill of injunction, sworn to out of the State, can only be lawfully administered by a Maryland commissioner. Nothing short of express legislation would justify such an argument. Parties, therefore, must be thrown on the general principle, and make their affidavits before officers authorized to administer oaths. Notaries public are among those officers, and are so recognized by the law of nations. They have the advantage of attesting their own authority. Our own laws authorize them to take the affidavits required to be annexed to deeds, by the very fact of authorising them to take the execution of such instruments, and the Code further (Art. 67, sec. 3, vol. 1, p. 469) empowers them, within our own limits, to administer oaths in all civil cases in which they can be administered by a justice of the peace. The law elsewhere is presumed to be as here, in the absence of proof to the contrary, according to a familiar and recognized principle.  [**18]  

No allegation of insolvency is necessary where this sort of fraud is charged. The 6th point of the appellants is sufficiently answered by the 8th point of the appellees.

Wm. Shephard Bryan, for the appellants, in reply:

The complainants were not entitled to an injunction in this case, unless they showed on the face of their bill: First. That Conolly was indebted to them. Second. That they had some right to subject to the payment of this debt the property affected by the injunction. Third. That by fraud on the part of McCarthy, this right had been delayed and hindered so that they were in danger of losing their debt, and unless, also, in the fourth place, these facts were verified by competent prima facie evidence.

1st. The debt, being alleged to be a debt of record, could be proved only by a copy of the record. The Acts of Assembly making short copies sufficient in certain cases are special in their nature, and cannot be construed to extend to other cases not embraced in their terms.

2nd. If the goods and chattels mentioned in the bill of sale were not Conolly's property, the complainants could not have subjected them to the payment of their alleged debt. We [**19]  are not now speaking of the book debts and accounts.

The mere fact that Conolly conveys goods and chattels by a bill of sale cannot surely be evidence that they belonged to him, or even that he was in possession of them. Suppose he did so convey; in an action of trover or replevin his grantee would be obliged to prove some title in him. Here no title or possession is alleged in Conolly. Nor is the bill of sale proof as against McCarthy of Conolly's possession. Suppose an action was brought against McCarthy by a prior grantee from Conolly, could not McCarthy show that Conolly had no title at any time? Clearly he could. The doctrine of estoppel cannot apply. Alexander vs. Walter, 8 Gill, 239.

But, as shown by the appellants' sixth point, the injunction is not confined even to the goods embraced in the bill of sale, and there is no averment in the bill of complaint that they have been so intermingled with others as to render it impossible, or even difficult, to identify them.

3rd. It is alleged that the bill of sale is fraudulent. On its production by the complainants, as part of their own case, it is shown to be bona fide. (McCarthy, who makes the affidavit of bona fides,  [**20]  is a competent witness.) Their charge is inconsistent with their own exhibit. No fact evidencing fraud in McCarthy is shown. The learned counsel thinks it is not necessary to charge the facts. "Fraud," says he, "is a conclusion of law from facts." Then the facts should be alleged so that the Court may see that the conclusion of law is properly drawn. For the Court is the judge of the law and not the party. "It is," says Mr. Justice Buller, "one of the first principles of pleading, that there is occasion only to state facts, which must be done for the purpose of informing the Court, whose duty it is to declare the law arising upon those facts." 1 Chitty's Pleading, 215, chap. 3. "Facts only are to be stated, and not arguments, or inferences, or matter of law." 1 Chitty's Pleading, 215, chap. 3.

But the bill is sworn to so as to make it evidence pro hac vice. Did any one ever hear that a witness can testify to conclusions of law?

It is not charged that Conolly is insolvent. It is not even alleged that diligent search has been made to discover his assets. The fi. fa. was not returned nulla bona by the sheriff.

The complaint seems to be confined to the execution of the bill [**21]  of sale in December. If Conolly was not insolvent, his creditors could not be delayed by his conveying a portion of his property. The complainants believe that the consideration was not paid. We rely upon the authorities under our fourth point to show that an unexplained belief will not be regarded by the Court. Why do they not state the grounds of their belief? It seems to be intimated by the appellees' counsel that it was simply impossible for them to do so. We presume it was. Will this Court give any weight to a party's testimony about a fact of which he has no knowledge, simply because he believes it without any reason which he can assign?

When a cause is heard on bill and answer, the answer is taken as conclusive against the complainant. But even in such case where the answer sets up facts not within the personal knowledge of the defendant, these facts are not regarded. The Court explained this principle clearly in Copeland vs. Crane, 9 Pickeriny, 78. They say: "Now it seems quite clear that such general allegations, containing matters of belief and conclusions from facts not particularly stated, are entitled to little or no weight in a hearing on the bill and answer. The [**22]  answer is conclusive as to facts directly and particularly averred, and not as to matters of belief, unless the grounds of belief, as disclosed, are deemed sufficient." See also, Clark vs. Van Riemsdyk, 9 Cranch, 153. Hughes vs. Gamer, 2 Younge & Collyer, 328. Drury vs. Connor, 6 H. & J. 288.

Taking the bill of sale and the allegations affecting it, this is the substance of the complaint. A bill of sale has been executed bona fide and upon valuable consideration, the grantor was indebted, but was not insolvent; the complainants are unable to discover his property, but they have not made diligent inquiry, and an execution against him has not been returned; the complainants believe that no consideration was paid by the grantee, but they can assign no reason for their belief, and they have concluded to charge that the bill of sale is fraudulent, but they think it unnecessary to show how it can affect their rights, or to state any of the facts of the alleged fraud.

4th. The notary public who administered the oath of the complainants to the bill derived no authority from the laws of Maryland. Where our own Code authorizes notaries to act, they of course can do so, but in no other [**23]  case. Those appointed by our Governor may administer oaths to be used in this State where our justices of the peace can do so. A justice of the peace of another State cannot administer an oath which will have any effect before our tribunals. Nor can any other officer of another State, except those authorized to do so by our statutes. It is not to the purpose to inquire what would be the effect of this oath in the District of Columbia. It must be shown that the law of Maryland gives effect to it before the tribunals of Maryland.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*417]  COCHRAN, J., delivered the opinion of this Court.
The appellants insist upon a reversal of the order granting an injunction in this case, on the alleged ground of insufficiency in the allegations of the bill, and for the further reason that the oath verifying the statements of the bill, does not affirmatively appear to have been administered by a person qualified by the laws of this State to administer an oath in such cases.
A careful examination of the bill, which, if properly verified, must be taken as true for the purposes of this appeal, has satisfied us [**24]  that the objections made to it are not well founded. The appellees were bound to exhibit with their bill such evidence of their claim as would satisfy the Court of their right to proceed in that mode to obtain relief, but full proof of it was not necessary. The copy of the docket entries exhibited with the bill shows, as the bill states, that they had obtained a judgment against Conolly, and although it would not be received as full and conclusive proof of the existence and amount of the debt, yet, according to the usual course of practice, the Court was at liberty to treat it as sufficient for the preliminary purposes of the bill. The rule applicable to such cases, as stated in the Union Bank vs. Ellicott, 8 G. & J. 363, is, that "strong prima facie evidence of the facts on which the complainant's equity rests, must be presented to the Court to induce its action." Under the 

 [*418]  circumstances appearing here, we think this exhibit of the docket entries was evidence of that character, and sufficient to satisfy the requirements of the rule referred to.
The bill formally alleges that Conolly, fraudulently combining with McCarthy to prevent the appellees [**25]  from obtaining satisfaction of their judgment, executed their bill of sale of the stock in trade, goods and chattels in the store and dwelling No. 22 South Sharp street, to McCarthy for a pretended consideration of $ 625.90, and that if any part of this consideration was paid, the bill of sale was, nevertheless, not executed in good faith, but was a device to cheat the appellees and prevent them from obtaining payment of their debt. It also alleges that Conolly, notwithstanding the bill of sale, retained possession of the property mentioned in it; that he continued to use and dispose of it as his own, and appropriate the proceeds to his own use; and further, that the appellees were unable to discover any property belonging to Conolly other than that mentioned in the bill of sale.
These allegations, we think, were sufficient to authorize the order for an injunction. The fraudulent character of the bill of sale as against the appellees, is clearly and specifically charged; and the allegation that Conolly remained in possession of the property and continued to use and dispose of it as his own, must be regarded as a sufficient statement of the facts upon which to found the allegations [**26]  of fraud in the bill of sale. The allegation that Conolly used this property as his own and that no other property belonging to him could be discovered, amounts to an averment that the property mentioned in the bill of sale was his, and that the appellees were without remedy, unless the property so held by him could be reached and made liable for the payment of their debt. An allegation that the property of a debtor is beyond the reach of legal process of his creditor is as effective, in the way of inducing a Court of Equity to exercise its extraordinary 

 [*419]  restraining power, as an allegation of insolvency would be; and, under the circumstances disclosed in this bill, the allegation that no other property of the debtor could be found than that mentioned in the bill of sale, must be taken as equivalent to an express allegation of insolvency.
The oath that the several matters and things stated in the bill are true, was administered and duly authenticated by a notary public in the District of Columbia, and it is objected to for the reason that this officer does not appear to have been authorized by law to administer oaths in such cases. This objection is altogether technical [**27]  and foreign to the substantial equities disclosed by the bill, and, of course, must be disposed of by the established rule applicable to such a state of case. All that the Court could require was, that the statements of the bill should be verified by an oath of one or both of the appellees, administered by any person legally competent to perform that office, and had the oath been administered by any notary of this State, its sufficiency could not have been questioned, as that class of officers are expressly authorized by our laws to administer such oaths. But here the oath was taken before a notary of the District, in respect to whose legal competency nothing appears on either side. The administration of the oath and authentication of it by his notarial seal are, however, facts from which we should naturally presume that these acts were done in the regular exercise of powers conferred by the laws of the District. It is not necessary, however, to rest upon this presumption alone, for in the absence of proof of the statutory qualifications of the notary to administer this oath, it would, according to our practice, be supported by the presumption that he had the same power under the laws [**28]  of the District as that class of officers have under the laws of this State; or in other words, that the laws of the District, in that respect, are the same as our own. In the case of Harper vs. Hampton, 1 H. & J. 622, a question was raised in regard to the validity of 

 [*420]  a deed of lands in South Carolina, and it was held that the laws of another State, when proved, would govern in determining the validity of a deed of lands in that State; but in the absence of proof of the laws of that State, the question of validity would be determined by the laws of this State. This proposition goes altogether upon the presumption that the laws of the State where the land is, correspond with those of our own State relating to the same subject. The same doctrine was again recognized in Gardner vs. Lewis, 7 Gill 377; and, in our opinion, the rule established by these cases may be applied here. We should, therefore, assume, as our own laws authorize the notaries of this State to administer oaths in cases like this, that the same power is conferred upon the notaries of the District by the laws of the District. We think, as the case now stands, that the objection [**29]  to the oath in question should not be sustained.
The order granting the injunction must be affirmed, with costs to the appellees, and the cause remanded.
Order affirmed and cause remanded. 

64 of 120 DOCUMENTS 

GEORGE R. RITTENHOUSE vs. THE MAYOR & CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 336; 1866 Md. LEXIS 60 

July 11, 1866, Decided 

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

This was an action brought by the appellant against the appellee to recover damages "for a breach and violation by the defendant of its contract and agreement with the plaintiff," whereby the latter agreed "to execute and perform all the brick-mason's work, including all the bricks, lime, sand and labor for and on the buildings forming the west front of the alms-house buildings, as described in said contract," and whereby the defendant agreed to pay the plaintiff for such services and materials the sum of $ 57,350.84. The defendant pleaded performance, and on said plea issue was joined. The plaintiff afterwards filed a bill of particulars, for which see the opinion of this Court.

Exception.--At the trial of the cause the plaintiff, to sustain the issue joined on his part, read in evidence to the jury the ordinance of the Mayor and City Council of Baltimore entitled, an ordinance providing for the purchase of a site and the erection of an alms-house and the necessary outbuildings, &c., approved April the 28th, 1860; and also read in evidence the contract or articles of agreement between himself and the defendant.

He further [**2]  proved that in the month of November, in the year 1860, he entered into a contract with the said defendant through its proper agent to execute and perform all the brick-mason's work, including the supply of all the bricks, lime, sand and lime for the same, for and on the three buildings, forming the west front of the said alms-house building according to the plans, elevations, sections and working drawings and specifications provided for the purpose--for all which work and materials the said defendant contracted to pay him the sum of $ 57,350.84; and, also, read in evidence, the bond which he had given to the defendant for the performance of the contract on his part. He then read in evidence to the jury his proposals to the defendant, from which it appears that the contract aforesaid was at the rate of $ 10.93 per thousand of bricks, to be supplied by him as aforesaid, the quantity of brick being 53,000, also the plans, specifications, &c., which it is agreed are to be inserted in this bill of exceptions, or appended to it if it shall be so required by either party.

The plaintiff being then sworn as a witness for himself, proved that in consequence of his aforesaid contract with [**3]  the said defendant and to enable him the more conveniently to execute his part thereof, and shortly after making said contract he entered into an agreement with one Daniel White, the owner of a lot of ground in the vicinity of the site of the alms-house, for the privilege of digging the clay on said lot for manufacturing thereof the bricks intended by him for said alms-house, and for making and burning the said bricks on the said lot, and for taking wood from said lot for burning the said bricks, and did actually dig a quantity of clay on said lot, and made a small quantity of bricks thereof at the plaintiff's yard on West Baltimore street; this was done to determine the quality of said clay, and of the bricks made therefrom, and that the bricks so made were of a good merchantable quality, and fully equal in quality to the specifications aforesaid; that he was to pay to the said White, for the privileges aforesaid, the sum of fifty cents for every thousand bricks he should make as aforesaid, and also an additional sum for the wood to be used as aforesaid; that he has paid said White nothing on the said contract with him; but said White claims damages or compensation from him for the [**4]  non-performance of his said contract with the said White; that said lot was in the possession of a tenant, and he knows said White was put to trouble and to some expense in getting rid of said tenant for the purpose of giving possession thereof to the plaintiff for the purpose aforesaid; and he further proved, that shortly after his contract with the defendant as aforesaid, he entered into a sub-contract with one Emanuel Irons, a competent and responsible brick-mason, for supplying the said lime and labor, and laying the bricks to be supplied by the plaintiff as aforesaid; and that the price to be paid by the plaintiff to the said Irons for materials and labor to be furnished by him was at the rate of three dollars and fifty-eight cents per thousand of bricks to be laid by him; that he, the plaintiff, has paid nothing to the said Irons on the said contract; but the said Irons claims damages or compensation for the non-performance of his said contract with the said Irons; and he knows that said Irons, in part execution of said contract, hauled to the said site one hundred and fifty loads of sand, and dug out of the bank some seven hundred other loads of sand for the purpose of hauling [**5]  the same to the said site. The plaintiff then read in evidence the ordinance of the defendant approved April the 5th, 1861. And also read the following letter from George Wm. Brown, at the time mayor of the city of Baltimore:

"MAYOR'S OFFICE,

"Baltimore, April 8th, 1864.

Sir:--I hereby give you notice that an ordinance has been passed, by the Mayor & City Council of Baltimore, directing that the building designed for an alms-house, heretofore commenced on the farm purchased of A. W. Goldsborough, be discontinued and stopped.

"Respectfully,

"GEO. WM. BROWN, Mayor.

"To L. B. Rittenhouse."

And further to sustain the issue on his part, and to prove his ability and readiness to perform his aforesaid contract with the defendant, he proved that for the last fifteen years he has been engaged in the manufacture of bricks in and near the city of Baltimore, and that at the date of his contract with the said defendant he had machinery and also stock of boards and utensils in quantity to enable him to execute his said contract, and that he had on hand six hundred thousand bricks of his own manufacture, which were of ready sale in the market, but which he retained [**6]  in hand in consequence of said contract, and to enable him to supply any demand which the defendant might make on him for bricks before he could commence making bricks on the lot of said White; and that after the repealing ordinance had been passed and notice thereof given to him as aforesaid, he sold said bricks at prices averaging about one dollar and fifty cents per thousand less than he could have realized by a sale of them in November, 1860. And, thereupon, the plaintiff, further to support his claim for damages on the third item of his bill of particulars, asked the said witness, Rittenhouse, what would have been the cost to him of manufacturing bricks of the quality required for the fulfilment of his aforesaid contract with the defendant on the said lot of the said White in the year 1860, and what would have been the cost of hauling said bricks from the said lot to the site of the alms-house building aforesaid? But the said defendant objected to said question, and the evidence offered on the part of the said plaintiff being so offered and admitted, subject to exception the said defendant further prayed the Court to exclude all such parts of said evidence as related to the said [**7]  contracts between the said plaintiff and the said White and the said Irons, and as relates to damages claimed by the said plaintiff by reason of the repeal of the ordinance first aforesaid, offered in evidence, and of the refusal of the defendant to permit the plaintiff to proceed in the execution of his contract with the defendant as aforesaid, after the passing of the said repealing ordinance.

Whereupon, the Court, on said objection and prayer of the defendant as aforesaid, refused to permit the said question to be put to the witness, and withdrew from the consideration of the jury all said parts of the evidence so given to the jury, and now excepted to by the defendant as aforesaid, --being of opinion, and so declaring, that the said repealing ordinance was passed by the said defendant in exercise of its legislative power, and that the said repeal determined its obligation to proceed further in the execution of the contract made between them and the said plaintiff, so entered into under the provisions of the ordinance first aforesaid, and that although the said plaintiff might recover on the said first item of claim in the bill of particulars any damage which he had actually [**8]  sustained by reason of the contract so entered into between him and the said defendant, and before the enactment of the said repealing ordinances, and whilst said contract was in force, were not entitled to claim in this action any damage as indemnity against any loss to which he may have become liable to the said White and the said Irons, by reason of his said subsidiary contracts with them, and there is no evidence of damage actually incurred by him by reason thereof, and that the said plaintiff is not entitled to recover any probable profits which he might have realized if he had been permitted to execute his contract with the defendant, made as aforesaid.

To which said opinion of the Court, and to the exclusion of evidence as aforesaid, and the refusal of the Court to permit the aforesaid question to be answered, the plaintiff excepted, and the verdict and judgment being for the defendant, brought this appeal.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

THE RIGHTS, POWERS, AND LIABILITIES OF MUNICIPAL CORPORATIONS, in respect to contracts made by them, must be considered with reference to the subject matter to which such contracts relate, and the character in which the municipal body acts in making them.

Where the Corporation appears in the character of a mere property holder, and enters into a contract with reference to such property, as any private citizen or other proprietor might do; or where it engages in an enterprise not necessarily connected with, or growing out of, its public capacity as a part of the local government, then all its rights and liabilities are to be measured and determined by the same rules that govern individuals or private corporations, and it cannot claim exemption or immunity from the legal liabilities growing out of the contracts by reason of its public municipal character.

But in respect to contracts made by them in the exercise of powers entrusted to them in their municipal character, exclusively for public purposes, Courts have no power to review or control their acts, unless they transcend the limits of their delegated powers.

An ordinance of the Mayor & C. C. of Balto., approved April 28th, 1860, provided for the purchase of a site and the erection of a new alms-house. In virtue of the ordinance, contracts were made for the erection of the buildings, and among others the contract with R. to execute "all the brickmason's work, including all the bricks, lime, sand and labor in the three buildings forming the west front of the alms-house buildings," as described in a contract dated the 9th of November, 1860. About one year afterwards, and after the commencement of the buildings and some work done by the contractors, including R., the site was discovered to be unhealthy, and the ordinance was repealed by an ordinance approved April the 5th, 1861, which directed the committee on the alms-house to settle with the contractors, as far as it could be done, upon fair and equitable terms. The committee failed to agree on a settlement with R., who sued the Mayor & City Council for a breach of contract. -- HELD:

1st. That the subject matter of the ordinance of 1860, under which the contract sued on was made, was one over which the appellee possessed jurisdiction and power to legislate, and that consequently the repealing ordinance of 1861 was valid, as passed in the exercise of the powers belonging to the corporation in its public, political or municipal character.

2nd. That the contract must be taken and construed as being made subject to the power of the corporation to repeal the ordinance of 1860, and to abandon or discontinue the work if, in their judgment, the public good so required, and the corporation having repealed that ordinance and abandoned the work, R. was not entitled to damages on account of profits he might have realized if he had been permitted to go on with the work.

3rd. That the evidence offered for the purpose of supporting the claim for such prospective profits was, therefore, properly rejected.

4th. That the evidence offered with regard to damages claimed as indemnity against any loss to which R. may become liable by reason of his subsidiary contracts being vague and indefinite, and there being no proof offered of any damage actually incurred by reason thereof, such offered evidence was properly rejected.

5th. That any damage which R. had actually sustained by reason of the contract while the same was operative and in force, was properly recoverable in this action.

There was proof offered that R. had been for fifteen years engaged in the manufacture of bricks near the city of Baltimore, and that at the date of the contract, he had on hand 600,000 bricks of his own manufacture, which were of ready sale in the market, but which he retained in hand in consequence of the contract, and to enable him to supply bricks necessary for the work; that after the repealing ordinance had been passed, and he received notice thereof, he sold the bricks at prices averaging about one dollar and fifty cents per thousand less than he could have realized by a sale of them in November, 1860. -- HELD:

1st. That the loss and damage thus incurred, if found by the jury, would be properly recoverable in this action.

2nd. That an instruction given, that R. was limited to the recovery of "any damage which he had actually sustained by reason of the contract, and before the enactment of the repealing ordinance," being calculated to mislead the jury as to this item of damages, and the verdict and judgment having been against him, on an appeal by R. the judgment will be reversed and procedendo awarded.  

COUNSEL:
Thos. S. Alexander and E. G. Kilbourn, for the appellant:

1st. The Court declared that the repealing ordinance having been passed by the defendant "in the exercise of its legislative power, determined their obligation [**9]  to proceed further in the execution of the contract."

It may be conceded that a city, having entered upon the construction of a work of public improvement, may suspend the further prosecution thereof if the public interests shall so require. But it is not hence to be concluded that a city may contract with an individual for materials or labor to be applied to a public work, and may afterwards, by suspending the work, relieve itself from the obligation of its contract.

The distinction between the power of a municipal corporation to enter upon a work of public improvement, and afterwards, at pleasure, to abandon that work, and its responsibility in damages to individuals who may have been injured by the exercise of its power, is well taken in Graff vs. The Mayor, &c., of Baltimore 10 Md. Rep., 544; and nothing inconsistent with this distinction is to be found in State vs. Graves, 19 Md. Rep., 351, 373, 374.

To affirm that a municipal corporation may, under a pretext of a change in its policy, annul the obligation of its contracts made with individuals, is to arrogate for such corporation a more absolute sovereignty than is possessed by the State, to whom it owes its existence.  [**10]  By the Constitution of the United States, Article 1, section 10, no State shall pass any law impairing the obligation of contracts, and by fair implication no State can be permitted to confer on an inferior organization a power which is denied to itself.

In a similar case, in New York, the corporation was declared to be answerable for all damages resulting from its non-performance of its agreement. Masterton vs. Mayor of Brooklyn, 7 Hill, 63. State vs. Mayor, &c., 3 Duer, 119, 131, 153, 154. Western Society vs. Philadelphia, &c., 31 Penna., 175. Milhau vs. Sharp, 17 Barb., 435.

2nd. In an action brought against a municipal corporation for non-performance of its contract, the measure of damages is precisely the same with that which would be adopted, in a like case, against an individual.

The Court erred, therefore, in its instruction that the plaintiff was not entitled to recover any probable profits which he might have realized if he had been permitted to execute his contract made with the defendant. And in such case the measure of damages is the profits which he might reasonably have realized if he had been permitted to execute his contract. Masterton vs. Mayor of Brooklyn,  [**11]  7 Hill, 63. Phila. W. & B. R. R. Co. vs. Howard, 13 How., 307, 344. 3 Pars. on Cont., 187. 3 Vermont, 582.

3rd. If it is considered that the defendant, by the enactment of its repealing ordinance, annulled the obligation of its contract with the plaintiff, in such case the plaintiff will be entitled to an indemnity against the liabilities which he assumed, and an equivalent for moneys expended and labor bestowed by him in and about the matter of the contract, prior to receiving notice of the passage of the repealing ordinance.

William Price and Benjamin Price, for the appellee:

The declaration states that the action is for a breach of contract, but does not assign the breach. It is nowhere shown in what the breach consists. The bill of particulars filed by the plaintiff below throws no additional light upon the subject.

The ordinance of April 28th, 1860, was properly repealed by that of April 5th, 1861. Its repeal was no violation of contract. The appellee possessed jurisdiction and power, in its public or municipal character, to pass the repealing ordinance, and have validly exercised that power. The contract must be understood as having been entered into with [**12]  full knowledge of, and subject to the power of the appellee to repeal its ordinance of 1860, and to abandon the site, and with it the work, if in its judgment the public good demanded it. No corporation has the power to make a contract injurious to the health of the city, whose affairs it controls, or of any portion of its citizens. Stuyvesant vs. Mayor & C. C., &c., 5 Cow., 540. Bailey vs. Mayor & C. C. of N. Y., 3 Hill, 531. Western Savings Fund Society vs. The City of Phila., 31 Pa., (7 Casey,) 175, 185. Moodalay vs. East Ind. Co., 1 Bro. Ch. R. 469.

There is also a distinction between the acts of the Mayor and C. C. of Balto. in an individual capacity, or for speculative or like purposes, and its acts as a public municipal corporation. This distinction is recognized by the cases above referred to, and in cases referred to by the appellant's counsel.

The case cited from 10 Md. Rep., 544, is a case where damages had already been sustained prior to the termination of the contract. The case cited from 19 Md. Rep., 351, is rather an authority to support the case of the appellee.

They also referred to the Acts of 1861 and 1862, ch. 279, secs. 34 and 39.  

JUDGES:
The cause was [**13]  argued before BARTOL, GOLDSBOROUGH, and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*345]  BARTOL, J., delivered the opinion of this Court.
The bill of exceptions in this case presents the question of the liability of the appellee, upon a contract made with the appellant, for brick-mason's work and materials to be done and furnished in the erection of an alms-house. The contract was made under an ordinance of the city, approved April 28th, 1860, which provided for the purchase of a site and the erection of a new alms-house.
After the buildings had been commenced and some work done by the contractors, an ordinance was passed and approved on the 5th of April, 1861, reciting that a farm had been purchased from A. W. Goldsborough for the site of a new 

 [*346]  alms-house, which is now ascertained not to be suitable or adapted for the purpose, because it is unhealthy; and declaring that the public good required the building to be discontinued, and the site to be abandoned, and another more suitable to be selected. It repealed the ordinance of 1860, and directed the committee having charge of the work to settle with the contractors, as far as it could be done, upon fair and equitable terms.  [**14]  
No settlement having been made with the appellant, he brought this action to recover damages for a breach of the contract made with him by the appellee. By the bill of particulars filed he claimed:
1st. His actual outlays in the preliminary steps for executing the contract, $ 500.00.
2nd. An indemnity against his liabilities towards those with whom he had contracted, to enable him to fulfil his contract with the city, $ 7,500.00.
3rd. Damages equivalent to the profits which he would have realized on said contract with the city if he had been permitted to execute the same, $ 20,000.00.
In considering the rights, powers and liabilities of public municipal corporations, in respect to contracts made by them, regard must be had to the subject matter to which such contracts relate, and the character in which the municipal body acts in making them. Where the corporation appears in the character of a mere property holder, and enters into a contract with reference to such property as any private citizen or other proprietor might do; or where it engages in an enterprise, not necessarily connected with or growing out of its public capacity, as a part of the local government; there all its [**15]  rights and liabilities are to be measured and determined by the same rules as govern mere individual persons, or private corporations; and it cannot claim exemption or immunity from the legal liabilities growing out of its contracts 

 [*347]  by reason of its public municipal character. The cases of Bailey vs. The Mayor, &c., of New York, 3 Hill 531. Masterton vs. The Mayor, &c., of Brooklyn, 7 Hill 61, and The Western Saving Fund Society vs. The City of Phila., 31 Pa., (7 Casey,) 175 & 185, are illustrations of this principle. See, also, Moodalay vs. The East India Company, 1 Brown's Ch. R., 469.
The same cases recognize a distinction between the rights and liabilities of municipal corporations growing out of contracts made by them, in their private capacity, as property holders, and those which arise out of the exercise of powers entrusted to them in their municipal character exclusively for public purposes, with regard to which Courts have no power to review or control their acts, unless they transcend the limits of their delegated powers.
In the case of The Presbyterian Church vs. The Mayor, &c., of New York, 5 Cowen 538, [**16]  which was an action by the church against the city upon a covenant for quiet enjoyment, the corporation had conveyed lands to the plaintiff for the purpose of a church and cemetery, with a covenant for quiet enjoyment; afterwards the corporation, in the exercise of a power delegated to it by an Act of the Legislature, passed a by-law prohibiting the use of the lands as a cemetery. It was held that this was not a breach of the covenant which entitled the plaintiff to damages, but was a repeal of the covenant. It was held that a municipal corporation cannot, by contract, abridge its legislative power. The ground of the decision was, that while the liability of "the defendants upon the covenant was the same as if it had been entered into by an individual, the effect of the by-law upon it was the same as if this had been an Act of the State Legislature." The rule as stated in 1 Salk. 193, was applied, viz: "If H. covenants to do a thing which is lawful, and an Act of Parliament comes in and hinders him from doing it, the covenant is repealed." And though the corporation had entered 

 [*348]  into the covenant, it was not, for that reason, prevented from passing the by-law or estopped [**17]  from relying upon it in defence; because in passing the by-law it acted in its public legislative capacity, in which its powers could not be abridged by any previous covenant into which it had entered.
The principles of that decision were afterwards re-affirmed, by the same Court, in Coates vs. The Mayor, &c., of N. Y., 7 Cowen 585, and have been recognized and approved by this Court in State, relation of McClellan, vs. Graves, 19 Md. 351.
Applying these principles to the case before us, we have been led to the following conclusions:
1st. That the subject matter of the ordinance of 1860, under which the contract sued on was made, was one over which the appellee possessed jurisdiction and power to legislate, and that consequently the repealing ordinance of 1861 was valid as passed in the exercise of the powers belonging to the appellee in its public, political or municipal character.
2nd. That the contract must be taken and construed as being made subject to the power of the corporation to repeal the ordinance of 1860, and to abandon or discontinue the work if, in their judgment, the public good so required, and consequently the appellant [**18]  is not entitled to claim any damages on account of profits he might have realized under the contract if he had been permitted to go on with the work; and the evidence offered at the trial, for the purpose of supporting the third item of damage in the bill of particulars, was properly rejected by the Court below.
We are also of opinion that there was no error in rejecting the evidence with regard to damages claimed in the second item of the bill of particulars as indemnity against any loss to which the appellant may have become liable by reason of his subsidiary contracts with White and Irons, for the reason that the evidence on that subject is vague and indefinite, 

 [*349]  and there was no proof offered of any damage actually incurred by reason thereof.
We concur, also, generally in the views expressed by the judge of the Superior Court as to the right of the appellant to recover under, the first item of claim in the bill of particulars, any damage which he had actually sustained by reason of the contract, while the same was operative and in force.
There was proof offered that the appellant had been, for fifteen years, engaged in the manufacture of bricks near the city of Baltimore,  [**19]  and that at the date of the contract he had on hand 600,000 bricks of his own manufacture, which were of ready sale in the market, but which he retained in hand in consequence of the contract, and to enable him to supply bricks necessary for the work. That after the repealing ordinance had been passed, and he received notice thereof, he sold the bricks at prices averaging about one dollar and fifty cents per thousand less than he could have realized by a sale of them in November, 1860.
Unquestionably, that item of loss and damage, if found by the jury, would be properly recoverable in this action. And some parts of the instruction of the Court below are susceptible of a construction which would allow the appellant to recover in respect to this item. The instruction does not seem to have been so construed by the appellant's counsel; and there is one expression in the Court's instruction that might mislead the jury in regard to this item of claim;--the appellant was limited to recover "any damage which he had actually sustained by reason of the contract, and before the enactment of the repealing ordinance." With regard to the damage resulting from the loss in the sale of the bricks, [**20]  it might be said that it had not been actually sustained till they were sold, which was after the repealing ordinance had been passed, and thus, under the instruction, the jury may have considered it as excluded. Considering that this damage, 

 [*350]  if found by the jury, was one actually suffered under the contract while it was in force, although the amount of it was not ascertained till afterwards, and ought to be allowed, and believing the jury may have been misled by the language of the Court, we think there ought to be a new trial, and will, therefore, reverse the judgment and award a writ of procedendo.
Judgment reversed, and procedendo awarded. 

65 of 120 DOCUMENTS 

GEORGE W. HOWARD ET. AL. vs. ISAAC OPPENHEIMER, CLAIMANT AND GARNISHEE OF ERNEST OPPENHEIMER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 350; 1866 Md. LEXIS 61 

July 11, 1866, Decided 

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

This is an appeal from an order of the Superior Court of Baltimore city, (MARTIN, J.,) of the 26th of November, 1864, sustaining a motion to quash an attachment on original process issued on the 16th of June, 1864, from said Court, under the Act of 1864, ch. 306, and laid in the hands of Isaac Oppenheimer, against certain goods which, it was charged, had been conveyed and made over to him by his brother, Ernest Oppenheimer, with intent to defraud his creditors. A full statement of the case is made in the opinion of this court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

ATTACHMENT ON ORIGINAL PROCESS: ACT OF 1864, CH. 306: PRACTICE, MOTION TO QUASH: AFFIDAVIT, -- FORM OF: ACT OF 1795, CH. 56. -- In a proceeding by attachment on original process under the Act of 1864, ch. 306, it was alleged in the affidavit of the plaintiffs, "that the plaintiffs have a good reason to believe that Ernest Oppenheimer, the defendant, has assigned, disposed of or concealed his property, or some portion thereof, with intent to defraud his creditors," and "that the defendant has removed, or is about to remove his property, or some portion thereof, out of this State with intent to defraud his creditors." -- HELD:

That this form of affidavit has been long sanctioned in Maryland under the Act of 1795, ch. 56, in the case of an absconding debtor who may be alleged "to have actually run away, or fled from justice, or removed from his or her place of abode" -- the affiant not being confined to one or the other of the disjunctive charges or allegations.

PRACTICE IN ATTACHMENT: PRODUCTION OF CAUSE OF ACTION: BOND, -- ACCEPTANCE AND APPROVAL OF. -- The transcript of the record of proceedings in the cause, after reciting that the clerk of the plaintiff had made the affidavit required by the Act of Assembly, proceeds -- "which said affidavit, together with an account and bond thereto annexed, are in the words and of the following tenor," &c. The writ itself, also a part of the certified transcript, recited that "whereas, W. H. M. has appeared," &c., "and produced and filed in Court his affidavit, account and bond," &c., "we therefore command you," &c. It also appeared that there was a memorandum of acceptance on the bond not signed by the clerk. -- HELD.

1st. That the fact of the production of the cause of action as required by the law, at the time the affidavit was made, was sufficiently attested by the recital in the introductory certificate of the record, and in the recital of the writ, which was issued and signed by the clerk, before whom, the affidavit was made.

2nd. That the memorandum of acceptance on the bond, though not signed by the clerk, and the recital in the writ issued and signed by him, that the bond was produced and filed in Court at the time the account was filed and the affidavit made, are sufficient evidences of his approval of the bond required by the law to be given before issuing the attachment.

PRACTICE IN ATTACHMENT: BOND, -- CONDITION OF: COSTS. -- The objection to the bond filed with the affidavit, that it is "only conditioned to satisfy costs and damages to the defendant, and not to any other person interested in the proceedings," is not well taken, the condition being in the words prescribed by the 41st sec. of the law, and broad enough to cover all costs in the case.

PRACTICE IN ATTACHMENT: TRIAL OF TITLE ON ISSUES, AND UNDER MOTION TO QUASH. -- In attachment cases, in which other parties interpose claims to the property seized under the writs, a practice prevails in Maryland, which has been sanctioned, for docketing cases between the claimants and the attaching creditors, and trying the title on issues framed or made by the pleas, by a jury, before the Court makes final disposition of the attachment.

But an agreement and preparation for a submission to and trial by the Court of the cause upon its merits having been made by the parties, and the Court having taken cognizance of it, as it could do in such a case, in this summary way and in a summary proceeding, an objection then made to its exercise of the right by the Court to try the merits of the case comes too late.

That the Court has this right upon a motion to quash has been so frequently recognized by this Court, and has become so interwoven with the attachment law and practice in this State, that it can be no longer questioned as settled law.

EVIDENCE IN ATTACHMENT: WITNESS, -- EXAMINATION OF: BILL OF SALE AS EVIDENCE vs. ORAL EVIDENCE OF GRANTOR. -- The defendant had been examined by the garnishee and claimant in the attachment to identify the goods taken under the writ, as part of a stock sold by him to the claimant under a bill of sale. The plaintiffs then examined him, the claimant objecting, as to the manner of payment of the consideration, his connexion with the goods, his possession of them, the manner of their sale, the agency of the claimant in such sale and the manner of his exercise of ownership over the property, the application of the money, &c. -- HELD:

1st. That it was competent for the plaintiffs so to examine the witness, by way of cross-examination; that the examination related to, and was explanatory of, or characterized the ownership of the property by the claimant, of which, he testified in his examination-in-chief.

2nd. That the bill of sale being regularly executed, acknowledged and recorded, and the truth and fairness of its consideration sworn to by the grantee, and a part only of the circumstances elicited by the cross-examination tending to cast a shade of suspicion over the transaction, while others sustain its validity, the whole of the evidence thus drawn out cannot be held sufficient to overcome the bill of sale. 

COUNSEL:
George W. Brown and Arthur G. Brown, for the appellants:

1st. While it is true that Courts have control over their own process, and may, therefore, in attachment suits, as in other cases, interfere, on motion in a clear case, to prevent injustice being done by the wrongful exercise of the process of the court, yet a court has no right, on such preliminary motion, to try and decide the merits of the case. To do so would not only be irregular, but would intrench on the proper functions of the jury. Declaration of Rights, Arts. IV. and XXIII. Constitution, Art. XII., sec. 5. Drake [**2]  on Attachment, § §  348, 416, 417. Campbell vs. Morris, 3 H. & McH., 552, 553. Barr vs. Perry, 3 Gill, 823, 824, 826. Bank of Com. vs. Rutland, &c., 10 How. Pr. Rep., 7. Spear, et al., vs. King, 6 Smedes & Marsh, 284. Boscher vs. Rouiller, 4 Abbott's Pr. R., 396. Stewart vs. Mayer, 7 Md. Rep., 500, 511, 512, 513, &c. 3 Martin, (La. R.,) 366. Rice vs. Brady, 2 Cal., 132.

2nd. Although in Maryland, in cases arising under the old attachment law, greater latitude was allowed to our Courts on hearing motions to quash attachments than in most other States, they have never done more than inquire into certain collateral and incidental matters dehors the main issue. See Campbell vs. Morris before cited.

The Court of Appeals, in a late case arising under the attachment laws, Lamden vs. Bowie, 2 Md. Rep., 334, reviewed and fully confirmed the decision in Campbell vs. Morris, quoted above, the Court coming to this conclusion, (p. 339:) "In view of this and the other Maryland cases referred to, we think that such defects not apparent in the proceeding upon attachment, as according to the authority of Campbell vs. Morris might be made available on a motion to quash, may now be used in the [**3]  same manner, or may be pleaded at the option of the garnishee."

3rd. It is material to observe the difference between the attachment law of 1795, ch. 56, under which all the cases above cited arose, and the Act of 1864, ch. 306, now in force. It is perfectly evident that debt was the gist of the action under the old attachment law, (Campbell vs. Morris, 3 H. & McH., 552,) while fraud, as well as debt, is that of the new. Therefore, the question of fraud, or of fraudulent intent, is now as exclusively a question for the jury, and as strictly denied to the consideration of the Court as the question of indebtedness was under the old law. In the absence, then, of defects in the proceedings, "the merits of the case," (here the question of fraud,) should be left to the jury.

Therefore, where a claimant sets up a right to property attached under the Act of 1864, and under a transfer alleged to be fraudulent, and which fraud is a matter to be inquired of in a proceeding under said law, this fraud constitutes the gist of the action, and should be determined by the jury, and not on a motion to quash. 1 Smith's Leading Cases, 11. Dewly vs. Bayntum, 6 East., 282. Lindon vs. Sharp, 6 [**4]  Man. & Granger, 898.

II.--1. Even if the Court has jurisdiction in this case to try the question of fraud on a motion to quash, yet, where there are conflicting affidavits and the question is involved in doubt, it should not be decided by the Court, but be submitted to the jury. In all common law cases to be tried before a Court and jury, fraud is a question to be decided by the jury. 1 Smith's Leading Cases, 11. Hanford vs. Archer, 4 Hill, (N. Y.,) 305.

III.--The transactions between Ernest Oppenheimer and his brother, Isaac, in reference to the sale of these goods attached by Howard, Cole & Co., are marked by nearly every badge of fraud that has ever been recognized by the Court. This will be best shown by a brief summary of the evidence as set forth in the record.

Ernest Oppenheimer, a merchant doing business in the city of Baltimore, bought during March and April, 1864, from Howard, Cole & Co., dry goods to the amount of $ 711.66, as per bill rendered.

About May 29th, Wm. H. Myers, a clerk of plaintiffs, called on Ernest Oppenheimer about this bill. Oppenheimer complained of having been robbed, but put off Myers with promises of early payment. "Ten or twelve [**5]  days afterwards," (June 8th to 10th,) Myers again called on E. Oppenheimer for payment, when he said: "Mr. Myers, you need not be uneasy about the debt, if I have time I will pay the whole of it, but I must have time; I only owe a few hundred dollars besides your claim, and some other debts of small amounts, and also some two or three hundred dollars to the bank, which I want to pay first." He also said, "here is my stock, enough to pay my debts, but I want time."

Between the dates of these conversations, viz., on June 3rd, 1864, Ernest Oppenheimer executed a bill of sale, by which, for $ 2,500, he sold to his brother, Isaac Oppenheimer, "All the goods, wares, merchandize and household furniture belonging to me, and contained in the two adjoining houses known as numbers 250 and 252 South Charles street, in said city, and which consists in part of the following named articles, that is to say: Cassimeres, calicoes, dress goods, domestic goods, ribbons, bonnets, hosiery, fancy goods, and notions, and also store fixtures, and also beds, bedsteads and bedding, one sofa, walnut and common chairs, easy chair, looking glasses, stands, tables, bureaus, stoves, clocks, carpets, kitchen [**6]  and table utensils, glass-ware and cutlery, together with all other chattels of every kind now being in said houses and belonging to me."

It does not appear that Ernest Oppenheimer had any property whatever other than that assigned by this bill of sale.

The testimony of Ernest Oppenheimer was that Isaac Oppenheimer, the claimant in this case, is a shoe maker, talks very little English, knows nothing about the dry goods business, and still keeps his shoe store; that he is not acquainted with the value of dry goods, and took the stock and furniture entirely on the witness' statement; from the date of the bill of sale till the attachment was served, the witness carried on the store as his brother Isaac's "agent;" did not keep any books or accounts while acting as agent, nor had he done so for some years previously; that Isaac told him to carry on the store for him; there was no written agreement, and he has never paid the witness anything for his services, though he promised to do so; and that there was no list of property except that in the bill of sale; that the witness included all his furniture and household goods in the bill of sale, and is now using the same furniture,  [**7]  and has never bought it back; that he was induced to part with all his family effects in order to raise money to pay his debts; that he has not paid them all, and does not know how much he owes, and keeps no books; that he has paid sundry bills amounting in the aggregate to a little upwards of $ 1000, and has no doubt the plaintiff's bill is correct, but has not paid it; and that he has spent a portion of the $ 2,000 received from his brother, and has a portion still in hand. Almost every recognized badge of fraud is here apparent. See Twyne's Case, 1 Smith's Leading Cases, 1.

1st. This sale had the signs and marks of fraud, because the sale is general, without exception of his apparel or any thing of necessity, for it is commonly said quod dolosus versatur in generalibus. Lindon vs. Sharp, 7 Scott's N. R., 745.

2nd. The grantor continued in possession and used them as his own. 1 Code, 128.

3rd. Here was a trust between the parties, for the grantor possessed all and used them as his proper goods, and fraud is always apparalled and clad with a trust, and trust is the cover of fraud. Archy vs. Hobden, 4 Wend., 514. Burwell on Science, 68. 42 N. H., 510. Hudson vs. Warner [**8]  & Vance, 2 H. & G., 415.

4th. The conveyance was of the whole or greater part of the grantor's property, for no man can voluntarily divest himself of all, or the most of what he has, without being aware that his creditors will suffer for it. Jacob & Tomlin's Law Dic., Tit. Fraud, II.

5th. It was out of the usual course of business. Pilling vs. Otis, 13 Wis., 495.

6th. The Act of Assembly (1864, ch. 306,) under which this attachment was brought, only requires proof of fraudulent intent towards his creditors on the part of the debtor himself. It is, therefore, immaterial whether or not there is sufficient proof of fraud on the part of Isaac Oppenheimer, the grantee in this bill of sale.

7th. The fact that the bill of sale from Ernest to Isaac Oppenheimer was put upon record does not preclude the Court and jury from taking into consideration the fact of the continued possession by the vendor in connection with the other recognized indicia of fraud. The fact of continued possession is, in such a case, only not sufficient of itself to stamp the whole transaction as fraudulent and void. Hambleton Ex'r vs. Haywood, 4 H. & J., 443. Enders vs. Williams, 1 Medcalf, (Ken.  [**9]  ,) 346. Smith vs. Welch, 10 Wisconsin, 91. Thompson vs. Yeck, 21 Illinois, 73.

IV.--The requirements of the Act of Assembly (1864, ch. 306,) have been fully complied with by the plaintiffs in this case.

V.--The defendant first proved the bill of sale by offering in evidence a certified copy, and then offered Ernest Oppenheimer to prove that he was the grantor in said bill of sale, and that the goods attached were part of the goods sold under said bill of sale to Isaac Oppenheimer, and that they belonged to him. This is a declaration by Ernest Oppenheimer that the transaction was honestly made as stated in the bill of sale, because if it was a fraud, and not a sale, the goods were not sold under said bill of sale, and did not belong to Isaac Oppenheimer. It was, therefore, strictly and properly within the scope of a cross-examination to inquire into the facts of the alleged sale, and to ascertain whether the sale was real or fraudulent, and whether the goods thereby belonged to Isaac Oppenheimer, or were in fact fraudulently held by him for his brother, Ernest. And even if this were not so, the general and correct rule is, that whenever a witness is examined by one party he [**10]  is thereby made a witness for all purposes, and may be cross-examined as to the whole case. 1 Greenleaf on Evidence, §  445.

Ernest Oppenheimer having moreover in his examination-in-chief, testified, that he had on the 3d day of June, 1864, sold the goods in question to his brother Isaac, whose property they then were, it was perfectly proper to contradict his statement by showing by the witness Myers, that Ernest Oppenheimer, a short time subsequent to the 3d of June, made an entirely different statement in regard to the ownership of the same goods. The plaintiff having first laid the foundation for such examination by asking the witness whether he had ever made such statements.

VI. The Act of 1864, is a remedial law, designed to protect creditors against fraudulent transfers of property by their debtors; and if on a motion to quash by the production of the bill of sale alleged to be fraudulent, and the testimony of the fraudulent grantor, the fraudulent grantee is enabled to quash the proceeding and obtain possession of the property, the whole intent and object of the law is defeated.

VII. In general, all statutes made against fraud should be liberally and beneficially [**11]  expounded to suppress the fraud. Twyne's Case, 1 Smith's Lead. Cases, p. 4, margin.

8. The testimony of Ernest Oppenheimer must be rejected; he is a discredited witness, contradicted by himself, and by the witness Myers.

9. The objections made by the appellee to the form of the attachment cannot be entertained, because they were not presented to the Court below, and because a claimant of property has no right to make such objections.

Benjamin F. Horwitz, for the appellee, argued:

1st. That under the attachment system of Maryland, the owner of property attached, in an attachment issued against a third party, not only has the right, but is bound, "on the return of the attachment, to appear in Court and move to have the attachment quashed,"--"either for an apparent defect in the proceedings," or "by showing the property atached does not belong to the defendant." Campbell vs. Morris, 3 H. & Mc., 552, 553. Ranahan vs. O'Neale, 6 G. & J., 298. Lamden vs. Bowie, 2 Md. Rep., 334. Trieber vs. Blocher, 10 Md. Rep., 14. Evans' Prac., 238, 239.

The Act of 1864, ch. 306, in sec. 44, on page 415, declares that "the practice and proceedings under the writ of attachment issued [**12]  under its provisions, shall, in all respects not provided for in that Act, conform to the practice and proceedings under attachments against non-resident and absconding debtors."

The next question is, does the evidence in the cause sustain the first reason assigned in the motion? That is, did the goods seized by the sheriff belong, at the time of the seizure, to Isaac Oppenheimer? And this leads to the consideration of the questions raised by the exceptions, &c., filed by the claimant to the evidence. In order to see what is the evidence on which the question of ownership is to be determined, and its legal bearing as to those exceptions, it is submitted:

1st. That all the cross-examination of Ernest Oppenheimer, as it is called in the evidence, is in fact an examination-in-chief of said witness by the plaintiffs, and is their evidence. "A party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination; and if he wishes to examine him as to other matters, he must do so by making the witness his own." 1 Greenleaf's Ev., sec. 445. Phila. & Trenton R. R. Co. vs. Stimpson, 14 Peters, 448, 461. Floyd [**13]  vs. Bovard, 6 Watts & Serg., 75.

2d. The questions marked "objected to by counsel for claimant," are manifestly inadmissible in the present attitude of this controversy, which is a controversy between Isaac Oppenheimer, claimant, and the plaintiff. The conversations that Ernest had with a Mr. Myers, in the month of May, cannot bind Isaac in any way, unless brought home to him or his knowledge--such conversations cannot be introduced to affect Isaac's title to the property attached in this case--which is the only question for determination.

Again, if the point be well taken that Ernest Oppenheimer was the plaintiff's witness, in his examination by the plaintiffs, then the testimony of Myers, introduced to contradict him, is in contravention of the principle of evidence that a party cannot impeach his own witness.

But whether these objections be well taken or not, it is submitted that the evidence is conclusive on the point that the property seized was Isaac's. It is admitted that the property seized is the same as that conveyed by the deed to be found on the same page. The deed proves itself. Faringer vs. Ramsey, 2 Md. Rep., 375. Glenn vs. Grover, 3 Md. Rep., 226. Moore [**14]  vs. Blondheim, 19 Md. Rep., 176.

And there is nothing in the proof to affect it in any way. It is, on the contrary, sustained by the whole testimony relating to it. The payment of the whole consideration is proved as stated, and there is no act or declaration of Isaac, the owner of the goods, shown, or even attempted to be shown.

2nd. The attachment laws being in derogation of the common law rights of the citizen, they have always been strictly construed; and if any of the proceedings are defective, the defects may be taken advantage of at any stage of the proceedings. Brown vs. Somerville, 8 Md. Rep., 460. Barr vs. Perry, 3 Gill, 319, 320.

And this Act of 1864, in section 41, page 414, expressly says, "every attachment issued without a bond and affidavit," as required by the Act, "is declared illegal and void and shall be dismissed."

The following defects are to be found in them:

1. The charges in the affidavit are all in the alternative; they should be specific and distinct.

2. The cause of action was not produced to the clerk, as required by the Act.

3. The bond is only conditioned to satisfy costs and damages to the defendant, and not "to any [**15]  other persons interested in the proceedings," as required by the Act.

4. The bond was never approved by the clerk.

The appellant's counsel, in reply, cited the following additional authorities. Drake on Attachments, 88 & 89, sec. 100. Com. Bank of Man. vs. Ullman, 10 Sm. & Mar., 411. Boobyshall vs. Emanuel, 12 Id., 63. VanAlstyne vs. Erwine, 1 Kernan, 331. Goss vs. Gowan, 1 Richardson, 477. Drake on Attachment, secs. 120 & 126. Lucky vs. Miller, 8 Yerger, 90. Amos, et al., vs. Alnutt, 2 Sm. & Mar., 215. 1 Greenlf. on Ev., sec. 445. Stewart vs. Mayor & C. C. of Balto., 7 Md. Rep., 500. 1 Ill. Stat., 693, Love vs. Fairfield. 16 Ills. Rep., (5 Gilman,) 693. Drake on Attachment, 112, 114.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*361]  WEISEL, J., delivered the opinion of this Court.
This case presents questions of practice under the Act of 1864, ch. 306, being a sub-title to the codified attachment law of the State, under the head of "Attachments on Original Process." The first section of this Act specifies four cases in which an attaching plaintiff shall have the right to proceed by attachment. Two of these contain branches [**16]  in the disjunctive. These two are incorporated in the affidavit in this case, in the language used in the said section. And it is alleged on the motion to quash, that this is fatal to the proceeding inasmuch that the charges in the affidavit are all 

 [*362]  in the alternative, whereas they should be specific and distinct, so that if false, the party swearing falsely could be prosecuted for perjury.
There is no doubt that as they are put disjunctively, to allege either one would have been sufficient. But it does not follow that to allege all is to allege nothing distinctly, or within the design and intent of the Act. Nothing must be alleged which the Act does not authorize. A case different from that authorised by the law would not be within its purview or design. Here the objection is that the charge is broader than is necessary; but its extent is not beyond what the law allows. The party making the affidavit can cover the whole ground, if his case admits of it, within his knowledge or belief. In this case he swears only that the plaintiffs have good reason to believe that the defendant has done, or is about to, do the matters complained of, with intent to defraud his creditors.  [**17]  This form of affidavit has been long sanctioned in Maryland under the Act of 1795, ch. 56, in the case of an absconding debtor who may be alleged "to have actually run away, or fled from justice, or removed from his or her place of abode," the affiant not being confined to one or the other of the disjunctive charges or allegations.
It is also objected as irregularities that the cause of action was not produced before the clerk of the Court and so certified by him, and that the bond which the plaintiffs were required to give was not approved by the clerk.
The law requires that at the time of making the affidavit the plaintiff shall produce the bond, account or other evidence of the debt by which the debtor is indebted, and the same shall be filed among the papers in the cause. The law does not provide that this production shall be certified to in the certificate that sets forth the affidavit. That the cause of action should be produced when the affidavit is made to be filed among the papers in the cause is one of the conditions 

 [*363]  upon which the right to the writ depends, and it must so appear among the proceedings; and we think that this requisite does sufficiently appear [**18]  in the record, not only in the introductory certificate of the record, but in the recital of the writ, which is issued and signed by the clerk before whom the affidavit was made. It would be the better practice for the clerk to certify such production in the certificate which contains the affidavit, according to the form used in proceedings under the attachment law upon warrant, but as the law does not require this to be done, its omission in the certificate of affidavit is no irregularity.
The law also requires the approval, by the clerk, of the bond to be given by the plaintiff, before issuing the attachment. This should appear also from the proceedings, and we think that the memorandum of acceptance on the bond, though not signed by the clerk, and the recital in the writ issued and signed by him, that the bond was produced and filed in Court at the time the account was filed and the affidavit made, are sufficient evidences of his approval of the bond. We find, also, that the condition of the bond is in the words prescribed in the 41st section of the law, and, therefore, complies with the law, and that this condition is broad enough to cover the costs to any other persons interested [**19]  in the proceedings, beside the defendant, who could sue for their use. See Rev. Stat. of Ill., p. 64, secs. 4 & 5, and Love vs. Fairfield, 5 Gilm. 303 & 304.
We, therefore, think that on neither of these grounds were these proceedings liable to be quashed.
But the main ground relied upon by the garnishee to sustain his motion to quash the attachment, was the one assigned in the first cause, or objection, in which he claimed the property attached and seized under the writ as his own, at and before the time of seizure, and that the defendant in the attachment then had, and that he now has, no interest whatever, or right, in and to the same.

 [*364]  It appears from the record, that after filing the motion to quash, the Court below ordered it to be set down for hearing on a day named, by consent of counsel, with leave to both parties to take such testimony, to be used at the hearing of the motion, as they might desire, upon the usual notice; and that the parties afterwards produced and filed in Court certain testimony, and agreed to an order, that at the hearing of the motion the depositions filed should be used and have the same effect as if taken before a commissioner [**20]  of the Court, subject, however, to all exceptions as to admissibility and relevancy.
This testimony consisted, on the part of the garnishee and claimant, of a bill of sale made and executed to him by the defendant in the attachment, on the 3rd day of June, 1864, (thirteen days before the issuing and levying of the attachment,) for all his property, including the articles levied on and scheduled under the attachment, and the deposition of Ernest Oppenheimer, the defendant; and on the part of plaintiffs, of the depositions of Wm. H. Myers and P. T. Wilson, with a concessum that the testimony of Ernest Oppenheimer, in reference to the identity of the property taken by the sheriff with the property conveyed by the bill of sale, was not to be disputed. The bill of sale was duly acknowledged and sworn to on the day of its date, and it was admitted in the argument in this Court that it was recorded in the proper office on the same day.
It was strongly urged in the argument on the part of the appellants, that the Court below erred in trying and deciding, on a summary motion, and without the intervention of a jury, the merits of the cause and the question of fraud raised against the bill [**21]  of sale upon which the garnishee and claimant relied as proof of his title; that the Court, in a doubtful case, and under the Constitution of Maryland, should have referred that matter to a jury; and further, as the Court did take cognizance of it, it erred in allowing certain 

 [*365]  evidence which was objected to by the claimant, and in its application of the testimony relied on to establish the fact of fraud.
In attachment cases, in which other parties interpose claims to the property seized under the writs, a practice prevails in Maryland, which has been sanctioned, for docketing cases between the claimants and the attaching creditors, and trying the title on issues framed or made by the pleas, by a jury, before the Court makes final disposition of the attachment. This course is to be commended, and doubtless would have been pursued in this cause had application been made. On such an application we regard it would have been the duty of the Court to have granted it, and had the question of the bona fides of the bill of sale, and all other facts in proof of the title, submitted to the jury under such instructions as might arise, as in other jury trials. This right to the [**22]  trial by jury of all issues of fact in civil proceedings in the several Courts of law in this State, where the amount in controversy exceeds the sum of five dollars, is guarantied by the Constitution of this State. Const. of 1851, Decl. of R., Art. 3, and Art. 10, sec. 4. Const. of 1864, Decl. of R., Art. 4, and Art. 12, sec. 5.
In this case neither party asked for a jury. On the contrary the record shows, not only an absence of such an application, but an agreement and preparation for its submission to, and trial by, the Court; and the Court having taken cognizance of it, as it could do in such a case, in this summary way and in a summary proceeding, the objection to its exercise of the right of the Court to try the merits to the case comes too late.
That the Court has this right upon the motion to quash, the law, as derived from the case of Campbell vs. Morris, decided in 1797, and reported in 3 H. & McH. 535, was relied on as of controlling weight and authority. The opinion of the General Court, pronounced in that case by Judge 

 [*366]  Chase, (552, 553,) is full and explicit, not only as to the province of the Court without [**23]  the intervention of a jury, but as to the summary nature of an attachment proceeding prior to its dissolution under the old system, and the mode of proceeding by suggestion either from the defendant in the attachment, or a third person claiming an interest in the property attached, for the purpose of showing that the property taken did not belong to the defendant, and for taking proof dehors the proceeding to establish the claim. In that case condemnation was refused, and the exceptions were taken from rulings on the question of title. The cause went to the Court of Appeals, and upon the hearing there, this precise question as to the province of the Court below to hear and determine the merits without a jury, was fully and ably argued among the other interesting and important points which arose in that case. The Court of Appeals reversed the judgment of the General Court and gave judgment of condemnation. Although it does not appear--no opinion of the Appellate Court having been filed--on what grounds the reversal took place, yet the opinion of the General Court, on the point in question, and in all its parts, has been so recognized by this Court in various decisions in more recent [**24]  cases, and has become so interwoven with the attachment law and practice in this State that it can be no longer questioned as settled law. It was so recognized in Ranahan vs. O'Neale, 6 G. & J. 298, 301. Stone vs. Magruder & Brook, 10 G. & J. 383. Barr vs. Perry, 3 Gill 313, 323. Lambden vs. Bowie, 2 Md. 334, 338.
Recurring, then, to the judgment of the Court below, so far as that judgment was grounded upon the merits, the bona fides of the bill of sale, it is to be reviewed by this Court upon the proofs in the record. It arose upon a summary motion to quash, and that motion, upon the proofs introduced, is before us as it was before the Court below.
The objections taken by the garnishee and claimant to 

 [*367]  certain testimony pointed out in the record, went upon the ground that it was designed to contradict the witness, Ernest Oppenheimer, who, by the course of the examination pursued by the plaintiffs, was to be regarded as their witness in the matters upon which he was examined by them; that these were not subjects of legitimate cross-examination, but of examination-in-chief. Ernest had [**25]  been examined by his brother, the claimant, to identify the goods taken under the writ as a part of those he had sold to his brother under the bill of sale, and that they belonged to his said brother. The plaintiffs then examined him as to the manner of payment of the consideration, his connexion with the goods, his possession of them, the manner of the sale, the agency of his brother in it, and the manner of his exercise of ownership over the property, the application of the money, &c., all evidently with a view to show fraud in the transaction. This, we think, it was competent for the plaintiffs to do by way of cross-examination. It related to, and was explanatory of, or characterized the ownership of the property of his brother, of which he had spoken and testified in his examination-in-chief. As the witness of the claimant throughout, it was, therefore, clearly competent for the plaintiffs to introduce the testimony which was objected to, the purport of which was to contradict him upon matters connected with, or growing out of, the transaction. That testimony was, therefore, properly admissible.
We do not think that the testimony of Ernest Oppenheimer, drawn out on the cross-examination, [**26]  is sufficient to overcome the deed made by him to his brother. That instrument was regularly executed, acknowledged and recorded, and the truth and fairness of its consideration sworn to by the grantee, as required by the law. Circumstances are deposed to by the witness which cast a shade of suspicion over the transaction, and again some facts which sustain its validity. The consideration was paid; it was equal, so far as we can judge, 

 [*368]  to the value of the goods; the grantee proposed to sell them at auction and realize what he had paid; he yielded to the suggestion of Ernest to retail them by his agency; this mode of sale had been entered upon and was in progress when stopped by the attachment suits, and the money realized from the sales, in the brief interval of two weeks, was paid to the grantee. The case is too doubtful to justify a judgment that the transaction was stamped with fraud, and we, therefore, yield to the legal force of the bill of sale, and concur with the Court below in quashing the attachment.
Order affirmed. 

66 of 120 DOCUMENTS 

WILLIAM A. DEAN vs. ISAAC OPPENHEIMER, CLAIMANT AND GARNISHEE OF ERNEST OPPENHEIMER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 368; 1866 Md. LEXIS 62 

July 11, 1866, Decided 

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

The proceeding out of which this appeal arises, was similar to that in the case of Howard, et al. vs. Oppenheimer, ante p. 350. On the 15th of June, 1864, the appellant caused to be issued from the Court of Common Pleas of Balti-Baltimore city, against Ernest Oppenheimer on attachment on original process, under the Act of 1864, ch. 306. The affidavit filed in the case with the account and bond, made by Charles Stinchcomb, clerk of the appellant, states: "that Ernest Oppenheimer is bona fide indebted unto William A. Dean in the sum of four hundred and forty-two dollars and twenty-two cents over and above all discounts, and that the said Charles Stinchcomb knows, or has good reason to believe, that the said Ernest Oppenheimer has assigned, disposed of or concealed, or is about to assign, dispose of or conceal his property, or some portion thereof, with intent to defraud his creditors; that the said Ernest Oppenheimer fraudulently contracted the debt or incurred the obligation respecting which the action was brought; and that the said Ernest Oppenheimer has, or is about to remove his property, or some portion thereof, out of [**2]  this State, with intent to defraud his creditors."

On the same day the writ of attachment and usual writ of summons were issued, and the plaintiff filed his short note in the following words and form:

"William A. Dean vs. Ernest Oppenheimer.
Action in the Court of Common Pleas for Baltimore city.

This suit is instituted to recover the sum of four hundred and forty-two dollars and twenty-two cents, due and owing from the defendant to the plaintiff."

The short note was signed by the plaintiff's attorneys.

On the 16th of June, the attachment was returned--"attached as per schedule," and Isaac Oppenheimer, the appellee, appeared as claimant of the property, and filed a motion to quash the attachment for the following reasons:

1st. Because Ernest, the defendant, had no interest in the property attached, which belonged to him, Isaac. 2nd. Because of defects apparent on the face of the papers. 3rd. Because of irregularity in the proceedings. 4th. Because of a failure to comply with the provisions of the attachment law.

The case was set down for hearing; evidence was offered by the claimant to sustain the first of said reasons, and by the plaintiff to rebut [**3]  the claimant's evidence and sustain the levy. The points upon which this Court have rested its opinion render it unnecessary to state the facts of the case more particularly.

The motion to quash was afterwards argued, and the Court (KING, J.,) on the 9th of July, 1868, by its order of that date, sustained the motion and quashed the attachment, and the plaintiff appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

ATTACHMENT ON ORIGINAL PROCESS: ACT OF 1864, CH. 306: MOTION TO QUASH: AFFIDAVIT, -- FORM OF. -- In the affidavit required by the Act of 1864, ch. 306, as the ground-work of the attachment, the oath of the party making the affidavit that "he knows, or has good reason to believe, that E. O. had assigned," &c., is insufficient, -- the law requiring that, he should swear that "the plaintiff knows or believes," &c.; and the variance from the requirements of the law is sufficient of itself to sustain a motion to quash the attachment.

A SHORT NOTE merely specifying an indebtedness, without stating the cause of action, is also insufficient on a motion to quash. 

COUNSEL:
John D. Lipscomb, for the appellant:

This being a proceeding under an Act of Assembly, before a tribunal of special and limited jurisdiction, there can be no power in the Court other than that granted by statute. The mode of procedure and time of return of the writ are prescribed by the statute to the Court, which the Court has no authority to alter. In this case the writ issued on the 15th day of June, and was made returnable on the second Monday of September following, but the Court ordered the writ to be returned immediately, which was done on the 16th day of June. Article 10, sec. 21 of the Code of Public General Laws, prescribes the only circumstances under which, such writs may be returned before the regular return day, viz: in case of an absent defendant, and this, not being [**4]  such a case, the Court erred in not dismissing the motion to quash. Ranahan vs. O'Neale, 6 G. & J., 298 and 301.

2nd. The motion to quash should have been dismissed, because the proceedings appear by the record to have been regular, and because it appears "on the face of the papers, that the requirements of the statute, have been substantially complied with." Drake on Atta., ch. 5, secs. 107 and 113, 144, 120, 126, 127. Matthews & Zollikoffer vs. Dare & McLure, 20 Md. Rep., 248. Bank of Commerce vs. Rutland, 10 Howard Pract. Rep., 7. Houston vs. Belchor, 12 Sm. & Mar., 514.

3rd. The Court erred in going without the intervention of a jury, upon motion to quash, into a full trial of the whole merits of the case.

It is true, that under the practice in Maryland, previous to the Act of 1864, every fact is cognizable by the Court, which will show the attachment issued irregularly, or to show the property attached does not belong to the defendant, but questions relating to the merits of the dispute between the parties, were not allowed to be heard, at such times, upon such a motion. The Act of 1864, was passed for the express purpose of trying the question of fraud by attachment,  [**5]  the debt is not considered, a separate case being docketed for that purpose, so that the real, and in fact, only question in dispute in the attachment, is the question of fraud alleged, for the trial of which the attachment issues; fraud, therefore, constitutes the merits of the case, and, as under the old law, the Court could not inquire into the merits of the case, which was debt, so under the present Act, the Court cannot go into the merits of the case, fraud, upon a summary motion to quash, heard before itself.

This too, clearly, was the intention of the Legislature, to give to parties charging fraud in such cases the benefit of a trial by jury. Drake on Atta., ch. 15, secs. 403, 404. ch. 16, secs. 384, 417. Shrewsbury vs. Pearson, 1 McCord, 331. Campbell vs. Morris, 3 H. & McH., 535. Bank of Commerce vs. Rutland, 10 Howard Pract. Rep., 7. Twyne's Case, 1 Smith's Lead. Cases, p. 11, (marginal.)

4th. Even in the testimony which was admitted, there was fraud sufficient before the Court to justify it in dismissing the motion to quash, so as to allow the cause to be tried regularly. Enders vs. Williams, 1 Medcalf's Ky. Rep., 346, 351, 352, 353, &c. Smith vs. Welch & others,  [**6]  10 Wisconsin, 91. Thompson vs. Geck, 21 Illinois, 73.

Twyne's case lays down the badges of fraud, nearly all of which appear in this case.

5th. The Court erred in rejecting the evidence. "In questions of fraud any fact, however slight, if at all relevant to the issue, will be admitted in evidence." (20 Md. Rep., 93.) The Act of 1864 was passed for the purpose of trying the question of fraud in the grantor alone, as its provisions clearly show, and how is such fraud to be proved, except by giving evidence of the grantor's acts and words? As between the grantor and grantee, the grantor may not invalidate his own deed, but creditors, charging a fraudulent sale, should be allowed to shew in evidence what the grantor did and said at the time of, and in reference to, said sale. Here is a peculiar remedial act, and the effort should be to sustain it, rather than destroy its effect, which must be the sure result if the Court below was right in rejecting all testimony which went to shew fraud in the grantor, on the hearing of a motion where the grantee is claimant. Act of 1864, ch. 306. Curtis vs. Moore, 20 Md. Rep., 93. Kolb vs. Whitely, 3 G. & J., 188. Glenn vs. Baker, 1 Md. Ch.  [**7]  Dec., 73. Crawford vs. Brooke, 4 Gill, 43. Waters vs. Dashiell, 1 Md. Rep., 455.

6th. The objections made by the appellee to the form of the attachment cannot be entertained, because a claimant of property has no right to make such objections.

B. F. Horwitz, for the appellee, argued:

1st. That under the bill of exceptions, signed and sealed in this case, which contains the evidence taken to sustain and rebut the first reason assigned in the claimant's motion to quash, there is but one question before this Court; although that bill of exceptions, in fact, contains three exceptions: two on the admissibility of evidence, and one other on the granting of the motion to quash. The last is the only one signed and sealed, and is, therefore, the only one before this Court. Ellicott vs. Martin, Love & Co., 6 Md. Rep., 516.

This exception raises the question of the ownership of the property contained in the first reason of the claimant for quashing the attachment. Under the attachment system of Maryland, the owner of property attached, in an attachment issued against a third party, not only has the right, but is bound, "on the return of that attachment, to appear in Court [**8]  and move to have the attachment quashed"--"either for an apparent defect in the proceedings," or "by showing the property attached does not belong to the defendant." Campbell vs. Morris, 3 H. & McH., 552, 553. Ranahan vs. O'Neale, 6 G. & J., 298. Lamden vs. Bowie, 2 Md. Rep., 334. Trieber vs. Blocher, 10 Md. Rep., 14. Evans' Prac., 238, 239.

The Act of 1864, ch. 306, in sec. 44, on page 415, declares that "the practice and proceedings under the writ of attachment issued under its provisions, shall, in all respects not provided for in that Act, conform to the practice and proceedings under attachments against non-resident and absconding debtors."

The next question then is, does the evidence contained in the bill of exceptions prove that the goods seized by the sheriff under the attachment did, at the time of the seizure, belong to Isaac Oppenheimer? Nothing it seems could be clearer. The claimant offered in evidence a deed to him of certain property, which the deputy sheriff who made the seizure and a clerk in the store show to be the same property as that seized; the deed is dated the 3rd day of June; the seizure was made on the 16th of June following.

"The prima facie [**9]  proof of the deed, as to the consideration for which it was executed, is neither contradicted nor assailed by any direct evidence in the case; and in the absence of such evidence the deed must be held unaffected." Faringer vs. Ramsay, 2 Md. Rep., 375. Glenn vs. Grover, 3 Md. Rep., 226. Moore vs. Blondheim, 19 Md. Rep., 176.

2nd. The attachment laws being in derogation of the common law rights of the citizen, they have always been strictly construed; and if any of the proceedings are defective, the defects may be taken advantage of at any stage of the proceedings. Brown vs. Somerville, 8 Md. Rep., 460. Barr vs. Perry, 3 Gill, 319, 320. And this Act of 1864, in section 41, page 414, expressly says, "every attachment issued without a bond and affidavit," as required by the Act, "is declared illegal and void, and shall be dismissed."

They are both, it is submitted, full of defects:

1st. The 38th section, on the 14th line thereof, declares that the affidavit shall state "that the plaintiff knows, or has good reason to believe," &c.; the affidavit in this case is, that "Charles Stinchcomb knows," &c.

2nd. The charges in the affidavit are all in the alternative --they [**10]  should be specific and distinct--so that, if false, the party swearing falsely could be prosecuted for perjury; this must be the design and intent of the law:--that the plaintiff is entitled to his attachment if he can swear to any one of the several things set forth in the Act, but swearing to them all in the alternative is, it is submitted, swearing to nothing, especially in a proceeding which is to be construed strictly, and a proceeding, too, which is declared to be under "a special limited jurisdiction, conferred by Act of Assembly." Risewick vs. Davis, Garnishee of Forwood, 19 Md. Rep., 82; and in the same case at foot of page 92, this Court says: "unless the Court can superintend and control the writ by keeping it within the design and intent of the Act, it becomes an engine of great oppression and abuse."

3rd. Section 39 of chapter 306, declares that "at the time of making the affidavit the plaintiff shall produce the bond, account, or other evidence of debt by which said debtor is indebted," that is, shall produce to the clerk; this language is precisely the same as that of the attachment law, section 4, Article 10, page 45, 1st Code, as re-enacted from the orinal Act [**11]  of 1795, ch. 56. Under this provision it has always been held necessary that the account should be produced to the party before whom the plaintiff made the affidavit, and that such party should so state in his certificate, and this is the practice, under both acts, in all the Courts.

There is no evidence that the account filed in this case was ever produced before the Clerk of the Court of Common Pleas. Evans' Practice, 68. Bowerman vs. Israel, &c., 1 Gill, 372. Prentiss, &c., vs. Gray, 4 H. & J., 192. Dawson vs. Brown, &c., 12 G. & J., 53.

4th. The 41st section of the Act, page 414, provides that the bond shall be "conditioned for satisfying all costs which may be awarded to such defendant or defendants, or to any other persons interested in the proceedings, and all damages," &c.

The bond in this case is conditioned "to pay and satisfy Ernest Oppenheimer all costs in said suit and such damage," &c., omitting the important words, "or to any other persons interested in the proceedings," words of substance clearly designed to meet just such a case as the present, where the injury is not to the defendant, but to the "other persons interested in the proceedings," that is,  [**12]  the claimant and owner of the property taken under the attachment. The latter part of the clause clearly shows this to be the intent. It does not say any suit which the defendant may bring, but "which may hereafter be brought;" the obligee to is not the defendant, but the State, showing the same intent.

5th. The same section requires the bond to be approved by the clerk; in this case there was no such approval.

The record, says, that Charles Stinchcomb filed with the clerk the following bond, which the clerk as a ministerial officer was bound to file; and nothing more is shown in reference to this bond which the law requires to be submitted to the clerk for his approval; there is nothing to show that he exercised the judgment with which he is invested in reference to the approval, not the filing the bond. "In a case within a special limited jurisdiction, the power to act must appear on the face of the proceedings, or be proved at the trial." Risewick vs. Davis, Garnishee, 19 Md. Rep., 91.

6th. The bond does not state, as required by the 41st section of the Act, when the writ of attachment is returnable, which, independently of that requirement, would seem to be too indefinite [**13]  in an express statutory proceeding of this sort. McCabe vs. Ward, 18 Md. Rep., 505.

7th. The short note filed in this case, as required by the 10th section of Article 10, of 1st Code, page 47, is manifestly defective. The language of the law is, "a declaration or short note expressing the plaintiff's cause of action shall be filed," &c. As to the importance of the short note or declaration, see Stone vs. Magruder, 10 G. & J., 385.

This short note contains no cause of action, it merely sets forth an indebtedness. It does not say if it is for goods bargained and sold, or work done, or money lent, or money paid, or money received for plaintiff's use, or money found to be due on accounts stated, or on promissory notes, or bills of exchange, or for what; certainly this cannot be a "declaration or short note," or else practitioners have taken a great deal of unnecessary trouble ever since we find any "short notes or declarations" in the Court proceedings of this State.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*377]  WEISEL, J., delivered the opinion of this Court.
The attachment proceeding in this case was under the Act [**14]  of 1864, ch. 306, and the order appealed from is one sustaining a motion to quash made on behalf of the appellee, as garnishee and claimant of the property seized under the writ. A similar proceeding and motion took place in the case of George W. Howard and others against the same defendant, which was argued in this Court upon appeal in connexion with this, and which has been decided at the present term. Many of the points in that case are the same with those in this appeal, and the opinion filed in it will be found applicable to them. We find in this case one defect in the affidavit made as the ground-work of the attachment, which is sufficient of itself to sustain the motion to quash, and that is the part in which Charles Stinchcomb, the person making the affidavit, swears that he, Stinchcomb, knows or has good reason to believe that Ernest Oppenheimer had assigned, &c. The law requires that the affidavit should be "the plaintiff knows or believes," &c. The affidavit is variant from that which the law prescribes as one of the conditions upon which the right to proceed by attachment in the cases given is granted. We also consider the short note filed in the case as insufficient, inasmuch [**15]  as it merely specifies an indebtedness without stating the cause of action.
We deem it unnecessary to notice any other peculiarities in this case, having gone much at large into a consideration of those questions which arose in the other case and which were discussed also in this.
Order affirmed. 

67 of 120 DOCUMENTS 

BALTIMORE & OHIO RAILROAD COMPANY vs. ELIZABETH BREINIG, BY HER NEXT FRIEND, HENRY BITTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 378; 1866 Md. LEXIS 63 

July 11, 1866, Decided 

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

This was an action instituted by the appellee against the appellant on the 30th of December, 1863, to recover damages for injuries received while attempting to cross the road of the appellant laid in the streets of Baltimore city. The plaintiff declared that the defendant, a corporation, owning a railroad and accustomed to run railway cars along the track of said road in the city of Baltimore, did, on the 9th day of June, 1859, negligently and carelessly cause said cars to run upon and against the plaintiff, whereby she was greatly injured, permanently maimed and crippled, and her life imperiled. The defendant pleaded that it did not commit the wrong charged, and is not guilty in the premises; and issue was joined.

Exception.--At the trial it appeared, that on the 9th day of June, 1859, the plaintiff, who was six years old, was living with her father and attending school, and had been attending school for eighteen months; and that her route to and from school required her to cross the track of the Baltimore and Ohio Rail Road at one of the streets just below the Camden station. It also appeared, that on that evening, the plaintiff,  [**2]  with two or three of her companions, returning from school, approached the railroad at the point where it crosses Henrietta street--one or two squares out from the Camden station--where there are three parallel tracks, or two tracks and a "siding;" that the children approached the tracks as two trains were moving upon parallel tracks, in opposite directions, propelled by steam; the one going out led by a heavy engine at a considerable rate of speed, the other consisting of nine cars backing in slowly, pushed by a heavy engine. It also appeared, that the children avoided the outward bound train, but were run against by the backing train and knocked down, the child, whose hand was clasped in that of the plaintiff, killed, and the plaintiff knocked down, run over, her foot, the calf of her leg and hip seriously and permanently injured, and also injuries of a private nature sustained.

It further appeared, that the train which did the injury was backing at the time, and had no guard or lookout at the rear, and was under the care and management of two men only--a brakesman who was acting as conductor, and an engineer who was acting also as fireman; that at the time of the injury, the [**3]  engineer was on the engine, the brakesman on the ground, either beside the engine or between the cars, for the purpose of uncoupling them, and neither of them saw the accident, or knew of it until their attention was called to it by others, when they found the children crushed and under the second car from the rear.

Upon this evidence the defendant offered the three following prayers:

1. If the jury shall believe that the plaintiff was injured by being struck by a train of cars in charge of the agent or agents of the defendant, said agents being men of good character, familiar with their respective duties and competent to discharge them; that it was the duty of one of them to see that the track in front of the train in the direction in which it was moving was clear from obstruction, and if not, to give notice to the engine man to stop the train; that the party intrusted with this duty placed himself in the best position for this purpose, at a point where he could see both in front of the backing train and see the engine man, and that he had seen that the track was clear in front of the rear of the backing train, and that he saw that the plaintiff was standing in safety, where,  [**4]  had she remained, she would have escaped injury, and that he had no reason to believe the plaintiff would leave her position, nor was there anything in the conduct of the defendant to cause her to do so, then the plaintiff is not entitled to recover, even though the jury should believe that the plaintiff did, in fact, run immediately in front of, or attempt to pass through, the train when she was struck and injured.

2. If the jury shall believe that the plaintiff would have escaped the injury complained of by the exercise of diligence on her part, such as was reasonably to be expected from her age and intelligence at the time, then she is not entitled to recover, even though the jury should find negligence on the part of the defendant or its agents.

3. That there is no evidence in the case (should the jury find for the plaintiff) of such wanton and malicious or gross and outrageous conduct on the part of the defendant or its agents as would warrant punitive damages, and that actual damage is all the plaintiff can recover.

The Court (MARTIN, J.,) granted the defendant's second and third prayers, rejected the first, and gave the following instructions:

If the jury [**5]  find from the evidence that the defendant was, at the time of the happening of the accident, of which the plaintiff complains, the owner of a railroad track or tracks running through or cross the thoroughfares and streets of the city of Baltimore, as described by the witnesses, and along which, for its own purposes, cars were drawn or propelled by steam engines, then in the use and management of said cars and engines, the defendant was bound to exercise the utmost care and diligence which it had the means and power to employ, having regard to the business in which it was engaged.

And if the jury find that the plaintiff, Elizabeth Breinig, was injured by the defendant's cars, and that if the defendant, in the use and management of its cars and engines, had exercised such care and diligence the accident would have been prevented, then the plaintiff is entitled to recover; unless the jury find that the accident could have been avoided by the exercise of that degree of care by the plaintiff which was, under the circumstances of the case, to be naturally and reasonably expected in one of the plaintiff's age and intelligence.

The defendant excepted to the first instruction given [**6]  by the Court, and to the rejection of its first prayer, and the verdict and judgment being in favor of the plaintiff, appealed.  

DISPOSITION:
Judgment reversed, and procedendo ordered.  

HEADNOTES:

RAILROAD COMPANIES, -- THEIR DUTIES AND LIABILITIES: NEGLIGENCE. The obligation of a railroad company for the safe transportation of a passenger, is one arising from contract imposing duties growing out of the relation between the parties, involving trust and confidence, and requiring the exercise of the utmost diligence and care; while towards a stranger, no such relation exists, each party being in the lawful pursuit of his own business, or the lawful exercise of his own rights, is not bound by the same rigorous rule, but is required to exercise such reasonable care to avoid injuring the other, as ordinary prudence suggests.

The amount or degree of care which the above rule requires must vary according to circumstances, and should be commensurate with the risk or danger of inflicting injury upon others.

RAILROAD COMPANIES, -- THEIR DUTIES AND LIABILITIES: NEGLIGENCE OF PERSON INJURED. -- Where one, not a passenger, but a stranger to a railroad company, injured while crossing its track through the thoroughfares of a city, might have escaped such injury by the exercise of diligence such as was reasonably to be expected from the age and intelligence of such person, the company will not be liable in damages for such injury although it may be chargeable with negligence.

RAILROAD COMPANIES, -- THEIR DUTIES AND LIABILITIES: MEASURE OF DAMAGES. -- Where there is no evidence of wanton and malicious, or gross and outrageous conduct on the part of the company or its agents, actual damage is all the plaintiff can recover for.  

COUNSEL:
John H. B. Latrobe and Ferdinand C. Latrobe, for the appellant, argued:

1st. That in the management by a railroad company of its engines and cars, while engaged in conducting its usual business, with reference to persons having no connection or privity with the said road, and who may simply be passing in the neighborhood of its tracks, the law requires only such ordinary care and diligence as common prudence would require them to exercise in the management of its said business.

2nd. It is what may be called a principle of the Common Law, that a plaintiff cannot recover for injuries to which his own negligence directly contributed.

3rd. That the rules relating to the rights and duties of persons natural and artificial to each other must be uniform; that they cannot vary according to the years or degree of intellect of natural persons without producing an uncertainty in the law destructive of all principles; that all persons incapable of diligence should, and usually have, guardians to care for [**7]  them; upon them the duty of care and diligence is devolved, and their negligence must, in law, be regarded as the negligence of the incapable infant or lunatic, when they have been injured in cases arising between them and third persons acting without notice.

4th. That punitive, or vindictive, or exemplary damages can only be awarded by a jury to a plaintiff where elements of fraud, malice, gross negligence or oppression mingle in the controversy.

In support of the above propositions, they refer to State, use of Coughlan, vs. Balto. & O. R. R. Co., 24 Md. Rep., 84. Bannon vs. Balto. & O. R. R. Co., 24 Md. Rep., 108. Brand vs. R. R. Co., 8 Barb. 369.

Henry Stockbridge, for the appellee:

The appellee contends that the appellant, in inflicting upon her the injury which she sustained, was guilty of such gross and outrageous negligence and carelessness that the Court should have permitted the jury to give exemplary damages. Gross negligence, tending to the injury of limb or destruction of life, is visited with punitive damages equally with actual malice. Sedgwick on Damages, 38. Hay vs. Cohoes Co., 3 Barb. S. C. R., 42. Whipple vs. Walpole, 10 N. H. R., 130. Linsley [**8]  vs. Bushnell, 15 Conn., 225. Huntley vs. Bacon, 15 Conn., 267. Hopkins vs. Atlantic & St. L. R. R. Co., 36 N. H., 17. Kelsey vs. Barney, 2 Kernan, 429.

It is difficult, if not impossible, to conceive of negligence more gross than that of the appellant at the time of this occurrence. There was an utter disregard of the measures of caution prescribed by the ordinances of the city. City Ordinances, 1853, No. 88. Revised Ordinances of 1858, No. 67, 225. The appellee contends that negligence so gross is at law a grave crime.

II. The appellee further contends, that the degree of care and diligence which the Court, in its instructions, required the appellant to exercise, was not greater than is demanded by the rules of law, by sound reason and public policy.

1. The degree of care to prevent injury to persons or property which the law requires in any case, varies with the degree of danger which springs from carelessness or neglect; the greater the peril to be apprehended, the greater the care required. The object to be gained, the end of this requisition of care is the public safety. Kelsey vs. Barney, 2 Kernan, 429. McGrath vs. H. R. R. R. Co., 32 Barb. S. C. R., 152. Johnson [**9]  vs. Hudson River R. R. Co., 6 Duer, 633. Gorman vs. Pacific R. R. Co., 26 Missouri, (5 Jones,) 447.

The apparent conflict between different decisions, as to the degree of care required, will be found to spring from an inaccurate use of the terms employed. Different Courts have manifestly expressed the same idea in different language; and the doctrines, in fact, harmonize when the circumstances which invest the several cases are properly understood.

"Ordinary" is always a comparative term, never an absolute. What would be "ordinary care" under one class of circumstances, would be "special care," "a very high degree of caution," "extreme care," "great diligence," "utmost care," the "most extraordinary care" under other circumstances.

2. Persons employing the powerful, but dangerous, agency of steam are bound to use the greatest possible care and diligence to prevent injury to individuals. This was the doctrine of the United States Supreme Court in the well considered and leading case of the Phila. & R. R. R. Co. vs. Derby, 14 Howard, 486, which was affirmed by the same Court in Steamboat New World vs. King, 16 How., 474, and has been the controlling authority in the Courts [**10]  of the whole country for the last twelve years. Johnson vs. R. R. R. Co., 6 Duer, 633. Bernhardt vs. R. & S. R. R. Co., 32 Barb. S. C. Reps., 167. McGrath vs. H. R. R. R. Co., 32 Barb. S. C. Reps., 156. 20 N. Y. Rep., (6 Smith,) 67, 75. 22 Id., 212.

All the cases base their decision on the ground of public safety; none on the ground of a contract between the carrier and the passenger. In the last case, the learned Judge after quoting 16 How., expressly applies the doctrine of New World vs. King, to persons passing along the streets, on the ground that "human life is just as sacred outside the cars as inside; entitled to the same care when lawfully crossing a public road" as when riding in a car.

3. In localities where greater danger is to be apprehended greater caution is required, and a moving power in any thronged thoroughfare must exercise extreme caution. This proposition rests upon the same principle as the former one-- the public safety. The Courts apply it alike to powers moving on land or water. Genessee Chief vs. Fitzhugh, 12 How., 463. Culberston vs. Shaw, 18 How., 587. Wilds vs. H. R. R. R. Co., 33 Barb. S. C. Reps., 509. Wilson vs. Cunningham, 3 Cal. R., 241.  [**11]  Daley vs. N. & W. R. R. R. Co., 26 Conn. R., 595.

The instructions in this case do not permit the plaintiff to recover, unless the jury find all of these elements combined, viz: "the use of the powerful, but dangerous, agency of steam," the employment of "machines eminently destructive of life and limb," "engines having vast power of mischief," and that along "or across the thoroughfares and streets" of a great city, and negligence or carelessness in such use. The instructions do not require of the defendant impossibilities, or the discontinuance of its business; they require a care and diligence within its means and power while still prosecuting its business. At least this degree of care is demanded by public safety. That it would exercise at least this degree of care was one of the obligations which it assumed when it sought and obtained the high privileges conferred by its charter; and when it sought and obtained the privilege of traversing with its fearful machinery the streets and thoroughfares of the city of Baltimore.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*385]  BARTOL, J., delivered the opinion of this Court.
Few cases [**12]  have caused greater embarrassment to the Courts than those involving questions of negligence on the part of railroad companies, and their agents, in the management and conduct of their engines and trains. This grows, in a great measure, out of the nature of the question itself. Being generally a mixed question of law and fact, it is not very easy, at all times, to define the limit that separates the jurisdiction of the Court from that of the jury.
While in the jurisprudence, both of England and this country, the general rule is established that the question of negligence is one for the jury to decide; yet, as negligence consists in the failure or omission to perform some duty 

 [*386]  which the law imposes, it is within the province of the Court to declare what that duty requires, or to lay down the rules of law applicable to the particular case, so that the jury may have some certain guide in forming their verdict. In the discharge of this duty the Courts have often attempted, by some general definition, to fix the standard or degree of diligence imposed by the law in particular cases; this, from the nature of the subject, and from the varied and complicated character of cases,  [**13]  as well as from the ambiguity and imperfection of our language, it is not possible to accomplish; and the attempt to prescribe such a standard has often produced difficulty and confusion instead of tending to establish plain and intelligible rules so as to aid the jury in their investigations, and restrain them within just and proper limits.
It is a very obvious principle of law, as well as of justice and common sense, that every one, in the prosecution of his business, is bound to exercise that degree of skill, prudence and care, to avoid inflicting injury upon others, proportioned to the danger. When applied to railroad companies employing machinery propelled by the dangerous and powerful agency of steam, moving bodies of immense weight and bulk, often with great velocity, necessarily exposing to danger the lives and limbs, not only of passengers in the train, but of others whose occupations require them to go upon or to cross the railway, this principle imposes on the company the legal obligation to observe a higher degree of skill and care than would be exacted in the management of the ancient, more simple and less dangerous modes of conveyance. And this again must be varied by [**14]  other circumstances, such as the place where the train is moved, and the degree of risk and danger of injury to others.
This Court has had before it recently several cases in which it was necessary to express our judgment upon the degree or measure of diligence required by the law in such cases.
In the case of the Baltimore & Ohio Rail Road Co. vs. 

 [*387]  Worthington, 21 Md. 275, where a passenger sued to recover damages resulting from an accident to the train in which he was riding, it was held, that in order to exempt the defendant from liability it was bound "to exercise the utmost care and diligence which human prudence and foresight could employ." Or in other words, the legal duty growing out of the undertaking of the defendant, as a carrier of passengers, imposed on it the highest degree of diligence and care, and for a failure or omission to perform this duty, in any particular, the defendant was responsible.
At the last term, the cases of The State, use of Coughlan, and Patrick Bannon, by his next friend, vs. The Balto. & Ohio R. R. Co., came before us for decision; those were cases like this, where injury had been inflicted by [**15]  a railroad train, not upon passengers in the cars, but persons in no way connected with the railroad company, while passing over or upon the railway, and a distinction was drawn between cases of that kind and the case of a passenger upon the train, growing out of the difference in the obligation and duty of the railroad company in the two cases.
The reasoning of Judge Willard, who delivered the opinion of the Supreme Court of New York, in Brand vs. The Troy and Schenectady R. R. Co., 8 Barbour 376, was quoted with approbation as shewing the true grounds upon which this distinction rests, and as correctly defining the nature and extent of the duty imposed by law upon the defendant in a case like the present. In the argument of this cause we have been asked to review and modify the decisions pronounced at the last term. But upon more mature reflection, aided by the argument of this case, and the authorities cited, we are of opinion that the distinction taken in 8 Barbour, and heretofore sanctioned by this Court, is just and reasonable, and based upon sound principles, notwithstanding it seems to have been questioned in one of the later cases in New 

 [*388]   [**16]  York. See Johnson vs. The Hudson R. R. Co., (in the Superior Court,) 6 Duer 641, 642.
The obligation of a railroad company for the safe transportation of a passenger, is one arising from contract imposing duties growing out of the relation between the parties, involving trust and confidence, and requiring the exercise of the utmost diligence and care, while towards a stranger no such relation exists, each party being in the lawful pursuit of his own business, or the lawful exercise of his own rights, is not bound by the same rigorous rule, but is required to exercise such reasonable care to avoid injuring the other as ordinary prudence would suggest; of course the amount or degree of care which this rule requires must vary according to circumstances, and should be commensurate with the risk or danger of inflicting injury upon others.
Or, as very happily defined by Judge Sutherland, (24 N.Y. 181, 187,) "that care and attention which experience has found reasonable and necessary to prevent injury to others in like cases."
In this case the instruction given to the jury, by the Court below, is almost identical with that in the cases of Coughlan and [**17]  Bannon, to which we have referred, requiring the defendant "to exercise the utmost care and diligence which they had the means and power to employ, having regard to the business in which they were engaged." This rule, as we have heretofore decided, is too rigorous, and imposed upon the railroad company more than is required in such cases, and for that reason the judgment must be reversed and the case sent back for a new trial.
We think there was no error in the other rulings of the Superior Court. The propositions contained in the second and third prayers of the defendant have already received the sanction of this Court in the case of Bannon vs. The Balto. & O. R. R. Co., before referred to, and properly announced 

 [*389]  the law in this case, both as to the question of diligence on the part of the plaintiff and the true measure of damages. The first prayer of the defendant was, in our opinion, properly rejected, because it altogether ignores or omits to notice some material facts which were proper for the consideration of the jury in passing upon the question of negligence, such as the observance, by the defendant's agents, of the precautionary measures prescribed by the [**18]  city ordinances; and also the having such a complement of men in the management of the train as reasonable care and prudence might, in the opinion of the jury, have required under the circumstances.
Judgment reversed, and procedendo ordered. 

68 of 120 DOCUMENTS 

JOHN A. APPLEGARTH ET AL. vs. GEORGE W. RUSSELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 317; 1866 Md. LEXIS 58 

June 29, 1866, Decided 

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

This case grows out of a petition filed by the appellee in the case of Jackson, et al. vs. Hodges, et al., reported in 24 Md. Rep., 468. In that case, Hodges and others, on the 28th of September, 1860, filed their bill in the Circuit Court of Baltimore city, alleging that George Jackson was indebted to them, and that he had fraudulently conveyed, through the instrumentality of other parties therein named, certain lots of ground, with the improvements thereon, to Elizabeth, his wife; and praying that the deeds, whereby the said lots, &c., had been conveyed, might be declared void, and that the said property might be sold, and the proceeds applied to the payment of the debts of the said Jackson. The proceedings under the said bill resulted in the passage of a decree by said Court declaring the said deeds void, and appointing a trustee to sell the said lots; which decree on appeal to this Court was affirmed in 24 Md. Rep., 468. At the trustee's sale, George W. Russell, the appellee became the purchaser of one of the said lots, and having complied with the terms of sale, the sale was reported and finally ratified and confirmed. Failing [**2]  to obtain possession of the property purchased, the appellee on the 20th of May, 1863, filed a petition in said case of Hodges, et al. vs. Jackson, et al., setting forth the sale and purchase and ratification of the sale as above stated, and describing the property sold as certain leasehold property, "which is described in a deed dated the 30th day of June, 1852, and recorded among the land records of Baltimore city, in liber E. D., No. 26, folio 48, made by James Mullen to the defendant, George Jackson."

The petition then alleges that the petitioner afterwards demanded possession of the property so purchased by him, and that John A. Applegarth refused to deliver to him possession of the said property, but claimed to hold it by virtue of a deed dated October the 23d, 1860, from George Jackson and wife; that the bill in the case of Hodges et. al. vs. Jackson et. al., was filed on the 28th day of September, 1860, and subpoena served on Jackson and wife on the same day, twenty-five days before the date of the deed; and that Jackson and wife filed their answer to the bill of complaint fourteen days before the execution of the deed. The petition concludes with a prayer that an order [**3]  may be passed requiring the said John A. Applegarth, and James Bailey Orem, his tenant, to deliver to the petitioner possession of the property so as aforesaid purchased by him.

The appellant, Applegarth, in his answer to the petition disclaims all knowledge of the report of sale or its ratification, and submits to the Court the report of the trustee and order of ratification as filed in the cause for its true construction and legal effect; he admits that application was made to him by the petitioner to deliver to him possession of the property claimed by him, and his refusal to deliver the same, and alleges that he holds title to the property in question by virtue of a deed of Jackson and wife, dated October the 23rd, 1860; that the property at that date was owned by the said wife, and was purchased from her without knowledge on his part that any suit had been brought in relation thereto, although a few days before the purchase he had made every search in reference to the title, and that the purchase was bona fide, and for a valuable consideration; that the respondent attended the trustee's sale and gave notice of his claim to all intending to purchase, and that the trustee answered [**4]  that no one would be required to comply with the terms of sale unless the title was good; and, "that the said property is included in the description of the first lot described in said advertisement, but is not identical therewith."

The case having been set down for hearing on the petition, answer and exhibits, the Court below, (KREBS, J.,) on the 23rd of November, 1863, filed the following opinion:

The practice is settled in this State, that when a purchaser at a sale under a decree has fully complied with the terms of sale, and possession of the premises purchased is withheld by a party to the suit, or by a person claiming under a party by title subsequent to the commencement of the suit, the purchaser may obtain an order under which possession will be delivered to him by proper process. Tongue vs. Morton, 6 H. & J., 21. Oliver vs. Caton. 2 Md. Chan. Dec., 301. Inloes vs. Harvey, 11 Md. Rep., 519. In this last case, the Court of Appeals sustained the writ of possession as having been properly issued to dispossess a party who had purchased certain property from a person during the pendency of proceedings in equity against him, to set aside a conveyance by him of the property [**5]  which it was alleged in the proceeding was fraudulently made. A decree was passed in that case setting aside the conveyance and securing the property to the complainant, who was put in possession under the decree. The Court says, the Superior Court in fact decided, "that the appellant being a purchaser, pendente lite, was concluded by a decree in the equity proceedings; and we are of opinion decided correctly." Amongst other references made by the Court is, Story's Eq. Jur., sec. 400, from which it quotes as follows: "Ordinarily, it is true, that the decree of a Court binds only the parties and their privies in representation or estate, but he who purchases during the pendency of a suit is held bound by the decree made against the person from whom he derives title, the litigating parties are exempted from taking notice of the title so acquired, and such purchaser need not be made a party to the suit where there is a real and bona fide purchase; the rule may operate hardly, but it is a rule founded upon a great public policy, for otherwise, alienation made during a suit might defeat its whole purpose, and there would be no end to litigation."

In the decision above referred to,  [**6]  this rule, in regard to the effect of the "lis pendens," is stated by the Court without any qualification, and in such terms as to signify that it applies in all cases without exception where a purchase is made during the pendency of the proceedings. The decision, however, of the same Court in Teigley vs. Teigley, 7 Md. Rep., 563, shews, that "the doctrine of 'lis pendens' has no application except where there is a proceeding directly relating to the thing or property in question." This language, then, furnishes the test by which can be ascertained, in any case, whether the rule of lis pendens applies. The Court in the above case refused to apply the doctrine of lis pendens so as to effect a purchase during the proceedings from the defendant, but only because it did not consider the rule applicable to such a case. It was a proceeding by a wife against her husband for alimony, and he, during the pendency of the suit, made a bona fide sale for value of a part of his property which the Court would not disturb; the Court said, "as well might a pending action at law to recover an ordinary debt be a lis pendens, as to the property of a debtor, as a proceeding like present, the purpose of [**7]  each being to subject the property of the debtor to the payment of debts," but not "being a proceeding directly relating to the property in question." The authority of the above case, and of that of Elliott vs. The United States Insurance Company, 7 Gill, 319, is relied upon by the respondent to show that he ought not to be dispossessed of the premises in question. He is a purchaser pendente lite under circumstances precisely the same as those in the case of Inloes vs. Harvey, where the Court sustained the writ, except that the proceedings, during the pendency of which he purchased, were instituted by creditors to set aside a deed conveying the property as fraudulent under the statute of Elizabeth, and for a sale of it to satisfy their claims. In the above case in 7 Gill, the Court decided that a creditor who had obtained a judgment in a Court of Law during the pendency of proceedings in equity, in which a receiver had been appointed, acquired thereby a lien upon property and effects in the hands of the receiver, but the opinion of the Court shews that the reason for so deciding was, that the proceedings did not so directly relate to the property in question, and their "ulterior intent"  [**8]  was not such as to impose restrictions upon creditors in "the prosecution of their claims upon the company either in a Court of Law or of Equity." "The only object of the Court below in the appointment of receiver was to provide for the safe keeping of the property and effects of the company." The facts and circumstances, and the reasons given by the Court for its decision in these cases, shew clearly that they furnish no authority for refusing a writ of possession against the respondent. There is no principle or rule to be deduced from them which would require this Court to refuse; so far from this, the rule which these cases establish is this, namely: where the proceeding directly relates to the property which has been conveyed to the purchaser, pendente lite, by a party to the cause, or where the "ulterior intent and object" of the proceeding is to subject the property in question to the disposal of a decree of the Court, there such purchaser is as much bound by the decree in the cause as the party thereto from whom he purchased. Now the proceedings of the creditors who filed the bill in this case had the most direct reference to the property, it was specially referred to in the [**9]  bill, which contained a prayer for a decree directing it to be sold to pay their claims.

The respondent insists that the complainants are not parties who had any lien on this property, and then assumes the position that the rule of lis pendens does not apply except where the complainant, before instituting the proceedings, has some lien upon the property to be affected by the decree to which the proceedings may lead. I can find nothing to sustain this view in the language or import of the decisions of the Courts in this State or elsewhere, (except one referred to hereafter,) or in any of the elementary authors. The proceedings in these cases is not regarded as a notice of an actual lien, but only of an equity. Story's Eq. Ju., 9406, says: "a lis pendens is a general notice of an equity to all the world," unless controlled by the clearest and most satisfactory authorities. I should be very reluctant to adopt the position assumed. It is to be observed that this rule, according to the language of Story, adopted by the Court of Appeals, "is founded upon a great public policy," to prevent alienation during the progress of the suit and to prevent endless litigations. A decision that [**10]  it did not apply to proceedings instituted by the creditors against a debtor to set aside transfers of property made by him to defeat and defraud them, would be equivalent to an unrestricted license to commit the most flagrant frauds upon creditors, because a debtor who would be so dishonest as to resort to sham transfers of his property to defraud his creditors, would not hesitate to sell it during the progress of such proceedings, and thus defeat their attempts to appropriate it to the satisfaction of their claims. The case to which I have referred as an exception to other decisions and elementary law, shewing that the position assumed for the respondent cannot be sustained by authority, is that of McCutchens and others vs. Miller, 31 Mississippi, 65. The Court that decided this case was composed of three judges and one delivered a dissenting opinion, so that, however it might be regarded as controlling judicial opinion in that State, it cannot be insisted that it should settle the case here. It is, in my opinion, unsustained by the uniform current of previous decisions as shewn by the dissenting judge who referred to them in his opinion, and not to be sustained upon principle, and [**11]  I do not feel constrained to adopt the law which it announces. I must, therefore, pass an order in conformity with the above views.

On the 30th of November following, the Court passed an order requiring "the said John Bailey Orem and John A. Applegarth to deliver to the petitioner, George W. Russell, the premises referred to in his said petition." From this order Applegarth appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

PURCHASER AT TRUSTEE'S SALE: WRIT OF POSSESSION: LIS PENDENS. -- The practice is settled in this State, that when a purchaser at a sale under a decree has fully complied with the terms of sale, and possession of the premises purchased is withheld by a party to the suit, or by a person claiming under a party, by title subsequent to the commencement of the suit, the purchaser may obtain an order under which possession will be delivered to him by proper process.

The doctrine of lis pendens has no application except where there is a proceeding directly relating to the thing or property in question, or where the ulterior interest and object of the proceeding is to subject the property in question to the disposal of a decree of the Court.  

COUNSEL:
Wm. S. Waters, for the appellants:

The state of the pleadings presents one of the questions in the case, that is, is Applegarth bound by the proceedings in Hodges, et al. vs, Jackson, et al.? Did the proceedings in that cause, at the time of the purchase by Applegarth, without actual notice thereof, operate as a lis pendens or constructive notice? The bill in that case was filed by simple contract creditors to set aside certain deeds designed to hinder, delay and defraud creditors, and therefore void. The particular deeds are not made exhibits with the bill, but are described by their dates and places of record. The bill, so far as this question is concerned, alleges, that by the deed of the 28th of December, 1858, recorded in liber G. E. S., No. 172, folio 510, &c., George [**12]  Russell conveyed to Elizabeth Jackson a lot on Lee street and Barre street, but it is nowhere asserted that Russell at any time conveyed to Elizabeth Jackson the lot on Aisquith street. The subpoena was served on George and Elizabeth Jackson before the conveyance to Applegarth. There was no lien acquired by the bill in this case, nor any obtained before it was filed.

1st. It will be contended, that the appellant in this case is not affected with notice of the proceedings in Hodges, et al. vs. Jackson, et al., at the time of his purchase. Before the Act of 1835, ch. 380, it was necessary, in the case of real estate, to obtain a judgment, and of personal estate, an execution, before the creditor could proceed to vacate a conveyance for fraud. It was requisite to acquire a lien upon the property. Birely & Holtz vs. Staley, 5 G. & J., 432.

2nd. By the Act of 1835, followed by the Code, this was rendered unnecessary, and a creditor's bill could be entertained in Chancery without lien. It is upon this, that the bill in Hodges, et al. vs. Jackson, et al., is sustained. 1 Code, 78, Title, Fraud. To show what was the law of Maryland anterior to the Act of 1835, ch. 380, and the effect [**13]  of the passage of that Act, See Falkner & Miller vs. Edwards, 3 Md. Rep., 113. Harris vs. Alcock, 10 G. & J., 226.

3rd. A lis pendens is notice of an equity or equitable claim upon the property, and affects the purchaser as actual notice, but it is not notice of a fraud so as to affect any one with notice of it. 1 Story's Eq., sec. 406. Mead vs. Orrery, 3 Atk., 242, 243.

4th. When the suit is not for the land itself, to perfect any equitable claim upon it, but to affect it on account of some collateral fact, the suit was not notice. The notice must be of some title, legal or equitable. The effect of the lis pendens is in analogy to the effect of the writ of right, 1 Story's Eq., 395. Metcalf vs. Pulvertoff, 2 Ves. & Bea., 207. Fagely vs. Fagely, 7 Md. Rep., 563.

5th. Until a decree is obtained upon a creditor's bill the property is not bound by the proceedings. A creditor could proceed to acquire a lien upon it by judgment notwithstanding the proceedings. And if so, there could be a valid purchase. McAllen vs. Miller, 31 Miss., (2 George,) 65. Albert & Wife vs. Wilson & Wife, 7 Gill, 463. 1 Story's Eq., 549. Ellicott vs. U. S. Ins. Co., 7 Gill, 319.

6th. The purchaser [**14]  in this case has better equity than the creditor. 1 Story's Eq., 410, (note 1.) Id., 411, 434, 416.

7th. The bill, at the time of the purchase, did not disclose with sufficient certainty the land sought to be charged by it. The report of sale does not describe the property, and is indefinite; in fact, the sale of no definite property is ratified. Elizabeth Jackson held the property by another deed besides that of Russell, which is not set aside by the deed of trust.

P. McLaughlin, for the appellee:

There is nothing in the reasons assigned by the appellant, in his answer, why the Court should not put the appellee in possession of the ground.

As to the first reason, that the description was not identical with the lot claimed: There is no such thing as this shown, and if such was the case the Court was capable of making the correction. Besides, nothing can be conveyed by the trustee except the title of the parties to the suit.

The second reason assigned in that answer would appear to justify the trustee in asking for an attachment against the appellants for contempt. Angel vs. Smith, 9 Vesey, 335

The third reason assigned by the appellant is a full admission [**15]  that he claims as a purchaser pendente lite.

The fourth reason is closed by the decree in the case of Hodges, et al. vs. Jackson, et al., and cannot be considered, but if it could, it would be of no avail to the appellant, for a party having taken a fraudulent title to the property cannot relieve it from the taint of fraud by any contrivance which he might invent for the purpose. Estep vs. Watkins, 1 Bland, 486, 489. Strike vs. M'Donald, 2 H. & G., 191, 258, 262. Hollingsworth vs. M'Donald, 2 H. & J., 238.

The fifth reason would seem like an effort to evade the law, but equity will not suffer that to be done indirectly that it will not allow it to be done directly. Strike vs. M'Donald, 2 H. & G., 191, 258.

In the examination of the question of lis pendens, it is seldom necessary to examine into the bona fides of the purchaser, or whether he purchased with actual notice. It may be that he has paid the full value, and and has had no actual notice, yet he might have had actual notice had he been diligent. The proceedings in the Court is notice to all. Therefore, there is nothing in the 6th, 7th or 8th reasons assigned that will aid him. 1 Story's Eq., §  405.

The doctrine [**16]  of lis pendens was not engrafted in the law so much for the purpose of punishing the purchaser, as to prevent the defendants from trifling with the Court, and for the purpose of giving to decrees practical effect, and as the only mode by which fraud, in cases like this, can be suppressed and prevented from being successfully carried into effect. 1 Story Eq. Jur., §  406.

Lis pendens begins from the moment the bill is filed, and the defendants served with the subpoena, so far as the property described or clearly referred to in the bill is, by the bill, made the subject of litigation. 1 Johns. Ch. Rep., 566, 575. Jackson vs. Dickerson, 15 Johns., 309. And for this purpose no previous lien is necessary. The presumption is that every man takes notice of what passes in the Courts of Justice where he resides. 1 Story Eq. Jur., §  405.

The title of a purchaser pendente lite is not recognized. The Court treats the property and the parties to the suit as if there was no such title in existence. 1 Story Eq. Jur., §  406. Tongue vs. Morton, 6 H. & J,, 21, 23. Inloes vs. Harvey, 11 Md. Rep., 519, 524.

The Court will deal with a purchaser pendente lite as they would with the party [**17]  from whom he purchases, and the decree in the case will be as effectual and as binding upon the one as upon the other. 1 Story Eq. Jur., §  406. Tongue vs. Morton, 6 H. & J., 21, 23.

It is presumed that it will not be denied that the Court has ample power to put a purchaser, under a decree, into possession as against a purchaser pendente lite. Dorsey vs. Campbell, and M'Comb vs. Hankey, 1 Bland, 363. Garretson vs. Cole, 1 H. & J., 370, 387. Faghley vs. Faghley, 7 Md. Rep., 537, 563.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*328]  GOLDSBOROUGH, J., delivered the opinion of this Court.
Being of opinion that the views expressed by the late learned Judge of the Circuit Court, in his decision of this case, are correct for the reasons assigned by him, supported by the authorities cited in his opinion, and being satisfied, from an inspection of the record, that there is no force in the objection urged by the appellants in this Court, but not in the Court below, that the bill, at the time of the purchase, did not disclose with sufficient certainty the land sought to be charged by it, and that the report of sales does not [**18]  describe the property, and is indefinite, we will sign a decree affirming the order of the 30th of November, 1863, from which this appeal was taken, with the costs of appeal to the appellee.
Decree affirmed. 

69 of 120 DOCUMENTS 

JOHN PAINE vs. RICHARD FRANCE AND FRANCIS MORRIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 163; 1866 Md. LEXIS 50 

June 28, 1866, Decided 

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

The bill of complaint in this cause was filed by the appellant against the appellees in the Circuit Court of Baltimore city, (MARTIN, J.) to compel an account and payment to him of one-half of the proceeds of sales of lottery tickets in the Maryland Consolidated Lotteries, from the 1st of December, 1850, to the 1st of December, 1853. The allegations of the bill and facts of the case, are set forth in the opinion of this Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

CONTRACT, -- CONSTRUCTION OF: PLEADING IN EQUITY: PRACTICE IN EQUITY: COMITY: CONFLICT OF LAWS: PRESUMPTIONS. -- On the 18th of July, 1849, the Maryland Commissioners of Lotteries contracted with R. F., F. M. and G. C., to approve and draw within the city of Baltimore, for their exclusive benefit, within and during three years, commencing on the first of December, 1850, such lawful schemes in the Maryland Consolidated Lotteries as might be presented by the contractors to the Commissioners, and also to issue and deliver to the contractors annually, during that time, a certain number of licenses for the sale of lottery tickets in Baltimore, and also a number of other licenses for the sale of such tickets in the State of Maryland, outside of said city. G. C., died, and the survivors on the 27th of July, 1850, assigned to J. P. the benefit of one-half of the contract of the 18th of July, 1849. A bill was filed by J. P. setting out the facts, relying solely upon the contract of July 18th, 1849, praying for an account of the sales of tickets in said lotteries, and that he might be paid one-half of the avails of said sales after equitable deductions. R. F. and F. M., in their answer, after alleging the violation and forfeiture of the first contract on the part of J. P., charge that he was, notwithstanding, paid in full all that he might have claimed in virtue thereof, and further allege that the contract of July 18th, 1849, was suspended by a new and different contract made by the Commissioner of Lotteries under the Constitution of 1851, with R. F., and that the new contract took effect April 1st, 1852; and that they were in no way indebted to said J. P. After general replication and testimony taken, it was agreed between the parties that the sales of schemes and tickets in said lotteries were forbidden by the statutes of the several States of the United States outside of Maryland. The covenant on the part of R. F. and F. M. was to pay to J. P. "five per cent. on the amount of tickets at scheme prices sold by them or their agents in the Maryland Consolidated Lotteries," &c. -- HELD:

1st. That the complainant having made the contract of July 18th, 1849, a part of his bill, and no application having been made to amend the bill, in conformity with the facts disclosed by the answer or evidence, the relief must be limited to that contract.

2nd. That the covenants of the respondents must be construed with regard to those of the complainants, and by presumption of law would be limited to the same subject matter.

3rd. That the respondents were liable to account to the complainant for all avails and profits arising from the enjoyment of the lottery privileges during the term mentioned in the original contract; but independently of all questions arising from the comity of Courts or States, or the conflict of laws of the several States, the letter of the contract limits its operations to sales made within the State.

4th. That a clear and manifest intent is not to be disregarded to obtain some pecuniary advantage to the State; nor will it be presumed that the legislation and policy of other States was unknown to the State of Maryland, or that she sought to enrich herself at the expense of other States.  

COUNSEL:
R. T. Merrick & Reverdy Johnson for the appellant, argued:

1st. That the Court below erred in refusing to enlarge the order of reference as to allow a full statement of the accounts between the parties on the complainants' petition, notwithstanding the previous opinion of July 13th, 1857. An order or reference with instructions to state an account, with a view to a final decree, is not conclusive upon the Court, and may be reviewed by the Court pronouncing it without a bill of review; and on further proof or more mature consideration at any time before final decree, the Court may reverse its opinion, may reject the account made in conformity to it, and may refuse all relief; and [**2]  the fact that a party has, by Act of Assembly, a right of appeal from such an order as partaking of the quality of finality, does not impose upon him the obligation to resort to the remedy of appeal. The statutory remedy by appeal from an order, saving the quality of finality, does not militate against the general power and authority of the Court, while the cause is in fieri, to review and correct any previous erroneous opinion, when no change of property has been effected under its interlocutory order. It does not make absolutely final what before was revocable, it only makes it applicable. Snowden vs. Dorsey, 6 H. & J., 114. Hagthrop vs. Hook, 1 G. & J., 271 and 309. Strike vs. McDonald, 2 H. & G., 258. Hungerford vs. Browne, 3 G. & J., 142. Claggett's Adm'r vs. Crawford's Trustee, 12 G. & J., 275. Darrington vs. Rogers, 1 Gill, 403. Dugan vs. Gittings, 3 Gill, 154. Ware vs. Richardson, 3 Md. Rep., 505, 554. Pullian vs. Christian, 6 How. 208, 209, per Taney, C. J. Alexander's Practice, 177, 178, and 127, 128. Daniel's Prac., 1475.

The Act of 1845, ch. 367, uses the same terms as former Acts, and was not meant to change the law in this respect. 1 G. & J., 309. Ware vs. Richardson,  [**3]  3 Md. Rep., 554.

The right of immediate appeal may be waived without prejudice to any rights of the party. Ware vs. Richardson, 3 Md. Rep., 555. Code, Art. 5th, sec. 22. The Court below ought to have enlarged the reference so that the Appellate Court might have had all the accounts before them, and might have passed a final decree concluding the controversy.

2nd. That the policy of the State of Maryland, at the time of the contract in question, was favorable to sales of lottery tickets, and its resources were swelled by the dealing. Acts of 1845, ch. 92, and 1846, ch. 118. Constitution of 1851, Art. 7, secs. 4 and 5.

3rd. That the conflict of the laws of other States is no bar to the complete recovery on a contract sanctioned by, and emanating directly from, our own State sovereignty. The comity of States is subordinate to positive law, and if there be a conflict our own law must prevail. Gardiner vs. Lewis, 7 Gill, 378, 392, 395. Comity rests on voluntary consent and is inadmissible when contrary to the known policy or injurious to the interests of the State where it is urged, and it is only in the silence of any positive rule affirming or denying the operation of the [**4]  foreign law, that courts of justice presume the tacit adoption of them by their own government unless they are repugnant to its policy or injurious to its interests.

A foreign law is never allowed any force when either the State or its citizens may suffer loss or inconvenience from it, and this applies to questions of morals, to mala in se, as well as to mala prohibita. 2 Kent, 406, 407 457, 458, note b.-- Davis vs. Jaquin, 5 H. & J., 100. Wilson vs. Carson, 12 Md. Rep., 75. Bank of Augusta vs. Earle, 13 Peters, 589. Story's Conflict of Laws, secs. 32, 38, 239, 544. 6 B. Mun., 599. 9 Sm. & Mar., 249.

The comity which is administered is not the comity of Courts, but of the Nation, and hence a Court has no right to affix any higher standard of morality than that which its own legislature has reared. Story, sec. 38. Where a contract has been made under our own law, conflicting with a contract in another country, our own law prevails over the foreign. Story, sec. 239.

4th. But, by the laws of all States, even those which forbid the sale of lottery tickets, the complainant would, upon the case made by the bill, be entitled to an account and decree for his proportion of the [**5]  profits made by the sale of lottery tickets under the partnership dealings, because the contract or duty here raised is collateral to the illegal contracts, if such there were, and is not tainted by it. The illegality of the sales and dealings were disposed of when the appellees received the money from the sales; the plaintiff is now only seeking his share of the realized profits, as for money paid to his use, and received by the appellees for his benefit. Balt. & Susq. R. R. Co. vs. Passmore, 6 Gill, 79. Sharp vs. Taylor, 2 Philip's Chancery, 801, 815, 817, 818. Armstrong vs. Toler, 11 Wheaton, 258, 272. McBlair vs. Gibbs, 17 How., 236. Thompson vs. Thompson, 7 Vesey, 437. Tenant vs. Elliott, 1 Bos. & Pul., 3. Farmer vs. Russell, Ibid., 296. Brooke vs. Martin, 2 Wallace Sup. Ct. Reps., 70.

5th. That the partnership funds and capital were extended to dealings outside of the State of Maryland, and whether embraced within the terms of the original contract or not, all profits thence derived are to be accounted for; even the illegal purpose of a partnership dealing will not defeat the right. Whatever collateral, advantage is obtained by an agent, and, a fortiori, by a partner, though [**6]  not included in the contract, he will be required to account for and pay over. Story on Partnership, and Collier on Partnership,--passim. Case of Williams vs. Trye, 23 Eng. L. & E. Rep., 501. Brooks vs. Martin, 2 Wallace Sup. Ct. Reps., 70.

J. Mason Campbell & R. B. Taney Campbell for the appellees:

1. The bill sets up no title except under the contract of 1849 and the profits therefrom resulting, and its prayer for relief is limited to that contract. It appears in the evidence that the contract of 1849 was surrendered under the provisions of the Act of 1852, ch. 113. No amendment of his bill to shew that fact was made by the appellant, nor did he make any amendment to shew the further fact alleged in the answer but not established by the proof, that a new contract was made upon the surrender of the old one. Under the bill, therefore, as it stands, the appellant is confined to the contract of 1849 and to the operations under it from the 1st December, 1850, when it took effect, up to the 27th of March, 1852, when it ceased to have any existence.

Had an amended bill been filed charging that the defendants, (now appellees,) had, at the time of the surrender of the original [**7]  contract, entered into a new one, and claiming the benefit of such new contract, the question would have arisen, whether he was entitled to participate in it. But no such question can arise on the bill as it stands.

2. The lottery contract, in which the appellant claims an interest as assignee, was a contract by which the monopoly of lotteries was conceded by the State of Maryland within its territorial jurisdiction, and the State neither granted nor had the right to grant the privilege of selling tickets in any other State. The bill is limited accordingly to transactions and sales made under and by virtue of the contract, and its prayer covers no sales except those made within the State of Maryland. The appellees have excepted to all evidence, oral and written, of sales out of the State.

3. Whatever may be the character of the pleadings, and the extent to be attributed to them, there can be no relief in regard to sales of lottery tickets made out of the State of Maryland. These sales are conceded to have been made in violation of the laws of the States where made. 1 Story Eq. Jur., sec. 298. Sedwick vs. Sedwick, 6 Gill, 39. 2 Kent Com., 466. Farmer vs. Russell, 1 Bos. &  [**8]  Pull., 299. Thomson vs. Thomson, 7 Vesey 473. Bayne vs. Suit, 1 Md. Rep., 86. Knowles vs. Haughton, 11 Vesey, 168. Story Confl. of Laws, sec. 242, 243, 258. Gill vs. Oliver's Ex'ors, 11 How., 533.

4. The auditor has reported, that upon the legitimate business there was a loss. The appellant's exceptions to the auditor's report, so far as they are not covered by the preceding points, present questions of fact merely as to the state of the accounts, and the assumed action of the auditor in regard to them, and this Court has not the materials for a judgment as to the correctness of his conclusions, nor, if it had, could it do more than assert the principles upon which the account is taken.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*169]  BOWIE, C. J., delivered the opinion of this Court:
The complainant, a citizen of New York, claiming as assignee of the defendants, of one-half interest in all avails and profits of a contract entered into by the latter, on the 18th July, 1849, with the Commissioners of Lotteries of the State of Maryland, filed his bill on the 24th Jan'y, 1853, praying that the defendants, (one of whom,  [**9]  Morris, does not reside in the State,) may answer, and "set forth the amounts of their sales of tickets in the Maryland lotteries by said contract referred to, and their sales of licenses for selling tickets in Baltimore, and of those for selling out of the city of Baltimore and elsewhere in said State; that the complainant may be paid his half of the avails of said sales, after such deductions as the Court should deem equitable, and for other and further relief.
The contract was exhibited as a part of the bill, and will be hereafter more particularly referred to.
The respondents admit the contract as exhibited, and a conditional assignment of one-half of the avails and profits by them, as survivors of George Cook; but insist the complainant did not comply with the conditions of his agreement; that the consideration failed, and they were not bound in equity to perform the contract.
They deny that the business was carried on under that contract, but allege that the same was superseded by a new contract entered into between the Commissioners of Lotteries and the respondents, which took effect the 1st of April, 1852, since which time the Maryland lotteries have been drawn under the [**10]  latter.
The respondents aver, the complainant has received more than one-half of all avails of said contract, during its existence, and deny they are indebted to him in the amount charged, or in any other amount.
A general replication was filed and commission issued, and 

 [*170]  testimony taken, much of it relating to sales out of the State, to which exceptions were filed by the appellees, and in connection with which an agreement was entered into between the solicitors of the parties; "that on the 18th of July, 1849, (and from that day to the present time, 24th of November, 1856,) the drawings of the Maryland lotteries, and the sales of schemes and of tickets in the said lotteries were forbidden in the United States, outside of Maryland, by the statutes of the several States of the Union, and this agreement is to avail as if the said statutes had been given in evidence."
On the thirteenth day of July, 1857, the case being submitted and argued, upon bill, answer and depositions, the Circuit Court of Baltimore city decided that the defendants were liable to account to the complainant for all avails and profits arising from the enjoyment of the lottery privileges during the term [**11]  mentioned in the original contract, but that the account should be confined to sales made within the State, and sustained the exceptions to the evidence taken by the defendants as to the sales without the State.
The cause was referred to the auditor to state an account, in conformity with the opinion of the Court. Afterwards, the case coming up upon exceptions to the accounts and reports of the auditor, the Court remanded the same for correction, and "to state the same in conformity with the views of the Court expressed in its opinions of July, 1857, and of this day, (February, 1860.)"
At July term, 1864, the appellant by his counsel, filed his petition praying the cause might be remanded to the auditor, that the orders of the 13th of July, 1857, and 13th of February, 1860, might be rescinded, and other accounts stated in conformity with the prayer of the petitioners, which petition being dismissed, the cause was remanded to the auditor to state an account in conformity to the principles of the order 

 [*171]  of reference heretofore made in the premises. An account being thus stated and returned, (after exceptions thereto by the complainant,) was by decree of the Court finally [**12]  ratified, and the complainants bill dismissed, from which decree, this appeal is taken.
From this synopsis of the cause, it is apparent the main points are found in the force and effect of the contract, and the allegations and prayer of the bill.
Neither the one nor the other of these seems to contemplate a dealing in lottery tickets beyond the limits of the State Independently of all questions arising from the comity of Courts or States, or the conflict of laws of the several States the letter of the contract limits its operations to the State.
The first covenant of exhibit A, on the part of the commissioners, is to deliver to the parties of the second part, etc., "eight annual licenses in each of said years for the sale of lottery tickets in the city of Baltimore, *** and for the further sum of -----, thirteen other licenses each year for the sale of said tickets in the State of Maryland, out of the city of Baltimore," **** to authorize the said parties of the second part, etc., "to sell, either in the city of Baltimore or out of it, in the State Maryland, as the case may be, tickets or parts of tickets, etc.
There is no clause or word on the part of the commissioners enlarging [**13]  the area of sale.
The covenants on the part of the respondents must be construed with regard to those of the parties of the first part, and by presumption of law would be limited to the same subject matter. The second covenant on the part of the respondents is, that they will pay to the parties of the first part five per cent. "on the amount of tickets at scheme prices, sold by them or their agents in the Maryland Consolidated Lotteries," and they undertake that the sum shall amount during each of three years, to the sum of $ 25,000, exclusive of expenses, and to pay the difference between such 

 [*172]  sum, and the said per centage, at the end of each of said years; that a correct account of such sales shall be furnished, "sustained by such proof as the parties of the second part require from their distant agents," etc.
It was argued that as the last cited covenant secured the State five per cent. upon the amount of sales, and the respondents had guarantied it should amount to a certain minimum, it was the interest of the State, and therefore the intent of the contract, that the sales should be made wherever they could be. This deduction is hardly consonant with the rules of [**14]  law, which require all parts of the contract to harmonize, if possible.
A clear and manifest intent, is not be disregarded to obtain some pecuniary advantage, by a construction opposed to that intent, nor can it be presumed that the legislation and policy of other States was unknown to the State of Maryland, and that she sought to enrich herself at the expense of her neighbors.
The complainant having made the contract a part of his bill, and interpreted it as we have, as far as he professed to set forth its terms, the relief prayed is based upon the same theory, and expressly limited to the State.
It was very properly said by the Judge below, that there had been no change in the bill since it was originally filed, no application to amend in conformity with facts disclosed by the answer or the evidence.
If these furnished grounds for relief, the case as made by the bill did not, and it is only on the hypothesis, that the contract relied contemplated sales out of the State, that the appellants, could complain.
Our opinion is, that such a position is untenable, and without deeming it necessary to examine the other points mooted, we will affirm the decree below, dismissing the bill,  [**15]  with costs to the appellee.
Decree affirmed. 

70 of 120 DOCUMENTS 

DANIEL R. MAGRUDER vs. THOMAS SWANN, GOVERNOR OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 173; 1866 Md. LEXIS 51 

June 28, 1866, Decided 

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

Petition filed by the appellant on the 13th of January, 1866, praying for an order requiring the appellee, Thomas Swann, Governor of Maryland, to shew cause why a writ of mandamus should not issue, commanding him, as Governor aforesaid, to issue a commission to the petitioner, as Circuit Judge of the Second Judicial Circuit of the State of Maryland. The material allegations of the petition and answer are stated in the opinion of this Court.

This appeal is from an order of the Court below, (R. JOHNSON, Jr., Special Judge,) dismissing the petition of the appellant.  

DISPOSITION:
Petition dismissed.  

HEADNOTES:

CONTESTED ELECTIONS: -- The "contested elections" spoken of in ART. 4, SEC. 15, OF THE CONSTITUTION OF 1864, mean, as appears from the context, contests between candidates at such election, not any dispute about the office of Judge, in which one party claims by appointment by the executive and the other by election of the people.

The power given to the House of Delegates in such cases is, to "judge of the election and qualifications of the candidates." They have no power to judge of the rights of persons who were not candidates, and claim under some other authority, denying, perhaps, the regularity of the election or the right of the people to fill the supposed vacancy.

DISQUALIFICATION OF JUDGE, WHERE THE TITLE TO HIS OFFICE IS IN QUESTION. -- The provisions of the Constitution of 1864, for the trial of causes in case of the disqualification of the incumbent (Art. 4, secs. 7 and 8,) not only apply to cases where the judge is affected in person or property, but also to those involving his right to his office.

JUDGE WHEN SUED TO CERTIFY HIS INCAPACITY TO ACT. -- The Court is open to all suitors, even against the judge himself; his authority extends to all cases in which he is not disqualified by interest, relationship to the parties, or has formed professional connection with the cause; when these occur, his power as judge ceases, except to certify his incapacity to act.

No disqualification of a judge can be so obvious and absolute as that which involves the question of his title to the office he holds. When that is questioned, he comes immediately within the letter and spirit of the 7th section of Art. 4, above cited, and no alternative is left but to certify his disqualification.

CONSTITUTION OF 1864, ART. 4, SECS. 14, 15 AND 16, DEVOLVE UPON THE GOVERNOR AUXILIARY, AND MINISTERIAL DUTIES: CLERKS' CERTIFICATES PRIMA FACIE EVIDENCE OF ELECTION: ISSUING OF COMMISSIONS AND GRANTS ANALOGOUS DUTIES: INDEPENDENCE OF THE EXECUTIVE AND JUDICIAL DEPARTMENTS IN THEIR RESPECTIVE SPHERES: MANDAMUS WILL LIE AGAINST THE GOVERNOR OF THE STATE FOR NONPERFORMANCE OF MINISTERIAL DUTIES. -- Art. 4, sec. 14, of the Constitution of 1864, after providing for the election of judges, requires "all elections of judges and other officers provided for by this Constitution -- States Attorneys' excepted -- shall be certified, and the returns made by the clerks of the respective counties to the Governor, who shall issue commissions to the different persons for the offices to which they shall have been respectively elected; and in all such elections, the person having the greatest number of votes shall be declared to be elected." Sec 15 of the same Article, declares: "if, in any case of election for Judges, Clerks of the Courts of Law and Registers of Wills, the opposing candidates shall have an equal number of votes, it shall be the duty of the Governor to order a new election; and in case of any contested election, the Governor shall send the returns to the House of Delegates, who shall judge of the election and qualification of the candidates at such election." Section 16, further provides, that all public commissions and grants shall run thus: "The State of Maryland," &c., "and shall be signed by the Governor with the seal of the State annexed," &c. -- HELD:

1st. That the duties devolved upon the Governor by these sections of Art. 4, are auxiliary ministerial duties to be performed as preliminary to the qualifications of the judges and other officers, in the discharge of which he has no discretion, but is imperatively required by the organic law to perform, in order to keep the departments of government in motion.

2nd. That the clerks' certificates determine who has the greatest number of votes, "or whether the opposing candidates have an equal number of votes." In either event, the injunction of the Constitution is equally peremptory.

3rd. That all public commissions and grants are included in the same section as analagous in their nature. The Governor acts alike in both instances, as the custodian of the great seal of the State, to be annexed to his sign manual.

4th. It is not necessary that the Governor should be satisfied in all instances of the regularity of the returns of the clerks; ordinarily he has no control over them, but acts upon the prima facie result. If they are irregular, the parties interested have their remedy by contesting the election before the appropriate tribunal.

5th. The commission, like a patent, is primary proof of the title of the officer or patentee, but the Courts may inquire whether the one or the other was properly issued. In many cases the commission is a necessary prerequisite to the right of qualification to office.

6th. Each of the co-ordinate departments of the government is independent of the other, in the sphere of its action, and has duties to perform in which it is not subject to the control of the other; but this independence does not proceed from the grade of the office so much as the nature of the act to be performed.

7th. The Governor, in his political and executive duties, requiring the exercise of his judgment and discretion, is entirely independent of any other authority. But all judicial power is as absolutely committed to the Judiciary Department, as political or executive power is to the Governor; and among these judicial duties is the decision of controversies between man and man, whether they involve the right of office, life, liberty or property, or arise under the provisions of the Constitution, statute or common law.

8th. Although it was said in the case of Miles vs. Bradford, 24 Md. Rep., that "the Governor bears the same relation to the State that the President does to the United States, and in the discharge of his political duties, is entitled to the same immunities, privileges and exemptions," -- it is nowhere said, that the President or Governor, in the discharge of mere ministerial duties, would be exempt from judicial process.

9th. That the Governor of the State, like all other officers in the discharge of mere ministerial duties, is subject to the writ of mandamus, which cannot be denied to a suitor in such case, without acknowledging an authority higher than the law.

TENURE OF OFFICE OF CIRCUIT JUDGE: ART. 4, SEC. 27, OF THE CONSTITUTION OF 1864, however interpreted, whether as speaking at the time the instrument was framed, or at the time it became effective, has a special, exclusive sense which cannot be misunderstood. No latitude of construction can justify the reading of "elected" as the synonym of "appointed."

CONSTITUTION OF 1864, ART. 12, SEC. 6, of SCHEDULE. -- The office of that clause of the Constitution, embraced in Art. 12, sec. 6, of the schedule, is intended to preserve the machinery of government in the change from one Constitution to another; its operation is not to suspend the authority of the new Constitution, but to preserve or continue the corps of officers holding under the old or former government, until their successors or themselves are appointed under the new.

CONSTITUTION OF 1864, ART. 12, SEC. 6, of SCHEDULE: ART. 2, SECS. 13 AND 14, AND ART. 4, SEC. 5, OF THE CONSTITUTION OF 1864, correspond, with a single exception, with Art. 2, secs. 11 and 12, and Art. 4, sec. 25, of the Constitution of 1851: under their provisions, as interpreted by the Court of Appeals, an actual vacancy having occurred in the office of Judge by death, it was competent for the Governor to fill the same by issuing a temporary commission, which continued in force to the end of the next session of the General Assembly or till some other person is appointed to the same.

CONSTITUTION OF 1864, ART. 12, SEC. 6, of SCHEDULE: Art. 4, sec. 5, Constitution of 1864. A temporary commission having been issued under the Articles and sections of the Constitution of 1864, last referred to, the tenure of office thereunder was, by sec. 6, of the schedule continued through the interval between the appointment and the meeting of the General Assembly of 1865; the Governor, then, by and with the advice and consent of the Senate, appointed the incumbent to fill the vacancy (which had occurred in the recess of the Senate). -- HELD:

That holding under this appointment the incumbent was not entitled to the office for and during the term for which his predecessor was elected, his title thereto being derived under Art. 4, sec. 5, of the Constitution of 1864, which expressly limits the holding to the period of "the next general election thereafter, whether for members of the General Assembly or county officers, which shall first occur." 

COUNSEL:
Thos. S. Alexander and Alexander B. Hagner, for the appellant:

This Court is now called to determine the question arising under these appeals; whether the Circuit Courts of this State possess the power to award a writ of mandamus against the Governor of the State, directing him to perform a ministerial act, devolved upon him by the constitution or laws? The point has never been decided by the Courts of highest resort in Maryland, for the decision in the case of Miles vs. Bradford, 22 Md. Rep., 170, as we submit, expressly turns [**2]  upon the consideration that the duty which the new constitution devolved upon the Governor, in reference to the examination and declaration of the popular vote on that instrument, was both political and judicial.

I. Sec. 14, of Art. 4, of the Constitution entitled, "Judiciary Department," declares, "all elections of Judges and other officers provided by this Constitution, State's attorneys excepted, shall be certified, and the returns made by the clerks of the respective counties to the Governor, who shall issue commissions to the different persons for the offices to which they have been respectively elected; and in all such elections, the person having the greatest number of votes shall be declared to be elected." Sec. 16 of the same Article, says, "all public commissions and grants shall run thus: 'The State of Maryland,' &c., and shall be signed by the Governor, with the seal of the State annexed," &c. We insist, that these provisions impose upon the Governor the performance of a mere ministerial duty, in no degree affecting the political powers of the Executive, or involving the exercise of discretion on his part, in the legal signification of that term; and that the Courts [**3]  of this State are clothed with the power to direct by mandamus the performance by the Governor of such duty, on the petition of a citizen whose rights are violated by its non-performance, and who has no other specific, legal and civil remedy. Evans' Prac., 407.

That the duty is merely a ministerial one, seems clear. The constitution might have directed any other officer to issue commissions to officers, and the selection of the Governor for the purpose was merely a matter of greater convenience. The injunction is not classed among the executive duties in the constitution, and it seems impossible to decide that it is, in any respect, a political function.

Sec. 14 seems to have been framed with a studious care to exclude the slightest shadow of judicial discretion on the part of the Governor--for after declaring that he shall issue the commissions to persons for the offices to which they have been elected, it proceeds to remove the only possible ground upon which such discretion might be claimed by the Governor, by further stating: that "person having the greatest number of votes shall be declared to be elected." No inquiry is to be allowed as to the legality of the votes;  [**4]  the person having the greatest number is to be declared elected, and the person elected is to receive the commission. Such has been the uniform construction by the Executive in numerous cases. Even where contestants have objected to the issuing of a commission pending the contest, the Governor has uniformly, until this case came before him, issued the commission, insisting that his duty in the premises was purely ministerial. Such was the course pursued in the contested election cases of Gambrill vs. Harwood and Spence vs. Franklin. Ex-parte Strong, 20 Pick., 484.

That the Governor may entertain doubts as to the mode of performing a ministerial duty, in no degree renders the particular duty a judicial or discretionary one. The clerks of Courts and sheriffs are purely ministerial officers, but the fact that they may doubt as to the proper manner of issuing or executing a writ, does not render their duties in any respects judicial or discretionary in the legal acceptation of the term, or deprive any individual who is aggrieved by their refusal to act in the manner he supposes proper, of the right to have the correctness of their decision inquired into by the Court under a petition [**5]  for a mandamus. In such a case, if the Court agree with the officer's construction of the particular duty, the writ is refused; if they differ from him, they award the mandamus. The discretion which will justify a party in refusing to do an act, must be a legal right to do or not to do it according to his will. Kendall vs. U. S., 5 Cranch. C. C. R., 238, &c.

Such is the right possessed by the Governor in all matters of a political nature. He is intrusted with the power "to convene the General Assembly on extraordinary occasions," and, since this is a power wholly intrusted to his judgment, it is of no consequence that every person in the State may think the occasion has arrived, unless he shall so decide; and the Courts would properly refuse to listen to any inquiry on the point. And their decision would be the same if the officer whose discretionary powers were thus attempted to be controlled were the Comptroller or any other official instructed with the legal right to do or not to do the particular acts according to his discretion. Green vs. Purnell, 14 Md. Rep., 329.

We insist that the power to issue a mandamus against the Governor directing him to perform a ministerial [**6]  duty, is conclusively established by the weight of authority in this country. Marbury vs. Madison, 1 Cranch, 158. Kendall vs. United States, 12 Peters, 524. Decatur vs. Paulding, 14 Peters, 606. State vs. Governor, 5 Ohio, 534. State vs. Governor, 7 Id., 372. Pacific R. R. vs. Governor, 23 Mo., 353. Att'y Genl. vs. Bainstead, 4 Wis., 567. Bonner vs. State, 7 Ga. 480. Cotton vs. Governor, 7 Jones, (N. C.,) Law Rep., 549. McCauley vs. Brooks, 16 Cal., 11. Evans' Practice, 412. Life & Fire Ins. Co. vs. Wilson, 8 Peters, 302.

The reasons given in the small number of cases where the contrary position has been announced are, we submit, altogether unsatisfactory. It must be admitted that a Governor can be sued for a debt, or indicted and punished by a Court if he should wilfully injure a person by an official act. Why should not the Court have equal control over him by mandamus? Kendall vs. United States, 5 Cranch, C. C. R., 258. Fergurson vs. Kinnoul, 9 Clarke & Finnelly, 279, 1 Cranch, 170.

The objection that the Court could not enforce their order because it might leave the Executive Department without a head, is equally unfounded in fact, and inconclusive. In no possible event [**7]  would the State be without a Governor, for his office would devolve upon another in case of his disqualification from any cause. Constitution, Art. 2, §  8. But the same reasoning would compel the Court to discharge a Governor proved guilty of murder or deserving to be committed for the most glaring contempt of Court. Besides, it is impossible that the hands of a Court are to be tied and rendered incapable of dispensing justice by the fear that the sworn Chief Magistrate of the State would deliberately disobey the mandate of its highest judicial tribunal.

The Courts will not assume that the Governor will disobey their decisions. 7 Georgia, 480-2. 16 Cal., 45, 55-6, 58, &c. 12 Peters, 601-2. 7 N. C. Rep., 549. Watkins vs. Watkins, 2 Md. Rep., 341. The same dread of a collision and of the necessity of resorting to extreme measures and vacating offices, would prevent the issuing of the writ against any public officer.

The argument urged in this case against the power of the Courts, based upon the separation of the executive, Legislative and judicial powers of the government, and the denial of the right to a person exercising the functions of one of those departments to assume [**8]  the duties of any other, is an evident perversion of the reason of that provision. 2 Story on Constitution, § §  517, & seq. 5 Ohio, 534. As well may it be invoked as conclusive evidence that the Governor should never exercise a judicial discretion upon any subject, or that the Legislature should never act as a Court for trial of impeachments or contested elections.

The early history of the colony discloses that among the most glaring abuses of the colonial government was the concentration in the hands of the governors of judicial and legistive powers,--the Governor sitting as chancellor, and deciding upon the legality of his own acts; and it was against such abuses that this provision was directed. "But in every well constituted government, the highest judicial authority must necessarily have a supervisory power over inferior and subordinate tribunals, magistrates, and all others exercising public authority." Strong's Petition, 20 Pick., 495.

That the decisions of Courts upon the construction of a Constitution or laws should be entitled to greater confidence than the opinions of the legislative or executive, arises as well from their superior opportunities for correct decision,  [**9]  as from the further fact, that a legislative or executive officer is controlled, in great degree, by his individual judgment, while the decision of the Judge is regulated by the principles of a science independent of his own will.

II. Since the power undoubtedly exists, with respect to all other officials in the State, is there any thing in the prerogative or exalted station of the Governor to exempt him from the control of the law in matters ministerial?

Whatever might be the response to this in England, where the sovereign is the fountain of power, it could never be answered affirmatively in this country, where all power resides in the people. They delegate a portion of their power to the Legislature as their agents; another portion to the Governor and another portion to the judiciary. When the judiciary announces the law to the executive and commands him to obey it, in a case like the present, it is the voice and mandate of the people speaking through one of their constituted agencies to one of their public servants,--and a refusal to obey this mandate is a refusal by an agent to listen to the instructions of his principal, in a matter in which he has been intrusted with [**10]  no discretion.

"It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined." 1 Cranch, 170.

The President is amenable to a subpoena duces tecum on the application of an individual. 1 Burr's Trial, 183, 7. And Mr. Attorney General Butler admitted in the argument in Kendall vs. United States, 12 Peters, that if the President were required by law to perform a ministerial act, the Courts are competent to order its performance by mandamus.

Mandamus is now regarded as an action, and not as a high prerogative writ. 12 Peters, 615. 24 Howard, 97. 2 Dallas, 401, 446, 551, &c.

Unless the Courts possess the power to issue this writ against the Governor, this petitioner, and all situated as he, are without any remedy whatever. Elected by the people to valuable office, his election "vested in the officer legal rights which are protected by the laws of his country." .... "To withhold his commission therefore, is an act **** not warranted by law, but violative of a vested legal right." 1 Cranch, 162. "The government of the United States has been emphatically [**11]  termed a government of laws and not of men; it will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast upon the jurisprudence of our country, it must arise from the peculiar character of the case." Id.

The exercise by the Courts of the right to direct the Governor in the performance of ministerial duties, would lead to none of the absurd consequences which it is insisted would necessarily flow from it. In the highly improbable case suggested of the election by the people of a negro or an alien, &c., to a judicial station, or of a qualified person at an improper time, the mere examination by the Courts into the propriety of the Governor's refusal to issue a commission, by no means secures the office to the applicant. It is an impeachment of the wisdom of the Courts to suppose that they would decide in favor of claims evidently unfounded; and their decision would, in any such case, sustain the decision of the Governor. But whether the pretensions of the applicant are well or ill founded is a question which he is entitled to have determined by the judiciary, and to deny him the privilege [**12]  of such a decision would indeed be "to cast obloquy upon the jurisprudence of our country." That the judiciary possesses the same power over the Governor as over any other offender in every other form of proceeding, must be conceded; so that he might be mulcted for an illegal act, or even condemned to death by their sentence. And yet they are to start back awe-stricken, and refuse relief to the citizen in a case like the present, whenever they may find themselves confronted by the Governor, from some indefinite notion of prerogative, which can neither be explained nor defended upon principle. What is this but placing the chief officer of the State above the laws of the State, and proclaiming that "Saul, King of Israel, is greater than the Israelites who made Saul King." It is announcing that all men are equal before the law and shall equally obtain a hearing by the Courts, until the shade of the imperial purple is seen among the sober habiliments of the suitors, thenceforth the appeal of the citizen against the Governor, placed in office by his vote, is to fall upon unheeding ears. Such an idea savors rather of the exploded notion of the divine right of rulers to do wrong, than of [**13]  the republican theory, that the Executive is but "a trustee of the people," and amenable to the laws of the land as expounded by the judiciary. So long as the judges decide correctly no possible evil can result from their interference--and surely they are not to be denied jurisdiction upon the idea that their judgments will be irrational or unjust. All we ask is that the citizen may obtain a hearing from the Courts, and a decision upon the question whether the duty devolved upon the Governor by the law is of a ministerial or judicial character. If the Court shall declare that it is judicial in its nature, we must acquiesce in the decision already made by the Executive. If they shall pronounce it ministerial, the Governor of course will perform it.

If we are correct in these views, the Judge was in error in refusing the mandamus against the Governor, and his orders dismissing the petition should be reversed.

III. But even if his opinion be tenable, that the writ would not lie against the Governor, he was still in error in dismissing the petition against Judge Tuck. Judge Tuck could not rely upon the immunity of the Governor, as his defence for retaining the office. He was [**14]  only to hold until his successor should be elected and qualified, and the decision of the Special Judge determined that Magruder was duly elected, and the certificate of the clerk of Calvert county showed he was duly qualified. The commission is not essential to the right to administer the oath of office. Marshall vs. Harwood, 9 Md. Rep. 1 Cranch. 160.

The question of title having been decided in favor of Magruder, and he having duly qualified, Judge Tuck could not have refused to yield the office upon the ground of want of a commission by Magruder.

If Judge Tuck had yielded the office to Magruder, after a decision that he was duly elected, and upon evidence of his qualification, no one can suppose that he would not be fully exempted from blame in doing so.

IV. One of the defences raised by the answer of Judge Tuck is, that the judge of a Court cannot be impeded in his own Court, in any proceeding involving his right to the office of judge. But if such a proceeding cannot be undertaken in his own Court, every applicant is utterly remediless, and the judge can hold the office as long as he sees fit to do so. Upon the same reasoning, no indictment or suit could be sustained [**15]  against a Judge. But in fact, as soon as the Judge shall see from the proceedings that he is an interested party, he is disqualified by the Constitution, and is obliged to certify his disqualification, and another person is appointed Judge "to try the cause," with all the powers of Circuit Judge while so acting, and the proceeding would, therefore, be in the Court of another Judge. People vs. Mott, 3 Cal., 402. 8 Peters, 302. Constitution, Bill of Rights, Art. 19.

V. It is also contended in both answers, that this was a case of a contested election, and that Judge Magruder should have applied to the House of Delegates in 1864. For what purpose was he to apply? He had received the greatest number of votes, and the majority candidate never applies to the House of Delegates; if any application were proper, it should have been made by the defendant.

But Judge Tuck expressly denies that he was a candidate at either election, and it is clear that sec. 15, Art. 4, on the subject of contested elections, supposes a contest between two or more candidates. By the Act of 1865, ch. 143, sec. 52, the case of contested elections of Judge, is to be conducted in the manner prescribed in the [**16]  Code, Vol. 1, p. 268, for contested elections of Delegates, and this requires notice to be given "to the person returned," implying a contest, and not an abandonment of the election as is claimed to have been the case in Judge Tuck's answer.

But suppose that Magruder, contrary to every precedent, had applied to the Governor to send the returns to the House of Delegates, and the Governor had consented to do so, what could the House of Delegates have done? They could not have declared Tuck elected, but could only say that Magruder was disqualified from non-age, and not entitled to claim under the election. But he had already admitted this to be so, and declined to claim under it, cui bono, then the reference to the House of Delegates. But if this were a case of a contested election, can the hearing of it be postponed indefinitely? If Magruder did not apply, Judge Tuck might have done so; and it is now too late to interpose the objection, even if it ever were of any force.

VI. The answer of Judge Tuck also raises a question as to the regularity of the qualification of Judge Magruder before the clerk of the Circuit Court for Calvert county, upon the ground that it was made before [**17]  a deputy, &c. The certificate of the clerk under seal is conclusive evidence of the regularity of the qualification. But if it were not so, the Code authorises a qualification before a deputy clerk. Vol. 1, p. 471, secs. 5 and 6. The act of the clerk in swearing in the petitioner was of a purely ministerial character, which he could not have declined upon any pretext, and which he would have been compelled to perform by mandamus. 3 Chitty's Black., (265,) note 4. By Art. 1, secs. 7 and 8, Mr. Magruder was required to take the oaths thereby prescribed under penalty of being considered as having refused to accept the office. If he had neglected to do so, it might have been argued that the Government must conclude he had refused to qualify, and on that ground was not entitled to the commission; while it is now argued, that not having obtained the commission he was not entitled to qualify.

It is submitted that if this irregular course of objection in an answer to a petition for a mandamus were permitted to have any effect in this proceeding, it would be widely different from that intended by the draughtsman of the answer, for it was such a form of pleading that was adjudged faulty [**18]  in a return in the case of Marshall vs. Harwood, 10 Md. Rep., 464; and this Court, for that reason, was compelled to order a peremptory mandamus.

We, therefore, submit that the special judge erred in dismissing the petition against the Governor, upon the ground of want of jurisdiction in the Court to award the writ, and that he likewise was in error in dismissing the petition against Judge Tuck, even if his action in the Governor's case was correct, because we were entitled to the relief in the latter case even if there were a defect of jurisdiction, as supposed, in reference to the former; and we, therefore, ask for a reversal of the order in the latter case whatever may be the opinion of this Court as to the former.

As the orders of the special judge were only predicated of the questions above discussed, his decision as to the title of Judge Magruder to the office of Circuit Judge is not properly raised by this appeal, but remains as a conclusive adjudication against the incumbent on the question of title.

VII. But if this Court should feel called upon to pass anew upon that portion of the decision below, we will submit for their consideration our views upon the question [**19]  of title. It is evident that under the Constitution of 1851, the regular mode of filling judicial offices was by popular election; and that in no other mode could a full judicial term be filled. The appointment of judge by the Governor and Senate, or by the Governor alone, was exceptional, and only to fill vacancies until the occurrence of the next succeeding general election. If the appointment of Judge Tuck were to be governed wholly by the Constitution of 1851, it is evident he would have no claim to serve for the whole of the unexpired term of Judge Brewer.

Similar provisions are contained in the Constitution of 1864; and it is equally clear, that if his appointment were to be governed wholly by that instrument, the claim would be equally untenable. But he was appointed under the Constitution of 1851, and retained in office under that of 1864, and the only difficulty in the case arises from this circumstance. It is also observable, that the Constitution of 1864 does not increase the term of office of any elected judge holding over under the former Constitution, but only secures to them the enjoyment of the residue of the term to which they were respectively entitled under [**20]  that Constitution, while it shortens the term of the only judge who was in office by appointment at the adjournment of the convention, (Judge Ricaud,) and directs an election to be held in his circuit at the earliest practicable day for a full term.

If the claim in behalf of Judge Tuck, therefore, is well founded, it constitutes an exception to every general rule, on the subject of judicial tenure to be found in the Constitution.

For what term was Judge Tuck appointed on the 24th of October 1864? It is of course clear, that the recital in the commission cannot determine the tenure of the office, but that its duration is to be controlled by the Constitution and laws. Jeter vs. State, 1 McCord, 233. What right, then, did he derive under that appointment? The former Constitution was then in force, and its provisions on the subject must be consulted. Section 12 of Art. 2, declared, that "in case of any vacancy during the recess of the Senate in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force till the end of the next session of the Legislature, or till some other person is appointed [**21]  to the same office, whichever shall first occur, and the nomination of the person thus appointed during the recess, or of some other person in his place, shall be made to the Senate within thirty days after the next meeting of the Legislature." It was under this section alone, that Judge Tuck was appointed, and according to its plain provisions his tenure could not extend beyond the end of the next session of the Legislature, and might have terminated on the first day of its session, if the Governor had seen fit to nominate a different person to the Senate.

While Judge Tuck was thus holding under the appointment of the Governor, the new Constitution "went into effect" on the 1st of November, 1864. How did this affect his tenure? It was competent for the Convention to have terminated his office immediately, but the Constitution, by sec. 6 of Art. 12, called the schedule, declared that "all officers civil or military, now holding office, whether by election or appointment under the State, shall continue to hold and exercise their offices, according to their present tenure, unless otherwise provided in this Constitution, until they shall be superseded pursuant to its provisions,  [**22]  and until their successors be duly qualified. According to this provision, Judge Tuck was to hold and exercise his office according to his then tenure; and we have shown that his tenure on the 1st of November, 1864, was only "until the end of the next sesson of the Legislature," after his appointment, viz: until March, 1865, subject to be sooner displaced, if the Governor should see fit to appoint some other person in his place; but subject, also, to be continued until the time for the general election of Delegates under the Constitution of 1851, in the event of his nomination to the Senate and confirmation by that body.

In January, 1865, the Governor sent to the Senate the nomination of Judge Tuck, and his nomination having been confirmed--Senate Journal, 1865--he thereupon became entitled to hold the office until the time of the next general election for Delegates under the old Constitution, which was in November, 1865; at which time the election was duly proclaimed and held, and Judge Magruder legally elected.

This view of the subject was regarded at the time of the appointment as the most liberal one for Judge Tuck's claims; and it was in consequence of Governor Bradford's [**23]  acquiesence in this opinion, that no proclamation for an election for Circuit Judge in this Circuit was made for the November election, 1864. But it is now insisted that the election in November, 1864, was the proper time for filling the vacancy in the office. This is maintained in virtue of the proviso at the end of sec. 7 of Art. 12, of the present Constitution, viz: "Provided, however, the judges of the several Courts of this State, except of the judges of the Orphans' Courts, shall be elected at the regular election, whether for State or county officers, as the case may be, immediately preceding the expiration of the term of the incumbent whose place is to be filled."

If Judge Tuck's appointment in October, 1864, was an entirely different one from the nomination to the Senate, so that the latter was not in any manner connected with or dependent on the former, then the former appointment was necessarily to terminate by March, 1865; and the election in November, 1864, being "the regular election immediately preceding the expiration of the term" for which he was appointed, was the proper time for electing a Circuit Judge. But if the more liberal view of the duration of his appointment,  [**24]  for which we have contended above, be the correct one, and his original appointment, when confirmed, entitled him to hold until November, 1865, then the general election in that year was the one "immediately preceding the expiration of the term of the incumbent, for the incumbent, of course, remained in office until after the election had been held. 3 Story on Const., sec. 1552.

But even if November, 1864, were the proper time for the election, Judge Magruder was still legally elected and is entitled to the office. It is admitted that he received "the greatest number of votes" at that election as required by sec. 14 of Art. 4, and was, therefore, to be "declared to be elected" judge. But he was not eligible at the time of the election by reason of non-age. It, therefore results, that a person "declared to be elected" judge was disqualified by reason of ineligibility from non-age; and by the explicit provisions of sec. 5 of Art. 4, "the Governor by and with the advice and consent of the Senate," was required to appoint a person duly qualified to fill such office until the next general election thereafter, whether for members of the General Assembly or county officers, whichever [**25]  shall first occur, at which time an election shall be held as herein prescribed for a judge, who shall hold said office," &c.

The Governor and Senate did appoint Judge Tuck in January, 1865, after Magruder's disqualification was made known, and his tenure under that appointment was, until the general election in November, 1865, at which time Magruder was duly elected judge for fifteen years. The argument that the election of 1864 was void, and that the power given in the Constitution as to the election of judge was "exhausted," is wholly unsupported by reason and authority. The decisions in Com. vs. Clarke, 7 Watts and Searg., 127. and Com. vs. Maxwell, 24 Penna., 444, answer this objection satisfactorily.

It would be too serious an impeachment of the wisdom of its framers and of its own importance, to construe this charter of our organic law like the technical limitations of a settlement or the over niceties of a special demurrer. The people have established this form of government to carry into effect their wishes--among the most cherished of which is that the judges whose decisions are of such momentous consequence to them shall be chosen by the popular vote, and it seems [**26]  absurd to say that the accidental disqualification of the majority candidate at an election should deprive the people for half a life time of the possibility of voting for their judicial officers.

Judge Tuck's answer claims that he holds the office for the residue of Judge Brewer's term, "in virtue of his appointment, commission, and confirmation by the Senate." But we insist that the Governor was not authorized to nominate, nor the Senate to confirm, any person as judge for a longer period than "the next general election thereafter." Art. 4, sec. 5.

A more plausible theory, and one which was discussed at the hearing, is this--that by sec. 6, of the schedule, all officers "now holding office, whether by election or appointment under the State, shall continue to hold and exercise their offices according to their present tenure, unless otherwise provided in this Constitution, until they shall be superseded pursuant to its provisions," &c., and that there are other provisions in the Constitution which entitle Judge Tuck to hold for a longer term than that which was his "present tenure," when the Constitution went into effect.

The only clause in the Constitution which can [**27]  be supposed to make such other provisions is, sec. 27, of Art. 4. But a careful examination renders it evident that this section can have no such effect, for it clearly refers only to judges who had been elected and not to appointed judges. The word evidently must have the same meaning throughout the section, and in every instance it signifies a choice by the popular vote. Again, the persons who are to continue to serve are to serve out the residue of the time for which they were respectively elected--not for the term for which some other person was elected--and Judge Tuck could as properly claim to serve for the length of time some other of the judges enumerated had to serve, as to select Judge Brewer's unexpired term as the duration of his term of service.

But if elected means also appointed, then Judge Tuck is only to serve out the residue of the unexpired term for which he was elected (appointed)-- viz: until the next general election in November, 1865. But it is evident the section was only designed to apply to the individuals who held the designated judgeships at the time the convention adjourned; and that they were allowed to serve out their terms only because the people [**28]  had already elected them in the manner prescribed by the Constitution as the settled mode of filling the judicial office. The judge of the second circuit at that time, and at the time of the adoption of the Coustitution, was Judge Brewer. The refusal of the convention to allow Judge Ricaud to serve out his term in the tenth circuit, because he was an appointed judge, confirms this view very strongly.

Similar provisions are found in the Constitution in reference to the justices of the Court of Appeals, Art. 4, sec. 17, and the judges in Baltimore city, sec. 37; and the death or resignation of those officers might have left every judgeship for many years in the hands of appointees, in the face of the Constitutional injunction that the people shall have the power to elect their judges.

This Court will not declare this a casus omissus if it is possible to find provisions in the Constitution which can reasonably apply to it. If Judge Tuck has a constitutional right to hold the office for seven years more, it is not perceived that the election of another person at a special election ordered by the legislature as suggested, can deprive him of his constitutional term. And if he has [**29]  the right to hold over under the casus omissus for seven years, it seems equally clear that he would have the same right to hold over for twice as long a time.

The construction of clauses of constitutions in great degree depends upon the particular case, but it is submitted that the case of Com. vs. Maxwell, 27 Penna. 444, is very analogous to the present. See also People vs. Mott, 3 Cal., 502. Lavlass vs. Holmes, 4 T. R., 660. Nares vs. Rhodes, 14 E., 510. Sansbury vs. Middleton, 11 Md. Rep., 296. Marshall vs. Harwood, 5 Md. Rep., 423 and 7. Id., 466. Buckingham vs. Davis, 9 Md. Rep., 334.

Wm. Price and Frank H. Stockett, for the appellee:

1st. The appellee contends, (treating both cases as the same case,) that it is not competent for the petitioner to invoke the aid of the Court, of which the appellee is the head, and the sole representative, to vacate his office. The petition is addressed to the appellee, as judge, requiring him to entertain a cause, and praying him to order a writ, the effect of which is to strip him of the very authority by which alone the same can be brought to a hearing, and disqualifying him to hold the very position which is recognized by the [**30]  petitioner in his application, and from whose authority alone can any process be issued, and in whose name alone every writ has to be tested.

It is submitted that such a proceeding as the present involves an anomaly in the law and practice which no Court should be required to entertain, and if established, must be destructive of all self respect which is so essential to guard and preserve the purity and dignity of the Courts. It is insisted that no Court should sanction such practice except when required by express statutory enactment, for which no authority can be found in our laws. And especially should this Court so determine, when they see that the Constitution has provided an adequate remedy in sec. 15 of Article 4, by which the House of Delegates is made the judge of the election and qualification of judges in every case of a contested election.

This reasoning is equally applicable to the case against the Governor, for it is in fact the same case, seeking the same result, and invoking the same authority to enforce the remedy sought.

Nor is the case relieved of the difficulty by the certificate of the appellee declining to sit, and the substitution of a special [**31]  judge, who still represents the same Court of which the regular judge remains the head, and whose name and by whose authority all process continues to issue.

Nor can any sanction of analogy for such proceeding be derived from the fact that a judge can be indicted for misdemeanors, or sued for breaches of engagements in his own Court. For in all such cases the process is against the person or property of the incumbent, and does not assail the authority and dignity of the office. In all such cases, and where he has been of counsel, or is interested in the result of the trial, or of relationship to the parties, provision is made for a special judge, for he is thereby affected in his person or property only, and the office remains intact, but certainly no such cases as the present were ever contemplated by our laws.

2nd. That the Court has no authority or jurisdiction to grant a writ of mandamus against the Governor, as the chief executive officer of this State, requiring him to perform duties even in cases where they are purely ministerial, and certainly not to require him to exercise a political power or to discharge a discretionary duty.

In the case now before the Court [**32]  the issuing of a commission in certain cases and under certain contingencies, is a duty imposed by the Constitution, and is necessarily political in its character, and faithfully to discharge it requires examination into all the facts attending the right of the party claiming the office, and involves judgment as well as discretion. It is not a mere ministerial act, because the Governor must determine whether the time for electing a judge had arrived. This duty, by the whole spirit of our Constitution and laws, must rest with a co-ordinate branch of the Government, free entirely from the control of the judiciary.

To clothe the executive with proper freedom in the discharge of his duties, he must enjoy immunity from interference from any other branch of the government. The contrary doctrine would involve the practical absurdity of requiring the courts to pass orders which they would have no power to enforce, should the executive, as in many cases it would be his right and duty to do, refuse to respect or obey the orders of the courts, or even more than this, it might produce a direct conflict between the different departments of the government, which may produce revolution and civil [**33]  war. In support of these views, they refer to the following decisions. Marbury vs. Madison. 1 Cranch, 146. Kendall's Case, 12 Peters, 524. Low vs. Towers, 5 Georgia, 379. 7 Georgia, 480. 5 Ohio, (N. Series,) 528. Maffit vs. Governor Chase, 7 Ohio, 376. State vs. Governor of N. Jersey, 1 Dutcher, 333. 32 Maine, 508. Hawkins vs. Governor, (1 Arkansas,) 1 Pike, 570. 1 Kent's Com., 288, and note A. Watkins vs. Watkins, 2 Md. Rep., 341. 23 Missouri, 353. Low vs. Governor, 8 Georgia, 372. Miles vs. The Governor, 22 Md. Rep., 170. Miles vs. The Governor, 3 vol. Debates of Con. 1915, &c. U. S. vs. Seaman, 17 How 230. Green vs. Purnell, 12 Md. Rep., 329.

3rd. The court has no jurisdiction in the case, because it is a case of contested election for the office of a judge, which, by the 15th sec. of Art. 4, of the Constitution, is confided entirely to the House of Delegates to decide. To entitle the party seeking this remedy by mandamus, he must show, not only that he has a specific legal right to the relief sought, but also that he has no other adequate specific remedy. Harwood vs. Marshall, 9 Md. Rep., 83. In the present case not only has the petitioner an adequate specific remedy provided [**34]  by the Constitution, to determine his right to this office, but by vesting this power in the House of Delegates, all other tribunals are excluded from the consideration of the same matters, and the courts have no jurisdiction to entertain any such cases.

4th. That the appellee is entitled to retain the office and discharge the duties of the judge of the second circuit to the expiration of the full term for which the late judge Brewer was elected, to wit: to Nov. 1871, under his appointment and commission by the Governor and his subsquent confirmation by the Senate. It will be observed that after the adoption of the new Constitution, but before it went into operation, on the 1st day of November, 1864, the appellee was, on 24th October, 1864, appointed and commissioned by the Governor, in the words of his commission "to hold and execute said office from the date hereof for and during the vacancy occasioned by the death of the late Nicholas Brewer."

This appointment made under the Constitution of 1851, would have held good until the next general election for Delegates thereafter. Sec. 25, Art. 4. Which would not have occurred until November, 1865, but this having been superseded [**35]  by the new Constitution, which went into effect on the 1st day of November 1864, and which found the appellee in office as the judge of the second judicial circuit, composed of the four counties, vested him with the tenure of the office until the expiration of the term for which judge Brewer had been elected, and transferred his jurisdiction from the old circuit of four counties, to the present one consisting of the two counties of Anne Arundel and Calvert. He was, at the date when the new Constitution went into effect, the "present" judge of that circuit, and as such, the tenure of his office was expressly limited and prescribed by the 27th sec. of Article 4, as well as the extent of his circuit. And the word in that section "elected," in the 5th line, refers, not to the persons who should actually be found in such offices on the 1st day of November, 1864, but to the character or mode by which such officers generally held their offices, which was by election, and cannot by any reasonable intendment be construed to exclude any person then found in office who held by appointment, and not by election.

5th. But supposing this not to be the proper construction of said sec. 27, of [**36]  Art. 4, and that the tenure of the office then held by the appellee was not determined by said section, then what was the limit of his tenure? Clearly, it is submitted, only until the election provided for by said Constitution to be held in November, 1864, and until the qualification of the person then elected. Sec. 25 of Art. 4th, Constitution of 1851; sec. 5 of Art. 4th, Constitution, of 1864, and sec. 7 of Art. 12, of same; on the assumption that he held on under the previsions of the present Constitution. And if this be so, then the election for the judge of that circuit could only have been held in November, 1864, and that having resulted in no choice of a person who was eligible, there was no election in fact, and no provision having been made by the Constitution to meet such contingencies, no other election to fill such vacancy can be had until legislative provision shall be made for same. The election held in November, 1865, was, therefore, a void act, and can give to the appellant no claim to the office, but the appellee holds over until his successor shall be duly elected and qualified.

6th. But supposing this court should not be of the opinion that the foregoing construction [**37]  of the Constitution be correct, it may then become necessary to inquire whether or not the appellee being in office when the present Constitution took effect, his term of office was affected by its provisions, and if so, how?

He will contend in this view of the case:--

1st. That his appointment stands wholly unaffected by the present Constitution, and that, as to his case, a casus omissus has occurred.

The Convention failed to make express provision for the case of vacancies occurring between the adoption of the Constitution and the time it went into operation; not one word is said on the subject. The 6th sec. of Article 12, does not reach the case, because by it all persons found in in office were to hold not merely "according to their present tenure, unless otherwise provided in the Contitution," but "until they shall be superseded pursuant to its provisions and until their successors shall be duly qualified," (not duly elected and qualified.) If no provision is made for superseding them, there can be no qualification of their successors, and it necessarily follows, that they must hold over until this casus omissus is supplied, and that can be done only by the Legislature,  [**38]  which department may exercise all powers not inhibited by the Constitution. Courts cannot supply a casus omissus. Scaggs vs. Rail Road Co., 10 Md. Rep., 278.

2nd. If we concede that the convention did not intend to leave any case of vacancy unprovided for, it does not follow that all possible contingencies were actually met by the Constitution. We must gather what they intended from what they said. If anything be said on a particular point, we may infer from that what was meant, but nothing can be collected from what was not said. The provisions in sec. 27th, Art. 4th, that an election should be held in November, 1864, for the 10th circuit, (where Judge Ricaud had been appointed,) may serve to ground an inference that if the probability of Judge Brewer's death had suggested itself to the convention the same provision would have been made for filling that vacancy, but as nothing was said on the subject, we are forced back to the first point, that it must be treated as an omission.

3rd. But suppose it be true that provision was made for an election, was it to be held in 1864 or 1865? If in 1864, then we say that an election has been held and failed of effect, because of the [**39]  disqualification of the party returned as elected. Here one of two results must follow, either Judge Tuck is entitled to the commission by virtue of that election (Mr. Magruder being under age) or there is another casus omissus. The power of the officers of the State to hold an election has been exhausted, and no provision for another made. On this hypothesis the Constitution keeps the government in motion, as far as that office is concerned, by authorising the incumbent to hold until the qualification of a successor.

To illustrate, suppose at the proper time for electing a successor to any of the present judges the person having the highest number of votes should be under age or non-resident, when could another election be held? The Constitution, Art. 12, sec. 7, prescribes the time for holding the election, "the regular election immediately preceding the expiration of the term of the incumbent." If there be no one then elected, who can order another election at any other time? The Constitution being silent, the power does not exist until the legislature makes provision. 20 Md. Rep., 460. But it is said that the general election in 1865 was the proper time. In what clause is [**40]  the power to fill this office, at that time, to be found? Is it contended that no election being made in 1864, the general theory of the Constitution that judicial officers shall be elected necessitates an attempt to make a second choice at the succeeding election so that the office may not be vacant? The answer is, that the necessity does not exist, for under the Constitution the incumbent holds over until his successor is qualified, and that can only be provided for by the same people whose agents allowed the omission through their other agents, the Legislature, which is far safer than to allow the exercise of doubtful powers by other departments.

The general intent may be regarded in the exposition of doubtful phrases, but where the Constitution is silent and nothing is provided in a particular case, the general intent cannot be resorted to. There is nothing for the general intent to explain.

The nomination to the Senate at the session of 1865 does not imply a vacancy under the present Constitution; Governor Bradford most clearly was only following up the first appointment by showing what he had done under the old Constitution, and the Senate confirmed that appointment [**41]  as originally made. The Governor could have made no other, because no new vacancy had occurred. There had been no election in 1864. The office had all the time been filled.

If Judge Truck must be treated as holding a new appointment under the present Constitution, by virtue of that nomination and confirmation, whose vacancy does he fill? Surely not a vacancy made by Mr. Magruder. His non-age did not cause a vacancy. The incumbent was to hold until the qualification of his successor, and as the supposed successor never qualified he was never in. To say that his prior non-age made a vacancy is to affirm that one may leave a place he never occupied. When the Constitution, (Art. 4, sec. 5,) speaks of vacancies to be filled by the Governor, it means vacancies occasioned by death, disqualification, &c., succeeding the election of the officer.

The result of the preceding views is not that the commission of Judge Truck entitles him to hold by its terms until 1871, but that being in office under a valid commission on the 1st of November, 1864, he is entitled to exercise its functions until superseded by the Constitution, and as the Constitution is silent, he holds until the legislature [**42]  shall make provision, provided this Court shall be of opinion that the 27th sec. of Art. 4, which applies to judges specially, does not meet the case. The 6th sec. of Art. 12, applies to all officers whose cases are not otherwise provided for. See Taylor vs. Hebden, 24 Md. Rep., 202, recently decided by this Court, in which it was held that wherever there was a special provision as in the case of judges, found in the Constitution, that shall be regarded in preference to any general provision such as is contained in the 6th sec. of Art. 12. The 27th sec. of Art. 4, applying to judges especially, ought to receive such a construction as will prevent the casus omissus, which it is insisted would otherwise arise. This was the view of Gov. Bradford. According to that construction these clauses may be reconciled, if it be held that the 27th section does make other provisions in the case of judges and places these incumbents on the same footing with elected judges.

In conclusion it may be added that the incumbent was commissioned under the 25th sec. of Art. 4, of the Constitution of 1851, and not under the 12th sec. of Art. 2. The latter relates to vacancies in offices to which the Governor [**43]  had power to appoint in the first instance, and not to those where another mode of original appointment or selection was prescribed; as to this last class of appointment, special modes of filling vacancies are pointed out. See the clauses relating to Judges, the Treasurer, Comptroller, State's Attorneys, &c.

The administering of the oath of office by the clerk of the Circuit Court for Calvert county gave no right to Mr. M., and could not in any case until after a commission issued to him by the Governor. Const. Art. 4, sec. 14.

The oath could not have been lawfully administered until after the payment of the tax on the commission, which is not alleged or shown to have been done, but is denied. Act of 1862, Const., 282, sec. 7.

For the foregoing reasons, it is respectfully submitted, that this Court will sustain the orders of the judge below, not only for the reasons which he gives for said orders, but also decide that there was no vacancy in the office to be filled, or if there was, that the incumbent holds over until the legislature makes provision for the election of his successor.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN,  [**44]  J., the counsel for the appellant and appellee, including in their arguments the additional point raised in the succeeding case of Magruder vs. Tuck, in which were also involved all the questions raised in this cause.  

OPINIONBY:
BOWIE 

OPINION:

 [*202]  BOWIE, C. J., delivered the opinion of this Court:
In the interval between the adoption and promulgation of the present Constitution, a vacancy, occasioned by the death of the late Judge Brewer in the office of judge of the second judicial circuit, then embracing Anne Arundel, Calvert, Howard and Montgomery Counties, was filled by the appointment of the Hon. William H. Tuck by Governor Bradford, in the recess of the Senate.
By the provisions of the new Constitution, which took effect on the first of November, 1864, the second judicial circuit was reduced to two Counties, Anne Arundel and Calvert.
At a general election held the 8th of November, 1864. 

 [*203]  Messrs. Daniel R. Magruder and Wm. H. Tuck were voted for to fill the office of circuit judge of the second judicial circuit. The former received a majority of votes, but being ineligible on account of non age did not claim a commission, and none was issued to him.
At the ensuing [**45]  session of the General Assembly begun on the 1st of January, 1865, the Hon. Wm. H. Tuck was nominated by the Governor, and by and with the advice and consent of the Senate appointed judge of the second judicial circuit.
On the seventh of November, 1865, a general election for county officers, and an election for circuit judge of the second judicial circuit was held in the counties of Anne Arundel and Calvert, at which the petitioner, a resident of Calvert county, legally qualified, was duly certified and returned by the clerks of the several Counties of the circuit, as having received the greatest number of votes.
The petitioner applied to Governor Bradford for his commission, and failing to obtain the same renewed his application to the present Governor, the respondent, who declined to issue the commission for the reasons assigned in his answer. Being unable to obtain his commission, the petitioner, on the 19th of January, 1866, took and subscribed the oath required by the Constitution, before the deputy clerk of the Circuit Court for Calvert county, and having demanded possession of the office of circuit judge of the incumbent, the Hon. Wm. H. Tuck, and being refused, the petitioner [**46]  filed in the Circuit Court for the second judicial circuit two petitions, setting forth the above facts, one praying a mandamus against the Hon. Wm. H. Tuck commanding him to deliver possession of the office of judge of the second judicial circuit, to the petitioner, the other, pray-a mandamus against the respondent, Governor of the State, commanding him to issue a commission to the petitioner, as 

 [*204]  judge of the said circuit. On the filing of which petitions, the incumbent filed in writing his disqualification to sit in the said cases, and afterwards Reverdy Johnson, Jr., Esq., was appointed special judge, from whose decision these appeals are taken.
These cases presenting the same facts and depending (with a single exception) on the same principles and authorities, having been argued together, all the points common to both will, for brevity and convenience, be disposed of in this, against the Governor. Deference for the high official position of the respondent, as well as the intrinsic importance and novelty of some of the questions, induce us to present the objections to the relief prayed substantially in the language of the answer.
These assume the double form [**47]  of pleas to the jurisdiction and defences upon the merits.
Under the first class, it is said, the petitioner presents a case of "contested election," in which event the Constitution requires "the Governor shall send the returns to the House of Delegates who shall judge of the election and qualification of the candidates for such election." Const., Art. 4 §  15. The "contested election" spoken of in this clause clearly means, (as the context shows,) a contest between candidates at such election, not any dispute about the office of judge, in which one party claims by appointment of the executive, and the other by election of the people. The power given the House of Delegates in such cases is, to "judge of the election and qualifications of the candidates." They have no power to judge of the rights of persons who were not candidates and claim under some other authority, denying, perhaps, the regularity of the election or the right of the people to fill the supposed vacancy. This is the position of the present incumbent of this office. In his answer, (which in the arguments of these cases, as one, is considered common to both,) he expressly denies that at either of the 

 [*205]   [**48]  aforesaid elections he was a candidate for the office of the judge of the second judicial circuit, or in any manner entertained or encouraged the opinion that there was on either of said occasions, any vacancy in the office of judge of the said Circuit, or that any election could on either occasion be held for such judge; the respondent "claiming and believing that in virtue of his appointment, commission and confirmation by the Senate as before stated, he held the office of said judge for and during all the residue of the term to which the said Nicholas Brewer had been elected as aforesaid; and this respondent still claims and believes, and so insists, that he is entitled to be such judge, and to hold said office," etc.
The second objection to the jurisdiction is, "that no judge can be rightfully called upon to oust himself of the jurisdiction he exercises." This is not based upon any authority, but rests altogether upon arguments derived from what is supposed to be due to the dignity of the bench, and the preservation of its purity. The provisions of the Constitution, for the trial of causes, in case of the disqualification of the incumbent, (Art. 4, sec. 7 and 8,) are said to apply [**49]  only to cases where the judge is affected in person or property, but not to those involving his right to his office. Neither the language of the Constitution, nor its spirit, in our judgment, warrants any such limitation to its meaning. An office is often the most valuable property a person possesses. If the owner of land, goods or chattels may come into the Court in which the judge presides, and demand a writ against him for an injury to these, what conceivable reason is there for excluding one who claims the high functions of the judicial office to which a salary is annexed, which he charges is withheld from him by the incumbent? The dignity or purity of the bench is not more impeached in one case than the other. These can only be vindicated by submitting such claims to some disinterested and impartial judge who will declare the right.

 [*206]  The seventh section of the 4th Art. of the Constitution, declaring "no judge shall sit in any cause wherein he may be interested, etc, is but a repetition of a cardinal maxim of justice and the common law. The State is the fountain of justice. Courts are but the conduits through which it is distributed, and judges are the organs of the [**50]  Court. The theory of all republican government is that the judicial function is a public trust for the protection of society. The Court personates the majesty of the law, before which, all men are equal, "ubi jus, ibi remedium." The Court and judge are by no means an unit. They co-exist, but not always in the same person. The Court is open to all suitors even against the judge himself. His authority extends to all cases in which he is not disqualified by interest, relationship to the parties, or former professional connection with the cause; when these occur, his power as judge ceases, except to certify his incapacity to act.
It would be a singular defect in a system of government, where the judiciary are elective, if there should be no tribunal, in which the right to the most important of offices can be determined. No disqualification of a judge can be so obvious and so absolute as that which involves the question of his title to the office he occupies. When that is questioned he comes immediately within the letter and spirit of the seventh section of Art. 4, above cited, and no alternative is left but to certify his disqualification. This view seems to have been taken by the [**51]  learned incumbent of the office, as he immediately certified his inability to sit, and a special judge was appointed; yet he, as well as the respondent in this case, pleads and relies on this defence to the powers and jurisdiction of the Court. But for the earnest reliance upon this plea to the jurisdiction, we should not have deemed it necessary to enlarge so much upon a point which we consider so untenable.

 [*207]  The third plea to the jurisdiction is, "the Governor cannot be called upon to answer before the Courts for the manner in which he may administer his branch of the Government." The proposition presented by the plea in its general form is one of which there could be no doubt. No Court in this Country has ever made any such pretension. The question is, whether the Governor may be required by mandamus to do some specific thing or act which the Constitution, or law, requires him to do, and in the execution of which he is a mere minister of the law and has no discretion. This Court has recently endeavoured to distinguish between the exercise of the political and discretionary powers of the Executive Department and the ministerial duties. Bearing in mind the injunction [**52]  of the Declaration of Rights that the several departments of the Government should be separate and distinct and no person exercising the functions of one of said departments should assume or discharge the functions of the other," we must look to the Constitution to see how those powers are distributed. They are divided and classified into Articles, distinguished as Art. 1, The Elective Franchise; Art. 2, The Executive department; Art. 3, The Legislative department; Art. 4, The Judiciary department, etc.
The duties of the Governor are not however all found in Art. 2, Entitled the Executive, on the contrary the duty now in question is found in Art. 4, sec. 14, as an incident to the election of judges and other officers. After providing for the election of judges, that section requires "all elections of judges and other officers, provided for by this Constitution (States' Attorneys excepted) shall be certified and the returns made by the clerks of the respective counties to the Governor, who shall issue commissions to the different persons for the offices to which they shall have been respectively elected, and in all such elections the person having the greatest number of votes shall [**53]  be declared to be elected."

 [*208]  "Sec. 15. If in any call of election for Judges, Clerks of the Courts of Law, and Registers of Wills, the opposing candidates shall have an equal number of votes, it shall be the duty of the Governor to order a new election; and in case of any contested election, the Governor shall send the returns to the House of Delegates, who shall judge of the election and qualification of the candidates at such election."
Sec. 16. All public commissions and grants, shall run thus: "The State of Maryland, etc," and "shall be signed by the Governor with the seal of the State annexed," etc.
These are auxiliary ministerial duties imposed on the Governor preliminary to the qualification of the judges and other officers, in the discharge of which, he has been invested with no discretion but is imperatively required by the organic law to perform in order to keep the departments of government in motion.
The clerks' certificates determine "who has the greatest number of votes," or whether "the opposing candidates have an equal number of votes." In either event the injunction of the Constitution is equally peremptory. The Governor does not make any inquiry beyond,  [**54]  and is ordinarily concluded by them. All public commissions and grants are included in the same section and sentence as analagous in their nature. If the petitioner now sought for a mandamus for a patent or grant upon a warrant for land which had passed through all the formalities of the land office, would any doubt be entertained of the result? The Governor acts alike in both instances as the custodian of the great Seal of the State to be annexed to his sign manual.
This is not like the case in which, previous to the adoption of the present Constitution, the Governor was specially invested with large powers delegated to him solely requiring the exercise of great judgment and discretion. There, was a quasi judicial function to be executed upon certain conditions, of which he was to judge.

 [*209]  It may be said the Governor in all instances must be satisfied of the regularity of the returns of the clerks. Ordinarily, he possesses no control over them, but acts upon the "prima facie" result. If they are irregular, the parties interested have their remedy by contesting the election before the appropriate tribunal.
The commission, like a patent, is primary proof of [**55]  the title of the officer or patentee, but the Courts may inquire whether the one or the other was properly issued. In many instances, the commission is a necessary prerequisite to the right of qualification to office. Each of the co-ordinate departments of the Govenment is independent of the other in the sphere of its action, and has duties to perform in which it is not subject to the control of the other. But this independence does not proceed from the grade of the officer so much as the nature of the act to be performed.
The Governor, in his political and executive duties requiring the exercise of his judgment and discretion, is entirely independent of any other authority. But all judicial power is as absolutely committed to the Judiciary Department, as political or executive power is to the Governor. Among these judicial duties is the decision of controversies between man and man, whether they involve the right to office, life, liberty or property, or arise under the provisions of the Constitution, Statute or Common Law. We are sustained in these views by the very lucid and forcible opinion of the Supreme Court of Ohio, in the case of Whiteman vs. The Governor of Ohio. 5 Ohio St. 528, [**56]  in which all the preceding cases are reviewed. See also COTTEN vs. Ellis, 7 Jones N.C. 545. Marbury vs. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60.
The application of these principles to the higher officers of the Executive department of the Federal Government, was made in Kendall's case, but the Court discriminated between constitutional duties imposed on the President or 

 [*210]  Chief Magistrate, and duties imposed on subordinate officers by law. It said, it by no means follows that every officer in every branch of that department (the Executive) is under the exclusive direction of the President, "Congress had the right to impose upon any executive officer any duty they may think proper which is not repugnant to any rights secured and granted by the Constitution, and in such cases the duty and responsibility grow out of the law, and are subject to its control and not to the direction of the President. All the judges, however they differed on other points, were of opinion that the Act requiring the Post Master General to give a certain credit was a mere ministerial Act, and a mandamus was ordered.
In the case of Decatur vs. Paulding, Secretary of the Navy, 14 Peters 497, [**57]  the Court thought the duty imposed by Act of Congress on the Secretary, in relation to the claim of the relator, was a discretionary duty, with which they could not interfere, and the mandamus was refused.
The case of the Pacific Rail Road vs The Governor, 23 Missouri, determined nothing definitely as to the liability of the Governor to a peremptory mandamus. After reviewing the authorities pro and con. the Court said: "The question involved in this case, about which our opinion alone is sought, is presented in such a way by the argument of the parties as to render it unnecessary to decide whether a mandamus can issue to the Chief Executive requiring him to do any act. Nor do we determine it or preclude him from insisting on his exemption from it." A rule nisi or alternative writ was granted.
The Supreme Court of Geo. in the case of Bonner vs The State, 7 Ga. 473, after reviewing many cases, held that the relator ought to have proceeded against Bonner (who held by color of right under a commission,) by "quo warranto," and obtained a judgment of ouster against him. The 

 [*211]  legality of the relator's claim being thus established [**58]  by a final judgment of a Court of competent jurisdiction, the relator should then apply to the Governor for a commission, who would not hesitate to issue it, for the reason that such judgment of a Court of competent jurisdiction, as to the validity of the relator's election and his right to a commission would afford the Executive the most conclusive evidence of the fact that the relator was the individual legally elected to the office in question. If the Executive refused to issue a commission to one whose right had been judicially determined, it was held a mandamus would lie. In the subsequent case of Low vs. Towns, Governor of Ga., 8 Ga. 360, the same Court, reviewing all the authorities in answer to the question, "why may not the Governor, when the performance of this ministerial act so required by law is essential to the completion and enjoyment of individual rights, be considered "quoad hoc," not as an executive, but as a merely ministerial officer, and therefore liable to be directed and compelled to perform the act by mandamus? responded: "Viewed as a strictly legal question, we cannot offer any satisfactory reason why he should not according [**59]  to general principles of law; and it was in this point of view alone this question was considered by this Court in Bonner vs. Pitts; indeed, no other view of it was presented for our consideration on the argument of the case. But while we are unable to give a satisfactory legal reason why the remedy sought should be denied the citizen, yet we are satisfied that for political reasons alone the remedy by mandamus ought not to be enforced against the Chief Executive officer of the State."
The case of Hawkins vs. Governor, 1 Ark. 570, is to the same effect. After citing these cases this Court, in the case of Miles vs. Bradford, thus summed up their result. The general principle laid down in all these, almost without exception, is, "that where the act to be done requires judgment 

 [*212]  and discretion in the officer against whom the mandamus is prayed it will be refused," referring to the cases collected in 12 Md. 329, 336. 58 U.S. 225, 15 L. Ed. 226, 17 How. 225, 230. Notwithstanding their annunciations of the general principle to be deduced from the cases, it is supposed that this Court, by their citations from [**60]  8 Ga., and 1 Ark., so far adopted them as to be bound by their application to the facts involved in them.
The most casual examination of the opinion in Miles vs. Bradford shows, that the gist of that case was the character of the function to be exercised, whether the act to be done was political, quasi judicial, or ministerial. The former classes of powers were shown to be beyond judicial control, the latter to be within the jurisdiction of the Courts. The exigency of occasion requiring immediate decision, the Court's opinion was professedly but an announcement of the conclusions arrived at, with a brief reference to some of the authorities relied on.
The cases cited were used to sustain the position that the Executive in his political or discretionary powers was beyond all judicial interference, not to sanction the application of the principle to the facts of each case. Although it was said in that case that the Governor bears the same relation to the State that the President does to the United States, and in the discharge of his political duties is entitled to the same immunities, privileges and exemptions. It is nowhere said that the President or Governor, in the [**61]  discharge of mere ministerial duties would be exempt from judicial process.
The deduction from a comparison of all the authorities cited is, that the Governor, like all other officers in the discharge of mere ministerial duties, is subject to the writ of mandamus, which cannot be denied to a suitor in such a case without acknowledging an authority higher than the law.
The jurisdiction of the Court being thus established, it 

 [*213]  remains to examine the questions arising upon the construction of the several clauses of the Constitution referred to, and determine which of the claimants to the office is entitled.
The respondents rely on the 6th section, Art. 12, entitled schedule, which declares "all officers, civil and military, now holding office, whether by election or appointment under the State, shall continue to hold and exercise their offices according to their present tenure, unless otherwise provided in this Constitution, until they shall be superseded pursuant to its provisions, and until their successors be duly qualified."
The tenure referred to, the respondent insists, was under the 20th sec. of the Constitution of '51, until the next general election of delegates [**62]  thereafter, which election was, by the 7th section of the 12th Art. of the new Constitution, held on Tuesday after the first Monday of Nov., 1864. At which election, the petitioner not being elected by reason of his non-age, and the failure to elect not being by reason of a tie vote, there is no provision in the Constitution for another election, and the powers or provisions of the Constitution were exhausted by the election of 1864. The case, therefore, presents a "casus omissus" in the new Constitution, which can only be supplied by an Act of the Legislature. According to which construction, the incumbent will hold and exercise his office under the 6th section of the 12th Art., until his successor be duly elected and qualified. As an alternative proposition, it is insisted, if there is any provision in the Constitution for the occurrence of a vacancy in the judicial office between its ratification by the people, and the time it went into effect, such provision is found in the 27th sec. of the 4th Art., the language of which is "the present judges of the Circuit Courts shall continue to act as judges of the respective Circuit Courts within the judicial Circuits in which they respectively [**63]  reside until the expiration of the term for which they were respectively elected, and until their successors are elected and qualified," viz: etc. By the 

 [*214]  true construction of which Article it is contended, the incumbent, under his present commission, is entitled to hold his office until the expiration of the time for which the late Judge Brewer was elected.
The alternative view of the respondent--that if there is any clause of the Constitution of 1864 providing for the supply of a vacancy occurring between the adoption and the taking effect of that instrument, it is the 27th section of Article 4--is negatived by the language of that section alone, which no verbal criticism can enlarge so as to embrace judges appointed by the Governor. However interpreted, whether as speaking at the time the instrument was framed or at the time it became effective, it has a special exclusive sense which cannot be misunderstood. No latitude of construction can justify the reading of "elected" as the synonym of "appointed." The general policy of electing the judiciary, impressed on every clause of the Constitution as well as its language, makes it impossible to construe the word "elected" [**64]  in any other than its accepted popular sense, chosen by the people. This view, therefore, must be rejected.
The continuing clause, being the 6th section of the schedule, Art. 12, is, then, the only section of the Constitution on which the claim of the incumbent rests. The office of that clause is to preserve the machinery of the government in the change from one Constitution to another. Its operation is not to suspend the authority of the new Constitution, but to preserve or continue the corps of officers holding under the old or former government, until their successors or themselves were appointed under the new. This is illustrated by the case of Watkins vs. Watkins, 2 Md. 341, 353. John N. Watkins, the appellee in that case, under the Constitution existing prior to 1851 held the office of Adjutant General during good behavior. The Constitution of 1851, provided that the Adjutant General shall be appointed by the Governor, by 

 [*215]  and with the advice and consent of the Senate, and that he shall hold his office for the term of six years. The 8th section of the 11th Art. contained a continuing clause in the same language as is used in the present Constitution.  [**65]  It was held the Governor could not per se, without the advice and consent of the Senate, appoint a successor to the incumbent, but he might be superseded by the concurrent action of the Governor and Senate. The Court further held that "in the event of resignation, death or removal of the officer during the recess of the Senate, the Governor would have the right to issue a temporary commission, because, in that case there would be a vacancy which he would be authorized to fill."
In the case of Cantwell vs. Owens, 14 Md. 215, this Court upon an inquiry into the validity of the appointment of a Justice of the Peace to fill a vacancy occurring in that office, held the vacancy could not be filled by an appointment of the Governor under the general appointing power of the then Constitution, when by a particular provision of the same instrument another mode of filling the vacancy was clearly and explicitly provided. These two decisions furnish a key to the solution of the present question, as far as is material to the merits of this case; the 11th and 12th sections of Art. 2 of the Constitution of '51, construed by the Court in the case of Watkins vs. Watkins,  [**66]   correspond with, and are identical in sense with the 13th and 14th sections of Art. 2 of the Constitution of '64, and the 25th section of 4th Art. of the former, with the 5th sec. of 4th Article of the latter, with an exception hereinafter referred to.
The appointing power conferred on the Governor by these several sections is original, secondary and special. The original includes all civil and military officers of the State whose appointment or election is not otherwise provided for. The secondary, all vacancies occurring during the recess of the Senate in any office which the Governor had power to 

 [*216]  fill. The special, such as are particularly provided for, as in the 25th and 5th sections of Art. 4, of the Constitution of 1851 and 1864. Under these provisions, as interpreted in the foregoing cases, an actual vacancy having occurred in the office of judge by death, it was competent for the Governor to fill the same by issuing a temporary commission which continued in force "to the end of the next session of the General Assembly or till some other person is appointed to the same," etc. Art. 2, sec. 14, Constitution 1864. This commission, by the continuing clause,  [**67]  (schedule, sec 6,) carried the incumbent over the interval between the appointment and the meeting of the General Assembly of January 1865. The Governor then, by and with the advice and consent of the Senate, appointed the incumbent to fill the vacancy (which had occurred in the recess of the Senate,) "until the next general election thereafter, whether for members of the General Assembly or county officers, whichever shall first occur," (Art. 4, sec. 5, Constitution 1864,) under the special provision, which according to the principle of Cantwell vs. Owings cannot be disregarded, being the mode of filling the vacancy, clearly and explicitly provided. Holding under this appointment, the incumbent cannot, we conceive, hold the office for and during the term for which his predecessor was elected. His authority is derived from the 5th section of Art. 4, of the Constitution of 1864, which expressly limits it as above indicated, which by legal intendment and construction is extended to the election and qualification of his successor. Vide Sappington vs. Scott, 14 Md. 40, 53 to 56. Thomas vs. Owens, 4 Md. 189.
The election for county officers [**68]  occurring in November, 1865, the period arrived at which an election was to be held to fill the vacancy thus temporarily filled. The result of that election, as certified by the clerks, designates to whom the commission should be issued. The certificates of the clerks of the several counties composing the second judicial 

 [*217]  circuit showing that the petitioner had received the greatest number of votes for judge of that circuit, in the language of the Constitution, he should "be declared to be elected," and receive a commission from the Governor for the office to which he has been elected.
This Court will, therefore, reverse the order of the Court below dismissing the petition of the appellant, and direct a mandamus to be issued as prayed.
Petition dismissed. 

71 of 120 DOCUMENTS 

JACOB LAUPHEIMER vs. JOSEPH ROSENBAUM, et als.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 219; 1866 Md. LEXIS 53 

June 28, 1866, Decided 

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

The bill of complaint in this case was filed by the appellees against the appellant, in the Circuit Court of Baltimore city, on the 24th of December, 1863, praying for an injunction to restrain further proceedings under a bill in equity previously filed in the same Court to set aside a deed of trust, as well as certain proceedings by attachment instituted for the purpose of reaching the proceeds of sale of the property conveyed by said deed of trust in the hands of the trustee. The allegations of the bill and facts of the case are fully set forth in the opinion of this Court.

This appeal of Jacob Laupheimer is from an order of said Court, (ALEXANDER, J.,) refusing to dissolve an injunction before issued in the case, and continuing the same until final hearing.  

DISPOSITION:
Order reversed and injunction dissolved and cause remanded.  

HEADNOTES:

PLEADING IN EQUITY: EVIDENCE: INJUNCTION. -- H. and D., merchants of Baltimore, executed to M., on the 18th of February, 1861, a deed of trust of all their property of every kind, to be sold, and the proceeds applied to the payment of their debts in the manner specified in said deed. M. took possession of the property and converted it into money. On the 11th of August, 1862, some of the creditors filed a bill in the Circuit Court of Baltimore city to set aside said deed of trust, whilst others of said creditors issued attachments and procured them to be laid in the hands of the trustee, M. Pending these proceedings in equity and these attachments a new bill was filed in the same Court, by some of the preferred creditors in said deed of trust against the grantors, the trustee and other creditors, setting forth and exhibiting the deed of trust, alleging the possession of the trust funds by M. "which have remained for sometime in his hands, owing to the other proceedings." These other proceedings in equity and by attachment are then referred to by the names of the complainants and plaintiffs, with a general statement that the object of the equity proceedings was to set aside the deed of trust. The prayer of the bill was that the funds should be brought into Court for distribution, that the questions arising under the former bill and attachments should be litigated under this bill, and for an injunction to stay further proceedings under the former bill and in the attachment cases. There was no direct allegation that the complainants were creditors of H. and D., and no proofs or vouchers of their claims adduced or exhibited, nor was the bill itself supported by the oath of the complainants. -- HELD:

That the complainants have not presented by their allegations, the frame work of their bill and their proofs, a case which could challenge the interference of a Court of Equity.

That "to warrant a Court of Equity in issuing an injunction, strong prima facie evidence of the facts on which the complainants' equity rests, must be presented to the Court to induce its action."

That if the existence of the claims of the complainants, or any of them depended upon a written instrument, which they are presumed to have in their possession, it should have been produced and exhibited, or its non-production satisfactorily accounted for.

PLEADING IN EQUITY: EQUITY PRACTICE. -- The objects of the bill were alleged to be the prevention of a multiplicity of suits and a waste of the trust fund in unnecessary costs, a speedy settlement of the trust estate, the bringing the fund into Court, and the litigation under it of the questions raised by the former bill, and the attachments. -- HELD:

That it does not appear how other suits and the costs attending them could be prevented and saved by proceeding under the second, rather than the first bill, which, by the rules in equity for the admission of new parties, and for controlling the fund for the purposes of the trust, could be adapted to every purpose sought by the second bill, and was the appropriate bill for such purposes.

That the second bill in its frame-work and allegations was wholly inadequate to present, on farther litigation, the questions raised by the first bill and the attachment suits.

That the second bill was defective, in that it did not distinctly allege the purport of the first bill, in not distinctly setting out the parties to that proceeding, and because the first bill is not made an exhibit in the cause.

PLEADING IN EQUITY: EQUITY PRACTICE: ELECTION OF REMEDIES. -- That those of the attaching creditors who were also complainants in the bill in equity, first filed to vacate the deed, would be compelled in equity to elect the suit in which they will proceed.

PLEADING IN EQUITY: EQUITY PRACTICE: INJUNCTION. -- That the proceedings of the other attaching creditors may be enjoined until the determination of the equity proceedings under the first bill, should an injunction be applied for either in that case or in a separate proceeding upon a proper bill filed for the purpose, saving to them the benefit of their liens by the attachment in the event of the deed being finally vacated.  

COUNSEL:
P. McLaughlin, for the appellant:

The appellant in this cause insists on the following points, viz:

1st. The evidence before the Court was insufficient on which to grant an injunction. There ought to have been filed as an exhibit in this case a copy of the bill filed to set aside the deed. Union [**2]  Bank vs. Poultney, 8 G. & J., 324, 332. Nusbaum vs. Stein, 12 Md. Rep., 315, 318, 319, 321. Mahoney vs. Lazier, 16 Md. Rep., 69, 73. Haight vs. O'Connell, 19 Md. Rep., 130, 135.

2nd. A simple reference to a paper does not make it an exhibit. Hodson vs. Warrington, 3 P. Wms., 34, 35. Equity Draftsman, 3, 4, 72.

3rd. There is no ground for the allegation in the bill that the injunction would prevent a multiplicity of suits. The bill ought to show where and how this would be done, and the statements in the bill are insufficient for that purpose. Townshend vs. Duncan, 2 Bland, 45, 48. Green vs. Keene, 4 Md. Rep., 98.

4th. The Court will not restrain a creditor until there is a decree under which he can come in and prove his debts. 2 Story's Eq., 5890. Rankin vs. Harwood, 2 Phillips, 22. Ellicott vs. The U. S. Ins. Co., 7 Gill, 307, 319.

5th. Several creditors' bills may be conducted by different parties for the same purpose, at the same time, and neither can restrain the other before there is a decree. Rankin vs. Harwood, 2 Phillips, 22. Hammond vs. Hammond, 2 Bland, 316, 361. Brooke vs. Gibbons, 4 Paige, 374.

A creditor cannot file a bill after decree on creditors'  [**3]  bill under which he may come in. Brooke vs. Gibbons, 4 Paige, 374, 376, 377. Thompson vs. Brown, 4 John. Ch. Rep., 619, 630, 646, where all previous authorities are carefully reviewed by Chancellor Kent. Delaney vs. Mansfield, 1 Hogan, 234, 236. Here there were two bills in reference to the same subject matter. Pechford vs. Hunter, 5 Sim., 122. In this case the plea of former decree was overruled, because it was not as beneficial as that which might be obtained on the second bill. Kent vs. Pickering, 5 Sim., 569. Levrewey vs. Featherest, 2 Merr., 479. Motion refused. Pott vs. Gallini, 1 Sim. & Stu., 206. Here there was a second decree, because the decree in the first suit was not sufficiently extensive for the purpose. Ibid, 232.

6th. Upon the allegations of the bill in this case, the deed of trust could not be set aside. Lingan vs. Henderson, 1 Bland, 236, 249, 250. Story's Eq. Pl., sec. 27, 28, 257. Welford's Eq. Pl., 54. 1 Daniel's Ch. Pr., 377. Allen vs. Burke, 2 Md. Ch. Dec., 534, 538. Townshend vs. Duncan, 2 Bland, 45, 48.

7th. Any of the parties to a creditor's bill, in case of improper delay by the complainant may be permitted to take his place and prosecute the suit.  [**4]  2 Bland, 306, 363. 2 Daniel's Ch. Pr., 931. Story's Eq. Pl., sec. 793.

Wm. A. Fisher, for the appellees:

1st. The fund having remained unproductive in the hands of the assignee, by reason of the pendency of the suits enjoined, and there being well grounded reason for apprehension that it would be, to a considerable extent, wasted in the costs of conducting so many separate suits, the power of the Court below to act in the premises can be sustained upon several well settled grounds in equity jurisprudence. The fund was clothed with a trust; the interference by injunction prevented a multiplicity of suits, the prevention of which is, of itself, a ground of original jurisdiction; it protected the fund from being wasted in costs. The Court has power to preserve property in dispute pending a litigation, and, having acquired original jurisdiction for this purpose, it will proceed to settle the rights of the parties. The object of the bill was not merely to carry the trusts of the deed, but to settle the rights of all parties to the fund in controversy. 1 Story's Eq. Jur., secs. 64, &c., and 65. 3 Daniels' Ch. Pl. & Pr., 1962, 2010. 2 Fonbl. Eq., B., 6, ch. 3, sec. 6. Keighler vs.  [**5]  Ward, 8 Md. Rep., 266.

2nd. The exercise of the jurisdiction of the Court in saving the fund necessarily required that the suit should be enjoined, because it was in the costs of those suits that a part of the waste consisted, and because by those suits judgments of condemnation, and decrees were sought against the assignee, and the Court could not properly compel him to bring in the funds without enjoining the suits.

3rd. There is no hardship upon any one, inasmuch as any priorities acquired by any persons are protected; and the Court was at liberty to compel the assignee to account for the moneys in his hands, whatever might be the fate of the deed.

4th. The appeal is taken from the order refusing to dissolve; but none has been taken from the order discharging Mr. Mathews from the trust, and cancelling his bond. These orders having occurred in a case to which the appellant was a party, the Court exercised a wise discretion in continuing the injunction.

5th. The allegation of the appellant is, that the application to have the fund brought into Court could and should have been made in the case to which he was complainant. To this it is a sufficient answer in this [**6]  Court, that the judge of the Court below has determined otherwise, and as the bill referred to has not been inserted in the record, it will be presumed that, looking to the nature of that bill, he acted properly. Sufficient appears, however, in the record, to show that the appellees were not parties to that proceeding, and that it was based upon the supposed invalidity of the deed to Mathews; this position is inconsistent with the existence of such relations as to authorize an order to bring the fund into Court, even if the appellees had been parties. Bridges vs. Woods, 16 Md. Rep., 101. 3 Daniel's Ch. Pl. and Pr., 2010, 2011.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*224]  WEISEL, J., delivered the opinion of this Court.
This appeal is from an order of the Circuit Court of Baltimore city, passed on the 27th of June, 1865, refusing to dissolve an injunction, and continuing it until the final hearing.
It appears that Louis Harrison and Samuel K. Davidson, merchants of Baltimore, executed to R. Stockett Matthews, Esq., on the 18th day of February, 1861, a deed of trust of all their property and effects of every kind to be sold, and [**7]  the proceeds applied to the payment of their debts, in the manner specified in said deed, which was duly acknowledged, sworn to and recorded. Mr. Matthews accepted the trust, took possession of the property, converted it into money by 

 [*225]  sales and collections, and had a large amount in hand for disposal under the deed.
On the 11th day of August, 1862, some of the creditors, viz: Jacob Laupheimer, Adolphus Heilburn, Samuel Moore and William Rogers (the last two trading as Samuel Moore & Company) filed a bill in the Circuit Court of Baltimore city, the object of which was to procure a decree to set aside said deed of trust; whilst others of said creditors, viz: the said Laupheimer, Johnston, Bros. & Co., and Moses Cohen, respectively, issued attachments out of the Superior Court of Baltimore city, and the said Heilburn a similar writ out of the Court of Common Pleas of said city, and procured the same to be laid in the hands of the trustee, Mr. Matthews, in order to reach the property or its proceeds in his hands as garnishee of said debtors, Harrison & Davidson. Pending this bill in equity, and these attachment proceedings at law, the bill in which the injunction was asked [**8]  and obtained was filed on the 24th day of December, 1863, in said Circuit Court of Baltimore city, the same Court in which the other bill above referred to was pending. This new or second bill was filed by Joseph Rosenbaum and others, some of the preferred creditors in said deed of trust, whose claims were directed to be paid under the third clause thereof, against the grantors, the trustee, and the other creditors, setting forth the deed of trust and its terms, with an exhibit of a copy of it, and the possession of the trust funds by Matthews, "which have remained for some time in his hands owing to the other proceedings." These proceedings are then referred to by the names of the complainants in equity, and the plaintiffs in the attachments, with the date of the filing of the bill, and a general statement of its object in these words: "in which they prayed that the said assignment might be set aside;" averring that they have been pending for more than eighteen months, that the attachments have been continued from term to term without 

 [*226]  trial, and that in consequence thereof the settlement of the trust had been delayed and the funds continued unproductive in the hands of [**9]  the trustee. The bill then claims, with a view to the prevention of a multiplicity of suits, the absorption of the fund in unnecessary costs, and, to obtain a speedy settlement of the trust, to have the fund brought in for distribution under the order of the Court, and the questions raised under the former bill and the attachments litigated in this proceeding, any priorities obtained by them being reserved to them. The bill prays for answers, that Matthews, the trustee, may state the amount of trust money in his hands and his disbursements; that the parties instituting the other proceedings in equity and at law may be injoined from further prosecuting the same, until the determination of this suit; that the trustee may be directed to bring the trust fund into Court for distribution, and for investment pending this proceeding; and for general relief. A subpoena and an injunction were accordingly asked, and the injunction was granted and issued.
The only exhibits with the bill were a copy of the deed of trust and the assignments of two of the preferred claims. The complainants do not allege themselves, except by implication, to be creditors of Harrison and Davidson, and adduce and exhibit [**10]  no proofs or vouchers of their claims. Although some of the answers (not on oath) admit generally the allegations of the bill, that of Laupheimer does not admit the truth of any of them, and leaves the complainants to the proof of them. In reference to the other and pending proceedings, this answer admits that a bill of complaint of himself and others was filed "attacking said deed," and that the said attachments were issued and laid, and for the purpose as stated; that the purpose of said bill in equity was the "setting aside said deed," and "to have said deed declared void." These expressions are found in different portions of the answer, and it does not appear distinctly who were the 

 [*227]  parties defendants to that bill, besides the grantors in the deed of trust. The defendant, Laupheimer, prayed that the injunction granted in the cause might be dissolved and the bill dismissed. This answer was put in on oath. The motion to dissolve having been set down for hearing on bill, answers and exhibits, the Court below, on the 27th of June, 1865, ordered that the injunction should be continued until the final hearing. This appeal was taken from this order. Before this order was passed,  [**11]  however, the trustee was required to bring the money into Court to be invested pending the proceedings. This was done by the appointment of receivers to take charge of the fund and invest it under the Court's orders.
It will thus be seen, that whilst creditors were prosecuting a bill in Chancery to vacate the deed of trust, and others were pursuing the property of the debtor grantors by attachments at law, the present bill was filed to arrest these proceedings on the grounds alleged in it. How far a Court of Equity can interpose to injoin the action of another Court of Equity, or to tie its own hands, as in this case, upon an application of parties who have an acknowledged right to proceed in the race of diligence, to secure their claims, or to subject the debtor's property to their payment by the removal of obstacles which he may fraudulently throw in the way of their recovery, is the subject of inquiry in this case. Have the complainants presented, by their allegations and the frame work of their bill, a case which could challenge the interference of a Court of Equity?
We have carefully examined the bill in the light of the authorities referred to in the argument, and can see no [**12]  reason why the restraining power of the Court should have been invoked or exercised; certainly, as it respects the former bill in equity, the object of which seems, from these proceedings, to be to set aside the deed of trust, but upon what 

 [*228]  grounds does not appear from the present bill and proceedings. Whether the present complainants were entitled to an injunction must appear from the statement of their character as suitors, and of their case and pretensions for equitable relief. They do not distinctly aver themselves to be creditors or otherwise interested, except by reference to the deed of trust, exhibiting no sufficient proofs or evidence of their claims, if creditors they be, or assigning a satisfactory reason for their non-production. "To warrant a Court of Equity in issuing an injunction, strong prima facie evidence of the facts on which the complainants' equity rests must be presented to the Court to induce its action," &c. Union Bank vs. Poultney, 8 G. & J. 324, 332. Nusbaum vs. Stein, 12 Md. 315, 319. Mahaney vs. Lazier, 16 Md. 69, 73. If the existence of the claims, or any of them, depended upon [**13]  a written instrument which the complainants are presumed to have in their possession, it should be produced and exhibited, or its non-production satisfactorily accounted for. The oath of a party in such a case as to the existence of the debt is not sufficient. 12 Md. 315, 319. In this case no such evidence is produced or proffered. The bill itself is without the usual oath by any of the complainants verifying its statements.
The objects of the bill are alleged to be the prevention of a multiplicity of suits, and a waste of the trust fund in unnecessary costs; a speedy settlement of the trust estate; the bringing of the fund into Court; and the litigation under it of the questions raised by the former bill and the attachments.
We do not perceive how other suits, and the costs attending them could be prevented and saved by this proceeding more than by that under the first bill which, by the rules in equity for the admission of new parties and for controlling the fund for the purposes of the trust, could be adapted to every purpose sought by this bill. And as to that feature of 

 [*229]  the bill which seeks the litigation and determination under it of the questions [**14]  raised by the other bill and the attachment suits, we are at a loss to see how they can even be presented under the present bill and its allegations. The purport of the other bill is not distinctly alleged in this. If vague generalities and references cannot take the place of distinct, definite and sufficient averment, then this bill is entirely deficient in this particular. The bill is simply referred to in connection with its date of filing, the Court in which it is pending, and a general statement of its prayer, viz: "that the said assignment might be set aside." The parties to that proceeding are not distinctly set out. A copy of the bill is not made an exhibit in the cause either by filing it with the bill or by such a specific reference and appeal to it, and prayer for regarding it as such, as might substitute its inspection as a record of the same Court for the actual exhibit.
The Court is at sea in discovering from the face of this bill what are the questions raised under the former and to be litigated under this. And the answers to the new bill, if they can be resorted to for aid in the discovery, furnish by their responsive averments no additional light. And this is a very [**15]  material and important part in the frame-work of the bill, for while it asks to stay a proceeding which it concedes involves questions for litigation, it, as it were, studiously avoids to present those questions, and the facts out of which they arise for the consideration and determination of the Court. This, indeed, could not be expected from parties who are interested in supporting the trust, and keeping from the view of the Court the very questions which they profess to have litigated under their bill. It appears to this Court that the appropriate bill for this purpose is the bill which was injoined, and that under the circumstances, and with the defects of averment of the present bill to arrest the proceedings under the former, would go very far towards an absolute 

 [*230]  denial of the aid of the Court to the complainants in that bill in the pursuit of right and justice. As has been said, under that bill, not only the questions raised by it, whatever they are, could be litigated and determined, but under the rules of equity practice new parties could be made to that proceeding, not only to expedite its progress, but to subserve and protect all interests, and also for the security [**16]  or preservation and increase of the fund by investment pending the suit. The Court could, also, by petition in it, restrain any proceeding at law which would disturb the proper disposition of the trust fund until the validity of the deed should be finally passed upon.
A Court of Equity will restrain proceedings at law in many and various cases, and upon a proper bill for the purpose. In this case both Laupheimer and Heilburn were parties complainants to the bill in equity first filed to vacate the deed. They were also attaching creditors. In this position equity would compel them to elect the suit in which they will proceed. 2 Story's Eq. J., sec. 889. And with regard to the other attaching creditors, we are of opinion that their proceedings can be injoined until the determination of the equity proceeding under the first bill, should an injunction be applied for either in that case or in a separate proceeding upon a proper bill for the purpose, saving to them the benefit of their liens by the attachment in the event of the deed being finally vacated.
We think the present bill did not by its averments or proofs present a case for an injunction against the parties to the former [**17]  proceedings both in equity and law, and that the injunction granted ought to have been dissolved, and we will so decree.
The bill, however, has accomplished another ancillary purpose, that of the appointment of receivers and the investment of the fund pending the proceedings. There has been no appeal from the orders for this purpose, and the bill should 

 [*231]  be retained for the preservation and control of the fund and its proper application after the questions under the first bill shall have been finally disposed of, or it can be consolidated with the other proceedings in equity.
We will, therefore, reverse the order of the Court below continuing the injunction until the final hearing, and order the said injunction to be dissolved with costs in this Court to the appellant.
Order reversed and injunction dissolved and cause remanded. 

72 of 120 DOCUMENTS 

EDWARD JAEGER vs. JOHN J. REQUARDT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 231; 1866 Md. LEXIS 54 

June 28, 1866, Decided 

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

This is an appeal from a decision of the Court of Common Pleas dismissing certain allegations filed by the appellant against the appellee who had been discharged under the insolvent laws. The facts of this case are as follows:

John J. Requardt, the appellee, filed his petition for the benefit of the insolvent laws on the 7th of February, 1863, and on the 1st of June following, by an order of the Court, was finally discharged. On the 31st of May, 1865, the appellant filed a petition in said Court alleging himself to be a creditor of the appellant; that it appeared from the schedule of the applicant, that he was not "possessor of any property or assets of any kind or description wherewith to satisfy and pay his creditors, either in whole or in part;" *** "which schedule, in return, your petitioner shows to this Court is false and fraudulent, and which your petitioner is ready to verify," &c.

With his said petition the appellee filed seven allegations of fraud, &c., and the said petition concludes with the prayer, "that issues be had and made thereon, and tried by a jury by and in accordance with and in virtue of [**2]  sec. 19 of Art. 48 of the Code of Public General Laws of the State of Maryland, and of the insolvent laws of said State," &c.

The first allegation was, that the said Requardt, on or about the 10th of January, 1863, became the legal owner of a valuable lot of furniture, household stuff and utensils, and a large and valuable lot of cigar-maker's tables, tobacco and cigars, &c., situated in his dwelling house and store in the city of Baltimore, which property "was in the custody and possession of the said Requardt from the day last aforesaid, continuously to the time of his said application for the benefit of the insolvent laws as aforesaid, and subsequent thereto."

The second was, that on or about the 7th day of February, 1862, within one year of the time of filing his application, he had by bill of sale duly executed, acknowledged and recorded, conveyed to his wife, Johanna Julia Requardt, a valuable lot of furniture, property and stock-in-trade, &c., and "thereby gave an undue and improper preference to one of his creditors, *** when he had no reasonable expectation of being exempted from liability to execution on account of his debts or responsibilities without petition [**3]  for the benefit of the insolvent laws," &c.

The third allegation was, that the said Requardt, for two years previous to his application as well as after that time, "had been doing a large and extensive business in the city of Baltimore as a cigar manufacturer," "but had not returned or handed over to his trustee in insolvency any property or assets, but had concealed the same to defraud and delay his creditors," &c.

The fourth allegation was, that the said Requardt, within one year of the filing of his said application, gave an undue and improper preference to certain of his creditors by delivering to them portions of his stock-in-trade, cigars, &c., when he had no reasonable expectation of being exempted from liability to execution, &c.

The fifth charged that the said Requardt had concealed cigars and other valuable merchandize with divers persons, in order to delay and defraud his creditors, particularly the petitioner, and to secure the same in order to receive profit, benefit and advantage to himself therefrom, &c.

The sixth charged the said Requardt with transferring and concealing his property and goods, as in the preceding allegations, and that "he so acted [**4]  with the view of applying for the benefit of the insolvent laws; that before and after the date of his application, and up to the date of his discharge, he continuously carried on his usual business with the inscription on his sign:--'J. J. Requardt, Agent;' and that immediately after his discharge the word 'Agent' was erased therefrom; that there was in fact no agency, and that the whole was a sham to defraud and delay his creditors, and so to secrete his effects as to prevent the same from being applied to the payment of his debts."

The seventh charged, that the said Requardt "had not delivered up to his trustee in insolvency, for the benefit of his creditors, all his property, estate, rights and claims of every description, to which he was in any manner entitled at the time of his application aforesaid, to wit: on the 7th day of February, 1863, the necessary wearing apparel and bedding of himself and family, &c., excepted; and that the said Requardt so acted for the purpose, and with the intent to delay and defraud his creditors, and especially your petitioner."

Each of said allegations concluded with the following prayer: "Wherefore, the said Edward Jaeger, your petitioner,  [**5]  in behalf of himself and the other creditors aforesaid, prays and insists, that the said John J. Requardt should be forever precluded from any and all benefit of the Insolvent Laws of Maryland, and especially of his application aforesaid, to wit: of the date of the seventh day of February, 1863."

Annexed to these allegations was a notice to Requardt, in the usual form, to plead within fifteen days. A summons was then issued, returnable on the second Monday in September, 1865, commanding Requardt to appear and answer the allegations preferred against him. He was summoned, and on the 22nd of September, 1865, filed a motion to dismiss said petition and allegations for the several reasons which are set out in full in the opinion of this Court. The Court of Common Pleas (KING, J.,) sustained the motion, and dismissed the petition and allegations filed by Jaeger, from which order of said Court Jaeger appealed. The judge below afterwards filed his certificate of the questions raised in said Court, as required by 1 Code, Art. 5, sec. 13, as follows:

"The judge of the Court of Common Pleas hereby certifies that the following questions were raised in said Court on the argument of the [**6]  motion to dismiss the petition and allegations filed by Edward Jaeger against John J. Requardt, on the 31st of May, 1865.

"1st. That said petition and allegations were not filed within two years after the time of the final discharge of said John J. Requardt, and were, therefore, filed too late, under the provisions of section 19 of Article 48 of the Public General Laws of the Maryland Code.

"2nd. That Edward Jaeger never was a creditor of said John J. Requardt, and, therefore, had no right to file this petition and these allegations, as the insolvent's schedule exhibited no such name, and there was no evidence that he had ever been a creditor.

"3d. That the allegations are not in such form that the said Requardt could plead to them as required by the notice to plead and rule appended to them.

"4th. That the allegations are not in proper form to be submitted to a jury, as they do not present separate and distinct issues of fact on which the jury could find a verdict of guilty or not guilty.

"5th. The said allegations present questions of law, and not questions of fact, to be determined, and if issue could be joined thereon they could not be properly triable [**7]  by a jury as prayed to be in said petition, but they would present questions of law to be determined by the Court.

"6th. That the facts set forth in said allegations contain only matter which could have been known prior to the discharge of said Requardt, and, therefore, cannot now be made ground for setting aside and rescinding his discharge.

"The Court overruled the first question, did not decide the second question, and decided the third, fourth, fifth and sixth objections, which it sustained, and, therefore, dismisses the petition and allegations." 

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

INSOLVENCY, -- INSOLVENT LAWS: PRACTICE: FILING OF ALLEGATIONS: FRAMING OF ISSUES: JURISDICTION: CODE, ART. 48, SECS. 1, 6, 7, 8 and 19. -- A petitioner obtained his final discharge under the insolvent laws on the 1st of June, 1863. Allegations were filed by certain of his creditors on the 31st of May, 1865. -- HELD:

That the allegations were filed within the two years prescribed by Art. 48, sec. 19 of the Code.

It is the right of a creditor filing allegations -- although he may fail to show himself in limine to be a creditor of the insolvent -- upon a proper issue made, to offer evidence to the jury to show the existence of the indebtedness.

The jurisdiction of the Court to dispose of a case in insolvency, upon allegations filed, arises out of the 19th section of the 48th Article of the Code, and attaches immediately upon the filing of the allegations within the time prescribed.

The filing of the allegations is a preliminary proceeding, and secures to the party alleging himself to be a creditor the right to have issues made upon the material facts set out in his allegations, to be tried by a jury.

If the facts relied on tend to prove fraud, and that the insolvent petitioner has not complied with the requirements of the 1st section of the 48th Article of the Code, or has been guilty of acts prohibited by the 6th, 7th or 8th sections of the same Article, it is the duty of the Court to have issues framed confining the petitioning creditor to such facts, as if found by the jury, would sustain the allegations of fraud as alleged.

A creditor filing allegations should have the opportunity of showing, by evidence to the jury, the time at which certain acts set forth in his allegations were done, where it may be afforded him by an issue framed for that purpose.

The simple duty of the Court, when allegations are filed, is to direct the framing of issues, and to determine in view of the provisions of the 48th Article of the Code, whether the facts presented in them, if found by the jury, would convict the insolvent of having acted in derogation of those provisions, and if the issues were found against the insolvent, to annul and rescind his discharge and release.  

COUNSEL:
John R. Quinn and Levin Gale, for the appellant, argued:

1st. That the allegations are in proper form.

2nd. That they are not double as alleged, but if so, that does not affect their validity.

3rd. That substantial allegations of fraud are contained in each and all of said allegations, and that is all that is necessary.

4th. That if the allegations are double as alleged, or contain matter of law, that the Court, in directing the framing of the issues thereon, could remedy any such defect. Cain vs. Warford, 3 Md. Rep., 454. Pegg vs. Warford, 4 Md. Rep., 392. 2 Daniel's [**8]  Ch. Pr., 740, (5 Lib. Law & Eq., 431.) Barrol vs. Reading, 5 H. & J., 175. Smith vs. Young, 5 Gill, 197. 1 Code, Art. 48, sec. 19; Art. 5, sec. 13.

5th. That there is no evidence that the appellant knew or could have had knowledge of the matters charged as fraudulent before the discharge, but if he did, he is entitled, notwithstanding, to file allegations at any time within two years after the discharge is granted. 1 Code. Art. 48, sec. 19. Code, Art. 5, sec. 13.

Benjamin F. Horwitz, for the appellee:

This proceeding is designed to be in accordance with the provisions of section 19 of Article 48, 1 Code, 347. That section evidently contemplates and provides for three separate modes of procedure by a creditor against his insolvent debtor: two prior to his final discharge in order to prevent his being discharged, and one "within two years after the time of his discharge," in order to have "his discharge and release annulled and rescinded;" the first provides for an examination or trial of the insolvent before the Court to which he makes application; the second, for a trial by jury on issues. Both these are before final discharge. The third mode, which is the one designed [**9]  to be invoked in this case, is in the following language: "any creditor may file allegations of fraud at any time within two years after the time of the final discharge of an insolvent, and have issues made thereon and tried by a jury, and if such issues be found against the insolvent, his discharge and release shall be annulled and rescinded." The language of this portion of section 19 is, it would seem, plain. The Court is, as in all cases of jury trials, to pronounce judgment on the verdict, and the judgment in this procedure is declared to be the absolute annulling and rescinding of the discharge "in case the issues be found against the insolvent." The clear and manifest duty of the Court, therefore, is, when properly invoked, to supervise and control the issues tendered, and see that they are tendered by a proper person, within a proper time, and that they are such issues that if found against the insolvent would legally and properly authorize the Court to rescind and annul the discharge which the Court, under the law, is bound to do if the issues be found against the insolvent. If this were not the true construction of the law, anybody might within any time, tender any issues--it [**10]  matters not how irrelevant, how immaterial or how improper, and if they be found against the insolvent, the Court would be placed in the anomalous position of illegally and improperly rescinding and annulling its own act properly performed years before which, of course, could not be, and is not the intention of the law. The case of Smith vs. Young, 5 Gill, 197, settles the question of the Court's right and duty in certain cases to refuse to send issues to a jury for trial. If, then, the Court of Common Pleas had the right to dismiss the petition and allegations, the next question is, did the Court properly exercise that right?

1st. This petition and these allegations were filed too late. Under the provisions of said section it is declared, that "any creditor may file allegations of fraud at any time within two years after the time of the final discharge of an insolvent," &c. This insolvent was finally discharged on the 1st of June, 1863, consequently, the 31st of May, 1865, completed the two years, and as in law a day is considered a unit, and is not susceptible of division, (except under special circumstances,) if it be true that the two years ended with the last minute of the [**11]  31st of May, 1865, it must be equally true, that in legal contemplation, they ended with the first minute of the 31st of May, and, therefore, that these allegations were filed after the two years had actually expired.

2nd. This law, giving the right to file allegations years after the final discharge of an insolvent, who by his discharge, is judicially decided to have acted fairly and bona fide, is a hard law, and will be construed strictly. It is, of course, given to creditors and none others--it is a right to sue in a particular and special capacity--and where the schedule discloses no such creditor as the one preferring allegations, and where it is denied that he is a creditor, he should be compelled to show, in limine, and before the defendant is required to plead, that he is a creditor, and has a right to file allegations charging fraud, and a right to compel the defendant to plead to such grave charges years after his full and final discharge by a Court of competent jurisdiction.

3rd. The allegations are not in such form that the defendant could plead to them, as required by the notice appended to them.

4th. That the allegations are not in proper form to be submitted [**12]  to the jury, as they do not present separate and distinct issues of facts on which a jury could find a verdict of "guilty" or "not guilty." As to the proper form of issues, see:--Smith vs. Young, 5 Gill, 197. Pegg vs. Warford, 4 Md. Rep., 385. Yingling vs. Hesson, 16 Md. Rep., 112. And, besides, they are so general that Requardt could not properly defend himself. They do not distinctly state any special charge. Bridge Case, 7 Pick., 279.

5th. That said allegations present questions of law, and not questions of fact to be determined, and if issue could be joined thereon they would not properly be triable by a jury as prayed to be in said petition, but that they would present questions of law to be determined by the Court. Steph. Pl., 24. Id., Appendix, 18. Crawford's Ex'r vs. Taylor, 6 G. & J., 323.

6th. The things set forth in the said allegations contain only charges which could have been known prior to the discharge of Requardt, and, therefore, cannot be made ground for setting aside and rescinding his discharge.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*240]  GOLDSBOROUGH, J., delivered the opinion of this Court:  [**13]  
The appellee, John J. Requardt, applied to the Court of Common Pleas of the city of Baltimore, on the 7th day of February, 1863, for the benefit of the Insolvent Laws, and on the 1st day June of the same year obtained his final discharge. On the 31st day of May, 1865, the appellant filed his petition in the same Court, alleging himself to be a creditor of Requardt, against whom, he held a promissory note over-due and unpaid; and that Requardt, when he petitioned, returned in his schedule that he had no property, which return was false and fraudulent. The appellant, in behalf of himself and other creditors, in pursuance of the 19th section of the 48th Article of the Code, filed with his petition the seven allegations set out at length in the record. The appellee, being summoned, appeared in Court, and by his counsel moved to dismiss the petition and allegations.
1st. Because "the said Edward Jaeger was not, at the time of the application of this defendant for the benefit of the insolvent laws, one of his creditors, nor has he been so at any time since."
2nd. "Because this defendant never was indebted to said Edward Jaeger."
3rd. "Because said allegations are not in proper form to [**14]  be submitted to a jury."
4th. "Because said allegations present questions of law and not questions of fact; and if issue were joined thereon they could not be properly triable by a jury, as they are prayed to be in said petition."
5th. "And for other reasons."
The Court sustained the motion and dismissed the petition and allegations. The appellant then entered a prayer for an appeal, and the Court, under the 13th section of the 5th Article of the Code, certified and stated the questions decided by it. By the Article and section last referred to, this 

 [*241]  Court is restricted to the consideration of the rulings of the Court below as certified.
Reviewing these rulings, we think the Court below properly decided that the petition and allegations were filed within two years, the time prescribed by the 19th section of the 48th Article of the Code.
Though the Court did not decide the second question raised by the appellee, that the appellant failed to show himself a creditor in limine, yet, we think it was the right of the petitioner, upon a proper issue made, to offer evidence to the jury to show the indebtedness of the appellee to him.
The Court below also erred in its [**15]  rulings on the 3d, 4th, 5th and 6th questions stated in its certificate. The jurisdiction of the Court to dispose of a case like the one at bar, arises out of the 19th section of the 48th Article, and attaches immediately upon the filing of the allegations within the time prescribed. It is a preliminary proceeding and secures to the party alleging himself to be a creditor, the right to have issues made upon the material facts set out in the allegations to be tried by a jury. If the facts relied on tend to prove fraud, and that the insolvent petitioner has not complied with the requirements of the 1st section of the 48th Article, or has been guilty of acts prohibited by the 6th, 7th or 8th sections of the same Article, it was the duty of the Court to have issues framed confining the petitioning creditor to such facts as, if found by the jury, would sustain the allegations of fraud as alleged.
We do not concur with the Court below in the opinion expressed and certified in the 3rd, 4th and 5th rulings. We think the action of the Court was premature. The allegations present questions of fact, upon which issues might have been framed, and to which the appellee could have plead with an [**16]  issue to the country.
The 6th ruling was incorrect because the petitioning creditor was precluded from showing by evidence to the jury when 

 [*242]  the facts set forth in his allegations did occur, which might have been done by an issue framed for that purpose.
The simple duty of the Court was to direct the framing of issues, and to determine, in view of the provisions of the 48th Article of the Code, whether the facts presented in them, if found by the jury, would convict the insolvent of having acted in derogation of those provisions, and if the issues were found against the insolvent to annul and rescind his discharge and release.
Entertaining the opinion that the ruling of the Court below dismissing the appellant's petition and allegations was erroneous, we shall reverse the order with costs in this Court to the appellant, and remand the cause for further proceedings.
Order reversed and cause remanded. 

73 of 120 DOCUMENTS 

THE MARYLAND FIRE INSURANCE COMPANY vs. WILLIAM F. DALRYMPLE; AND, WILLIAM F. DALRYMPLE vs. THE MARYLAND FIRE INSURANCE COMPANY.--CROSS APPEALS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 242; 1866 Md. LEXIS 55 

June 28, 1866, Decided 

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

This action was brought by William F. Dalrymple against the Maryland Fire Insurance Company, in the Superior Court of Baltimore city, (MARTIN, J.,) on the 31st of December, 1862. The nar. first filed contained a single count in trover. After plea and issue joined, it was agreed between the parties, that the plaintiff should "be considered as having amended his declaration by adding such counts in tort, as the state of the facts, as they appear at the trial, would justify." The facts of the case are stated in the opinion of this Court. The verdict and judgment of the Court below were in favor of Dalrymple. Both parties appealed from the rulings of the Court below upon their respective prayers.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

PLEADING: PRACTICE. -- W. F. D. sued the Insurance Company for damages for the sale and conversion, by the defendant, of certain shares of the stock of the Baltimore and Ohio R. R. Co., which the plaintiff had pledged to the defendant to secure the re-payment of a sum of money lent to him by the defendant. The nar. originally filed contained a single count in trover: the defendant pleaded and issue was joined. Afterwards an agreement was filed, "that in lieu of formal pleadings the plaintiff should be considered as having amended his declaration by adding such counts in tort as the state of facts, as they appear at the trial, would justify;" and the same same agreement was made as to pleas and replications and issues thereon, -- "the case to be tried on the pleadings as they now stand, all errors in pleading on both sides released, with leave to each party to give the special matter in evidence," reserving to each party, in case of appeal, the same benefit of exceptions "as if formal pleadings had been put in. -- HELD:

That under the agreement, the plaintiff, in his amendments, was confined to his counts in tort, and the suit must be dealt with as an action ex delicto, and as if the supposed amended counts in that form were added.

CONTRACT, -- CONSTRUCTION OF: BAILMENT: NOTICE: SALES OF STOCK AT BROKERS' BOARDS: PERSONS HOLDING FIDUCIARY RELATIONS INCOMPETENT TO PURCHASE AT THEIR SALES OF TRUST PROPERTY: PLEDGOR OR PLEDGEE WITHIN THE RULE: THE RULE WHEN ENFORCED AT LAW AND WHEN IN EQUITY: TORTIOUS CONVERSION: ELECTION: TENDER: ACTION EX DELICTO AND EX CONTRACTU, -- WHEN PROPER: RECOUPMENT. -- W. F. D. obtained from the Maryland Fire Insurance Company a loan of $ 19,500 returnable, by agreement between them, upon one days' notice, and deposited as collateral security, for the payment of the same, 325 shares of the stock of Balto. & Ohio Rail Road Co., with the understanding, that "if the said loan was not promptly paid according to agreement, the company was authorized, without further notice, to sell the said collaterals for payment of the debt, -- any excess or deficiency to be paid or received by him, as the case may be," &c. It was further agreed, that the interest should be payable every sixty days, if the loan continued beyond that time. From the 12th of June to the 15th of November, 1850, the stock varied in price from $ 79 to $ 56 1/2 per share. On the 30th of October, notice was given by the defendant to the plaintiff to return the loan on the 1st of November, 1860; on the 10th of November, 1860, a notice "to return nine thousand dollars of the loan," on Tuesday, the 13th inst.; and on the 13th of November, a notice "to return the whole of said loan, $ 19,500, on to-morrow, the 14th inst." On the 20th of November, the defendant procured the stock to be sold at the Board of Brokers, and became the purchaser thereof at $ 55 per share. The stock was held by the defendant till the spring of 1862, when it was sold publicly at the Board of Brokers, fairly and in the usual way, in parcels, to different persons, at prices ranging from $ 60 to $ 67 per share, -- the ruling market prices. On the 27th of October, the defendant received a dividend of $ 3.00 per share on the stock, and handed the same to the plaintiff, and on the 16th of April, 1861, received a similar dividend and retained the same. Interest was paid on the loan, by the plaintiff, to the 1st of November, 1860. On the 16th of December, 1862, the plaintiff tendered to the defendant the sum loaned, with interest, and demanded a return of the stock, but the defendant declined the tender and refused to return the stock, saying that the same had been sold. Proof was offered (subject to exception) that at the time of the tender the stock was worth about $ 78 per share, and at the time of the trial it was worth $ 115 per share; and proof was offered by the defendant that on the 20th of November, 1860, the stock was worth but $ 55 per share, and on the 25th of April, 1861, sold as low as $ 41.50 per share. -- HELD:

1st. That the notice given on the 13th of November was sufficient, under the contract, to entitle the defendant to sell on the 20th.

2nd. That by the words of the agreement authorizing the defendant, upon default, to sell without further notice, it is to be understood, that when the power to sell arose, all notice of the time and place of sale was waived and dispensed with by the plaintiff, leaving upon the defendant the obligation to sell publicly and fairly for the best price he could obtain.

3rd. That a sale at the Board of Brokers, publicly and fairly made, would have been legal and valid, and if the sale of the 20th of November had been made to a third person it would have been a legal sale under the contract, vesting a good title in the purchaser and terminating the bailment.

4th. The doctrine, that persons holding fiduciary relations are incompetent to purchase the property held by them in trust, "is not confined to a particular class of persons, such as guardians, trustees, or solicitors, but is a rule of universal application to all persons coming within the principle that no party can be permitted to purchase an interest where he has a duty to perform inconsistent with the character of a purchaser."

5th. This rule rests upon grounds of public policy, and is enforced without regard to the question of bona fides in the particular case; and it is clear, both upon reason and authority, the case of pledgor and pledgee comes within the rule.

6th. While in cases of pure trust, resort to a Court of Equity must be had for relief, and that Court will grant relief where there are special circumstances requiring such interference in cases of quasi trusts, yet, the relation of pledgor and pledgee, being a legal relation, its rights and duties are defined by law, and the remedies for the violation of such duties are ordinarily in a Court of Law.

7th. The sale of the pledge by the defendant to itself was contrary to the faith of the bailment, forbidden by the common law, and might have been treated by the bailor at his election as a tortious conversion of the property, but no such election having been made by the plaintiff, there was no such conversion.

8th. That the sale of the 20th of November did not operate either to vest the title in the defendant as purchaser, or to work a conversion of the stock. The bailment continued, and if nothing more had been done subsequently, and the stock had remained in the defendant's possession, there can be no doubt that the tender and demand made on the 16th of December, 1862, would have been valid, and the refusal on the part of the defendant at that time would have given a good cause of action to the plaintiff.

9th. That the sale of November the 20th, 1860, being inoperative, and the plaintiff continuing in default, the power to sell conferred by the contract still continued, and was, in fact, executed by the sales made in 1862. By those sales the bailment was ended, and there being no violation of the contract on the part of the defendant, nor any tortious conversion of the stock, the plaintiff was not entitled to recover in this form of action.

10th. That the plaintiff would have the right to recover in an action ex contractu, any excess which might remain in the hands of the defendant arising from the proceeds of the sales of stock in 1862, including the dividend received on the 16th of April, 1861, with which the defendant would be chargeable, after deducting the amount of the loan and interest due at that time; such excess would be simply money had and received by the defendant to the use of the plaintiff, under and in conformity with the contract.  

COUNSEL:
S. T. Wallis and Wm. A. Fisher, for the Maryland Fire Insurance Company:

1. Whatever view may be taken of the circumstances of the sale of November 20th, 1860, and the purchase by Mr. Spence on behalf of the appellant, that sale, in a Court of Law, is voidable only, and not void. This principle has been distinctly affirmed with reference to all sales where any fiduciary relations whatever are imposed upon [**2]  the vendor, and is broad enough to cover a sale by a pledgee as well as that by a trustee or executor. In fact the whole doctrine with reference to the impropriety of purchases by pledgors at their own sales is the out-growth of equitable principles. Williams' Ex. vs. Marshall, 4 G. & J., 376. Lester vs. Lester, 6 Vesey, 631, (a.) 1 Parson's on Contracts, 87, note (o,) new Edition. 1 Story's Eq., sec. 323. Story on Bailments, sec. 319. Parson's on Contracts, Book I, ch. III. Mason vs. Martin & Kemp, 4 Md. Rep., 124. Edwards on Bailments, 255.

2. That even if a party holding a fiduciary relation to the thing sold cannot, under ordinary circumstances, be both vendor and vendee, even at law, such a rule does not apply to a case like the present where the trust is for the benefit of each party himself, as well as his principal, and where it may be essential to the effectiveness of his security, that he should have the right to buy at a low price himself with a view to a prospective rise, rather than suffer his interests to be sacrificed by a sale to a third party below the amount of the debt. This question is included in the appellant's 1st prayer.

3. Mr. Dalrymple having failed [**3]  to respond to the demands made upon him in accordance with the contract, the stock was sold publicly at the Board of Brokers, on the 20th Nov. 1860, by a broker, and the purchase was made in the usual manner by another. It is not denied that this sale was bona fide and clear of any imputation of fraud in fact, and it is proven that the stock was sold at the highest price obtained for the stock on that day. Mr. Dalrymple was at once notified of the sale and of the prices, and made no objection whatever until more than two years afterwards, when the stock, after a period of great depression, was selling in the market at a higher price than that at which the loan had been made, and when the appellant, having thus reason to believe that Dalrymple had assented to the sale, had re-sold the stock and parted with all control over it. It is submitted that under these circumstances the sale and purchase were "valid and binding in law."

4. The notice given on the 13th of November, 1860, requiring Mr. Dalrymple to return the money loaned on the following day, was "one day's notice" under the terms of the contract, and gave to the appellant a right to insist upon payment on the 14th. 1 Robinson's [**4]  Practice, 437.

5. Even if the notice of November 13th, 1860, was insufficient to enable the appellant to require payment on the 14th, it was sufficient notice to Mr. Dalrymple of the appellant's demand, and would support a sale made on the 20th, because of failure on the part of Mr. Dalrymple to pay in the interval between the 14th and 20th.

6. The notice of November 5th was based upon a clause of the contract other than that upon which the notice of the 13th was founded, and was itself sufficient to support the sale of the 20th.

7. If the sale of November, 1860, could be treated as void for all purposes in this suit, the sales made in the spring of 1862 were within the power of the appellant, and put an end to the relations between the parties. Willoughby vs. Comstock, 3 Hill, 389.

8. If the sale and purchase in November, 1860, cannot be supported, they constituted an "illegal assumption of the property and right of disposal" of the stock, and, therefore, a conversion, the effect of which was at once to break up the relation of bailor and bailee, and vest in the bailee an immediate right of action. Jones on Bailments, 118. Riseley vs. Pyle, 11 M. & W. 19. Granger [**5]  vs. George, 5 Barn. & Cres., 149. Bradley vs. Copley, 1 Com. Bench, 50 Eng. C. L. Rep., 685. Fenn vs. Biddleton, 8 Eng. L. & E. Rep., 483.

9. It is quite clear that in an action of assumpsit, the 20th of November would be treated as the day on which the breach of contract was committed, and, Mr. Dalrymple having received from the appellant an equivalent for the stock pledged, the value would be fixed as of that day. Williams, &c. vs. Woods, Bridges & Co., 16 Md. Rep., 245, 246, 258, 259. Shaw vs. Holland, 15 M. & W., 145.

10. It is equally clear that in an action of trover, the conversion would be fixed as of the 20th of November, and could not be brought forward by a demand for the stock and refusal by the appellant, when it had previously parted with the stock, and the value would be fixed as of the 20th. Dietus vs. Fuss, 8 Md. Rep., 158. Edwards vs. Hooper, 11 M. & W., 363. Granger vs. George, 5 Barn. & Cress., 149. Stirling vs. Garritee, 17 Md. Rep., 468. Detinue would not be an appropriate action. 1 Selw. N. P., 662, 663, 664. 1 Saund. Pl. & Ev., 956.

11. In an action on the case, the gist of the action must still be the conversion. A mere demand and refusal based [**6]  upon a contract to keep and return a pledge cannot be made the basis of an action on the case--the cause of action in such a case would be, not the refusal to deliver, but not the breach of the common law duty to keep, arising out of the contract, and the only breach which could be made the inducement for the count in case would be that of the duty to keep, and that breach had occurred prior to the demand, and on the 20th of November. If this view be correct, the supposed count in case can only relate to the breach of duty on the 20th, and Mr. Dalrymple being in a condition to go into the market and indemnify himself, the value would be fixed as of that day. The action on the case can be made applicable only to some tort extraneous to, though arising out of, the contract relations of the parties, and not to a mere naked breach of contract, such as a refusal to deliver on request. Cobbett vs. Packington, 6 Barn. & Cres., 268. Orton vs. Butler, 5 Barn. & Ald., 652. 1 Chitty's Pl., 134. Jones on Bailments, 118.

12. There is, in point of fact, no distinction between case and trover as to the time at which the value is to be fixed, when the gist of the action is the same. Trover is [**7]  a branch of the action on the case, and in Maryland, exemplary damages may be had upon a proper state of facts in that action. Granger vs. George, 5 Barn. & Cress., 149, presents a case in which there was a count in case, as well as one in trover, and a conversion having occurred in 1818, and demand and refusal in 1824, it was held, that the conversion was the gist of the action, and that the plea of limitations was an answer to both counts. Cromwell vs. Owings, 7 H. & J., 60. Edward vs. Hooper, 11 M. & W., 363. Fishwich vs. Sewell, 4 H. & J., 393. Clark's Adm'r vs. Marriott, 9 Gill, 338.

13. The appellee, was himself, in default on the 20th of November, and continued in that attitude up to the date of his tender in December, 1862; he was in possession, on that day, of money of the appellant more than sufficient to purchase in the market the number of shares pledged by him, and could have done so down to a time shortly preceding the demand. In this aspect of the case, the measure of damages should not exceed the value of the stock on the 20th of November, and interest, diminished by the debt and interest. Cainsford vs. Carroll, 2 Barn. & Cres., 624, (9 Eng. C. L. Rep., 204.) Shaw [**8]  vs. Holland, 15 M. & W., 136.

14. The debt due the appellant is properly to be recouped from the recovery, whatever that may be. Story on Bailments, sec. 349. Jarvis vs. Rogers, 15 Mass., 389. Stearns vs. Marsh, 4 Denio, 227. Ward vs. Tellers, 20 Wend., 288. 11 Howard, 475. 4 H. & J., 430. 3 Parsons on Cont., 196 and 202.

15. That even if the first sale was invalid at law, the subsequent sales were valid under the original notice, Dalrymple having continued in default, and being valid, there was no tort committed, and if there was a balance in the appellant's hands from such sales and from dividends, it was not recoverable in the form of action here adopted, but could only have been recovered as money had and received. This point is raised by the appellant's 5th prayer.

Thos. S. Alexander and Wm. Schley, for Dalrymple, argued:

1. That the sale by the defendant, through the agency of one broker to itself purchasing through the agency of another broker, was contrary to its duty as pledgee, and did not alter the property in the pledge so attempted to be sold and purchased. Hence, the stock pledged still remained, after such pretended sale, in the hands of the defendant,  [**9]  subject to redemption by the plaintiff; and the demand made for return thereof, on the 16th of December, 1862, with the tender of the loan for security whereof the deposit was made, completed the right of action of the plaintiff.

Authority will not be required for the purpose of showing that a pledgee, or other person, standing in a fiduciary relation, cannot sell to himself the thing pledged or intrusted to him for the purpose of sale. It will, therefore, be incumbent on the defendant to show some specialty which is to prevent the application of the rule in this case.

2. The rule has been adopted for the prevention of fraud, and to enforce the obligations of good faith; and the application of the rule is not to be defeated by proof that the sale was fairly made and at a full price. The appropriation by a fiduciary, to his own use, of property which has been confided to him for the purpose of sale, under pretext of a sale to himself, is contrary to his duty and fraudulent in construction of law, and it is at the election of the party aggrieved to adopt such sale or to repudiate it.

3. Where the trust is a pure trust, the execution of which belongs to a Court of Equity,  [**10]  the parties aggrieved must necessarily resort to equity for relief against every breach of duty on the part of the trustee. And in many cases of quasi trust, equity has interfered in order to afford the party a better remedy than he could have obtained at law. But the relation of pledgor and pledgee is a legal relation. The rights and duties resulting from such relation are defined by law. And the remedy for a breach of duty, on the part of either party, if susceptible of compensation in damages, is to be found only in a Court of Law. 2 Story's Equity, sec. 1032, to show that pledgor cannot go into equity to redeem except under special circumstances. Hasbrouck vs. Vandervoort, 4 Sandf. S. C., 74. Mark vs. Lawrence, 5 H. & J., 64, is a direct authority that a sale by a fiduciary to himself may be avoided at law. Singstuck vs. Harding, 4 H. & J., 186. Middlesex Bank vs. Minot, 4 Metc., 325. Bank vs. Dubuque R. R. Co., 8 Clark (Iowa,) 278. Swayn vs. Stephens, Cro. Car., 245, 333.

4. If the sale of the pledge, by the pledgee to itself, was a tortious act, and contrary to the faith of the bailment, then it could operate no conversion of the pledge save at the election of the pledgor.  [**11]  But if the latter is at liberty to repudiate that colorable sale, upon what principle is it that his damages, to be recovered for a subsequent conversion, are to be measured by the price affected to be given on the occasion of the first sale? It would involve contradiction to deny that the sale binds the right of the pledgor in the property, and to affirm, at the same time, that it determines the extent of his recovery for the loss of his interest in that property. It is denied, therefore, that the damages of the plaintiff are to be measured by the price given or value of the stock in November, 1860.

5. The sales made in the spring of 1861, did not operate a conversion of the pledge, since no notice whatever was given to the pledgor of the time and place of sale, or even the purpose of the pledgee to make sale of the pledge. On the contrary, the pledgee assumed the stock had been validly disposed of by the transactions of 1860. That the pledgor is entitled to notice of the time and place of sale, is shown by 2 Story Eq., §  1033. Washburn vs. Pond, 2 Allen, 474. Wheeler vs. Newbold, 16 New York, 393.

6. It is to be assumed, therefore, that the conversion was made on the 16th [**12]  of December, 1862, and the lowest assessment of damages must be the value of the stock on that day, agreeably to the Court's instruction. In support of which reference is made to Hepburn vs. Sewell, 5 H. & J., 211. Stirling vs. Garritee, 18 Md. Rep., 468.

7. But, under the circumstances of the case, it was competent for the jury to assess damages according to the highest value of stock on the day of trial, or on any other day before that day, and after the day of demand and refusal.

Where property comes into the possession of a party accidentally --without force or fraud--and is converted by him under a fair color of title, the measure of damages ought to be the sum realized by such conversion, or the current value in the market of the property converted. But where the defendant acquires the possession from, or in privity with, the title of the plaintiff, and the conversion is an act of bad faith, in such case, the measure of damages is not limited to the actual value of the property at the time of conversion, but may be aggravated to the full value thereof at the time of trial, or at any intervening period. Cromwell vs. Owings, 7 H. & J., 60. Harker vs. Dement, 9 Gill, 17.  [**13]  Bosley vs. Reynolds, 8 A. & E. (N. S.,) 779. Greening vs. Wilkinson, 1 C. & P., 625. Martin vs. Porter, 5 M. & W., 352. Fisher vs. Prince, 3 Bun., 1363. Whitten vs. Fuller, 2 Bl., 602. Cortelyon vs. Lansing, 2 Caines Cases, 200. West vs. Beach, 3 Cowen, 82, Wilson vs. Matthews, 24 Barb., 295. Harger vs. McManus, 6 Watts, 418. Backenstoss vs. Stakler, 33 Penn., 251.

In equity, the cestui que trust may recover the specific property from the trustee, or any person claiming under him with notice of the trust; or may, at his election, claim the value realized by the misapplication; or may pursue the value or equivalent throughout its mutations into other properties.

The principle on which this equity is administered is, that the trust fastens itself on the property, and substantial justice demands that the cestui que trust shall have his specific property, or all the profits which the trustee may or might have realized by a misapplication of the property. The same principle applies with yet greater force to the case where a pledgee, in fraud of the bailment, withholds the pledge, or delivers it to another. The pledgor ought to have a return of the thing pledged, or the highest [**14]  value which could have been realized therefor, either by the pledgee or the person to whom it may have been wrongfully delivered. The pledgor is not bound to show that such highest value was actually realized, nor is the pledgee to be permitted to show that the sum realized, by his breach of faith, falls short of such highest value.

In an action for non-delivery of stock or goods sold, for which the purchase money has been paid, the measure of damages is the highest value of the thing sold at the time appointed for delivery, or time of trial, or at any intervening period. Shepherd vs. Johnson, 2 East., 211. McArthur vs. Seaforth, 2 Taunt., 257. Downes vs. Buck, 1 Stark., 251. Gainsford vs. Carroll, 2 B. & C., 624. Owens vs. Routh, 25 Eng. L. & E. Rep., 306. Clarke vs. Pinney, 7 Cowan, 681. Rankin vs. McCullough, 12 Barb., 103.

Now, the condition of the bailor, whose stock is pledged for less than its value, is analogous to the case of a purchaser of stock who has advanced his purchase money. These cases are very different from that of a purchaser of stock to be paid for on delivery, who, on failure of the vendor to comply with his contract, may go into the market with his [**15]  money and purchase other stock.

8th. The right to follow the stock carries with it the right to the dividends or fruits of that stock. If, then, in contemplation of law, the stock remained in the hands of the pledgee, and subject to redemption on the 16th of December, 1862, or on any subsequent day, the plaintiff ought to have recovered, in addition to the value of the principal stock, the amount of all dividends declared on that stock at any time prior to such day of conversion, and which were received, or, but for its own default, might have been received by the defendant.

The questions relating to the measure of damages are involved in both appeals. The question of recoupment is peculiar to the plaintiff's appeal.

9th. It will be insisted, that the tortious breaking up of the bailment, by the denial of the plaintiff's right of redemption and transfer of the stock to another, destroyed the lien and deprived the defendant of any right to recoupe the amount of the money loaned from the damages recovered by the plaintiff.

1. The lien of the pledgee is inseparable from the possession of the pledge. The pledgee, by surrendering or parting from the possession of the [**16]  pledge, extinguishes his lien. The lien on the stock in question was, therefore, destroyed by the transfer made by the defendant to other parties in the spring of 1862. Sweet vs. Payne, 1 East., 4. McCombis vs. Davis, 7 East., 5.

The lien did not pass with the stock to those transferrees. Hence, if the plaintiff had brought his action against them, he must have recovered in that action the full value of the stock, without discount or abatement on account of the debt due from the plaintiff to the original pledgee. Shipley vs. Kymer, 2 M. & S., 29. But as a sale of personal property by a vendor in possession carries with it an implied warranty of title, the purchasers from the defendant might have a recovery over against the present defendant for the full sum recovered by the plaintiff against him. Mairs vs. Taylor, 40 Penna., 446.

To prevent circuity of action, therefore, the measure of damages ought to be the same where the action is brought against the pledgee, as it would be where the action is against his transferee, else the aggrieved party would be tempted to waive his remedy against the wrong-doer, and proceed directly against an innocent purchaser from him.

Tender,  [**17]  demand and refusal, are said to be evidence of conversion. The pledgee in possession, under the bailment, is not bound to surrender the pledge, except on payment or tender of the debt secured by the pledge. But if he has tortiously converted the pledge the bailment is thereby broken up, and a tender is not necessary to perfect the cause of action of the pledgor.

The lien is, by the tortious conversion, destroyed. It is so expressly held where the party having a general lien which he cannot enforce by a sale, tortiously sells or parts with possession. Seibel vs. Springfield, 9 L. T. (N. S.) 324. Johnson vs. Shae, 3 Am. Law Reg. N. 8, 753. Mark vs. Lawrence, 5 H. & J., 64.

And the same law must apply where the lien is special and the sale or disposition is tortious. The rule is established to enforce the obligation of the bailment, and for the protection of the debtor. The debt is not discharged by the extinguishment of the lien, or even by the destruction of the pledge. But the pledgee, who has willfully broken up the bailment, shall not protect himself from responsibility by sheltering himself under a right which had its origin and continued existence in that bailment.

Nor [**18]  is the recoupment to be claimed on the principle of discount or set-off. A debt is not to be set-off in an action on the case for damages. And there is nothing more than reciprocity in this. For if the creditor sues, as he may for recovery of the debt, the debtor cannot set-off in that action the value of the pledge or damages for its tortious conversion; and as the debtor shall not embarrass the creditor in his action for recovery of the debt, by tendering issues which concern the dealing of the creditor with respect to the pledge, neither shall the creditor seek to embarrass the debtor in his pursuit of damages for the tortious disposition of the pledge, by tendering issues which address themselves to the validity or amount of the debt. We say nothing of the right of the debtor to discount from the debt the proceeds realized by a valid sale of the pledge.

The only conceivable ground on which the pledgee can be permitted to set-off the debt against damages claimed for a tortious disposition of the pledge is, that ex equo et bono, the debtor obtaining full compensation for the wrong done to him ought not to decline payment of what is justly due from him to his creditor. "He who [**19]  would have equity, must do equity." The maxim may be applicable, if we are to assume that the parties stand as they would stand in equity, and that the account is to be taken as it would be taken in equity. In equity, it is certain, that the debtor may require the creditor to restore the pledge specifically on receiving payment of the debt. The measure of damages ought, therefore, in such case, to be the value of the pledge at the time of trial, with all its intermediate profits reduced by the debt, and interest thereon, to the same time.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*257]  BARTOL, J., delivered the opinion of this Court:
This suit was instituted by William F. Dalrymple against the Maryland Fire Insurance Company to recover damages for the alleged illegal sale and conversion, by the defendant, of three hundred and twenty-five shares of the capital stock of the Baltimore and Ohio Rail Road Company, which Dalrymple had pledged to the defendant to secure the re-payment of a sum of money loaned to him by the company.
The verdict and judgment of the Court below were in favor of Dalrymple. Both parties have [**20]  appealed.
The nar. originally filed, contained a single count in trover; the defendant pleaded and issue was joined; afterwards an agreement was filed, that in lieu of formal pleadings the plaintiff should be considered as having amended his declaration by adding such counts in tort as the state of the facts, as they appear at the trial, would justify, and the same agreement as to pleas and replications and issues thereon. "The case to be tried on the pleadings as they now stand, all errors in pleading on both sides released, with leave to each party to give the special matter in evidence, reserving to each party, in case of appeal, the same benefit of exceptions as if formal pleadings had been put in."
As a material question upon the pleadings is raised by the fifth prayer of the defendant, it is necessary for us to interpret this agreement. The plaintiff's counsel, in their brief, state, that "all errors in pleading were released, the questions at issue are presented by the facts disclosed in the bill of exceptions and the instructions of the Court thereupon." This is not strictly correct. As we understand the agreement, the plaintiff in his amendments was confined [**21]  to his counts in 

 [*258]  tort, and the suit must be dealt with as an action ex delicto, and as if the supposed amended counts in that form were added.
With these preliminary remarks, we proceed to state the facts of the case as disclosed in the bill of exceptions. The terms of the pledge are shown by the receipt signed by the president of the company, dated the 12th day of June, 1860, and by Dalrymple's receipt, of the same date, given to the company; these papers correspond in their terms, and it is only necessary here to insert one of them. viz: that signed by the president of the company, and offered in evidence by the plaintiff; it is as follows:
"I have this day advanced to William F. Dalrymple the sum of nineteen thousand five hundred dollars, returnable upon one day's notice, and he has deposited in my hands as collateral security, for the payment of the same, the following securities, viz: three hundred and twenty-five shares of Baltimore and Ohio Rail Road stock, now in the name of E. Pratt & Brothers, but to be transferred this day to my name as the President of the Maryland Fire Insurance Company of Baltimore, with the understanding, that if the said loan is [**22]  not promptly paid according to agreement, I am authorized, without further notice, to sell the said collaterals for the purpose of satisfying the same; any excess or deficiency to be paid or received by him as the case may be; a margin of ten dollars per share to be kept up at all times during the running of this contract.
Signed,   THOS. E. HAMBLETON, Pres't.
Endorsed,
Baltimore, Aug. 13, 1860.
Received interest on the within loan, $ 268.67, to this date."
The receipt or memorandum of loan signed by the plaintiff, by his agent, P. H. Coakley, contains, in addition, this memorandum, "interest payable every sixty days, should the same continue beyond that time."

 [*259]  Proof was offered by the defendant that the market price of the stock was, as follows:

________________________________________________________________________________

On the 12th of June, 1860	$ 79      per share,	
 "  "  30th of Oct.,  "	$ 76 1/2  "    "	
 "  "   5th of Nov.,  "	$ 69      "    "	
 "  "  10th of  "     "	$ 68      "    "	
 "  "  15th of  "     "	$ 56 1/2  "    "	
________________________________________________________________________________

Evidence was given of calls made by the defendant on the plaintiff, viz: On the 30th of October, 1860, a [**23]  notice to return the loan on the 1st of November, 1860. On the 5th of November, 1860, a notice to "deposit additional amount of securities or larger margin" on the loan. On the 10th of November, 1860 a notice "to return nine thousand dollars of the loan, on Tuesday, the 13th instant."
On the 13th of November, 1860, the following notice was given to the plaintiff's agent:
"Mr. P. H. Coakley, Agent.--Sir: On Saturday, the 10th inst., we notified you to return on this day nine thousand dollars, being part of the loan made to you the 12th of June last upon three hundred and twenty-five shares of the Baltimore and Ohio Rail Road stock; you have not complied with that call, and we now notify you to return to this company the whole of said loan, nineteen thousand five hundred dollars, on to-morrow, Wednesday, the 14th inst."
Signed,   OTIS SPEAR, Sec'y.
By order of the Board.
It was admitted that these notices were received by the plaintiff on their respective dates. It was also proved and admitted that there were negotiations between the plaintiff and defendant about the 15th of November, 1860, in consequence of the notices, the object of the same being to relieve the loan; but they [**24]  were ineffectual and had been terminated before the 20th of November, 1860.
On this last named day, the defendant procured the 325 

 [*260]  shares of stock to be sold at the Board of Brokers, and became the purchaser thereof at $ 55 per share.
This sale and purchase were effected by the agency of brokers employed by the defendant, two of whom, Gildersleve and Whitridge, were employed to sell at the highest obtainable market price, and Whitridge testified that the stock was accordingly put up and sold at the public board for the highest market price of the day; he had likewise instructions from Mr. Wm. W. Spence to purchase said stock for him, Spence, at the market rate, and witness accordingly requested Mr. Edward Pittman, (another broker,) to purchase said stock for him, the witness, which was done. The sale was in all respects fair, and not covert in any particular; the witness requested Pittman to bid it in for him, because such is the usage of the board when the same broker has an order to buy and an order to sell the same lots of stocks from different parties, and in order that the sale might be recorded in the usual manner. The same broker cannot appear on the books as buyer [**25]  and seller in the same transaction. No transfer was made to Pittman except on the books of the board; the stock was transferred to Spence next day and witness sent him the certificate. The same witness testified that Spence called at his office before the meeting of the board, on the day of sale, and informed witness, he knew witness had the stock for sale, and then instructed witness to buy for him. Witness did not know, till after the sale, that Mr. Spence was buying for the company. It was admitted by counsel, at the trial, that Spence was one of the directors of defendant, and made the purchase for the defendant.
It was admitted, that shortly after the sales of the 20th of November, 1860, an account was rendered to the plaintiff by the defendant charging the amount of loan and interest, and crediting the net proceeds of the sale, leaving a balance due defendant of $ 1,774.50, and payment thereof demanded.

 [*261]  The stock was held by the defendant till the spring of 1862, when it was sold in parcels to different persons, and on different days, between the 18th of March and the 1st of May, 1862, at prices ranging from $ 60 to $ 67 per share, yielding in the aggregate the [**26]  sum of $ 19,943.75 net.
These sales were made publicly at the Board of Brokers-- fairly and in the usual way--at the ruling market prices, by competent brokers employed for that purpose, and the stock was transferred to the several parties purchasing the same.
It was proved by the plaintiff and admitted, that a dividend of three per cent. ($ 3 per share) was declared on the stock and paid to the defendant on the 27th of October, 1860, and handed over to the plaintiff; that the defendant received a similar dividend on the 16th of April, 1861, and applied the same to its own use; also, that dividends to the same amount were declared on the same stock, payable on the 30th of May and 30th of September, 1862, and on the 31st of March, 1863; also, a dividend of six per cent. on the 26th of October, 1863, and a dividend of four per cent. on the 26th of April, 1864; but that the defendant received none of the said dividends except the first two above enumerated. It was further admitted that the plaintiff paid interest on the loan, in full, to November, 1st, 1860.
On the 16th day of December, 1862, the plaintiff tendered to the company the sum loaned, with interest, and demanded a return [**27]  of the stock, to which the president of defendant replied, "that the said shares had been sold and were no longer in the defendant's possession," and declined to accept the tender.
Proof was offered (subject to exception) that at the time of the tender the stock was worth in the market about $ 78 per share, and that at the time of the trial it was worth about $ 115 per share. Proof was offered by the defendant that on the 20th of November, 1860, the stock was worth no 

 [*262]  more than $ 55 per share, and between that day and the day of tender fluctuated in value, and on the 25th of April, 1861, was sold as low as $ 41.50 per share.
Upon this state of facts the plaintiff presented two prayers, and the defendant five prayers, these were all refused, and the Court below gave an instruction to the jury.
The propositions presented by the plaintiff's prayers were:
1st. That upon the tender, demand and refusal made in December, 1862, notwithstanding the previous sales of the stock, the plaintiff was entitled to recover; and in assessing the damages the jury might value the stock as worth the highest price which could be obtained for the same in the exchange market at the time of [**28]  the trial, and that the defendant was chargeable with all dividends on the stock declared after the pledge and before the time of trial which, by reason of the pledge, the plaintiff was disabled from recovering, and which might have been realized by the defendant if it had kept the pledge.
2nd. If it should be found that the bailment had been determined, and the relation of pledgor and pledgee destroyed by the sale in November, 1860, or by those made in the spring of 1862, then that the defendant's lien on said stock, as a security, was thereby terminated, and no discount or recoupment from the value of the stock, to be ascertained as aforesaid, ought to be made for or on account of the money loaned by the defendant to the plaintiff. The defendant's prayers asserts:
1st. That the sale of the 20th of November, 1860, if the jury find it was made bona fide, was valid and binding in law, and if the proceeds thereof did not amount to the principal and interest of the loan, the plaintiff was not entitled to recover.
2nd. That the sale of the 20th of November was not void, but voidable only by proper proceedings in a Court of Chancery, upon grounds not cognizable at law.

 [*263]   [**29]  3rd. That if the plaintiff is entitled to recover, then the measure of damages is the market value of the stock on the 20th of November, 1860, deducting therefrom the amount of the loan and interest then due. (The theory of this prayer, is, that the sale and purchased of the stock made, on the 20th of November, 1860, was a conversion, and operated to break up the bailment.)
4th. If the first three prayers should be rejected, then that the sales and transfer of the stock made in the spring of 1862, operated as a conversion thereof, and the measure of damages is the market value of the stock at that time, together with the dividend actually received by the defendant, deducting therefrom the amount of the loan and interest then due.
5th. That the sales made in the spring of 1862 were legal and not tortious, and even if the jury should find the proceeds of such sales, together with the dividend received by the defendant, exceeded the amount of the loan and interest then due, the plaintiff is not entitled to recover such excess in this form of action.
The Court below seems to have considered the sales in 1860 and 1862 as wholly void and inoperative, and the bailment still continuing,  [**30]  and instructed the jury that upon proof of the pledge, and the tender, demand and refusal in December, 1862, the plaintiff was entitled to recover, and the measure of damages was the market value of the stock at that time, together with the dividend received by the defendant in April, 1861, deducting therefrom the amount of the loan and interest. Having thus stated the positions taken by the parties in their several prayers, and by the Court below in its instruction to the jury, we shall proceed to express, as briefly as we can, the judgment of this Court upon the questions involved, so far as they are deemed material to the decision of the case. In doing so, we shall confine ourselves mainly to a statement of the conclusions we have reached after a careful examination of all the authorities 

 [*264]  cited in argument, without attempting to refer to them particularly, or to reconcile them where they may be in conflict. To do so, would require this opinion to be extended to very great length, without perhaps subserving any good purpose.
The first question that naturally presents itself for our consideration is the effect of the sale and purchase of the stock made by the defendant [**31]  in November, 1860. By the terms of the contract, the loan was payable on one day's notice, and if not paid according to the agreement the defendant was authorized, without further notice, to sell the stock pledged for the purpose of satisfying the same. Unquestionably, the notice given on the 13th of November was sufficient, under the contract, to entitle the defendant to sell on the 20th.
In the absence of any express agreement to the contrary, it has been held in some cases to be necessary for a pledgee, before exercising the power of sale, to give notice to the pledgor of the time and place of sale. Washburn vs. Pond, and another, 2 Allen (Mass.) Rep., 474; and the same rule was announced by the Superior Court of New York, in Wheeler vs. Newbold, 5 Duer 29, and by the Court of Appeals in the same case. 2 Smith, (16 N. Y. Rep.,) 392.-- Without expressing any opinion upon the law as laid down in those cases, it is clear it can have no application to a case where such notice is dispensed with by the contract of the parties. Here, by the words of the agreement authorizing the defendant upon default to sell without further notice, we understand [**32]  that when the power to sell arose, all notice of the time and place of sale was waived and dispensed with by the plaintiff, leaving upon the defendant the obligation to sell publicly and fairly for the best price he could obtain.-- See 2 Kent's Com., 582, 583.
A sale at the Board of Brokers, publicly and fairly made, would, in our opinion, have been legal and valid, and if the 

 [*265]  sale of the 20th of November had been made to a third person it would have been a legal sale under the contract, vesting a good title in the purchaser and terminating the bailment. It was contended by the plaintiff's counsel, that the sale must, in all cases, be made at public auction, and that a sale at the Brokers' Board would not be legal; and some decisions in New York were cited in support of this view.
In Brown vs. Ward, 3 Duer 660, it was said, that "a custom has grown up, (in New York,) and been sanctioned by the Courts, of selling stock at the Merchant's Exchange."
There is no evidence of any such custom in Baltimore, and considering the requirements of the law, and the reason and nature of the transaction, we are of the opinion that the most proper and suitable [**33]  place for a sale of stock is at the Board of Brokers. There is the stock market--the mart to which vendors and purchasers resort, by their agents, to buy and sell stock, where competition among bidders is most apt to be found--such sales are public, and unless there be, in the particular case, some ground for impeaching their fairness, we are of opinion they are reasonable and ought to be supported.
But, as we have seen, the defendant became itself the purchaser of the stock, and the question arises, what was the legal effect of the proceeding? Did it amount to a valid and effectual sale so as either to vest in the defendant, as purchaser, an absolute title, or to operate as a conversion of the property, break up the bailment, and the relation of bailor and bailee between the parties?
The doctrine, that trustees, executors, administrators and others, holding fiduciary relations, are incompetent to purchase the property held by them in trust, is well settled. See Story's Eq. J., secs. 321, 322, 323, where the cases are collected. In section 323, the learned author says: "There are many other cases of persons standing in regard to each other, in like confidential relations, in [**34]  which similar principles 

 [*266]  apply." Lord Chancellor Cottenham, in Greenlaw vs. King, (5 Lond. Jur. 18,) cited in Torrey vs. Bank of Or leans, 9 Paige 663, held that "the principle was not confined to a particular class of persons, such as guardians, trustees or solicitors, but was a rule of universal application to all persons coming within the principle, which is that no party can be permitted to purchase an interest where he has a duty to perform inconsistent with the character of purchaser." See, also, 12 Md. Rep., 384. 16 Md. Rep., 456. 20 Md. Rep., 117. This rule rests upon grounds of public policy, and is enforced without regard to the question of bona fides in the particular case. It is clear, both upon reason and authority, that the case of pledgor and pledgee comes within the rule.
In Story on Bailments, sec. 319, it is said: "In respect of sales, also, there is a salutary restraint upon the pawnee to secure his fidelity, and good faith that he can never become a purchaser at the sale. This rule will be found recognized equally in the common law and the Roman law."
It has been [**35]  argued, on the part of the defendant, that this is a purely equitable doctrine, to be enforced only in Courts of Equity on grounds not cognizable at law; and while such sales are voidable in equity, they must be treated in this forum as valid.
This question is not free from difficulty, but the conclusion we have reached, from an examination of the cases, is clearly expressed in the third point of the plaintiff's brief.
While in cases of pure trust, where exclusive jurisdiction is in equity, resort must be had to that tribunal for relief; and sometimes, in cases of quasi trust, that court will grant relief where there are special circumstances requiring such interference, (as in Hasbrouck vs. Vandervoort, 4 Saund. S.C. 74;) yet the relation of pledgor and pledgee, being a legal relation, its rights and duties are defined by law, and the remedies for violation of such duties are ordinarily in a Court of Law.

 [*267]  The sale of the pledge, by the defendant to itself, was contrary to the faith of the bailment, forbidden, as we have shown by the citation from Story, by the common law, and might be treated by the bailor, at his election, as a tortious conversion of [**36]  the property. In this case, no such election was made by the plaintiff. There was no transmutation of title or change of possession, and the sale being inoperative to work a conversion, the relation of the parties remained unchanged thereby. The defendant remained in possession of the stock as before, in the same manner as if the sale had been attempted, and both, in fact and in contemplation of law, the bailment continued. This point was decided in Middlesex Bank vs. Minot, 4 Met. 325. That decision was followed by the Supreme Court of Iowa in The Bank vs. Dubuque R. R. Co., 8 Clarke 277.
Looking at the reasoning upon which those decisions rest, and the rules and principles of the law governing contracts of this description, we are of opinion that the decision in 4 Metcalf, so far as this point is concerned, was correct. The sale of the 20th of November did not operate, either to vest the title in the defendant, as purchaser, or to work a conversion of the stock. The bailment continued, and if nothing more had been done subsequently, and the stock had remained in the defendant's possession, there can be no doubt that the tender and demand made on [**37]  the 16th of December, 1862, would have been valid, and the refusal on the part of the defendant, at that time, would have given a good cause of action to the plaintiff. But it appears from the proof that before that time, in the spring of 1862, the defendant caused the stock to be sold publicly at the Board of Brokers, and it was transferred to the several purchasers. What was the effect of those sales? Having given notice to pay the loan in November, 1860, the defendant was not bound to keep the pledge; the attempted sale of the 20th of November being inoperative, and the plaintiff, continuing in default, 

 [*268]  the power to sell, conferred by the contract, still continued, and was, in fact, executed by the sales made in 1862. As we have already said, no further notice was required by the contract, nor can any valid objection be made to the place and mode of sale, the same not being impeached on the ground of unfairness or bad faith. By those sales the bailment was ended, and being made, as we have said, in the lawful and valid exercise of the power of sale, there was no violation of the contract on the part of the defendant, or any tortious conversion of the stock, and, therefore,  [**38]  the plaintiff was not entitled to recover in this form of action; and the fifth prayer of the defendant ought to have been granted.
The sales and transfer of the stock made in 1862, being valid and legal, the plaintiff would have the right to recover in an action ex contractu any excess which might remain in the hands of the defendant arising from the proceeds of these sales, including the dividend received on the 16th of April, 1861, with which the defendant would be chargeable, after deducting the amount of the loan and interest due at that time; such excess would be simply money had and received by the defendant to the use of the plaintiff, under and in conformity with the contract; even if the sales had been tortious, we entertain the opinion that the true measure of damages would be as stated in the defendant's fourth prayer, which asserts the right of the defendant to recoupe from the damages the amount of the debt; but that question does not arise in this case; the sales not being tortious, there could be no question of the right of the defendant to retain, out of the sums which came to its hands, the amount of the loan and interest; and even in a proper form of action [**39]  the excess only could be recovered. But the question arising upon the pleadings is not of any practical importance in this case, because it is evident from a simple calculation that the money which actually came to the defendant's hands, from the sales of the stock and the dividend of April, 1861, was less than the debt 

 [*269]  and interest due, and nothing, therefore, could be recovered by the plaintiff in any form of action.
The conclusion from this opinion is that there was no error in rejecting the plaintiff's prayers, and the first, second, third and fourth prayers of the defendant. But the Court below erred in rejecting the fifth prayer of the defendant, and in the instruction given to the jury; the judgment will, therefore, be reversed on the defendant's appeal.
Judgment reversed. 

74 of 120 DOCUMENTS 

L. U. MALTBY vs. PEARSON CHAPMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 310; 1866 Md. LEXIS 57 

June 28, 1866, Decided 

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

This was an action of trespass on the case brought by the appellee against the appellant, on the 4th of January, 1864, to recover the value of a watch, watch-guard and pocketbook, containing ninety dollars in bank notes, stolen on the night of October 21st, 1863, from a room occupied by him as a guest in the Maltby House, a hotel of which the appellant was then proprietor. No question arose at the trial as to the pleadings--all errors of pleading having been waived by agreement.

Exception. At the trial of the cause, the plaintiff, Pearson Chapman, being sworn and examined, testified as follows: That on the 21st of October, 1863, he and his cousin, Robert F. Chapman, put up at the Maltby House; that at night they retired to their room, and having examined the door thereof, and locked it, they soon went to sleep; that before going to bed, however, the attention of the witness was called to the catch of the bolt on the door as being out of place, and that neither he nor his cousin could bolt it; that in the morning he found that he had been robbed of his watch and pocketbook containing $ 90; that he examined the door and [**2]  found it unlocked; that he valued the watch at $ 50.00; the watch guard at $ 1.00; the pocket-book of $ 1.25, and the money stolen at $ 90.00; making in all a loss of $ 142.25; and that he called upon Mr. Maltby, the defendant, and stated his loss, and the circumstances attending it, and Mr. Maltby said, he would try and recover the property.

Upon cross-examination the witness said, that in a conversation between himself and cousin, before retiring, they thought the bolt had been placed in the condition it was designedly; that neither he nor his cousin went down stairs to inform the proprietor about the bolt, but locked the door and went to bed; and that the witness observed a placard on the inside of the door, but did not read it.

Robert F. Chapman, a witness on behalf of the plaintiff, being sworn, testified to the same effect as the aforegoing. The plaintiff here rested his case.

The defendant then produced on his behalf, A. B. Miller, who being sworn, testified that he was the clerk at the Maltby House at the time the plaintiff and his cousin stopped there; that the robbery was mentioned to him, and he stated the circumstances to Mr. Maltby; that Mr. Maltby then [**3]  sent witness up to bolt the door, and he went up and did it without difficulty; that Mr. Maltby had a safe for money, jewelry and plate, in the office of the hotel. The witness then examined a card which was shown him, and testified that it was a duplicate of the one nailed on the door of the room which Mr. Chapman occupied.

The card referred to, among other things, contained the following: "Notice.--An Act of the Legislature of Maryland requires guests of a Hotel to deposit money and plate at the office to be locked up in the iron safe. They cannot recover for any loss occurring in their chambers. Bolt your doors on retiring to bed."

Mr. Smith, a witness for the defendant, being sworn, testified, that he was a detective, employed by Mr. Maltby, to ferret out this robbery; that he visited the room, No. 122, pointed out by Mr. Miller on the morning after the robbery and saw Mr. Miller bolt the door without difficulty.

The evidence being closed, the plaintiff thereupon prayed the Court to instruct the jury as follows:

"If the jury believe from the testimony offered in this cause that at the time when the wrong is alleged to have been done in the declaration, the defendant [**4]  was an inn-keeper in the city of Baltimore, and that while being such inn-keeper the plaintiff became his guest and paid his board to the defendant, and also believe that whilst such guest, the plaintiff was robbed of the watch and other articles, and of the money mentioned in the declaration, then the plaintiff is entitled to recover the value of such articles and money, provided the jury shall further believe that this sum of money, alleged to be lost, was a reasonable and necessary sum for the plaintiff's travelling expenses." Which prayer having been granted by the Court, (KING, J.,) the defendant excepted.

The defendant then asked the Court to instruct the jury as follows:

"If the jury shall find from the evidence in this cause that the defendant in October, 1863, was the keeper of a public ordinary or hotel in the city of Baltimore, and as such, 'provided an iron safe or other secure depository for the keeping of money, jewelry and plate belonging to his guest,' and that on or about the 21st of October, 1863, the plaintiff came to said hotel and obtained a room and other accommodations therein, and shall further find that in the chambers of said hotel and other conspicuous [**5]  places about said premises there were 'printed notices' notifying the guests of the house of the provisions of the 5th section of Article 70 of the Code of Public General Laws, and requesting them to deposit their money and plate with him or his agent.

"And if they shall further find that the plaintiff when he came to said hotel had in his possession the goods, chattels and money mentioned in the declaration in this cause, and failed to deposit the same with the proprietor of said hotel or his agent for safe keeping, and that the same were lost by or stolen out of the room of the plaintiff while stopping at said hotel or ordinary, then the plaintiff is not entitled to recover, unless the jury shall further find that the loss occurred from collusion or positive negligence on the part of the defendant or his agents."

Which prayer the Court rejected, and the verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

BAILMENT: INN-KEEPERS, -- LIABILITIES OF: CODE, ART. 70, SECS. 5 AND 6. -- The common law liability of an Inn-keeper for the loss by his guest of his watch, guard, and pocket-book, containing a sum of money, not more than sufficient for his travelling expenses, which were stolen from the sleeping apartment of the guest, is not released by a compliance on the part of the Inn-keeper with the requirements of Art. 70, secs. 5 and 6 of the Code -- the articles referred to, except the money, not being of the class embraced in the provisions of the Code, and the sum not such an one as could reasonably be included in those provisions.

PROVINCE OF COURT AND JURY. -- The question, whether the sum of money lost was reasonable and necessary for the travelling expenses of the guest, is properly one for the jury.  

COUNSEL:
T. M. Lanahan, for the appellant, argued:

That the plaintiff below was not entitled to recover, and the Court of Common Pleas should have granted the appellant's prayer because the appellee failed to deposit his money and [**6]  valuables with him or his agent for safe-keeping, agreeably to section 5 of Article 70 of the Code of Public General Laws. That the case of Pettigrew vs. Barnum, 11 Md. Rep., 434, was considered as inflicting great injustice upon landlords, and the Act of 1854, chap. 323, now embodied in the Code, was passed to remedy this evil.

William A. Stewart, for the appellee argued:

1. That prior to the passage of the Act of 1854, chap. 323, an inn-keeper was responsible for all losses happening to the goods of his guests, such as money, baggage, jewelry and personal ornaments, appropriate for a traveller's wardrobe, while they remained within the inn, unless such losses were occasioned by some agency over which human power could exercise no control, or by the act of public enemies, or by the conduct of the guest himself or his servant, or some companion whom he chose to take into his room with him.-- Owings vs. Wyant, 3 H. & McH., 393. Towson vs. Havre-de-Grace Bank, 6 H. & J., 47. White vs. Wagner, 4 H. & J., 391. Pettigrew vs. Barnum, 11 Md. Rep., 434.

2. The Act of 1854, chap. 323, merged in secs. 5 and 6 of Article 70 of the Code, shifted this responsibility from the landlord,  [**7]  in the case of money, jewelry and plate, on certain conditions: 1. That he shall provide an iron safe or other secure depository for the keeping of such articles belonging to his guests; and, 2. That he shall cause written or printed notices to be put up in his chambers and other conspicuous places about his house, notifying his guests of the purport of the law, and requesting them to deposit their money and plate with him or his agent, to be designated by such notice. It is necessary that the landlord should prove that he has complied with both of the above requisites in order to exempt him from responsibility. Code, Art. 70, sec. 6.

3. The notice in evidence is not such a compliance with the Code, either in letter or spirit, as will place the landlord under its protection; the law, being in derogation of the Common Law, its provisions should be strictly complied with.

4. The Court properly rejected the defendant's prayers because neither the watch, watch guard nor pocket-book, came within the description of money, plate or jewelry, and, therefore, it would have been error, even admitting the defendant's construction of the law for the sake of argument to be correct, to [**8]  say that the plaintiff could not recover the value of those articles. The Court is entitled, absolutely, to reject a prayer, if at all erroneous. Webster's Dictionary, Art. Jewelry. McCormick vs. Hudson River R. R. Co., 4 E. D. Smith, 182. Doyle vs. Coms. of Baltimore County, 12 G. & J., 484. Code, Art. 93, sec. 207. Pope vs. Hall, 14 Lou. An. Rep., 324. Profilet vs. Hall, 14 Lou. An. Rep., 524.

5. The law as stated in the plaintiff's prayer was correct, and properly granted. The provision in the Code is an imperfect copy of the New York statute of 1855, chap. 421, and the interpretation of that statute by the Courts of New York, although not conclusive upon Courts outside of that State, is, nevertheless, a safe guide to be followed in construing the same language. The word "money," in the Code, is designed to cover large sums carried by travellers in packages or otherwise, and not loose change or small sums necessary for the ordinary travelling expenses of the guest. The plaintiff is entitled to recover such reasonable amount as the jury in their discretion may deem just and proper. Van Wyck vs. Howard, 12 Howard's Pr. Reps., 147. Stanton vs. Leland, 4 E. D. Smith, 88. Taylor [**9]  vs. Monnot, 4 Duer, 116. Gile vs. Libby, 36 Barb., 70. Buddenberg vs. Benner, 1 Hilton, 84.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*315]  COCHRAN, J., delivered the opinion of this Court.
The subject of an inn-keeper's liability at common law, 

 [*316]  for losses sustained by a guest, was considered in Pettigrew vs. Barnum, 11 Md. 434, and upon the principles there enunciated, it is very clear that the appellant became liable for the loss complained of, if not protected by the 5th and 6th sections of Art. 70 of the Code. These sections provide a mode by which an inn-keeper, under the circumstances therein mentioned, may protect himself from liability to his guest for losses of money, plate and jewelry, but not for other kinds of property. The evidence here shows that the articles stolen from the room of the appellee, while a guest of the appellant, were a watch, watch-guard, pocketbook, and ninety dollars in money; and looking to the purpose and terms of these provisions of the Code, it is manifest that a compliance with them could not relieve the appellant from liability for the loss thus shown.  [**10]  All of these articles, with the exception of the money, were of a class not within the statutory provisions referred to, and the appellant could not, even by complying with their requirements, exempt himself from liability for their loss. The prayer offered on his behalf asserts a proposition altogether inconsistent with this limitation of his statutory privilege, and was properly rejected for that reason.
The case appears to have been submitted to the jury under an instruction wholly free from objection. Assuming that the appellant was entitled to the protection afforded by a compliance with the requirements of sections 5 and 6 of Art. 70, the only objection that could be made to the instruction is, that it left the question, as to the appellant's liability for the stolen money, to the jury. This objection, however, cannot be maintained upon a true construction of these provisions of the Code. As we understand them, they do not require the guest of an inn, to protect himself from loss, to place money, necessary for his personal expenses as a traveller, in the personal custody of the inn-keeper. He might guard against losses by theft or pillage, by taking that 

 [*317]  course,  [**11]  but these provisions cannot be said to contemplate protection to the guest or inn-keeper through or by means of such a personal inconvenience to the guest. They evidently relate to money not necessary for personal use, and such as can be deposited with the inn-keeper without personal inconvenience to the guest. This question was considered in the case of Gile vs. Libby, 36 Barb. 70, where it arose upon the construction of a similar statute, and the conclusion reached, sustained the views here presented.
The question, whether the sum of money lost was reasonable and necessary for the appellee's travelling expenses, was clearly one for the jury; and if the sum lost was reasonable and necessary for such expenses, the instruction granted by the Court was correct.
Judgment affirmed. 

75 of 120 DOCUMENTS 

ROBERT M. POLK vs. JACOB ROSE & CHARLES CRONHARDT, USE OF LYDIA CINNAMOND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 153; 1866 Md. LEXIS 49 

June 27, 1866, Decided 

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

The bill in this case was filed by the appellees against the appellant, to set aside a sale to him of real estate made by the collector of Baltimore city, for the payment of taxes and for an injunction restraining the appellant from attempting to collect the rents of such real estate, and concluded with a prayer for general relief.

The allegations of the bill and facts of the case are stated in the opinion of this Court. The appeal is from an order of the Court (ALEXANDER, J.) setting aside the deed of the collector and making perpetual the injunction before issued.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

TAX TITLES: POWERS OF COLLECTOR TO SELL AND CONVEY, TO BE STRICTLY PURSUED: -- The power of a tax collector to make sale of real estate for the payment of taxes so as to convey a valid title to the purchaser, is one which is specially delegated, and must be strictly pursued.

A series of acts preliminary in their character, are required by law to precede the execution of the power, each and every one of which is separate, independent and essential, and if any one of them be wanting, the whole proceeding is defective for want of sufficient authority to support it.

TAX TITLES: POWERS OF COLLECTOR TO SELL AND CONVEY, TO BE STRICTLY PURSUED: ONUS ON ONE CLAIMING UNDER THE POWER TO SHOW ITS PROPER EXECUTION. -- The party claiming under the power is chargeable with notice of every irregularity in the proceedings of the officers, and the onus is upon him to show the faithful execution of the power.

JURISDICTION IN EQUITY: PRACTICE IN EQUITY: CANCELLATION OF COLLECTORS' DEED: PRESUMPTION IN FAVOR OF TITLES UNDER JUDICIAL SALES. -- A bill of complaint alleged that the sale for taxes under which the defendant claimed title, was utterly void under the laws of this State; that the defendant was vexatiously using his pretended deed (of the tax collector) and title there under, against the complainants, not only interfering with their tenants by demanding rent from them, but throwing a cloud of suspicion over their title. The prayer of the bill was for an injunction and general relief. -- HELD:

1st. That a Court of Equity unquestionably had jurisdiction of the matters complained of.

2nd. That although there may be no special prayer in the bill for a cancellation of the defendants deed, under the prayer for general relief, a Court of Equity may decree that the deed of a party thus acting be cancelled.

3rd. An objection that the complainants have not exhibited with their said bill, the authority under which C., a trustee in Equity, sold them the property in question, is not tenable, the sale being a judicial sale, and the power to sell having been recited in the deed of the trustee, the maxim, "id certum est, quod certum reddi potest," is applicable as well as the maxim "omnia rite praesumuntur, 

COUNSEL:
Wm. Price and Benjamin Price for the appellant:

1st. The appellant's counsel insisted upon their exceptions to the allegations of the bill, which they contended were fatal to the complainant's case.

2nd. They insisted upon their exceptions to the evidence.

3rd. They contended that the remedy of the complainants was at law, if they had any. Drury vs. Conner, 1 H. & G., 229. Richardson vs. Stillinger, 12 G. & J., 479. Adams' Equity Doc., 375, & '6. Clark vs. Morse, 18 Johns. Rep., 442. Sto. Eq. Pleading, 131, (a). ----- Id. -----  [**2]  241, et. seq.

Wm. F. Frick, for the appellees:

The appellant, on this appeal, relies only on three points: 1st. His exceptions to the bill. 2nd. His exceptions to the evidence. 3rd. That the complainant's remedy is at law, and not in equity.

It is virtually conceded by him, that the sale for taxes was unauthorized and void. No point is made to the contrary. And the total failure to countervail the complainant's proof, or to offer any evidence in support of the averments in the answer may justly be treated as an admission that no such proof can be had. It may, therefore, be taken as conclusively established:

1st. That List, the owner, was never served with any notice of thirty days, as required by the provisions of the 1 Code, Art. 81, sec. 49.

2nd. That there was sufficient personal property belonging to him, on the premises, to answer for the taxes in arrear, but no levy or distraint thereon was ever made as required by the 50th section, and no return made to the Appeal Tax Court, that no personal property could be found as required by the 54th section.

3rd. That the lot sold was clearly capable of division, without material injury to the owner, into [**3]  two lots, either of which would have sold for more than the taxes due, and yet that the collector made no such division, nor did he comply in any respect with the provisions of the 60th section, requiring him before proceeding to sell an entire lot for taxes, to have the previous direction and authority of the Appeal Tax Court to do so, in manner and form as prescribed by that section. Vide sections 49, 50, 51, 54, 56, 59, 60, Art. 18, 1 Code. 2 Code, p. 332. Balto. Rev. Ordinances of 1858, p. 33, secs. 26 and 27, title, "Collector." The period of redemtion, one year and a day, the Ordinance extends to two years. No deed can be given until the expiration of the two years.

If any of these prescribed preliminaries were wanting, the sale by the collector was void. Specially delegated powers to sell for taxes must be strictly pursued, and when the statute prescribes the mode of executing the power, it can be executed in no other way. Sharp vs. Speer, 4 Hill, 81. Beatty vs. Knowler, 4 Peters, 167. Barrickman vs. Comm's Harford co., 11 G. & J., 56. State vs. Merryman, 7 H. & J., 91. Swann vs. Mayor & C. C. of Cumberland, 8 Gill, 154. Root vs. State, 10 G. & J., 374. Blackwell on Tax [**4]  Titles, 65 to 70. The only question, then, is whether the complainant's relief against that sale was in equity, and whether they have made out a case upon their bill.

The jurisdiction of the Court is undoubted. The bill is a "quia timet" bill. It proceeds upon the theory, that the defendant holds a deed for the complainant's property, good on its face, but voidable for want of power and authority in the city collector to execute it. It alleges, that he is using that deed, by way of claim upon the property; interfering with the collection of their rents by the complainants, and throwing a cloud upon their title. The object of the bill is to have that cloud removed, to have a decree declaring the deed void, so far as it affects the complainant's property, and, as ancillary relief, to have an injunction restraining the defendant from interfering with the complainant's tenants or property, under the color of that deed.

There is no practicable relief at law for the injury that may be done to the complainant's title, by the constant holding up of a tax title in terror to tenants and purchasers. The holder of such a title may have his action of ejectment at any time within twenty [**5]  years, and his claim may be vexatiously litigated at a distance of time when the proper evidence to repel it may be lost or obscured, or when the other party may be disabled from contesting it with as much ability and force as he could contest it at the beginning. The ground on which equity interferes is, that if an instrument or deed is one that gives no title, and ought, therefore, not to be used or enforced, it is against conscience for the party holding it to retain it, and it ought to be surrendered or cancelled. It is by that measure of relief alone that the cloud upon the title (as it is termed) can be removed. See Story's Equity, Vol. 2 secs. 694, and secs. 700, 700 a, and 701, and cases cited in notes.

The jurisdiction in such cases has also been supported on the ground that it tends to prevent multiplicity of suits. Carroll vs. Safford, 3 Howard's S. C. Rep., 453. Holland vs. Mayor & C. C. of Balto., 11 Md. Rep., 197, 463. Pettit vs. Shepherd, 5 Paige, 493. Yancey vs. Hopkins, 1 Munf., 427. Bacon vs. Corn, 1 Sm. & Mar. Ch. Rep., 354. 1 Blackwell on Tax Titles, 480, 488.

If the jurisdiction can be sustained, the averments in the bill are sufficient to bring the case [**6]  within it. The exceptions do not reach the vitality of the bill.

To the first, it may be answered, that the gravamen of the case is not that the taxes were not due, but that the collector had no right to sell. To the second, that it is not averred that List was not the owner when the taxes accrued, but only that he had transferred his interest when the property was sold. Nor is this point (the 5th) in the bill substantially relied on. To the third, that the gravamen of the charge is that the collector did not comply with the provisions of the 60th section of Art. 18, by obtaining before the sale the authority of the Appeal Tax Court to make the sale entire, and this averment is true. And this is not inconsistent with the third charge in the bill that a further irregularity occurred in covering only a part of the lot by the description.-- But this was not by way of division, but by way of mistake. If division had been intended, two lots would have been produced, with a house on each; not two lots with parts only of houses on each. The objections in charges three and four in the bill are quite distinct. To the fourth, it may be said that it was neither necessary to aver in the bill [**7]  nor show by proof how Cinnamond became trustee. The complainants have proved the deed under which they claim, and they aver title and possession, and that is sufficient.

Lastly. The prayer for specific relief (in addition to the injunction,) is that the cloud which the defendant has thrown around the title by his claim under the tax deed shall be removed; that is to say, that said deed should be declared null and void. But even if the prayer for specific relief should be deemed to be indeterminately worded, there can be no doubt that the prayer for general relief would cover the vacating of the deed, that being the special relief to which the frame and structure of the bill necessarily points. Story's Eq. Pl., secs. 40, 41, 52, 33.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*158]  GOLDSBOROUGH, J., delivered the opinion of this Court:
The appellees, the complainants below, filed their bill of complaint against the appellant in the Circuit Court for Baltimore city, alleging that they were the owners of certain houses and lots on the north side of Columbia street, in said city, and being seized and possessed thereof,  [**8]  the appellant set up a claim to said lots under an alleged title by a tax deed from Augustus M. Price, the collector of taxes for the State and city, and that the appellant, by virtue of his pretended title, was not only interfering with the appellees right of property by requiring their tenants to pay the rents of the property to him, but that his conduct operated to cast a cloud upon their title.
The appellees further allege that they obtained their title to said houses and lots by deed from George R. Cinnamond, trustee, under a decree of the Circuit Court for Baltimore city, by which decree Cinnamond was authorized to sell the above property as the property of one Adam J. List.
They further allege and charge that the sale for taxes under which the appellant claims title, is utterly void under the laws of this State, and after assigning the reasons for this allegation, pray for an injunction for the purposes therein stated and for general relief. Injunction was issued as prayed. The appellant subsequently filed his answer, denying most of the allegations of the bill, but admitting that the appellees obtained a deed from Cinnamond, trustee, as stated in the bill, but that the sale [**9]  made by him to the appellees, was not made until seven months after the appellant had purchased from the city collector.

 [*159]  A motion was made on the filing of the answer for a dissolution of the injunction, but the Court continued it until final hearing. Commission was issued at the instance of the appellees to take testimony, which being taken by them, (the appellant declining to take any,) and the commission returned, the cause was set down for final hearing, and being heard, the Circuit Court on the 21st day of December, 1864, passed a final decree making the injunction perpetual, and further decreed that the deed from Price to the appellant "be declared utterly null and void, so far as it covers or affects the lot belonging to the complainants mentioned in the proceedings."
In the review of the merits of this case, we propose to examine the claim and pretentions of the appellant. He relies on his title derived through the deed from the collector; and it becomes important to ascertain what are the requisitions of the law to make such a title valid. To sustain the power of the collector which is a specially delegated one and must be strictly pursued, see 10 G. & J., 374, 11 G. & J., 56. [**10]  7 H. & J., 79. A series of the acts preliminary in their character, are required by law to precede the execution of the power. Each and every step, from the assessment of the property for taxation, to the consummation of the title by delivery of the deed to the purchaser, is a separate and independent fact. All of these facts from the beginning to the end of the proceeding must exist, and if any material link in the chain of title is wanting, the whole is defective for want of sufficient authority to support it. The party claiming under the power is chargeable with notice of every irregularity in the proceedings of the officers, and the onus is upon him to show the faithful execution of the power.
This requisition is especially applicable to the purchaser at a tax sale. There is no hardship in this. At such sales it is notorious that the amount paid by purchasers is uniformly trifling in comparison with the value of the property sold.--See 

 [*160]  Blackwell on Tax Titles, 65. While the maxim of law "omnia rite praesumuntur is appropriate only to judicial proceedings, no intendment in respect to the exercise of it is to be made in favor of a specially delegated [**11]  power; so that every act, the performance of which is made a condition precedent to the validity of the acts of a special agent, whether appointed for a public or private purpose, must be shown by proof. The onus is upon the purchaser at a tax sale, he must establish affirmatively that the officers acted strictly in conformity with the law. The acts of the officers are matters in pais; their existence is not made out by intendment but must be proved.
Tested by this exposition of the law, has the appellant offered any evidence of the validity of his tax title? He took none under the commission. He cannot rely upon his answer to the bill under sec. 103 of Art. 16 of the Code. Nor upon the recitals in his deed, for it is stated in Blackwell 73 that "the recitals in a tax deed are not evidence against the owner of the property, but the facts must be established by proof aliunde." This rule of law is sustained by numerous authorities cited by the author.
While the appellant has failed to show the regularity of the proceedings of the collector as preliminary to the validity of his title, the evidence in the record offered by the appellee's, exhibits numerous irregularities. [**12]  
It appears from the evidence of Adam J. List, that he resided on the premises sold, at the time of the levy and sale; that he had personal property amply sufficient to pay the taxes alleged to be due, but no distraint was made thereon. In this, the collector failed to comply with the 50th section of the 81st Art. of the Code. He also failed to make any return to the Appeal Tax Court, that he could find no personal property as required by the 54th section. He also failed to perform the duty imposed on him by the 60th section. It is 

 [*161]  in evidence that the property liable for taxes, consisted of two separate houses, and that the lot on which they stood was susceptible of division, and that either of the houses would have sold for a sum more than sufficient to pay the taxes due, and yet the collector, disregarding the provisions of the 60th section, sold the whole without any regard to the rights of the owners.
The appellant, however, insists, that the appellees are not entitled to the relief they seek, because a Court of Equity has no jurisdiction to grant it, but that the remedy of the appellees, if they have any, is at law; and that if the Court as a Court of Equity has [**13]  jurisdiction, still the allegations in the bill are defective, and subject to exception, because the complainants, in claiming title to the property in question, have failed to exhibit the judicial authority under which George R. Cinnamond, professing to act as trustee, sold the same to them.
2nd. Because there is no averment that the taxes were not due, or that any other person ever paid them. There are other exceptions designed to show that the averments in the bill are defective. These, with the others, will be hereafter considered.
We shall first consider the question of equity jurisdiction, and upon this we entertain no doubt. The bill in this case, is a bill quia timet. The complainants allege that the defendant is vexatiously using his pretended deed and title thereunder against them, not only interfering with their tenants by demanding rent from them, but is throwing a cloud or suspicion over their title. In such case, a Court of Equity may decree that the deed of a party thus acting be cancelled. See 1 Story's Eq., section 694. See also, Blackwell on Tax Titles, 482, where it is said: "Should a sale and conveyance take place under the proceedings alleged to be [**14]  illegal, the owner, because of his possession, could not test 

 [*162]  their legality by an action of ejectment." See also, Holland vs. The Mayor & C. C. of Baltimore, 11 Md. 186, 197.
In this case, this Court fully recognized the jurisdiction of Courts of Equity, because it will prevent a multiplicity of suits. and will not allow a title otherwise clear to be clouded by a claim which cannot be enforced either at law or in equity. In the case at bar, the appellees could not resort to an action at law, because they have not been dispossessed. The conclusions arrived at in the case of Holland vs. The Mayor & C. C., and the authorities there cited, are conclusive on this point.
The objection of a want of averment, that the taxes were not due, or that any person had paid them, has no force. On the contrary, the fact that the taxes were due and unpaid, formed a part of the appellant's proof, upon which he must rely to establish his title. Though there is no special prayer in the bill for a cancellation of the appellant's deed, we think the Court below had authority to extend that relief under the general prayer for relief.
The objection that the appellees [**15]  have not exhibited the authority under which Cinnamond, as trustee, sold the property, is not tenable. It was a judicial sale, and the power to sell being recited in the deed given to the appellees, the maxim "id certum est, quod certum reddi potest," is applicable, as is also the maxim, "omnia rite praesumuntur."
We will sign a decree affirming the decree of the Circuit Court, with costs to the appellees.
Decree affirmed. 

76 of 120 DOCUMENTS 

G. GARDNER & WILLIAM BURKE vs. STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 146; 1866 Md. LEXIS 48 

June 25, 1866, Decided 

PRIOR HISTORY:
 [**1]  WRIT OF ERROR to the Circuit Court for Baltimore county.

The plaintiffs in error were jointly indicted for larceny at the May term, 1865, of the Criminal Court of Baltimore city. On the 10th of July, during the continuance of the May term,--being arraigned they plead not guilty, and issue was joined on that plea. On the 11th of July, the plaintiffs in error appeared in Court and suggested under oath, "that they believe they cannot have a fair and impartial trial in this Court, and pray the Court to order and direct the removal of the record of proceedings in this case to the Court of some adjoining county for trial." Thereupon an order was passed removing the case to the Circuit Court for Baltimore county, to be held in the month of August ensuing. On the 15th day of September following the trial took place, and the prisoners were committed and sentenced to the penitentiary for two years. They then moved to arrest the judgment, assigning as causes for the motion "that upon the face of the record, the Court had no jurisdiction, and for other errors," which motion the Court (EMORY, J.,) over-ruled. Thereupon the prisoners sued out a writ of error from the Circuit Court of Baltimore [**2]  county, in Equity.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

CODE, ART. 30, SEC. 98, AND ART. 32, SECS. 1 AND 2: CRIMINAL PLEADING: AN INDICTMENT FOR LARCENY charged the property stolen to be worth so many dollars "current money." On writ of error it was objected -- "that Art. 30, sec. 98 of the Code says, the value must be five dollars," that is, "five dollars in gold and silver," and not in "current money," which it was urged had no fixed value. -- HELD:

1st. The Art. 32, secs. 1 and 2 of the Code, defining what is currency, expressly recognizes "dollars and cents" as the currency of the State, and the implication of law is that the value was expressed in that currency.

2nd. That at most the words objected to were surplusage, or such as may have been excepted to on demurrer, and which under Art. 30, sec. 80 of the Code, the Court would not regard as ground of reversal on writ of error.

CRIMINAL PRACTICE: -- The recital in the record that the indictment was "in form following, to wit:" was proper and is that used by the oldest entries of matters of record in use.

REMOVAL OF CASES: CODE, ART. 75, SEC. 74: ACT OF 1865, CH. 187, SEC. 2. -- The word "time" in the 2nd section of the Act of 1865, ch. 187, should be construed "term," the word used in Art. 75, sec. 74, of the Code, of which the 2nd section of the Act of 1865 was intended to be a re-print, with such alterations only as were necessary to accomplish a special purpose, in which this expression was not involved; hence, the suggestion for removal after plea pleaded and issue joined was made in due time and in proper form. 

COUNSEL:
Robt. J. Brent for the plaintiffs in error:

The following errors are assigned as appearing in the record:

I. The indictment charges the property stolen to be worth so many dollars, current money. Sec. 98, of Art. 30 of the Code, says, the value must be five dollars; that is, five dollars in gold and silver, which was the standard when the law was enacted. Since its passage no other Act of the Assembly has authorized the value of property for criminal prosecutions to be assimilated to or estimated in current money; and hence the allegation of value in current money is defective and erroneous, especially as current money is a term unknown to the statute or to any legal definition, and in point of fact current money is often below par.

II. The record nowhere shows the original indictment. It alleges that the District Attorney "exhibited an indictment in the form following, to wit:" Now the natural meaning of this expression is, that a copy of the indictment is contained after the words "in form following, to wit," and not in the indictment itself. To make it the original indictment, the expression should have been "exhibited [**3]  an indictment which is herein inserted." The certificate says, "in form following;" by this is understood that the following words are in the form of the indictment, and this unequivocally means a copy of the indictment. Now a man must be tried on the original indictment and not on its copy, and the law is the same when the venue is changed.

III. The record shows, that the venue was changed after plea pleaded and issue joined, and yet the affidavit for removal does not state the special matter in such case required by the 1st section of the Act of 1865, ch. 187.

A. Randall, Attorney General, for the State, argued:

1st. That there was no error in the record of proceedings and judgment of the Court.

2nd. That if there was any such error it could not avail the plaintiffs in error after the proceedings had in this cause.

3rd. In reply to the 1st point of the appellants, the only object in stating the value of articles stolen in the indictment, is to regulate the punishment; if the value exceeds five dollars, the sentence of confinement in the penitentiary may be from one to fifteen years, if of the value of less than five dollars, for not more than fifteen months.  [**4]  Code, p. 230, secs. 98, 100. The value of the property stolen was $ 90.50, and the confinement two years.

The words "current money" constantly occur in all our books of legal forms, and mean legal money--gold and silver--that is, the currency of this State. See Code, Art. 32, sec. 1, title "currency." But there is nothing in this record to show any change in the value of money since the law was made, nor has any law or authority been produced to show it important what may be the value of gold and silver in relation to the nature of these articles stolen.

All these questions come now too late--if they had at any time any force. The 82d section of the 30th Article of Public General Laws, Code. p. 225, declares that no indictment shall be quashed, stayed or reversed, by reason of any mere defect or imperfection in matter of form, which shall not tend to the prejudice of the defendant, nor for any matter or cause which might have been a subject of demurrer to the indictment.

4th. In reply to the 2nd point of the appellants, the averment in the record is, that the State's Attorney exhibited to the grand jury an indictment against the appellants "in form following," &c.; and [**5]  it is averred that the grand jury returned "the indictment," true bill, &c., and to that the prisoners pleaded "not guilty," and the issue was joined.

The cause was then removed, the prisoners tried, and the jury found that the defendants "are guilty of the premises aforesaid, in the indictment aforesaid above specified and laid to their charge, in manner and form as by the said indictment is above charged upon them." Motion was made to arrest the judgment without objection to this indictment, and avering that they were arraigned and tried on that indictment, which was removed, &c. &c., and the motion overruled.

Surely this objection, that there was no indictment was waived; but as it would have availed if valid, on demurrer, and the prisoners failed to demur, this Court will not now reverse, according to the Code above quoted.

5th. In reply to the third point of the appellants, that that the cause was illegally removed, and that the Court had no jurisdiction. If there was any force in this objection as a question of the course of legal proceedings, still it may be insisted, that the prisoners having availed themselves of this removal cannot deny the jurisdiction which [**6]  they themselves, invoked to try them.

But is the objection well taken? The Act of 1865, chap. 187, enacts, that the suggestion to remove a cause must be made before, or during the "time," (ought to be "term,") at which the issues may be joined, &c., unless, &c. All these proceedings took place at the same (May) term of the Criminal Court of Baltimore. The offence was committed during that term, (24th June '65,) the writ issued 27th June; indictment found; 10th July, '65, they plead, and the issue is joined on the 11th July; and they appear in Court and file their suggestion of removal sworn to on that day, 11th July, 1865; and thereupon (the same day,) the case is removed: all these proceedings took place at the same (May) Term, 1865.

A reference to the Art. 75 of the Code, sec. 74, which was superseded by section 74 of 1865, chap. 187, will clearly show that the word "time," written above, ought to be "term;" being, no doubt, an error of the printer.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*150]  BOWIE, C. J., delivered the opinion of this Court:
The plaintiffs in error, assign three grounds for [**7]  reversing the judgment below, which will be considered severally in their numerical order:
1st. The indictment charges the property stolen to be worth so many dollars, current money, whereas, the 98th sec. of Art. 30 of the Code, requires the value to be of five dollars; meaning gold or silver, which was the standard when the law was passed, and no Act of Assembly has since authorised the value of property to be estimated in current money. This objection rests upon the assumption, that gold and silver are not current money in legal parlance.
The thirty-second Article of the Code defines what is "currency." Sec. 1 enacts, the species of coins which have been, and which may be struck at the Mint of the United States, and the rates of foreign coins, as have been or shall be severally regulated and established by Congress, shall be 

 [*151]  taken, and recognized as the currency of this State. Sec. 2 enacts, all accounts in this State, shall be expressed in dollars and cents, and all the accounts in the public offices, and all proceedings in the Courts of this State, shall be kept and had in conformity with this regulation. Here, is an express statutory recognition of "dollars and [**8]  cents," (being of the species of coin struck at the Mint of the United States,) as the currency of this State, and the implication of law is, that the value was expressed in that currency; at most the words objected to, were surplusage, or such as may have been excepted to on demurrer, and which the Court would not regard as ground of reversal on writ of error. Code, Art. 30, sec. 80.
The second objection is, "The record nowhere shows the original indictment." It alleges that the District Attorney exhibited an indictment "in form following, to wit:" which means "a copy." The words "in form following" are used in the records, civil and criminal, and all writs of error, as representing the record of the Court of original jurisdiction. They do not imply a copy, or secondary evidence of the thing, but the body of the writing itself.
The indictment could not be otherwise inscribed in the record, and the language of the record is that used by the oldest entries of matters of record in use. Vide Harris' Entries passim. The third objection is, the venue was changed after plea pleaded and issue joined, and the affidavit for removal does not state the special matter in such case required [**9]  by the first section of the Act of 1865, ch. 187.
The record shows that during May term, 1865, viz: on the 10th of July, 1865, the plaintiffs in error were arraigned and pleaded "not guilty," on which plea, issue was joined, and during the same term, on the succeeding day, the 11th of July, 1865, they appeared in open Court and suggested in writing that they believed they could not have a fair and 

 [*152]  impartial trial in said Court, and "made oath that the matters and things contained in the above suggestion are true," whereupon the Court ordered the record to be removed to the Circuit Court for Baltimore county.
The second section of the Act of 1865, ch. 187, which constitutes the 74th section of Art. 75, of the Code, as amended by that act, is a reprint of the same section as published in the General Laws, with partial alterations.
In the proviso of the original section, the suggestion for removal, was to be made "before or during the term in which the issue or issues may be joined." It is obvious from the context, that the word time in the section as amended, should be construed term, as the sentence indicates duration, not a mere "punctum temporis." [**10]  
The right to the change of venue, has always, heretofore, been regarded as a Constitutional privilege not to be restrained, but enlarged by legislation. Vide 5 Md. 70. 21 Md. 18. Now, although somewhat modified in the mode of its exercise by the present Constitution, it is still to be cherished as one of the most essential incidents to the impartial administration of justice. The spirit, as well as the letter of the law, requires it should receive a liberal construction.
We think, therefore, that the suggestion of the plaintiffs in error was made in due time and proper form, and the case was properly removed.
Finding no error in the record of the proceedings below, the judgment will be affirmed.
Judgment affirmed. 

77 of 120 DOCUMENTS 

JOHN WILLIAMS & JOHN HOOGEWERFF vs. W. R. BRAILSFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 126; 1866 Md. LEXIS 47 

June 22, 1866, Decided 

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

This was an action of assumpsit by the endorsee against the drawer of a bill of exchange, brought on the 1st January, 1857, to recover the sum of $ 1,800.92, and is now in this Court on a second appeal from the Superior Court of Baltimore city, where it was tried on a procedendo from this Court. The bill in question, was drawn by William R. Brailsford on S. D. Tonge.

The questions for consideration under the first appeal, as set forth in 15 Md. Rep., 150, related to the notice of dishonor of the notice of the bill; and were:

1st. Whether a notice of protest, if in due time, from the acceptor to the drawer, binds the latter in an action against him by an endorsee.

2nd. Whether a letter-press copy of a letter written by the acceptor to the drawer of the bill notifying him of its non-payment, and offered in evidence by the plaintiff, was sufficient to prove notice of the dishonor of the bill of exchange, notwithstanding the imperfections of the copy produced at the trial.

3rd. Whether there was sufficient evidence that the letter from the acceptor to the drawer was mailed.

The first two of the above questions [**2]  this Court decided in the affirmative. And as to the third proposition, they say, "that the evidence offered for the purpose of showing that the letter had been mailed was not legally sufficient."

The evidence offered by the plaintiffs on the first trial of this case to sustain this third proposition was the testimony of S. D. Tonge, the acceptor of the bill, who stated "that he wrote this letter to the defendant upon the day of the maturity of the bill of exchange, but cannot recollect that it was mailed by him, nor does he know whether it was mailed at all; that the custom in his office is to write the letters of the house, and leave them on his desk for his clerk to deposit in the post office; that he had correspondence with him, and conversation in reference to the non-payment of the drafts, and that Brailsford never complained to him that he had no notice of protest and non-payment."

This Court said that "this was not sufficient evidence of the mailing of the letter; that compliance with the custom was not fully proven; that the clerk, whose duty it was to put the letter in the post office, should have been called, or his absence accounted for."

The judgment rendered [**3]  by the Superior Court in favor of the plaintiffs was, therefore, reversed, and the case sent back under a procedendo.

First Exception. At the September term, 1863, of the Superior Court of Baltimore city, (MARTIN, J.,) upon the second trial of this cause, the plaintiffs, to support the issue upon their part, gave in evidence by Talbot Wilson, that he was clerk of Samuel D. Tonge from 1850 to 1855, and was such clerk in July, 1854, that he was acquainted with the handwriting of S. D. Tonge & Co., on the draft now shown to him.

The handwriting of all the parties to the draft was then admitted.

The counsel for the plaintiffs, at this stage of the cause, stated to the Court that he proposed to follow up the testimony of said Wilson, by laying the foundation for, and offering secondary evidence of what had been sworn to by S. D. Tonge at the former trial, and reported in 15 Md. Rep., 150, and thereupon offered in evidence, subject to exceptions, the letter and testimony of Tonge, as taken from said reported case in 15 Md. Rep.; and then continuing the examination, the witness, Talbot Wilson, stated "that he was clerk in the house of S. D. Tonge & Co., from 1850 to 1855; that [**4]  Tonge wrote the business letters of the firm, and Tonge generally carried his business letters to the post office; that when he did not do so he placed them on a desk or table in his office, and directed the witness to carry them to the post office, and that it was the practice of the witness to carry the letters to the post office when they were thus placed on the desk or table, and he was directed by Tonge to mail them.

On cross-examination the witness stated that he would not have put into the post office any letter he might have seem on said desk or table unless Mr. Tonge had told him to do so, and that he had no recollection of putting in the post office the letter in question to Brailsford.

For the purpose of laying the foundation for the secondary testimony aforesaid, as read from the record of the former case, the plaintiffs offered in evidence the returns of the sheriff to subpoenas issued for said Tonge, and the testimony of William R. Seevers, Talbott Wilson and Pendergast, who stated that they did not know where Tonge resided, but had heard he resided somewhere in the South. All of which testimony was objected to by defendant's counsel as inadmissible, and the [**5]  objection was sustained by the Court. To this ruling of the Court below, the plaintiffs excepted, and this constitutes the first exception.

Second Exception. The plaintiffs further offered in evidence the commission, (subject to exceptions,) and also offered in evidence by William Crichton, that a letter mailed in Baltimore, on the 25th of July, would reach Charleston on the 27th of July, and by Earlocker, a clerk of Barnum's hotel, that Brailsford arrived at said hotel on the 30th of July, 1854, and by Jno. M. Frazier, that Tonge does not reside in Baltimore, but resides, as witness is informed, and believes, in the State of Georgia, and such is Tonge's reputed place of residence among his family connections; that the witness has seen and read a letter from Tonge to his wife's mother, dated Bainbridge. The witness was then asked if he had said letter in Court, and said he had not, it was not written to him, but to his wife's mother. All this testimony was objected to by the defendants, and the objection sustained by the Court; whereupon, the plaintiffs excepted.

Third Exception. The plaintiffs further offered to prove by James Malcolm, the facts and matters testified to [**6]  by S. D. Tonge, on the former trial of this cause, and whether the testimony as detailed in the record of appeal, did not contain a full and fair statement of such testimony. This was objected to and the objection sustained by the Court, and the plaintiffs excepted.

Fourth Exception. The Court then asked the plaintiffs' and defendant's counsel if they had closed. The plaintiffs' counsel stated he had no further testimony in Court, but would like to offer in evidence the letter of Tonge to his mother-in-law, which he expected to have in Court next morning. The defendant's counsel objected to offering further testimony, unless it was now in Court. The Court then directed counsel to have their prayers ready by the next morning, and adjourned the Court.

The plaintiffs' counsel on the next morning produced a letter as the one spoken of by Frazier, and asked to offer it in evidence, and the defendant's counsel objected under the 35th and 36th rule of Court, and the objection was sustained; to which ruling the plaintiffs excepted.

Fifth Exception. The following prayers were then presented by the plaintiffs:

1. "If the jury shall find from the evidence that the bill of [**7]  exchange upon which this suit is brought, was on the day of its date drawn by William R. Brailsford, the defendant, a citizen of the State of South Carolina, at Charleston, upon Samuel D. Tonge & Co., at Baltimore, in the State of Maryland, and was by said last named firm accepted, and if the jury shall further find from the evidence that said bill of exchange was not paid at maturity, although duly presented for payment to the said acceptors at Baltimore aforesaid, and that said bill of exchange has not been since paid; and shall further find that said Brailsford was not a citizen of the State of Maryland at the time of the maturity of said bill, and who had no place of business or residence at said time in the State of Maryland--then the plaintiffs are entitled to recover in this case, although the jury shall find from the evidence that no notice of protest was served upon said defendant at Charleston aforesaid."

2. "If the jury find from the evidence that the defendant, Brailsford, left the city of Charleston on the 28th of July, 1854, for Baltimore, in the steamer Tennessee, and arrived in Baltimore on the 30th of July, 1854, before, in the regular course of mail from Baltimore [**8]  city to Charleston, notice of nonpayment and protest could have reached him, and was not in the State of South Carolina at the time when notice of nonpayment and protest of said draft ought to have been received at Charleston, in due course of mail, and that said Brailsford had no regular place of business or residence in Charleston, and left no person in Charleston to attend to his business in his absence, then the plaintiffs are entitled to recover in this case, although the jury shall find that no notice of demand, non-payment and protest was duly served on the defendant.

And the defendant offered the following prayers:"

1. "That there is no legal evidence of notice to the defendant of demand upon, and non-payment of the draft in this case, shown by the protest offered in evidence by the plaintiff."

2. "That there is no sufficient evidence of notice of demand and non-payment given by the plaintiffs to the defendant, which will entitle them to recover in this action."

3. "That if the jury shall find from the evidence, that no notice was served upon the defendant, or left at his usual place of business or residence, that then the plaintiffs are not entitled to [**9]  recover, and that the fact of his departure from Charleston to Baltimore upon the 28th of July, 1854, by the steamer Tennessee--if they shall so find it, is no excuse for the plaintiffs not having left the notice at his last place of business or residence."

4. "The defendant prays the Court to instruct the jury that the plaintiffs are not entitled to recover, because there is no evidence of notice to the defendant of a demand upon and refusal by the acceptor to pay the draft sued upon in this case as required by law."

The Court below, (MARTIN, J.,) rejected the prayers of the plaintiffs, and granted those of the defendant; and the Court also ruled out the testimony of A. O. Andrews and R. M. Butler, which had been read, subject to exception, it being admitted that they were partners of the plaintiff, Williams, in the house of Williams, Butler & Co., by which said bill was endorsed to the plaintiffs. The plaintiffs excepted to the exclusion of this testimony, and to the rejection of their prayers and the granting of the defendant's prayers, and this constitutes their fifth exception.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

BILLS OF EXCHANGE AND PROMISSORY NOTES: NOTICE OF DISHONOR: EVIDENCE: RESIDENCE, -- PROOF OF. -- It was decided on a former trial of an action by the endorsee against the drawer of a bill of exchange, that a letter press copy of a letter from the acceptor to the drawer, notifying him of the dishonor of the bill was admissible in evidence and sufficient; but that the evidence then presented was not sufficient to prove the mailing of the letter.

At the second trial of the cause under a procedendo, in the absence of the witness who testified as to the mailing of the letter at the first trial, and in order to lay a foundation for the admission of secondary proof from the record of the former trial, it was proposed to prove by reputation and hearsay that the witness on the first trial formerly resided in Maryland, but for the last two years he had not resided in this State, and could not be had as a witness upon the last trial, and that his testimony could not otherwise have been procured, which offer was made in connection with the testimony of the clerk of the acceptor, and former witness, that "it was the practice of the witness, the clerk, to mail letters left on the desk of his employer when so directed by him, and not otherwise, and that he had no recollection of having mailed the particular letter referred to." -- HELD:

1st. That the testimony of the clerk was too uncertain and indefinite to authorize an inference or conclusion that the letter was in fact mailed by him.

2nd. That irrespective of the question as to the right to prove the residence of the witness at the first trial by reputation and hearsay, the evidence as given at the former trial, if in, would be insufficient in connection with the testimony of the clerk to prove the mailing of the letter in question.

3rd. That in view of such insufficiency of the evidence of the witness at the first trial, if in, the offers of proof as to his residence, as well as proof of the evidence given by him at the former trial, were properly rejected.

PRACTICE: EVIDENCE. -- Where the testimony on both sides is closed, and under the rules of Court, the cause is ready for the prayers, and notice is given of further testimony to be offered when procured, which is objected to, it is within the discretion of the Court to refuse to receive the testimony when offered.

EVIDENCE, ADMISSIBILITY OF: INTEREST, -- WITNESS DISQUALIFED BY: ENDORSERS AS WITNESSES IN ACTION BY ENDORSEE vs. DRAWER. -- Witnesses who were parties to the bill of exchange above referred to as endorsers were offered to charge the defendant, the drawer, with notice of its dishonor by the acceptors, or its equivalent, waiver of such notice, and thus to enable the plaintiffs to recover a judgment against the drawer, whose effects were held by virtue of an attachment as security for the amount. -- HELD:

That the special circumstances of the case were such as to create an interest in their favor which would exclude them from testifying.

RESIDENCE OF DEFENDANT. -- A prayer assuming that in order to charge the defendant, the jury should find that he was a citizen of the State of Maryland at the time of the maturity of the bill, and had a place of business or residence in the State at that time, was properly rejected.

NOTICE OF DISHONOR AND PROTEST. -- A bill was protested in Baltimore on the 25th of July, 1854; a letter mailed there on that day could have reached Charleston on the 27th; the defendant, the drawer, left Charleston on a visit to Baltimore, on the 28th. No notice was proved to have been mailed to him; none was left at his last, or then place of business, or residence in Charleston, and neither ignorance of such place of business or residence shown, nor inability to ascertain it by diligent inquiry. HELD:

That under such circumstances, notice should have been left at the last place of business or residence of the defendant in Charleston, and the fact, that instead of a separate establishment of his own, he had his business desk in the counting-room of another person, did not exempt the plaintiff from this obligation.  

COUNSEL:
Thomas S. Alexander, for the appellants:

It will not be necessary [**10]  to trouble the Court with any discussion on the merits of the prayers submitted by the respective parties. The appellants claim a reversal of the judgment, on the grounds:

1st. That Andrews and Butler were competent witnesses for the plaintiffs.

2nd. That their testimony was sufficient to warrant the jury in finding: 1. That the defendant had received due notice of the dishonor of the bill. 2. That he had waived his right to take advantage of the want of such notice.

1. The indorser is a competent witness for the holder in support of his action against the drawer. 1 Greenl'f Ev., secs. 384 and 400. Hunt vs. Edwards, 4 H. & J., 283. Buel vs. Gwinn, Id., 507.

The circumstance that one of the plaintiffs was a member of the firm of Williams, Butler & Co., the indorser, at the time of such indorsement, cannot render the other members of the firm incompetent as witnesses for the holders of the draft. The case would be different if the witnesses were members of the firm of John Williams & Son, and continued members thereof. But upon the proofs, it is to be assumed that the firms were distinct and independent of each other in their general transactions, and in reference [**11]  to the bill stood in the relation of indorser and indorsees towards each other. That Andrews and Butler were originally liable as indorsers on the draft, and had no interest whatever in the firm of John Williams & Son, and have ceased to be interested in the firm of Williams, Butler & Co.

2. There is evidence besides that of the two witnesses before named, to show that the defendant left Charleston for Baltimore on the 28th June, 1854. And from this event, occurring so recently after the dishonor of the draft, and from his declaration, previously made, that the drawees had given him information of their inability to meet the draft, and of his purpose to go on and see the drawees about it, the inference is fair that he had received notice of dishonor from them.

The promise made immediately after his return from Baltimore to pay the draft, and his frequent acknowledgments of his liability thereon, are evidence as well of due notice of dishonor, as of a waiver of all defence on the ground of failure of notice. Beck vs. Thompson, 5 H. & J., 531. Jones vs. O'Brien, 26 L. & E. Rep., 283. 3 Kent's Com., 158, 159. Day, et al., vs. Lyon, 6 H. & J., 140. Berry, et al., vs. Crowley,  [**12]  4 Gill, 201. Byles on Bills, (348,) 500. 2 Parsons on Notes and Bills, 467. Chitty on Bills, 747, (669.) Baskins vs. Wilson, 6 Cow., 471, 474.

I. Nevett Steele for the appellee:

1st. The evidence offered in the first exception to prove that Tonge resided at the South, was properly rejected; because, even if the fact of such residence would have been a sufficient ground for the introduction of the evidence given by Tonge at the former trial, which is not conceded, it was not competent to prove that fact by reputation and hearsay, especially in the face of the sheriff's return that Tonge was "summoned" to the very term of the Court at which the trial took place; and because the evidence so formerly given by Tonge, would not be sufficient, even when connected with the testimony of his clerk, Talbot Wilson, to prove the mailing of the letter to the defendant, which the plaintiffs proposed to rely upon as proof of notice of demand and non-payment of the bill of exchange sued upon. Bell vs. Hagerstown Bank, 7 Gill, 223. Brailsford vs. Williams, 15 Md. Rep., 159. 1 Greenl'f on Ev., sec. 98.

2nd. The testimony of the witness, Frazier, set forth in the second exception was properly [**13]  rejected for the reasons stated under the first point, and for the further reason that the witness testified as to a letter dated "Bainbridge," without producing the letter.

3rd. The evidence offered by the plaintiffs to lay a foundation for the introduction of proof, as to what Tonge testified at the former trial, having been ruled out by the Court below, there was clearly no error in refusing to permit proof to go to the jury, that "the record of the former appeal" in this case contained a full statement of Tonge's evidence given on the first trial. Besides, the Court had already, and as we contend, correctly decided that the evidence of Tonge was insufficient for the purpose for which it was offered.

4th. The letter offered in evidence under the circumstances stated in the 4th exception, was properly rejected. It was offered the day after the evidence in the case had been closed, and the counsel had been directed to prepare their prayers. No reason was assigned why the letter had not been procured and offered in evidence at the proper time. The admission of the letter could not be claimed as matter of right at that stage of the cause. It was a matter which appealed to [**14]  the discretion of the Court below, and this Court will not interfere with its exercise of that discretion. Of course the letter was inadmissible, if the Court below was right in its decision, that Tonge's evidence was insufficient, &c.

5th. The first prayer of the appellants was properly rejected. The fact that the appellee, who was the drawer of the bill, resided in Charleston, while the acceptor resided in Baltimore, furnished no ground for an exception from the general rule, that every party to a bill, who, by the dishonor thereof becomes liable to an action, is entitled to notice of demand and non-payment. 1 Parsons on Bills and Notes, 499. And cases cited under 7th point.

6th. The protest offered in evidence by the appellants merely stated that notices of demand and non-payment were left by the notary at the place of business of the appellants, in Baltimore, and furnished no proof that a notice was sent to the appellee. The first prayer of the appellee was therefore properly granted.

7th. There was no proof in the cause of any notice to the appellee of demand and non-payment of the bill, or of any sufficient excuse for the want of such notice. The bill was protested [**15]  in Baltimore, on the 25th July, 1854, a letter mailed on that day in Baltimore would have reached Charleston on the 27th; the appellee left Charleston, on a visit to Baltimore, on the 28th. No notice was mailed to him; none was left at his last or then place of business or residence in Charleston, and neither ignorance of such place of business or residence is shewn, nor inability to learn it by diligent inquiry. Under these circumstances, notice should have been left at his last place of business or residence in Charleston, and the fact, that instead of a separate establishment of his own, he had his business desk in the counting-room of another person did not exempt the appellants from this obligation. Their theory, that upon the facts in the cause, the appellee was liable in this action, although no notice was given to him and no diligence used, or efforts made to put a notice in any channel by which it might reach him, cannot be maintained. If we are right in these views, the second, third and fourth prayers of the appellee were properly granted, and the second prayer of the appellant was properly rejected by the Court below. Whiteford vs. Burckmeyer, 1 Gill, 127. Orear vs. McDonald,  [**16]  9 Gill, 354. Nailor vs, Bowie, 3 Md. Rep., 251, 256.

8th. The testimony of Andrews and Butler was properly excluded by the Court below, because they were partners in the firm of Williams, Butler & Co., which had purchased the bill from the appellee, and had endorsed and transferred it to the appellants.

As endorsers, they were interested in enabling the appellants to recover in the cause, and did not stand indifferent between the parties. They had received notice and were themselves liable on the bill, while, for want of notice to the appellee, they could not recover against him. It was not, therefore, one of those cases in which their interest was balanced by a right to recover over against one party what they might be made to pay to the other; nor was it the case of a prior endorser, who, when called as a witness in an action against a subsequent endorser, is impartial and competent, because he is alike liable to the plaintiff and the defendant. It is admitted that the competency of an endorser to testify depends upon his interest, precisely as does the competency of any other witness. And it is contended that here the witnesses were directly interested, because if the [**17]  bill should be collected from the appellee, they would be relieved from an existing pecuniary liability, and the very object of their testimony was to enable the appellants to collect the money compulsorily from the appellee by the obtention of a judgment against him. Besides, the bill had been transferred by Williams, Butler & Co., to the appellants, to be credited in account current between them, and by enabling the appellant to recover from the appellee, the witnesses, Andrews and Butler, were in fact paying their own debt. It is believed the cases in Maryland go only to the extent of holding that a prior party to a note is in general a competent witness in a suit between subsequent parties. Talbot vs. Clarke, 8 Pick. 51. Rice vs. Stearns, 3 Mass. 225.-- Buskins vs. Wilson, 6 Cowen, 471. Henick vs. Whitney, 15 John. 240. Stenmetz vs. Curry, 1 Dallas, 272. Barry vs. Crowley, 4 Gill, 201. Ringgold vs. Tyson, 3 H. & J., 172. Bank of Columbia vs. Magruder, 6 H. &. J., 178.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*138]  WEISEL, J., delivered the opinion of this Court.
This cause was before this Court on a former occasion,  [**18]  and, in the aspect in which it was then presented, it was decided that a notice from the acceptor to the drawer of the of the bill of its dishonor, was sufficient to bind the latter; 

 [*139]  that the letter-press copy of the letter from the acceptor to to the drawer, conveying this intelligence, was admissible in evidence to prove such notice; but that the evidence, as then presented, was not sufficient to prove the mailing of the letter. Brailsford vs. Williams & Son, 15 Md. 150.
The case was retried in the Superior Court of Baltimore city, on the procedendo from this Court, and the rulings on this trial form the subjects of the present appeal.
It is to be observed that the suit originated in an attachment upon warrant, which was levied upon a quantity of whiskey and corn of the defendant, appraised at $ 2,125.20. The defendant was returned "non est" to the writ of summons, but at the term, after the return, he appeared by attorney to the suit in which this writ was issued, and defended the action, the attachment itself still pending, and operating as a security for the amount of the judgment which may be recovered in the summons case. Lambden vs. Bowie, 2 Md. 334, 340. [**19]  Both appeals have proceeded from the trials of the summons case.
The ground of action is a bill of exchange drawn by W. R. Brailsford, (the defendant below, and the appellee in this case,) of Charleston, S. C., on S. D. Tonge & Co., Baltimore, in favor of Williams, Butler & Co., dated at Charleston, June 22d, 1864, payable thirty days after date, for $ 1,800.92, which was accepted by S. D. Tonge & Co., and endorsed by the payees to the plaintiffs--the appellants. The bill was dishonored at maturity, and duly protested for non-payment.
In order to charge the defendant with notice of the non-payment by the acceptors of the bill, the plaintiffs offered certain testimony which was excluded by the Court. The first bill of exceptions is to this ruling. It appears that S. D. Tonge, of the firm of S. D. Tonge & Co., the acceptors, proved on the first trial, that on the day the bill matured he addressed a letter to the defendant, informing him that the 

 [*140]  bill was not and would not be paid, and produced a letterpress copy of the letter, which was allowed to go in as evidence. The writer, Tonge, although returned summoned as a witness to the term at which the second trial took place,  [**20]  was not present to testify, and the effort of the plaintiffs was to introduce the evidence which Tonge gave on the former trial, together with the copy of the said letter, which proof was in the record of the first trial, and in the reported case. In order to lay a foundation for the admission of this secondary proof, the testimony of witnesses was offered to prove that Tonge formerly resided in Maryland, but for the last two years he had not resided in this State, but had removed to some other place, and could not be had as a witness upon this trial, and that his testimony could not otherwise have been procured. This was offered in connection with the proof of Talbot Wilson, the clerk of S. D. Tonge & Co., set out in the bill of exceptions, in relation to his agency in mailing the letters of Tonge, and which was intended to supply the deficiency of proof on the former trial. The testimony of the witnesses to prove the non-residence of Tonge was objected to on the ground that it was hearsay and matter of reputation, and that his non-residence could not be proved in this way. The Court below sustained the objection, and ruled out and rejected all the said testimony as inadmissible,  [**21]  being of opinion, that irrespective of any question as to the right to prove Tonge's residence by reputation and hearsay, if his evidence as given on the former trial were in, it would be insufficient in connection with the testimony of Talbot Wilson now given, to prove the mailing of the letter in question, as claimed by the plaintiffs.
We concur in the opinion of the Court below as to the insufficiency of Wilson's testimony to prove the mailing of the letter. He proved that he was the clerk of the acceptors from 1850 to 1855; that Tonge wrote the 

 [*141]  business letters of the firm, and generally carried them to the post office himself; that when he did not do so, he placed them on a desk or table in his office and directed the witness to carry them to the post office; and that it was the practice of the witness to carry them to the post office, when they were thus placed on the desk or table, and he was directed by Tonge to mail them; and, being specially asked on cross-examination, whether he always put into the post office the letters he saw on the desk or table, whether Mr. Tonge told him to do it or not, he answered that he would not have put into the post office any letter [**22]  he might have seen there, unless Mr. Tonge told him to do so; and that he had no recollection of putting into the post office the letter in question to Brailsford. This we regard as too uncertain and indefinite to authorise an inference or conclusion that the letter was in fact mailed by him, and is very different from the evidence adduced in the case of Bell vs. The Hagerstown Bank, 7 Gill 216. In that case, it was shown that the letters written by the cashier were never taken by him to the post office, but were handed by him to the messenger, or left daily on his table for the messenger, whose regular and daily duty it was to take them to the post office and there deposit them, and that this was his--the messenger's--invariable and daily custom and practice, and that he had no recollection of ever having failed to perform this duty; the cashier having also proved that he had a distinct recollection of having received the notices in that case, and that he was very sure that on the day he received them, he sealed and directed them to the drawers and endorsers at their respective post offices. If, therefore, Tonge had been present, and had proved what he did on [**23]  the former trial, the additional proof by Wilson was insufficient to establish the fact of the mailing of the letter, and complete the evidence of notice to the defendant.
The testimony offered by Mr. Frazier and Mr. Malcolm, the one to prove the non-residence of Tonge, and the other 

 [*142]  what Tonge proved on the former occasion, and which is found in the second and third bills of exceptions, was also properly objected to, and excluded by the Court upon the same grounds as those given in the first bill of exceptions.
The fourth bill of exceptions was taken to the Court's refusal to allow a letter to be given in evidence, spoken of by Mr. Frazier in his examination the day before, and which was not produced, when the testimony on both sides was then closed, and to the future introduction of which the defendant's counsel objected. Under the rules of the Court, the cause was ready for the prayers of the parties on both sides, and the introduction of the testimony was in the discretion of the Court, and if introduced, related only to the non-residence of Tonge. It was, therefore, under the former rulings of no avail to the plaintiffs on the trial, and was properly rejected. [**24]  
In the progress of the trial, the plaintiffs offered in evidence, to show a waiver of notice by the defendant, or an excuse for not giving it, the testimony of Augustus O. Andrews and Richard M. Butler, of South Carolina, taken under a commission issued by them, and in connection with other proof admitted in the cause. The introduction of the proof taken under the commission was objected to by the defendant's counsel when offered, but the Court allowed it to go in then, and be read subject to exceptions, to be afterwards discussed and decided. Its admissibility was considered in connection with the prayers that were offered, and the Court sustained the exceptions to the testimony of the two witnesses above named, and ruled it out of the cause. The Court also rejected the plaintiff's prayers and granted the defendant's. To all which rulings the fifth exception was taken.
The counsel for the appellants, in his argument on this appeal, and in his brief, did not insist upon the merits of the 

 [*143]  prayers, but confined his views to an examination of the question of the competency of Andrews and Butler to testify for the plaintiffs below, and to the sufficiency of their proof to [**25]  warrant the jury in finding either that the defendant had received due notice of the dishonor of the bill, or that he had waived his right to take advantage of the want of such notice.
The witnesses named, were both members of the firm of Williams, Butler & Co., the payees and indorsers of the draft or bill of exchange, both at the time of its making and maturity, and their co-partner, Williams, was also a member of the firm of John Williams & Son, the plaintiffs, being the indorsees and holders of the draft.
It was proved in the cause by the plaintiffs' answers to a bill of discovery filed by the defendant, that the draft was received by the plaintiffs from Williams, Butler & Co., and credited to them in account current between the firms, and that the amount had not been repaid to them, the plaintiffs; that at the time the draft was received by the plaintiffs, there were current open accounts between the firms, and upon a final settlement, Williams, Butler & Co. would have been debtors to the plaintiffs; that when the suit was instituted the draft was the property of the plaintiffs, John Williams & Son, and the accounts between the two firms was at that time closed, and the firm [**26]  of Williams, Butler & Co. had before that time been dissolved, and there was no account then between them.
These witnesses were parties to the bill as indorsers, and they were offered to charge the defendant, the drawer, with notice of its dishonor by the acceptors, or its equivalent, and thus to enable the plaintiffs to recover a judgment against the drawer, whose effects were held, by virtue of the attachment, as security for the amount, as upon the recovery the plaintiffs could have moved for and obtained a judgment of condemnation in the attachment suit.

 [*144]  The objection to their competency is not because they are parties to the bill. That is no longer a question. Nor were they called to impeach its original validity, having given it currency by their indorsement, (about which the Courts have been much divided,) but to prove a matter affecting a recovery upon it, subsequent to their indorsement.
The only objection that can be urged to them as witnesses is on the score of interest. If they were directly or necessarily interested in the event of this suit, under the circumstances in which it was presented, and were called to support such interest, they were incompetent [**27]  to testify, and their proof was correctly excluded, (the trial in this case having taken place before the passage of the Act of Assembly of 1864, ch. 109.) The general rule in favor of the competency of an indorsee of a bill as a witness against the acceptor or drawer, with the reasons for it, is given by Professor Greenleaf, (1 Greenl'f Ev., sec. 400,) and with this accord all the authorities and text-writers. In every case where the party standing in this relation has been permitted to testify, his interest was equally balanced between the parties, or he was released by the party hindering him.
It becomes the Court, then, to inquire, whether in the attitude in which these parties were presented as witnesses, there were special facts which created an interest in their favor which would exclude them from testifying.
Such facts, we think, are disclosed by their own testimony. They received notice as endorsers of the dishonor of the bill which fixed their liability to the plaintiffs, whilst they failed to serve the defendant with the notice for him, either personally or at his place of residence or business, which relieved him from his liability to them. By enabling the plaintiffs [**28]  to recover from the defendant, especially in an action which secured the payment of the judgment by means of the attachment they would effectually shield themselves from suit and liability to the plaintiffs. The holders would not be induced 

 [*145]  to resort to them, when, by a recovery against the defendant, they would have, as it were, the means of payment already in reserve. If they should abandon this advantage and institute suit against the indorsers, these in their turn would be hopeless of recovery from the drawer by reason of their failure to give him the necessary notice. They did not, therefore, occupy an indifferent position between the parties, as endorsers ordinarily would where both they and the drawer had regularly received notice, and if compelled to pay the holder they could successfully resort to the drawer for reimbursement.
We, therefore, are of opinion that the testimony of these witnesses was properly excluded by the Court, and that the defendant's prayers were properly granted.
The plaintiff's prayers were obviously incorrect, the first in assuming that in order to charge the defendant, the jury should find that he was a citizen of the State of Maryland [**29]  at the time of the maturity of the bill, and had a place of business or residence in it at said time; and the second, in dispensing with notice to him, although he had lived in Charleston, but had left it for Baltimore on a visit before notice could have reached him in the regular course of the mail, and that he had no regular place of business in Charleston, and left no person there to attend to his business in his absence. They were properly rejected.
Concurring with the Court below on all its rulings, we affirm the judgment.
Judgment affirmed. 

78 of 120 DOCUMENTS 

THE MAYOR & C. C. OF BALTO. vs. THOMAS POULTNEY & DAVID B. TRIMBLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 107; 1866 Md. LEXIS 46 

June 20, 1866, Decided 

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

This was an action on the case, brought by the appellees against the appellant, to recover damages for injuries sustained by them in loss of goods, wares and merchandize taken and carried away from their store in the city of Baltimore, and for other injuries done them by a tumultuous assemblage of people on the 21st of April, 1861.

The declaration contained three counts, the first and second counts were framed on the 82nd Article of the Code of Public General Laws, and the third was framed with reference to the principles of the common law.

First Exception. At the trial of this cause the plaintiffs, to support the issue on their part joined, gave in evidence by Joshua Vansant, a competent witness, the following facts: That he knows the plaintiffs who occupy a store in Baltimore street, No.    , in the city of Baltimore, and which store they occupied in April, 1861, and that they had in said store a large stock of goods, consisting of guns, pistols and other munitions; that on Sunday the 21st day of April, 1861, between the hours of ten and eleven o'clock of that day the witness was passing along Baltimore street, going [**2]  eastwardly, and when he had reached Charles street, at the intersection of Baltimore and Charles streets, his attention was attracted by a crowd of persons who had collected in Baltimore street, in front of the store of the plaintiffs; that he went over and found a crowd there of from fifty to sixty persons, and found it difficult to get through the crowd, who were somewhat excited, and who were pressing to get up to the window of the store of the plaintiffs; that the pane of glass on the left hand side of the door was broken through and some persons were in the store; that he succeeded in getting to the door, and there found a stout person who was haranguing the crowd, and was endeavoring to dissuade them from going in, and from carrying away the goods; that the witness also endeavored to induce the crowd to desist, remonstrating with them and urged the injustice and impropriety of taking the goods of the plaintiffs without their leave; that the witness remained there about fifteen minutes; that Mr. Trimble then appeared (one of the plaintiffs) and the witness then went off; that he had been a good deal pressed by the crowd, and as the proprietor had come, he felt at liberty to go [**3]  away; that he saw persons with guns, and remembers to have noticed particularly a gun which seemed to be a double barrelled gun highly finished; that some had whiskey flasks and other articles; that there seemed to be some thirty or forty who were endeavoring to press into the store; that a portion of the crowd was composed of young men apparently from fifteen to twenty years of age; that the crowd could have broken in the door if they had chosen to do so; that they exclaimed or cried out--"we must have arms they are going to attack the city." People were going to church at the time.

The plaintiffs also proved by Christian B. Klerbacher, a competent witness, that he has been in the plaintiffs' employment for four years; that on Sunday the 21st of April, 1861, about eleven o'clock, he saw a crowd in front of the plaintiffs, store, and at the request of Mr. Poultney, one of the plaintiffs, whom he met at the corner of Baltimore and Charles streets, went to procure the assistance of the police; that Mr. Poultney went towards the store, and at the corner of Fayette and North streets, witness met a body of policemen under the charge of a police officer, and upon communicating to them [**4]  the object of his mission, they proceeded direct to the store of the plaintiffs, when the crowd immediately dispersed; that he was not gone more than ten minutes, as he supposes; that the police reached the store between half-past eleven and twelve o'clock; that there were persons inside of the store, and two or three persons got over the wall at the back of the store, and came into the back yard, for the purpose, as he supposed, of getting into the store; that Mr. Trimble was in the store when the witness first got in himself, and Mr. Poultney went in the store with the witness; that they both went in after the crowd had been dispersed; that the crowd outside were getting goods out of the store; that so far as the witness saw, they were handed to those outside by those within; that witness first got to the store just in advance of the police and there were no goods handed out after the police arrived; that the police took possession of the store and guarded it effectually for ten days or two weeks from that time.

The plaintiffs offered in evidence by Barton, a competent witness, that on Sunday morning the 21st of April, 1861, he and Mr. Trimble, one of the plaintiffs, were sitting [**5]  together in the parlor of the witness in Baltimore street when the alarm bells commenced ringing; they went to the door and saw a crowd of excited persons in the street, and upon making the inquiry what was the matter? were informed that a body of troops were approaching the city from Pennsylvania, and that they would be resisted by the citizens; that Mr. Trimble then said that the crowd might endeavour to break into their store, as they had a large collection of arms, and requested the witness to accompany him to the store on Baltimore street which the witness did, and they proceeded at once in that direction; that before they reached the corner of St. Paul's and Baltimore streets, Mr. Trimble stopped and the witness went to the store, where there was a crowd of persons, of from two to three hundred, part boys and part men; that he returned to Mr. Trimble and advised him to go up as he was one of the proprietors, and they both then went to the store where Trimble remained and witness went to procure the police; that this was between ten and eleven o'clock; that he proceeded to the police office and found Marshall Kane on the steps and told him of the crowd at Poultney and Trimble's [**6]  store, who said he had understood that Poultney and Trimble were giving away their guns to the crowd; that the witness replied that they were giving some guns away to appease the crowd and that he, the witness, had suggested it to Mr. Trimble; that the witness then requested the marshall to send a police force at once to protect the store, who said he would do so, and in a few minutes the police were at the store and protected it effectually from the time of their arrival; that the police were sent promptly after the witness had assured Kane that Poultney and Trimble were not giving away their goods; that there were no guns delivered to the crowd until he suggested it to Mr. Trimble, and he did so advise Mr. Trimble, as the best mode of appeasing the crowd whilst he, the witness, went in quest of the police.

The plaintiffs also read in evidence to the jury the said admitted notice as follows:

To HIS HONOR, MAYOR BROWN, Baltimore, Md.,--As a mob is now raging in our city, we fear our store may be broken into by violence, and arms and other goods taken therefrom, and other damage done. We therefore ask protection at your hands.

Yours very respectfully,

POULTNEY &  [**7]  TRIMBLE.

Balto., April 19, 1861.

The above was left with the Police Commissioners, given to Mr. Howard.

The plaintiffs' then called Wm. Harris, a competent witness, and offered to prove by him, that on Sunday the 21st day of April, 1861, at about 12 o'clock of that day he was informed by a friend that he heard it declared by a crowd of persons in Baltimore street, that they would have arms and that they had been ordered to defend the city and had no arms; that in consequence of this information, he, the witness, being a gun-maker and having arms in his store, repaired, accompanied by a friend, to his establishment, in order if possible to remove his most valuable arms to a place of security; that whilst engaged in this effort a small crowd gathered before his establishment and upon the expostulation of Mr. Green who had accompanied said witness to his said establishment, the crowd went away taking with them but few articles from the store of said witness; that an opportunity being thus afforded to him, the witness went in search of the police, but could not find any of them; that the witness then sent for the city guard of which he was an honorary member, and a detachment [**8]  of the city guard shortly afterwards appeared at the store of said witness, but before the said detachment of the city guard appeared the crowd had returned greatly increased in number, and that the said witness being unable to resist them, the said crowd had seized upon and would have carried away a portion of the arms belonging to the said witness to the value of about six hundred dollars; and that the city guard had to charge upon them with fixed bayonets, before the crowd would desist.-- But the counsel for the defendant objected to the admissibility of the evidence thus tendered.

The plaintiffs counsel then stated, that they expected and proposed to prove by another witness, that the crowd of persons in Baltimore street had made such declarations and used such language as were reported to said witness. The Court thereupon inquired of the plaintiff's counsel, whether they expected and proposed to identify any of the persons who entered the establishment of Mr. Harris, as a part of the crowd, who were at the store of the plaintiffs on said day? And the counsel for the plaintiffs replied, that they were not able to prove such identity. Whereupon the Court, upon the objection [**9]  of the defendant, rejected the proposed evidence as irrelevant upon the the issue joined, and refused to permit the same to be given in evidence to the jury. To which said refusal the plaintiffs by their counsel, prayed leave to except.

Second Exception: The plaintiffs then offered to prove by competent testimony the following facts offered severally:

1st. That the troops of the United States, on their way through Baltimore city to Washington city, were attacked in Pratt street on the on the 19th April, 1861, and that blood was there shed, and that there was great excitement at the railroad depots and throughout the city.

2nd. That a public meeting was held the same evening in Monument Square, under the auspices of the Mayor, and at which meeting the Mayor presided, and that at said meeting there was a manifestation of deep feeling and hot blood.

3rd. That on the evening of the 19th day of April, 1861, Col. Geo. P. Kane, Chief Marshall of Police of Baltimore city, in reply to a despatch received by him from Bradley T. Johnson, of Frederick city, despatched the following telegram to said Johnson: "Thank you for your offer, bring your men in by the first train, and [**10]  we will arrange with the railroad afterwards, send expresses over the mountains and valleys of Maryland and Virginia, for the Riflemen to come without delay. Fresh hordes will be down on us to-morrow, the 20th, we will fight them or die.--GEO. P. KANE." But the counsel for the defendant objected to the introduction of such testimony as irrelevant upon the issues joined, and the Court sustained the said objection, and refused to permit said facts or any of them to be given in evidence to the jury; to which said refusal of the Court the plaintiffs by their counsel prayed leave to except.

The plaintiffs then read in evidence to the jury the Ordinance No.    , April, 1861, and the Act of Assembly of April, 1861, ch. 2.

Third Exception. The plaintiffs then offered to read in evidence to the jury, copies of several resolutions passed by the City Council of Baltimore, appropriating different sums of money for the payment to divers persons for their claims for damages to property destroyed by the mob on the 21st of April.

To the reading of said resolutions, the defendant, by its counsel, (waiving any objection to the same on the ground of want of the formality of due authentication,  [**11]  ) objected as irrelevant to the issues joined in this case. And the Court sustained the said objection, and refused to permit the said resolutions, or any of them, to be offered in evidence to the jury.

To which refusal the plaintiffs, by their counsel, prayed leave to except.

The plaintiffs being unwilling to proceed to trial without the presence of Moritz, a competent witness, but having consented, if the facts which the plaintiffs expected to prove by said witness were admitted, to go to trial, the said admissions were made and read by the plaintiffs in evidence as follows:

The plaintiffs will proceed to trial, if the following facts are admitted.

1. That the notice dated on the 19th April, 1861, was written on that day, after the disturbances had occurred in Pratt street, and was delivered on the same day, or on the morning of the 20th April, to Mayor Brown.

2. That the goods were taken from the store of the plaintiffs on Sunday the 21st of April, 1861, there being a large assemblage of persons then outside and in front of the store; and that a few persons were inside of the store, and handed the goods out.

The witness, J. D. Moritz, testified that [**12]  he was at the store between eleven and twelve o'clock on that day, and that he saw a large crowd before the door, and found that persons were inside, having got in through the front window, by breaking an entrance into the store; that he, himself, then went into the store; that the police arrived there between twelve and one o'clock on that day, and after their arrival protected the property thenceforth; and that the value of goods taken from the store and carried away was $ 2,583.25.

The defendants then to support the issue on their part joined, offered in evidence to the jury by George Wm. Brown, a competent witness, that he was Mayor of the city of Baltimore on the 19th of April, 1861, and for some time before and after that date; that he has no recollection of the particular notice, of which the paper now shewn him purports to be a copy, but has a recollection that some such notice was presented at the Police Board,--there were many notices of the kind communicated to the Board at the time, some written and some verbal, many of which were urgent;-- that the Board regarding these notices as being prompted by the vague alarms and apprehensions of individuals, paid no particular [**13]  respect to them, except in cases where they, the Board, thought there was some reason for their interference and protection; that for some days previous to the 19th of April, there was great excitement in the city, and the police force was continually employed night and day, and were much worn out, so much so, that the Police Commissioners felt it to be their duty to spare the men as much as they could; that after quieting the disturbance in Pratt street, and upon his return to the office of the Mayor, he found there Governor Hicks, who had already prepared an order calling out the militia; that it was then suggested, probably by himself, that the Police Commissioners had by law the authority to call upon the military for such force, as in their judgment might be required, to preserve order and maintain the authority of the laws, and that it would be best to leave the call to be made by the Commissioners; that Gov. Hicks acquiesced in this view, and a call was made by the Commissioners upon Major-General Stuart for five hundred men; that they were furnished by the General, but they still remained under his command; that General Trimble was appointed on Sunday, and not before; that [**14]  prior to Sunday the 21st of April, no further call was made for or upon the the military; that the regular police force was four hundred men, and this was sufficient under ordinary circumstances; that no increase of the police force was made by the Board of Police; that no call was made on the sheriff to summon the posse comitatus, nor did the board call upon the citizens for aid for any purpose; that the five hundred dollars mentioned in said Ordinance of 19th April, 1861, was promptly provided and placed under his control; that no orders were given to any of the police to make inquiries in the case of the plaintiffs, and no action was taken on their notice.

The defendants further offered in evidence by John W. Davis, a competent witness, that he was a member of the Board of Commissioners of Police, existing on the 19th of April, 1861, and before and after; that he has no recollection or knowledge of the notice of Poultney and Trimble of the 19th of April; that the town was greatly excited from Friday until and during Sunday; that after the affair in Pratt street on Friday, there were great apprehensions on his part of an out-break, but it was a collision between the two classes [**15]  of citizens,--the one class sympathizing with the South, and the other in support of the Government, but he heard of no attempt to take the property of individuals until Sunday, except in the single case of Mr. Gunnison, who expressed his apprehensions that an attack would be made on a row of houses belonging to him; that the board thought his apprehensions were well founded, and sent a force of police to protect his property, but they had no application before Sunday for any aid from the police for the protection of property with the one exception of Gunnison; that the board called for five hundred men of the military, and obtained them, and these with his four hundred men of the regular police, were all the force the board thought they required; that they found they had entire control of the town; that on Sunday there was a rumor of the approach of troops from Pennsylvania, and that they had reached Cockeysville; and this rumor created great excitement on Sunday, and a strong determination to meet and repel the Pennsylvania troops; and that the police, in his opinion, had entire control of the city

The defendants further offered in evidence by Marshal Gifford of the police,  [**16]  that he was at the police office on Sunday 21st April, 1861; that he was there in the morning, and was there alone, when some person brought intelligence to the office, that a large crowd had assembled at Poultney and Trimble's store, and that they required the aid of the police; that this was about eleven or twelve o'clock; that he started immediately, and intercepted a squad of police who were going to some other point, and took them at once to the store of the plaintiffs; that he found a crowd there, but not boisterous, and saw some person handing out guns through the broken panel in the door, and thinks the person was Mr. Trimble; that he asked whether they were handing out the guns with their own free will and consent, the person who was handing them out at first said "yes," but when he looked at the witness, and saw he was of the police, he said "no;" that the witness then took the guns from those in the crowd then present, who had received them, and handed them back into the store; that the crowd made no resistance to him, but yielded up the guns quietly; that there were from seventy to one hundred persons at the store, a portion of whom were boys; and that he had with him a [**17]  force of twenty-five policemen, armed with the usual clubs, and also with revolvers.

The defendant further proved by Charles McComas, a competent witness, that he belonged to the police of the city, and passed up Baltimore street, from west to east, between nine and ten o'clock on the morning of the 21st of April, it may have been earlier, and there was a perfect quiet in the street; and that there was no crowd at the store of the plaintiffs at that time.

The plaintiffs then offered one, and the defendants seven prayers, which are stated in substance in the opinion of this Court.

The Court below, (MARTIN, J.,) rejected all of said prayers, and gave the instruction which is set out in full in the head note of this case, in answer to an inquiry from the jury. The verdict of the jury, and the judgment being in favor of the plaintiffs, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

RIOTOUS OR TUMULTUOUS ASSEMBLAGES: CODE OF PUB. GEN. LAWS, ART. 82: PRAYERS AND INSTRUCTIONS TO THE JURY. -- In an action on the case by P. & T., against the Mayor & C. C. of Balto., claiming damages for injuries sustained by them in the loss of fire-arms, &c., taken and carried away from their store in said city, and from other acts there done by a tumultuous body of people, on the 21st day of April, 1861, the following instructions were given by the Court below and sustained on appeal:

1st. That the remedy of the plaintiffs for the injuries of which they complain, is under the 82d Article of the Code of Public General Laws, and that they have no remedy at common law; and that to entitle the plaintiff to recover in this action, under the Code, the jury must be satisfied from the evidence, that their store was injured or their goods taken away by a riotous or tumultuous assemblage too strong to be resisted without the aid of the city authorities.

2nd. That to entitle the plaintiffs to recover under the provisions of the 82nd Article of the Code, the jury must find from the evidence that the defendants had good reason to believe, that a riotous or tumultuous assemblage too strong to be resisted without the aid of the city authorities, was about to take place at the store of the plaintiffs in time to prevent it, against the alleged riot of Sunday, and that the defendants had the ability of themselves or by the aid of their own citizens, to have prevented the said assemblage before the injuries complained of were committed, and that the defendants did not use reasonable diligence in the employment of the powers entrusted to them for the purpose of preventing or suppressing the said riotous or tumultuous assemblage, but that the defendants were not bound to place officers or guards around the property of the plaintiffs to prevent injuries or depredations in the absence of any riotous or tumultuous assemblage then menacing it, or unless there was good reason for believing that it would be assailed by a riotous or tumultuous assemblage.

3rd. If the jury find from the evidence, by witnesses introduced by the plaintiffs, that the persons collected about the store of the plaintiffs, on the 21st of April, 1861, or thereabouts, were there for the purpose of procuring arms by force if they were resisted, and were there also for the purpose of mutually assisting each other in the forcible execution of the said object, if the use of force should be found to be necessary, and that the said store was entered and the goods therein taken away by certain persons forming a part and connected with the said assemblage force or against the free and unrestrained will of the plaintiffs, then the property of the plaintiffs is to be considered as injured, and their goods taken away by a riotous and tumultuous assemblage within the meaning of the 82nd Article of the Code, in relation to riots.

4th. That if the jury shall find a verdict for the plaintiffs, then, in estimating the damages, they are to give to the plaintiffs the full amount of any damage they may find the plaintiffs have sustained by injury to their store, and also the full amount of the value of the goods which they may believe were taken away by force, or surrendered by the plaintiffs, under the apprehension of force, and not freely and voluntarily delivered.  

COUNSEL:
Wm, Price, for the appellants:

The appellants contend, that the instructions of the Court were wrong:

Upon a review of the evidence, it appears that no notice was given to the police, or at least no notice of such a character, as was requisite, for the purpose of convincing them that [**18]  a force was necessary at the store of the plaintiffs, except the notice on the 19th of April, of which a copy was produced, (ante p. 111,) even this notice was ignored by Mayor Brown, when he states, that he has no recollection of the particular notice of which the paper shown to him purports to be a copy; there were many notices of the kind communicated to the Board of Police, some written, some verbal, many of which were urgent; the board regarding these notices as being prompted by the vague alarms and apprehensions of individuals, paid no particular respect to them, except in cases where they, the board, thought there was some reason for their interference and protection.

It does not distinctly appear then, that any notice was given, and if given, it was on the 19th of April. Now then, were the authorities diligent in acting where they supposed their aid necessary? It must be remembered that they were continually harrassed by applications of all kinds, that false rumors were current upon the streets and elsewhere, that it was almost impossible to discover their truth, or to know at which point their assistance was most needed, they were therefore to keep a constant look-out,  [**19]  to ascertain the correctness of the reports, and to govern themselves and the force under their control, as in their judgment the circumstances required, so that protection to all might be secured, and the city properly kept in order. For this purpose a call was made by the Board of Police upon General Stewart for five hundred men, these with four hundred of the regular police, were all the force the board thought they would require. They found they had entire control of the city. It was impossible for men to do more; they made calls to suit their exigencies, and found them sufficient. This the defendants think conclusive up to this time of the diligence of the police board, and the city authorities generally, in adapting themselves to the circumstances, and in their preparations to defend and protect their citizens from out-break or riot.

Now if this notice was received by the police force at all, was it a notice of an actual riot? or of such a riot as would make it appear that the store of the defendants was in danger of an attack?

The notice itself has every appearance of a production dictated by fear and apprehension, and was such a notice as would embarrass the police [**20]  force if attended to, and at the expense of taking them away from the scene of immediate trouble, where their services were absolutely necessary. So the commissioners regarded it and the result proved that their views were correct, as no riot nor any manifestation of a riot occurred at the store of the plaintiffs' on that day.

This, then, is the notice relied upon by the plaintiffs, and the only written one produced by them. The day of the 19th closed, and with it the vestiges of riot; it is true the excitement was still high, but that identical day, and that identical riot, were numbered with the past, and Poultney and Trimble's store was untouched; no manifestation upon them had occurred, and as far as they were concerned, every thing was quiet. With the coming in of a new day, they were to be upon their guard, and if it brought new dangers, it was their duty to notify the authorities, if they were threatened, in time to prevent such injury or destruction; and the city to be responsible only, when, after notice duly given, it shall appear that they did not use all reasonable diligence and the powers intrusted to them, for the prevention or suppression of such riotous or unlawful [**21]  assemblage. (Code, Art. 82.)

The notice must have its date, and base its origin from the time on Sunday morning that the manifestations at the store of the plaintiffs commenced; everything in fact that happened anterior to that time is past, and has no more to do with the subject in question, than if it had occurred in the year before.

The defendants hold that not only the notice in time must be proven, but the lack of diligence on the part of the commissioners, that the assemblage was of such a character that without the aid of the police they would have broken into their store, to damage and destroy and carry away; that they were boisterous, in large numbers; that the plaintiffs gave them no goods of their own free will; and that the police, after their arrival, were unable to protect them.

All of these facts must be shown in order to entitle the plaintiffs to recover; a failure to prove them defeats their action, and upon the testimony as to these circumstances, the defendants have founded the substance of their prayers, and they respectfully insist that they were entitled to corresponding instructions.

Art. 82 of the Code of Public General Laws, sec. 2, declares:  [**22]  that "no such liability shall be incurred by any county, incorporated town or city, unless the authorities thereof shall have had good reason to believe that such riot or tumultuous assemblage was about to take place, or having taken place, shall have had notice of the same in time to prevent said injury or destruction either by its own police or with the aid of the citizens of such county, town or city, it being the intention of this Article that no such liability shall devolve on such county, town or city, unless the authorities having notice have also the ability of themselves, or with their own citizens, to prevent said injury."

And again, by sec. 3: "In no case shall indemnity be received when it shall be satisfactorily proved that the civil authorities and citizens of said county, town or city, when called on by the civil authorities thereof, have used all reasonable diligence, and all the powers intrusted to them, for the prevention or suppression of such riotous or unlawful assemblages."

The appellants' counsel then read and commented fully upon the testimony in the cause, and argued therefrom that the city authorities were able by themselves, and with the force they [**23]  could command to quell the disturbance, and used all due diligence at the plaintiffs' store, and after their arrival there did effectually protect the establishment from all further demonstrations; that the testimony shows that Trimble, himself, distributed guns to the crowd; that none were distributed after the arrival of the police, but that many were then returned.

The evidence that due diligence was used on the part of the police is very conclusive. Marshal Gifford was alone at the police office when the intelligence of the crowd at the plaintiffs' store arrived; he started immediately and intercepted a squad of police and took them at once to the store in question. Marshal Kane stood upon the steps of the police office, when the witness Barton approached with his complaint of the same tenor. He asked Barton if the plaintiffs were giving away their arms? and upon Barton's explanation of this, he said he would send the police, and in a few minutes they were at the store. The witness, Klerbacher, started after the police, and in ten minutes found them, communicated his message, and returned with them.

Was not this reasonable diligence? Was there ever a police force more [**24]  diligent? The evidence cited is taken from two of the witnesses of the plaintiffs, and one of the defendants, and they all agree in the fact that there was no delay. The police were on the watch and moving to and fro in all parts of the city; in any and every direction they were to be met, looking out for, and protecting the citizens, quelling disorders and preventing disturbances; in each of the cases above cited, the police were brought to the scene immediately; it was effected by three different persons with three different officers all tending to the same result. Nor have the plaintiffs attempted to show in any way, or by any witness, that reasonable diligence, after due notice given, was not exercised by the police of the city, but on the contrary the tendency of the evidence which they produced was to the same effect, that every diligence was used, and all possible dispatch.

There is but one other point upon which the defendants rely in sustaining their prayers, and that is: Did the police force after their arrival succeed in protecting the store? The evidence upon this point is as plain and straightforward as upon any of the others. Marshal Gifford says, that "he took the [**25]  guns from those in the crowd then present, who had received them, and handed them back into the store; the crowd made no resistance but yielded them back quietly." The witness, Barton, says: "in a few minutes the police were at the store and protected it effectually from the time of their arrival." The witness, Klerbacher, says: "that there were no goods handed out after the police arrived; the police took possession of the store and guarded it for ten days or two weeks from that time;" as in the others, this point is proven by three respectable witnesses, and the plaintiffs have not even sought to prove to the contrary.

The defendants, therefore, respectfully insist that they have proven their case clearly, so far as to entitle them to the instructions asked for; that the notice to the Mayor, dated April 19th, did not dispense with the necessity of a notice on the 21st; that the remedy of the plaintiffs is under Art. 82 of the Code of Public General Laws; that according to Art. 82, they have complied with its requirements in using all diligence after notice given to them of the existence of the crowd at the store of the plaintiffs, and that after their arrival they protected [**26]  it effectually.

They, therefore, respectfully ask that the decision of the Court below be reversed.

Wm. Schley for the appellees:

Upon examination of the instructions of the Court, it will be seen that every point embodied in the several prayers set out in the appellant's argument, is fully covered by the instructions of the Court.

The facts were properly left to the jury. In the appellants' argument, questions of fact are discussed, as if this Court was to decide on the testimony. To whom did it properly appertain to decide whether the authorities of the city had "good reason to believe" that a riot was about to take place? To whom did it belong to decide whether the civil authorities, when called on, had or had not used all reasonable diligence and all the powers intrusted to them for the prevention of said riot? There was evidence that there was great excitement in the city--that blood had been shed in Pratt street--that the plaintiffs had in their store arms and ammunition; and it was further proved, that no attention was paid to the call of the plaintiffs for protection, nor any inquiries or directions made or given as to the grounds of their apprehension.  [**27]  There was also evidence that Marshal Kane, when called on by Mr. Barton, had knowledge that arms were being obtained from the store of the plaintiffs; and, upon his unwarranted conclusion that they were giving their arms away, he had not ordered any of the police to visit the plaintiffs' store. Why was this? It cannot be denied that he might, so soon as he knew that arms were being obtained, have sent a party of men--policemen, citizens or soldiers--to protect the property. The jury, upon the whole evidence, might well have formed the conclusion that in the state of feeling then in the city, it was a reasonable apprehension on the part of the plaintiffs, that their store, being a depot of arms, would be attacked for the sake of the arms there; and that, in the exercise of reasonable diligence and precaution, a sufficient force of men should have been sent early on Sunday morning, if not before, (for the excitement was on the increase) to guard the property.

Whether the conduct of the plaintiffs was judicious or not in endeavoring to appease the crowd was for the consideration of the jury, upon the whole evidence, in allowing damages. It did not go to the plaintiffs' right of action.  [**28]  

Whether the assemblage was riotous or not, was not to be decided by the Court. It was for the jury.

Every point presented in the appellants' argument, seems to look to the effect of the testimony as to its probative force, and not to present any sound objection to the ruling of the Court.

Parties may have their remedy at common law, although there may be a remedy by statute. Scholl vs. Nor. Cent. Railway Co., 16 Md. Rep., 331.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*125]  WEISEL, J., delivered the opinion of this Court:
In this case the Mayor and City Council of Baltimore were sued by the appellees, (plaintiffs below,) under the 82d Article of the Code of Public General Laws, and also at common law, for injuries done to the store of the plaintiffs in said city, and for losses sustained in the violent taking and carrying away therefrom of a quantity of arms, ammunition and other goods, by a riotous and tumultuous assemblage of people, on Sunday the 21st of April, 1861, a period of well known excitement and alarm in that city.
Evidence was given on both sides, and some offered by the plaintiffs was [**29]  excluded by the Court, and formed separate exceptions; but in the view taken by this Court of the instruction given to the jury, it is unnecessary to pass upon them.
In considering the instruction which the Court gave, and comparing it with the requirements of the 82d Article of the Code of Public General Laws, we can discover no error in 

 [*126]  it, but find that the law, upon a proper construction of said Article, was fully and carefully stated to the jury, and that the defendants below were allowed every benefit and advantage which they could ask under its terms or provisions. That being performed, the finding of the facts, and the application of the instruction to them, was for the jury as in all other cases.
As the instruction of his Honor below is full and meets with the entire approbation of this Court, we deem it unnecessary to enlarge.
Judgment affirmed. 

79 of 120 DOCUMENTS 

JOSEPH H. MAILHOUSE AND JULIUS MICHELIS vs. JAMES FRAZIER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 96; 1866 Md. LEXIS 45 

June 15, 1866, Decided 

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

The bill of complaint filed by the present appellee states, in substance, that on the 20th April, 1859, he agreed to sell a parcel of land in the city of Baltimore to the defendant, Mailhouse, for the sum of $ 3,500, of which the sum of $ 500 was to be paid in ready money, and the residue with interest in one, two and three years from the day of sale; that the cash payment was made and the notes of Mailhouse were given to the complainant as agreed upon, and the said property was thereupon delivered into the possession of Mailhouse; and the complainant also gave him a bond for the conveyance of the premises to him, on payment of the entire amount of purchase money.

The bill then states that Mailhouse, pretending to become dissatisfied with his contract with the complainant, on the 23rd January, 1863, conveyed his interest in said premises to his brother-in-law, the defendant, Michelis; the complainant "joining as a party thereto, in order to signify his assent to said transfer, and at the request of, and in order to accommodate said Mailhouse, agreeing to return to him the three notes the complaint had received from him as security [**2]  for the unpaid purchase money, and in lieu thereof to receive the notes of the said Michelis drawn by him, as of the same date, for the same amounts, and payable at the same periods as the notes so returned as aforesaid to said Mailhouse."

But the bill further avers, that in returning said notes to said Mailhouse, the complainant had no intention to release him from his responsibility to the complainant under his said contract for the payment of the said purchase money, but still regarded him as liable therefor; that one of said notes so received from the said Michelis has become due, and was dishonored, and remains unpaid; that Michelis is utterly destitute of means or resources of any kind; that Mailhouse and Michelis were both aware of the inability of Michelis to pay said notes at maturity, and that said assignment was by the fraudulent combination of the two designed and expected by them to exempt Mailhouse from the responsibility incurred by him under his contract with the complainant by artfully and fraudulently substituting the worthless notes of Michelis for those of Mailhouse.

The bill insists, that notwithstanding said assignment to Michelis, and the surrender [**3]  to Mailhouse of the notes given by him to the complainant, he is still liable for the payment of the purchase money yet due, and that the same is a lien on said premises, and it therefore prays that the defendant may be decreed to pay to the complainant the sum of $ 3,000 yet due, with interest thereon, and in default thereof, that the premises be sold, &c.

Exhibit A, filed with the bill, is an office copy of the bond of conveyance given by complainant to Mailhouse.

Exhibit B is an office copy of the deed of assignment from Mailhouse to Michelis. The complainant is a party to the deed. And it is therein cited, that "the said Michelis has agreed to assume the payment of the balance of the purchase money, and interest remaining due and unpaid, in consideration whereof, the said complainant hath agreed to surrender to the said Mailhouse the three promissory notes now in his possession, as security for the payment of the said purchase money and interest, and to accept in lien thereof the three promissory notes of the said Michelis, to be drawn as of the same date for the same amount, and payable at the same periods as the three notes so surrendered as aforesaid."

Interlocutory [**4]  decrees having been entered against the defendants, the complainant filed and returned under a commission to take testimony, three several promissory notes of the said Michelis, dated respectively on the 20th April, 1859, for the sum of $ 1,000, and payable with interest in one, two and three years after date. And thereupon, on the 23d May, 1863, a decree was passed, directing that the defendants forthwith pay or bring into this Court to be paid to the complainant, the sum of $ 3,000, with interest and costs, and in default thereof, that the premises aforesaid be sold.

The property having been sold, and yielding less than the sum decreed to the complainant, he filed his petition for a writ of fieri facias against the defendants, which was ordered to be issued as prayed. The defendants thereupon prayed an appeal from the decree.  

DISPOSITION:
Decree reversed, with costs in this Court to the appellants, and cause remanded.  

HEADNOTES:

SURRENDER: SUBSTITUTION: FIERI FACIAS AFTER INSUFFICIENCY OF PROCEEDS OF SALE FOR PAYMENT OF PURCHASE MONEY: PRACTICE IN EQUITY. -- J. F. having sold certain real to J. J. M., and received therefor in cash, one-sixth of the purchase money, and the notes of J. J. M., payable in one, two and three years for the balance thereof, executed to him his bond for the conveyance of the premises to him upon payment of said balance of purchase money and interest, and all taxes, ground-rents, &c. J. J. M. afterwards sold to J. M. all his interest in the said real estate, and said three parties joined in the execution of a deed reciting the original sale, and the sale from J. J. M. to J. M., J. F.; the said J. F. thereby agreeing to surrender to J. J. M. his three promissory notes, and to accept in lieu thereof, the three promissory notes of J. M., to be drawn as of the same date, for the same amounts and payable at the same periods. The notes not being paid at maturity, the real estate was sold under a decree in equity against J. J. M. and J. M., for the payment of the balance of the purchase money, and the net proceeds of sale proving insufficient for that purpose, J. F. filed his petition for a writ of fieri facias against the said defendants, which was ordered to be issued as prayed. Whereupon the defendants appealed. -- HELD:

1st. That the surrender of the security given by J. J. M. was a surrender of the debt represented by it, and the acceptance of the notes of J. M. was a substitution of one purchaser for another.

2nd. That J. J. M. was not liable for any part of the purchase money after the compliance of the parties with the agreement set out in their deed. 

COUNSEL:
Thos. S. Alexander and O. Hack, for the appellants:

1st. There is no evidence of combination between the defendants, or of any fraud or contrivance on the part of either of them to mislead the complainant.

2nd. In the absence of evidence of fraud, it must be [**5]  assumed that the agreement for the substitution of Michelis as purchaser, in the stead of Mailhouse, was entered into by the parties in good faith, and with their eyes open to the consequences. And that the agreement, as averred in the bill, and as endorsed by the recital in the deed of assignment, to which all were parties, is simply and plainly that Michelis should succeed to the right of Mailhouse as purchaser, and as such should become debtor to Frazier for the purchase money yet unpaid. Frazier surrendered the notes of Mailhouse in consideration of other notes for a like amount, which he received from Michelis, and in consideration of the surrender of the notes which he had originally given to Frazier, he transferred to Michelis all his interest in the property originally purchased. It is not pr tended, that in point of fact, the parties agreed that notwithstanding the assignment and the substitution of the notes of Michelis for those of Mailhouse, the latter was to remain the debtor of Frazier. On the contrary, it is expressly averred in the bill, that the defendants designed and expected that the new arrangement would exempt Mailhouse from his responsibility under the original [**6]  contract. And although it is alleged that the complainant had no intention to release Mailhouse from his responsibility, it is not pretended that his claim or purpose, or wish to hold Mailhouse bound, was ever communicated to the defendants. It is submitted, therefore, as the conclusion of the law under the circumstances, that the surrender of the notes of Mailhouse by Frazier, in exchange for the notes of Michelis for like amounts, and his consent to the assignment by Mailhouse to Michelis, operated as an extinguishment of all obligation on the part of Mailhouse to Frazier. Berry vs. Griffith, 10 Md. Rep., 27. Creeger vs. Smith, 7 Md. Rep., 260. 5 Md. Rep., 396. 4 Wash. C. C. Rep., 98, 271. 2 Starkie, 178. 2 B. & Ald., 210. 4 Espinasse, 89.

2. The legal remedy of the complainant against Michelis was complete and adequate, and no circumstance is stated to warrant a personal decree in equity against him. He was not a party to the original contract, nor is there any evidence of his indebtedness save only such as is furnished by his promissory notes.

3. The bill was filed on the 26th of June, 1860; at this time one of Michelis' notes had matured. The others were still running,  [**7]  and no action at law could have been brought for the recovery of the money secured by them. Conceding, then, that the complainant was entitled to be relieved in equity, in respect of the first note of the series, the decree is clearly wrong in awarding payment of the aggregate of the sums due on all the notes. Chalmers vs. Chambers, 6 H. & J., 29. McDowell vs. Goldsmith, 6 Md. Rep., 319.

4. The decree is wrong in awarding payment to be made by the defendants jointly. As the decree now stands either one of the defendants who shall pay off the entire debt will be entitled to contribution from his co-defendant. But the obligation of the defendants was not joint. If we concede that the agreement of substitution did not release Mailhouse from his original liability to Frazier it is certain that as between themselves Michelis had assumed the position of debtor, and Mailhouse that of surety or guarantor, and that in the event of a satisfaction of the debts due to Frazier by Mailhouse, the latter ought to be entitled to a recovery over against Michelis. But this remedy over is negatived by the decree which establishes the joint obligation of both defendants.

C. L. L. Leary, for the [**8]  appellee.

The appellee insists upon the liability of the defendant, Mailhouse, under the original contract of sale and bond of conveyance, notwithstanding the surrender to him by the appellee of Mailhouse's notes, and the acceptance by the appellee of the notes of Michelis.

1st. Because such surrender could not release Mailhouse from liability unless the deed of assignment to Michelis contained an express agreement by the appellee to accept the notes of Michelis in satisfaction and extinguishment of Mailhouse's liability. No such agreement appears. The transaction operated and was intended as a mere exchange of securities. See Clopper's Admr. vs. Union Bank, 7 H. & J., 99. Bowers' Admx. vs. State, 7 H. & J., 35. Glenn vs. Smith, 2 G. & J., 508 to 512. Maryland & New York Coal Co. vs. Wingert, 8 Gill, 177. Yates vs. Donaldson, 5 Md. Rep. 396, 401.

2nd. The appellee will further contend that the decree in in this cause operated in personam as well as in rem., and that, therefore, the proceeds of sale of the property bound by the decree, having proved insufficient to satisfy the appellee's claim, he was entitled to an execution in the nature of a writ of fi. fa. against [**9]  the defendants. The decree to be effective is susceptible of no other construction. See 1 Md., Code, Art. 16, sec. 118, p. 96. Act of Assembly 1785, ch. 72, sec. 25. Act of Assembly 1818, ch. 193, sec. 4. Alexander's Ch. Prac., 201.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*102]  BOWIE, J., delivered the opinion of this Court:
The final decree in this case required the defendants, now appellants, to pay or bring into Court, the sum of $ 3000 (with interest from the 20th of April, 1859, and costs of suit,) in default whereof, on or before the 3rd of June, 1863, then the premises mentioned in the bill and proceedings were decreed to be sold. The money being unpaid, the property was sold by the trustee for $ 2500, which being reduced by commissions, costs and expenses, left due the complainant the sum of $ 1463.54, for which he prayed a writ of fieri facias might be issued, which was ordered, and the defendants afterwards prayed an appeal from the decree against them and filed their bond.
The appellants' solicitors do not controvert the right of the complainant to a sale of the premises, but deny simply his right [**10]  to a personal decree against them, and claim a reversal of so much of the decree:
1st. because there was no evidence of fraud or combination between the defendants to mislead the complainant.
2nd. Because the original contract between the defendant, Mailhouse, and the complainant was abandoned and Michelis substituted in the place of Mailhouse, whereby the latter was released and discharged from all liability for the property in question.
The final decree was passed upon the return of a commission issued after interlocutory decrees for want of answers against both respondents.
The evidence filed under this commission consists solely of three promissory notes of Michelis, dated the 20th of April, 1859, at one, two and three years respectively, for $ 1000 each, with the notarial protest of the first of said notes. Neither of the complainant's exhibits, the original contract marked A, or the substituted contract marked B, were filed with, or proved before the Court, but as they 

 [*103]  have been treated by the counsel as evidence in the case, they will be considered by this Court as in, without exception, particularly as the whole controversy turns upon the relation which these [**11]  agreements bear to each other.
Exhibit A, filed with the complainant's bill and referred to therein as a part thereof, is a bond of conveyance dated the 20th of April, 1859, from James Frazier, the complainant, to Joseph T. Mailhouse, one of the defendants and appellants, reciting that the complainant had sold and agreed to convey to Mailhouse or his personal representatives, certain leasehold property therein described, in consideration of the sum of $ 3500, $ 500 of which had been paid in cash and the residue secured by three promissory notes of Mailhouse of even date therewith, each for the sum of $ 1000, bearing interest, and payable at one, two and three years, with a condition that upon payment of the residue of the purchase money and interest, and all taxes and ground rent thereafter to become due by said Mailhouse, the complainant would transfer and convey the same to Mailhouse clear and discharged of all incumbrances by the said Frazier or his representatives, and until default made in payment of the same, would permit Mailhouse to hold, possess and enjoy the same.
Exhibit B is a deed dated the 23rd of January, 1860, signed by Joseph T. Mailhouse, Julius Michelis and James [**12]  Frazier, the complainant, reciting the execution of the foregoing bond of conveyance by Frazier to Mailhouse; and "whereas, the said Joseph T. Mailhouse has for a valuable consideration, sold to the above named Julius Michelis, all his, the said Mailhouse's equitable interest, right and title acquired under the said contract or bond of conveyance; and whereas, the said Michelis has agreed to assume the payment of the balance of the purchase money and interest remaining due and unpaid; in consideration whereof, the 

 [*104]  said James Frazier hath agreed to surrender to the said Mailhouse the three promissory notes now in his possession, as security for the payment of said purchase money and interest, and to accept in lieu thereof, the three promissory notes of said Michelis, to be drawn as of the same date for the same amounts, and payable at the same periods, as the three notes so surrendered as aforesaid." In consideration of the premises and one dollar, the said Mailhouse transferred and assigned to the said Michelis, all the interest and estate, etc., of the said Mailhouse in and to all the lots mentioned and described in the bond of conveyance aforesaid.
The notes of Michelis [**13]  filed under the commission, bear date the 20th of April, 1859, although executed, in fact, on or after the indenture of the 23rd January, 1860.
The complainant, after alleging the execution of the aforesaid instruments, and the facts recited therein, avers that he joined in the deed to signify his assent to the transfer, at the request of, and to accommodate Mailhouse, agreeing to return to him the three notes he had received from him, as security for the unpaid purchase money, and in lieu thereof to receive the notes of Michelis drawn by him of the same date for same amounts, and payable at the same periods as the notes so returned as aforesaid, but in returning said notes to Mailhouse he had no intention to release him from his responsibility therefor under his said contract of purchase, for the payment of said purchase money, but still regarded him as responsible therefor.
He charges combination between Mailhouse and Michelis, to substitute the latter, who was worth nothing, for the former, who was responsible, and thus avoid the personal liability altogether.
There being no evidence of fraud, or other facts except those above mentioned, we are left to infer the intention of [**14]  the parties from their acts.

 [*105]  If the suit was at law, instead of in equity, against Mailhouse, for the balance of the purchase money, it would be left to the jury to find whether, in accepting the notes of Michelis for those of Mailhouse, under the circumstances, the former contract was abandoned. In Yates vs. Donaldson, it was held to be well settled, that the acceptance of a security or undertaking of equal degree, does not extinguish the former debt, unless it be received in satisfaction, or be intended as an abandonment of the remedy on the first contract. The same doctrine was announced in Berry vs. Griffin, et al., 10 Md. 27. One of the instructions in the former case, which this Court said should have been granted was, the plaintiff was entitled to recover, "unless they (the jury) should believe that the giving and taking of the notes was intended by and between the parties as an abandonment by Yates of his original claim against the defendants jointly." 5 Md. 389, 391.
It was held by this Court, in the case of Creager vs. Link, that where a new note, with collateral security, was deposited by the defendant with the [**15]  witness, in satisfaction of a note held by the plaintiffs, to be delivered by the witness to the plaintiffs upon surrender of the old note, pursuant to a previous agreement between the defendant and plaintiffs, and the plaintiffs afterwards offered to surrender the old note, but the witness then refused to give him the new note, because his authority had been in the meantime countermanded. The plaintiffs could not recover on the old note, but had his remedy in trover for the new security--the former being satisfied. 7 Md. 259. In this case, it seems to us, the surrender of the security given by Mailhouse was a surrender of the debt represented by it, and the acceptance of the notes of Michelis was a substitution of one purchaser for another. One-sixth of the purchase money having been 

 [*106]  paid by Mailhouse, Frazier might well have relied on his vendor's lien as security for the balance.
The transaction is, upon any other hypothesis, inexplicable, and without motive or mutuality, unless the first purchaser was discharged thereby. The first purchaser parts with his interest and control over the property--can no longer insist upon the conveyance of it to himself;  [**16]  loses all advantage of prospective enhancement, all means of indemnity against loss, and yet remains primarily liable. Such a construction would be contrary to all principles of equity.
It results, from our view of these facts, that the appellant, Mailhouse, was not liable for any part of the purchase money after the compliance of the parties with the agreement set out in their deed of the 23rd January, 1860. The decree being against Mailhouse and Michelis jointly was therefore erroneous, and must be reversed as against the former. Although the bill was filed before all the notes of Michelis matured, yet, as in case of a mortgage, to secure a debt payable in installments, the decree upon the forfeiture by non-payment of the first, may be made to stand, as security for the residue in case of subsequent defaults; so here, the whole money having since become due, the decree will not be modified in that respect, but the case will be remanded for such proceedings as may be necessary to conform to the opinion of this Court. Decree below reversed, with costs of this Court to the appellants, and cause remanded for further proceedings.
Decree reversed, with costs in this Court to the appellants,  [**17]   and cause remanded. 

80 of 120 DOCUMENTS 

OTTOMAN BREHME vs. WILLIAM B. DINSMORE AND OTHERS, TRADING AS ADAMS' EXPRESS COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 328; 1866 Md. LEXIS 59 

June 11, 1866, Decided 

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

This was an action by the appellant against the appellee to recover the value of merchandise lost by the latter, in forwarding the same from New York city to Baltimore.-- The declaration contained three special counts in case, and one count in trover. By agreement filed, all errors of pleading were waived, and any evidence made admissible which could have been given under any special counts and pleas. The facts of the case are stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

BAILMENTS: COMMON CARRIERS, -- LIABILITIES OF: PRESUMPTION OF FRAUD. -- O. B. sued Adams' Express Company upon a contract made by the latter, a carrier, with the plaintiff, for the transportation of a package of merchandise from the city of New York to Baltimore. The contract was evidenced by a printed receipt signed by the agent of the Express Company and delivered to the plaintiff's agent in New York, containing a stipulation that in no event "shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured" by the company, "and so specified in this receipt." The contents of the package which was lost in transportation were not known to the Express Company, no statement of its value made by the plaintiff when it was received, and no special insurance made. The package contained light and costly goods of the value of $ 675. -- HELD:

1st. That the receipt constituted a special contract between the parties for the carriage of the package, binding upon both, and that the plaintiff could only recover the sum at which the package was valued in the receipt, with interest thereon.

2nd. That the right of carriers to restrict their common law liability by express contract is now too well settled to be any longer questioned.

3rd. That in the absence of evidence of any illegal conversion or fraudulent appropriation of the property by the Express Company, fraud cannot be presumed. 

COUNSEL:
Wm. A. Fisher, for the appellant:

1st. The character of the business of the defendant constitutes it a common carrier, and subjects it to all the responsibilities of that employment. Redfield on Railways, 234 & 240.

2nd. That though, in the present state of the authorities, it may be too late to urge that the common carrier cannot restrict his liability by means of a special contract, yet it is apparent that the present tendency is rather to limit, than to enlarge, his power to make special contracts, and that he must confine his restrictions within proper bounds; and the Courts seem everywhere to regret that the carrier has been suffered [**2]  to narrow his common law liability. Maving vs. Todd, 1 Starkie, 72, (2 Eng. C. L. Rep., 301.) Atwood vs. Reliance Co., (Gibson, C. J.,) 9 Watts, 87. N. J. St. Nav. Co. vs. Merchants Bank, 6 Howard, 383. C. & A. R. R. Co. vs. Baldauf, 16 Penna. State, 67. Moses vs. Boston & Maine R. R. Co., 4 Foster, (N. H.,) 84, 90. Barney vs. Prentiss, 4 H. & J., 318. Birney vs. Tel. Co., 18 Md. Rep., 358.

3rd. The great weight of authority, and the plainest principles of public policy, require, that in order to suffer the carrier to narrow his liability there must be evidence of a special contract, and that a mere printed notice, even if seen by the employer, is not evidence of such a special contract. 6 Howard, 382, 383. Judson vs. Western R. R. Co., 6 Allen, (Mass.,) 486. Hallister vs. Noland, 19 Wend., 234. Cole vs. Goodwin, Id., 251. 1 Parsons on Contracts, note g., Ed. of 1857, '8, 707 & 708, and the authorities cited under the preceding point.

4th. In the present case the defendant seeks to evade liability, by proof of a notice printed upon the receipt, without offering any evidence of assent thereto on the part of the plaintiff or his agent; "if any implication is to be indulged [**3]  from the delivery of the goods, it is as strong that the owner intended to insist upon the duties of the carrier, as that he assented to their qualification;" and this rule applies quite as strongly to a case in which a receipt is thrust into the hand of the employer, by the wagon driver, at the moment of receiving the goods, as to one in which the employer reads a notice placed in some conspicuous place in an express office or published in a newspaper which he reads; the employer must have some evidence of delivery of the package to the carrier, and can obtain no receipt except with the notice printed upon it. 6 Howard, 383. 1 Parsons, 707, 708, note g. Hallister vs. Noland, 19 Wend., 247. Western, &c., Co. vs. Newhall, 24 Ill., 466 to 472, especially p. 471. Michigan Central R. R. Co. vs. Hale, 6 Mich., 243. Saga. vs. Portsmouth R. R. Co., 31 Maine, 234 & 237. Nevins vs. Bay State, 4 Bosw., 225. F. & M. Bank vs. Champlain Co., 23 Verm., 205. Mer. Mut. Ins. Co. vs. Chase, 1 E. D. Smith, 138.

5th. Assuming, however, that there was sufficient evidence of a special contract binding upon the plaintiff, it is confidently maintained, that in the aspect of the case disclosed by the [**4]  evidence, the plaintiff was entitled to the instructions for which he asked. The defendant sought to exempt itself from liability, except for "fraud or gross negligence," and when the goods are lost the presumption at once arises that the loss accrued from one of the causes for which the company remained liable; the burthern is on the defendant; and when the plaintiff proves a demand, not only for the goods, but some account of what has become of them, and fails to obtain either, there is a legal presumption of fraud or gross negligence, and he might recover even upon the trover count. Howell vs. Eq. Ins. Co., 16 Md. Rep., 386. Emma Johnson, Sprague, 527. 16 Pa., (4 Barr.,) 77 & 78. Hall vs. Chaney, 36 N. H., 26. Verner vs. Sweitzer, 32 Penna. State, (8 Casey,) 213 & 214. Baker vs. Brindon, 9 Richardson, (Law,) S. C., 201. Alden vs. Pearson, 3 Gray, (Mass.,) 348. 6 How. (U.S.,) Daniels, J. 423. The contract is to be interpreted by the law of the place of performance, which is that of Maryland. Story's Confl. of Laws, sec. 280.

6th. If the position assumed in the fourth point be correctly taken, it follows that there is evidence that the goods were lost by the "fraud or gross negligence"  [**5]  of the defendant. Against liability for "fraud and gross negligence," the carrier cannot stipulate, and every reason of sound policy which prevents his escaping liability altogether in such cases, denies to him, also, the right to compel the employer to accept only $ 50 for what may be worth as many thousands. 31 Maine, 234, 237, 238. Ashmore vs. Penna. Co., 4 Dutch. N. J., 192. 6 Howard, 383. Powell vs. Penna. R. R. Co., 32 Penna. St., 414. Judson vs. W. R. R. Co., 6 Allen, (Mass.,) 492.

7th. If the defendants intended to rely upon their restriction of value, and desired to know the contents and value of the parcel, and to have it insured, it was their duty to have inquired, and if they received the goods without inquiry they must be responsible for the true value. C. & A. R. R. vs. Baldauf, 16 Penn. St., (4 Barr.,) 67. Riley vs. Horne, 15 Eng. C. L. Rep., 422, (5 Bingham.) Neveirs vs. Steamboat Co., 5 Bosw., (N. Y.,) 238-9. 19 Wend., 245.

8th. That the Court erred in granting the defendant's first prayer, because it took away from the jury the determination of the question, whether the plaintiff assented to the restrictions in the receipt. See cases under the preceding [**6]  points.

J. Dean Smith, for the appellees, argued:

1st. That by this receipt or contract, it was competent for the appellees, defendants below, to limit their liability in the carriage of the goods in question. The following authorities have firmly established the right of the carrier so to restrict his common law liability. Alleyn, 93. 1 Vent, 238. Peake N. P., 150. 4 Burr, 2301. 1 Stark., 186. 3 Taunt., 271, 8 Mees. & Wels., 423. Carthew R., 485. 5 Barn. & Cress., 322. 2 Co., 84. 16 Penn., 67. 5 Rawle, 179. 6 Watts & Ser., 495. 6 How., 382. Story on Bail., sec. 249. Chitty on Contracts, 490. Pars. on Contracts, 906, 907 and notes. 2 Kent Com., 606. Angel on Carr., sec. 59, 220, 221. Dow vs. New Jersey Steam Nav. Co., 1 Ker., 485. Parsons vs. Monteith, 13 Barb., 253. Moore vs. Evans, 14 Barb., 524. Stoddard vs. L. I. R. R. Co., 5 Sandf., 180. Bevins vs. Bay Steamboat Co., 4 Bosw., 485. Alexander vs. Green, 7 Hill, 533.

2nd. That this receipt or contract which contains the stipulations, --first, that the appellees will forward the goods, and, second,--that in the event of loss thereof, by or through want of ordinary care, the value shall be deemed to be $ 50, (fifty dollars,  [**7]  )--is such a contract as cannot be varied between the parties to this suit. It contains the terms, in full and unambiguous language, upon which the appellees undertook to forward said goods. In Dow vs. The New Jersey Steam Navigation Company, a paper similar to the receipt in this case was held to be a contract binding on both parties. The same doctrine was held in the case in 6 How. U. S., 382; and in New Stadt vs. Adams, 5 Duer; and in 8 Barb., 205, In Welles vs. N. Y. Central R. R. Co., 26 Barb., 641, it was held, that carriers of passengers could limit their common law liability by a notice endorsed on a ticket, and the ticket was held to be a contract. This decision was confirmed in 10 Smith, 181, and the same law is laid down in 28 Barb., 275; in 31 Barb., 556; and in 1 E. D. Smith, 115. In the above cited case of Dow vs. N. J. Steam Nav. Co., 1 Kern., 485, most of the cases are discussed, and PARKER, J., says: "The exceptions to the common law liability being made in the bill of lading, and delivered to the agent of the plaintiff, must be deemed to have been agreed to by the parties." And at page 493, "to say the parties have not a right to make their own contracts, and to limit [**8]  the precise extent of their own risks and liabilities, would be an unwarrantable restriction upon trade and commerce, and a most palpable invasion of personal right." This precise question was decided in New Stadt vs. Adams, reported in 4 Duer, 43, which case has been followed in N. Y., by the Courts of that State in numerous decisions, in cases exactly similar to the one now under consideration.

3rd. That neither the kind nor the value of the goods being known to the appellees or disclosed by the appellant at the time of shipment, and the contract expressly declaring that the appellees would not be bound, in any event, beyond fifty dollars, in case of loss, unless they were insured above that amount, and paid for accordingly, the granting the prayers of the appellant by the Court below would have enabled him to perpetrate a fraud upon the appellees; the representation being that they were below fifty dollars, and, in fact, so valued in the contract, and the freight paid being based upon such representation and valuation. If the goods were above that value he was bound to declare it and insure, and failing to do this he should bear the loss and not the appellees.  

JUDGES:
The cause [**9]  was argued before BARTOL, GOLDSBOROUGH, and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*334]  BARTOL, J., delivered the opinion of this Court.
The appellee, defendant below, was sued upon a contract made by it, as a carrier, with the appellant for the transportation of a package of merchandise from the city of New York to Baltimore. The contract was evidenced by a printed receipt signed by the agent of the appellee and delivered to the appellant's agent in New York, containing a stipulation that in no event "shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured (by the company) and so specified in this receipt." It was proved that the parcel when delivered to the appellee was enclosed in an oil-cloth wrapper, its contents were not visible and could not be known, and were not disclosed to the appellee or any statement of the value given, and no special insurance was made. The contents of the parcel were proved to be light and costly goods of the value of $ 675. It was admitted that the plaintiff 

 [*335]  called on the defendant for the parcel, offering to pay freight,  [**10]  but has never received it, nor any account of what had become of it, and he claims in this action to recover its value.
The Court below, at the instance of the defendant, instructed the jury that the receipt constituted a special contract between the parties for the carriage of the package, binding upon both, and that the plaintiff could only recover in this suit the sum at which the package was valued in the receipt, with interest thereon. In our opinion there was no error in this ruling. The right of carriers to restrict their common law liability by express contract, is now too well settled to be any longer questioned! It is established by numerous decisions both in England and in this country, and rests upon the plainest and most obvious grounds of reason and justice. In Dorr vs. The New Jersey Steam Navigation Company, 1 Kernan 485, Judge Parker, in a very able and satisfactory opinion, after citing numerous authorities, has laid down very clearly the reasons in support of this position, and without repeating what has been so well said in that case, we think if the question were a new one, it might safely rest upon the reasoning of Judge Parker in the case cited. See,  [**11]  also, Judge Nelson's opinion, 47 U.S. 344, 6 How. 344, 382, 12 L. Ed. 465.
A question has sometimes arisen as to the effect of a notice in limiting the carriers liability; but that question does not arise here. The receipt executed by the appellee and accepted by the appellant constituted the contract between the parties, and both, upon reason and authority, they are bound by its terms. The contents and value of the parcel were not disclosed to the appellee, and it was expressly agreed that its value was fifty dollars. Like in a valued policy of insurance, to which the contract in question is analogous, the amount of risk assumed by the appellee was fixed by the agreement, and must, in case of loss, be the measure of the appellant's recovery.

 [*336]  The case presented by the bill of exceptions is one of the liability of the carrier for the loss of the goods. There is no evidence of any illegal conversion or fraudulent appropriation of the property by the appellee, and in the absence of proof, fraud cannot be presumed.
Judgment affirmed. 

81 of 120 DOCUMENTS 

THE BALTIMORE AND OHIO RAIL ROAD COMPANY vs. JOHN A. GREEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 72; 1866 Md. LEXIS 44 

June 8, 1866, Decided 

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

This action was brought on the 23rd of February, 1863, in the Superior Court of Baltimore city, by the appellee against the appellant, to recover the value of three thousand bushels of oats shipped at Baltimore city by the appellee, between the 1st and 8th days of February, 1862, directed to Lieutenant Fergusson, a Forage Agent of the U.S. Government, at the foot of 6th Street Wharf in Washington city.

The judgment of the Court below, (MARTIN, J.,) was in favor of the appellee, and from this judgment this appeal was taken by the Railroad Company.

The case is fully stated in the opinion of this Court.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

RAIL ROAD COS., AS COMMON CARRIERS, -- THEIR OBLIGATIONS AND LIABILITIES: PRAYERS AND INSTRUCTIONS TO THE JURY: CONTRACT, -- CONSTRUCTION, OF. -- In an action by a consignor, G., against the Balt. & Ohio R. R. Co., to recover the value of three thousand bushels of oats lost in transportation, it was held:

That if the defendants accepted the oats for transportation from Baltimore to Washington, and charged in addition to the usual freight for transportation between those points, a further compensation for streetage to the foot of 6th street, in the latter city, and failed to deliver the oats to the consignee, F., or his agent, or at the foot of 6th street, then the plaintiff was entitled to recover although the jury might find the terminus of the road to be within the depot in the city of Washington, and that the oats were delivered safely at that point.

An undertaking to transport and deliver beyond the terminus of the carriers lines, is not within the common law liability of a common carrier.

The Railroad Company were not obliged by law to carry freight beyond the station at Washington; their obligation, if any results from a promise, express or implied, to take the freight further for additional compensation, which contract, like all others, must be construed by the circumstances under which it was made.

An instruction that if the oats were hauled beyond the limits of the station upon a road belonging to other parties than the defendants, "they were at the risk of the consignor," is too broad to be sustained, as it omits all consideration of a special contract between the consignor and the Railroad Company.

An instruction that if the jury shall find that it was the custom of the Railroad Company to refuse to transport goods on tracks outside of the station, except at the risk of the owners, then the plaintiff was not entitled to recover, is subject to the same objection.

A prayer affirmed that if the oats were received without bill of lading, and the evidence of the obligation of the defendants to transport them, was the bill of freight offered in evidence, and the cars containing the oats were marked accordingly in Baltimore, than the defendants were bound to convey the oats to F. in the city of Washington, and their obligation in this respect was discharged on their safe arrival at the station in Washington; and if the jury believe that P. was authorized to act for F. and saw the oats at the station in W., then F. had notice of the arrival of the oats at their place of destination, and it was his duty to provide for them. HELD:

1st. That the jury were not to determine what was the evidence of the obligation of the defendants, whether it consisted solely in the bills of freight or in those bills connected with the direction on the cars, or other facts and circumstances; that was the province of the Court.

2nd. That the jury were to judge whether the oats were delivered according to the contract, upon such evidence as the Court should decide was competent and proper to go to the jury.

3rd. That the prayer was further objectionable as a direction to the jury of what was the evidence of the obligation of the defendants, as that did not consist alone in the bill of freight, -- there being evidence that the cars were marked "to be delivered to Lieut. F., 6th street wharf," and it being admitted that streetage was paid.

A prayer affirmed that under the circumstances of the case, it was the duty of the consignor to have had an agent on the spot to which the cars were to be transported, to receive the same, and the Railroad Company, were not bound to give notice of the arrival of the cars. HELD:

That the prayer not having excluded a special contract, or course of business or usage to the contrary, did not warrant the conclusion of law sought to be established by it.

An instruction that no usage or course of business between the Railroad Co. and the consignee, or the Railroad Co. and its customers generally, would, under the circumstances of the case, dispense with notice of the arrival of the cars by the company to the consignee or his agent, unless it appeared that he had notice or knowledge of that arrival, was held to be bad.

The Court should have left it to the jury to find whether the course of dealing between the company and the consignee was such as to make it unreasonable to expect personal notice of the arrival of the cars, and if such course of dealing rendered such notice unnecessary or dispensed with it, then the company was not imperatively required to give such notice, to constitute delivery, notwithstanding the extra charge of streetage. 

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

Had the case rested on the receipts alone, there can be no question that the conceded delivery at the station in Washington, would have discharged the appellant.

The inquiry then is--what testimony is there to extend the appellant's liability beyond the station.

A witness named Putnam, a clerk of Fergusson, the consignee, testified, that the cars described in the receipt were "marked with cards or chalk, to be delivered [**2]  to Lieutenant Fergusson, 6th Street Wharf." This was an important fact; but Masterman, the witness, whose duty it was to mark cars in Baltimore, recollected these very cars, and flatly contradicted Putnam, swearing that the cars were marked by him, "Lieutenant Fergusson, Washington, D. C." Which of the men told the truth was a fact to be determined by the jury.

This point, however, becomes of less importance, because it is admitted, as well as proved, that the cars in question were in fact taken beyond the limits of the station by an engine of the appellants, under charge of one of their agents, and left on the Maryland avenue, the 6th street siding or at 6th street wharf, and that the appellants charged for so taking the cars beyond the station.

Then comes the question--the original liability being discharged by the arrival of the cars at the station, and a new one assumed, the charges for the two being distinct--when they did the latter, the only one which it is contended was not discharged, cease?

Evidence was offered by the appellants to show that it was the usage, when cars were hauled beyond the station, to leave them at the risk of the owners--for the very plain [**3]  reason, given by one of the witnesses, that they were then beyond the reach of the appellants to protect them from robbery. It is insisted, on the other hand, however, that the proof of such usage was either insufficient or inadmissible.

The Court could not take from the jury the question, whether the consignee knew of the custom; for Putnam, his clerk, seems to have been in constant intercourse with the agents of the appellants, and doing a large business with them,--exactly in the way to inform him of the customs of the road in this particular.

Now, unquestionably, custom when proved, enters into contracts--and there being evidence here of a custom affecting the liability of the appellants after the arrival of the cars at Washington, and after they left the station, the Court should not have ignored it--but have left it to the jury to say whether there was such a custom, (Allegre's Admn's vs. The Maryland Insurance Co., 2 G. & J., 236,) and whether it, in fact, entered into the contract for the transportation beyond the station; and having shown there was evidence of the custom, and evidence also, from which the jury might infer the consignee's knowledge of it, it follows [**4]  that the vice of the Court's instruction is in having omitted to put this evidence before the jury; and for this reason alone, the judgment should be reversed. Powell vs. Bradlee, 9 G. & J., 275.

That the jury were satisfied of the usage or custom, and that the consignee, through his agent, was aware of it, is apparent from the question which they addressed to the Court from the jury room.

It is believed the Court erred again, in not adding to the reply to the jury, "unless the jury shall believe that it was the usage or custom of the appellants to leave their cars on the Maryland Avenue, or 6th street siding, or 6th street wharf, when consigned to the consignee or his agent, and that the consignee had notice of such usage; and that if the jury believe that the consignee, or his agent, was in the habit of receiving large numbers of cars daily and at the places where they were ordinarily left, without actual personal notice to the consignee or his agent, or knowledge on his part of the time when such cars were left there, or of their being left, then such notice need not be proved."

That there was testimony to go to the jury on these points is clear.

The appellee's [**5]  own witness, Putnam, swears that he received as many as twenty cars a day at this station for the Government, and McMurphy, the appellant's witness, swears "that the three missing cars were hitched to a locomotive with other cars at the Washington station in different trains and hauled therefrom, and left either on Maryland avenue or 6th street siding or 6th street wharf, at all of which places he was in the habit of leaving cars:" "the cars in question being left at one place or the other," as the agent might direct.

That the witness, Putnam, was ignorant of this practice is simply incredible; so the jury must have thought, and they evidently believed that it was sufficient notice to him. The Court, however, told them that this knowledge must be visited upon him personally; and this left them no alternative but a reluctant verdict, contravening their sense of justice, after a night's confinement in the jury room.

It has thus been attempted to show, that both in the instruction given in the Court room, to the jury, and in that sent to them in the jury room the Court below erred,--in the first, in ignoring the question of usage absolutely in the face of competent evidence [**6]  in regard to it; and in the second, in requiring notice of the arrival of each car to be given personally to an agent, familiar with the times of the arrival and departure of the cars, and in communication, as is proved with the witness, McMurphy, who hauled them from the station, and the said agent doing an immense business with the road at the time.

Independent of these considerations, however, there is a view of this particular case, in which it should certainly be sent back on a procedendo.

The jury address an inquiry to the judge in writing. It is answered in writing and the reply is lost. What effect that reply may have had upon the jury, it is now impossible to say--whether the instructions of the Court, otherwise, were right or wrong, this particular missing instruction may have been utterly erroneous, and the case should go back, if only that the appellants may have an opportunity of trying the cause on instructions which may be reviewed.

T. M. Lanahan and John Carson, for the appellees:

I. It is submitted upon the testimony as a matter of fact clearly proved that the appellant contracted to deliver the oats now sued for at the foot of 6th street wharf,  [**7]  and received in addition to the usual freight from Baltimore to Washington, a further compensation for the transportation from the Washington station to the 6th street wharf. The witness, Putnam, swears positively that the cars containing the oats sued for were never delivered at 6th street wharf, and that the appellee was compelled to deliver to the United States others in lieu thereof, and that one of said cars, No. 542, he subsequently found empty at Alexandria. He further states that the appellant's agent, McMurphy, told him that the same cars were on Maryland avenue, and that he would hurry them down; and he also swears that he made inquiries at the railroad station, and never could learn what became of these cars. The only rebutting testimony is the statement of McMurphy that the cars in question were delivered either on Maryland avenue, 6th street siding or 6th street wharf, but he cannot identify the place where the said cars were left.-- The appellant offered in evidence below, subject to exception, the testimony of the witnesses Koontz, Collins and England, that the Washington station is the place of delivery, that cars or goods delivered outside of the station are at the [**8]  risk of the consignee; and Koontz further testifies that the delivery is complete when the cars are placed on Maryland avenue, and that it was necessary to get the permission of the United States to use the track to the 6th street wharf.

II. This testimony is excepted to on the following grounds as legally inadmissible:

1st. Koontz was not in Washington or in the appellant's employ until April, 1862, and could not, therefore, have personal knowledge of a usage or custom prevailing there in February, 1862; and for the same reason he could not know that it was then necessary to get the permission of the United States to use the 6th street track. 1 Greenl'f on Ev., sec. 252.

2nd. For the same reason Collins' testimony is inadmissible, he speaks only of deliveries on New Jersey and Indiana avenues, and says "he knows nothing of the custom on Maryland avenue."

3rd. The like objection applies to England's testimony, he was not in Washington, and swears he does not know there was a custom in Washington.

4th. As England and Koontz can legally know nothing of such custom, the testimony of Collins, a single witness, would be legally insufficient to establish such custom.  [**9]  2 Greenl'f on Ev., sec. 252.

5th. But suppose this evidence admissible to prove the custom that deliveries made or cars put outside of the station, are at the risk of the owner, what is its legal effect? Can it relieve the company from an express contract to deliver at a point outside of its station? Does it not concede that the car is to be, and will be delivered outside, but when so delivered the company will not thereafter be responsible for its contents, either before or during its unlading, for the reason stated by England,--fear of robbery, and the inability of the company to protect the property? And Koontz assigns the same reason: if a person desires to hold the company responsible he must unload the car inside the station.

And it is submitted that this usage, if proved, is neither certain, uniform or general, or known to the parties, but is too vague and unmeaning to base upon it any proposition to the jury. Foley, &c. vs. Mason, &c., 6 Md. Rep., 37. 8 Gray, 547. 16 Ohio, 517. 2 Greenl'f Ev., Sec. 292.

III.--1st. It is submitted that the appellee's prayer below was properly granted; it required the jury to find that the oats were delivered in Baltimore city [**10]  by the appellee to the appellant, to be transported by it to Lieutenant Fergusson, at the foot of 6th street, Washington; that the appellant accepted said oats and charged, in addition to the usual freight for transportation from Baltimore to Washington, a further compensation for streetage to the foot of 6th street, and that the appellant failed to deliver said oats to Lt. Fergusson or to his agent, or to the foot of 6th street, and that having found these facts then the appellee is entitled to recover, although the jury find the corporate terminus of the road is in the depot at Washington, and the oats safely arrived there out of the corporate limits of said company, and that the oats failed to reach Lt. Fergusson.

Ordinarily the appellant would be held to deliver at its depot, but for an additional consideration it has specially contracted to deliver elsewhere, viz: foot of 6th street; being competent to make such a contract, and having received the special consideration, it must be held to perform it, and the transit did not end, nor could the delivery be made except at the place contracted for, and until that was reached the company's liability as a common carrier, continued [**11]  in full force; besides, the contract was not unreasonable or impossible, for the company was delivering at this very place twenty cars a day. Redfield on Railways, 250, sec. 130, 2d paragraph, and 284 to 289. Hyde vs. Trent, & Mersey Nav. Co., 5 T. R., 389. 1 Par. on Cont., (Notes,) p. 660, 661, 665. Richards vs. The London, &c. Railway, 7 C. B., 839, (62 Eng. C. L. Rep., 837.) Butcher vs. London, &c., Railway, 29 Eng. Law & Eq., 347, (81 Eng. C. L. Rep., p. 12.) Farmers & Mechanics' Bank vs. Champ. Trans. Co., 23 Vermt., 186. Noyes vs. The Rut. & Bur. Railway, 27 Vermt., 110. Weed vs. Saratoga, &c., R. R., 19 Wend., 534. Muschamp vs. L. & P. Junction R. Co., 8 M. & W., 421. Coxen vs. G. W. R. R. Co., 5 Hurl. & Nor., 274. Bristol vs. Collins. 5 Hurl. & Nor., 969. See also, 2 Mich. 539.

2nd. The appellant's first prayer consists of two members; 1st, That if the oats were to be transported to Washington by the appellant, and its road terminated at the Station; that if the oats reached the station, and the 6th street road did not belong to the appellants, then the Station was the place of delivery, and the Company's liability as a common carrier there ended; 2nd. If the appellant,  [**12]  at the appellee's instance, hauled the oats out of the Station on the 6th street road, belonging to other parties, then said oats were at the appellee's risk after leaving the station, and if actually left on Maryland Avenue, 6th sideling, or 6th street wharf, the Company's obligation was discharged.

This entire prayer is open to the fatal objection, that it does not put to the jury the evidence touching the special contract, and under it the appellant would be entitled to recover, although the jury should find the special contract. Fulton vs. Maccracken, 18 Md. Rep., 528. Coates vs. Sangston, 5 Md. Rep., 121.

This prayer also asserts various independent propositions, the falsity of any one of which is sufficient to reject the whole prayer. Budd vs. Brooke, 3 Gill, 198. Marshall vs. Haney, 4 Md. Rep., 498.

The first member of this prayer ignoring the special contract asserts, that if appellant's road ends at the station and it does not own the 6th street road, of which fact there is no evidence in the cause, then the station is the place of delivery, and there the liability as carrier ceases.

The answer is, you have made a special contract to the contrary; that [**13]  contract is legally binding upon you, (see authorities above;) and if the prayer does not mean to deny the validity of such special contract, then the want of ownership of the 6th street road is neither an excuse or justification of the company's failure, because it was a practicable matter daily to deliver by that road, and other modes of delivery were not impossible.

The vice of the first member of the prayer taints the second member, which begins by assuming that the company's liability ended at the station. This second member is also open to the objection that it does not require the jury to find the alleged usage that goods are at the risk of the owners after leaving the station, but assumes that fact without evidence as a legal proposition, despite the special contract; and the exclusion from the prayer of this supposed usage, which is the only defence to our special contract, is fatal. Md. & Del. R. R. vs. Porter, 19 Md. Rep., 458. Fulton vs. Maccracken, 18 Md. Rep., 528. Coates vs. Sangston, 5 Md. Rep., 121.

The last proposition of the second member of this prayer relieves the appellant from liability, if the cars containing the oats were hauled from the station,  [**14]  and left either on Maryland avenue, 6th street siding, or 6th street wharf; no such delivery could gratify the special contract to deliver at 6th street wharf, and a delivery elsewhere is invalid. Assuming the theory of this whole prayer as correct, that the appellant's duty as common carrier ceased at the station, then having received extra compensation to haul the cars from there to 6th street wharf, it must be deemed a bailee for hire, bound for ordinary diligence; and the proof being undoubted in this cause, that the appellant daily hauled cars over the road to 6th street wharf, and could have hauled the cars in question there, but did not, and not having in any way accounted for its failure, then it would have been responsible, as a bailee for hire for want of ordinary diligence, and the prayer was therefore properly refused. The alleged usage could not relieve from gross negligence. 1 Pars. on Cont., 711. Redfield on Railways, 272, 280.

3rd. The appellant's second prayer differs from the first only in requiring the jury to find the custom or usage. It is insisted, that the whole testimony as to the usage is legally inadmissible, and if admissible, that there is no evidence [**15]  that the risk of transportation was upon the owner, the only risk which the testimony could prove being, that after the cars or goods are delivered, or whilst they are being unloaded, they are at the risk of the owner; and even if the risk of transportation was proved, it would not relieve the company from gross negligence in transporting the goods. (Vide authorities above.)

4th. The appellant's third prayer ignores the special contract, payment of streetage, &c., and fails to put these facts to the jury; it also assumes the station to be the place of delivery, which has been already answered; and requires the witness, Putnam, to accept a delivery at the station, and to provide transportation to 6th street wharf, when the company had agreed to transport thither.

5th. The appellant's fourth prayer presents two legal questions: first, that if cars were to be hauled beyond the station, it was the duty of the appellee to have an agent at the point of destination or delivery to receive the cars; second, that the appellant was not bound to give notice of the arrival of the cars at their destined place; the question of notice is discussed under the last head of the brief, and will [**16]  not be anticipated here; but if it was the duty of the appellee to have his agent there, then the proof is uncontradicted that the consignee had agents there, who would have received the cars in question had they arrived; and if it was not his duty to have such agent there, then this instruction would lead the jury to the inference that such failure excused or justified the non-delivery, and therefore tended to embarrass and mislead the jury.

The failure of the appellee to have an agent there, could not relieve the appellant from its liability as a common carrier; the prayer, therefore, presented an abstract question, and was irrelevant. State ux. vs. Reigart, 1 Gill, 1. And if delivery could not be made, because no one was there to receive, then the carrier was bound to store the goods, or act as warehousemen. Parsons' Mercantile Law, 207, Fisk vs. Newton, 1 Denio, 45. 1 Parsons on Cont., 659.

6th. The appellant's fifth prayer was properly rejected, for there is abundant evidence in the cause that the appellant undertook to transport the oats in question to the foot of 6th street.

7th. It is submitted, that if the usage or custom was not proved, or if proved, then not [**17]  admissible to vary or contradict the special contract, then the law of the case was properly laid down in the appellee's prayer, and the granting of that prayer necessitated the rejection of all the appellant's prayers, as they alike ignore the special contract. Keech vs. Balto. & W. R. R. Co., 17 Md. Rep., 32. B, & O. R. R. Co. vs. Resley, 14 Md. Rep., 424.

8th. In reply to an inquiry from the jury, the Court gave an instruction. It is based on the special contract, the facts of which it requires the jury to find; and it asserts as the law applicable to these facts, that a delivery of the cars on the line of road, without notice to the consignee, is invalid.

The general rule is, that a railroad company delivers at its station, but much conflict exists among the authorities as to what constitutes a delivery there; some of the cases hold that when goods reach the station and are unloaded, the duty of the carrier ceases, and that of warehouseman begins, and notice to the consignee is necessary. Norway Plains Co. vs. B. & M. R. R. Co., 1 Gray, 263. Thomas vs. B. & P. R. R. Co., 10 Met., 472. Other cases deny this rule and hold notice necessary. 2 Kent, 604, 607, 775, 777.--  [**18]  Mich. Cent. R. R. vs. Ward, 2 Mich., 538. 1 Pars. on Cont.,, 664. Rome Railway vs. Sullivan, 14 Ga., 277.-- Redfield on Railways, 254, holds notice of arrival at the station unnecessary, but insists that the liability as carrier continues until a reasonable time has elapsed to remove the goods. Moses vs. B. & M. R. R., 32 N. H., 523.

In reference to carriers by water the rule is that delivery upon the usual wharf, with notice to the consignees, takes the place of personal delivery, but all the late cases hold the carrier's liability to continue until consignees have had a reasonable time to remove the goods. Parsons on Maritime Law, vol. 1, 155. Ostrander vs. Brown, 15 Johns. Rep., 39. Hemphill vs. Chime, 6 Watts & Serg., 39. Price vs. Powell, 3 Comst., 322. 21 Law Reporter, 6, 12 and 14. Steamboat Albatross vs. Wayne, 16 Ohio, 513. Segura vs. Reed, 3 La. Ann., 695. Barclay vs. Clyde, 2 E. D. Smith, 95. Gatliffe vs. Bourne, 33 Eng. C. L. Rep. 364, 42 Eng. C. L. Rep., 338. Same vs. same, 49 Eng. C. L. Rep., 849.

Whatever may be the rule as to the delivery at the station, it is insisted that it cannot apply to this case, for though the law ordinarily ends the transit at the [**19]  station and makes that the point of delivery, yet this may be changed by a special contract or by usage, and in this case the appellant has especially contracted, beyond his usual liability, to transport to and deliver to Lieut. Fergusson, 6th street wharf; the proof shows that Fergusson's depot was there, his agents were there, and the track ran to this point, the delivery to him there was therefore practicable, and the appellant must be bound as a matter of law under this contract to a personal delivery there.

The authorities above cited establish the validity of this contract, and it can only be satisfied by a personal delivery, which is notice, or by leaving the cars at Fergusson's depot, with notice that the company has so left them. Far. & Mec. B'k vs. Ch. Tr. Co., 16 Vt. 52. 18 Id. 131. 23 Id. 186. Redfield on Railways, 250. Parsons on Cont., 660, 670. Barclay vs. Clyde, 2 E. D. Smith, 95. Kohn vs. Packaro, 3 La., 224. 2 Kent, 605, 606, 774, 776. Miller vs. Steam Nav. Co., 13 Barb., 361.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*85]  BOWIE, J., delivered the opinion of this Court:
The appellee sued the [**20]  appellant as a common carrier, upon a contract "to take, carry and deliver a large quantity of oats, then in the city of Baltimore, to the city of Washington, at the foot of 6th street in said city, at and for the sum of $ 18 per car load;" and that the plaintiff delivered to said defendant three thousand bushels, of the value of sixty cents per bushel, which were so negligently and carelessly carried, that they were lost to the plaintiff, to which the defendant pleaded "that the oats mentioned in the nar., were delivered according to the obligation of the defendant in regard thereto," 

 [*86]  upon which plea there was joinder in issue, and waiver of errors in pleading.
At the trial, after testimony of the delivery of the oats by the plaintiff to the defendant for transportation, to be delivered to Lt. Fergusson, forage agent of the U.S. Government at Washington, it was proved by one Putnam, that he was clerk of Fergusson, and being informed of the consignment of the oats by Green, and not having received them, he went to the depot of the defendant and saw the four cars which were missing, on the track inside of the depot, which cars were marked Nos. 67, 895, 889 and 542, and marked [**21]  "to be delivered to Lt. Fergusson, 6th street wharf." That said cars not arriving at 6th street wharf, the witness made inquiries for them but could only find one of them, that being the car numbered 542, which he found subsequently had been discharged in Alexandria. It was conceded that streetage was charged on the cars.
The defendant proved by a competent witness, that it was his duty to attend to the delivery of cars from the Washington station, upon Maryland avenue, 6th street siding, and 6th street wharf. That the three missing cars were hitched to a locomotive with other cars at the Washington station, in different trains, and hauled therefrom and left either on Maryland avenue or 6th street siding, or at 6th street wharf, he did not remember which. The custom was to deliver all cars marked for Lt. Fergusson at the foot of 6th street. The defendant further proved by a certain George Koontz, that he was agent of the defendant and had been so since April, 1862; that the Washington Branch Rail Road terminated at the station house at N. Jersey avenue; that it had been the custom since he had been there to regard the station as the place of delivery of the cars when they are put [**22]  on the Maryland avenue, it is with the distinct understanding; that the owner takes the risk, if any. The cars for the Washington station, 

 [*87]  as a general thing, are marked Washington city, D. C., and generally with chalk, they are so marked when they come to Washington; the manifest tells where they are to go, and sometimes the name of the consignee. The defendant will not deliver cars outside of the station at its risk; the witness says this is the custom since he has been there.
Objections were taken to the testimony of this, and others of the witnesses, which it is unnecessary to notice, as they form no part of the bill of exception.
The appellee offered a prayer which was granted, and the appellant offered a series of prayers numbered from 1 to 5 inclusive, all of which were rejected; besides which, in reply to an inquiry from the jury after they had retired, the Court gave a written instruction. To the granting of which prayer of the appellee and instruction of the Court to the jury, as well as to the rejection of the appellants' prayers, the appellant excepted and prayed an appeal. The legal proposition contained in the plaintiff's prayer is, that if the defendant [**23]  accepted the oats for transportation from Baltimore to Washington, and charged in addition to the usual freight for transportation between these points a further compensation for streetage to the foot of 6th street, and failed to deliver the oats to Furgusson or his agent, or at the foot of 6th street, then the plaintiff was entitled to recover, although the jury might find the terminus of the road is within the depot in the city of Washington and said oats were delivered safely at that point.
The appellant's first prayer is the converse of the appellees, with several additional qualifications of liability. This asserts as a legal proposition, that if the Washington branch of the defendant's road, terminated at their station in Washington, and the road from such station to the Maryland avenue, 6th street, etc., was not the road of the defendant; and the oats were safely transported from Baltimore to the station in Washington, then said station was the proper place for the 

 [*88]  delivery of the oats, and the obligation of the defendant, as a common carrier, for their transportation and delivery, did not extend beyond; and if the jury believe, that at the instance of the appellee,  [**24]  or his agent, the defendant hauled the oats beyond the limits of the station, upon a road or roads belonging to other parties, and where the defendant had no station or agencies to receive them, then the oats, after leaving defendant's station, were at the risk of the owners; and if the jury believe the oats were in fact hauled from the station of the defendant on the road spoken of by the witnesses, as belonging to the U. S., and were left in cars containing them on the Maryland avenue, or 6th street siding, or 6th street wharf, then the plaintiff was not entitled to recover.
The second affirms, that if the jury shall find the facts stated hypothetically in the first prayer, and shall further find, that it was the cusiom of the defendant to refuse to transport goods on tracks outside of the station at Washington, except at the risk of the owner, then the plaintiff (the appellee) is not entitled to recover.
3rd. If the jury shall find from the evidence, that the oats were received without any bill of lading, and that the evidence of the obligation of the defendant to transport them is in the bill for the freight thereof offered in evidence, and that the cars containing them were [**25]  marked accordingly in Baltimore, then the defendants became bound to transport the oats to the said city, and their obligation in this respect was discharged on the safe arrival of the oats at the station in Washington; and if the jury believe the witness, Putnam, was authorized by Fergusson to act for him, and that he saw the oats in the station at Washington, then Fergusson had notice of their arrival at their destination, and it was his duty, if he desired them to be transported further, to provide therefor.

 [*89]  The 4th prayer affirms, that if the jury find the facts stated hypothetically in the first, and that the cars containing the oats were transported beyond the defendant's premises, at the instance of the plaintiff and his agents, then the plaintiff should have had an agent on the spot to receive the same, and the defendants were not bound to give notice of the arrival of the cars.
5th. That there is no evidence in the cause of an undertaking on the part of the defendant, to transport the cars spoken of by the witnesses to the foot of 6th street.
The several propositions of the appellant and appellee, involve the liability of common carriers for transportation of [**26]  articles accepted to be delivered beyond the terminus of their lines; the obligation arising from compensation charged for transportation "ultra viam," and the operation of "course of dealing" upon the duty of the carrier to give actual notice to the consignee.
An undertaking to transport and deliver beyond the terminus of the carrier's lines, is not within the common law liability of a "common carrier."--The definition of the term excludes that class of contracts.
A common carrier is one obliged by law to undertake the charge of transportation, without special agreement, and responsible as insurer for any loss to the property, for which he could not provide, from whatever cause arising, the acts of God and the public enemy only excepted. Angell on Carriers, 70.
The defendant or appellant in this case, is sued as a common carrier upon a contract to deliver goods at a particular destination beyond the terminus of its corporate road. The object of the plaintiff's prayer is to declare its liability as such extends to the delivery of the articles transported at the point indicated by the agreement; and the appellant's first prayer proposes to limit their liability to the station [**27]  in 

 [*90]  Washington, and not beyond. The appellant was not obliged by law to carry the freight beyond its station at Washington. Its obligation (if any) results from a promise, express or implied, to take the freight further for additional compensation, which contract, like all others, must be construed by the circumstances under which it was made.
The tendency of the English authorities has been to hold railroad companies, who receive goods and book them for a certain destination, as common carriers throughout the route, even if the place is beyond the limits of that to which they are accustomed to carry and deliver. Muschamp vs. Law & Preston R. R. Co., 8 M. & Welsby R. 421. Weed vs. Schenec. & Syra. R, R. Co., 19 Wend. 534. Angel on Carriers, sec. 98. Redfield on Railways, 282. The last author remarks, "but this rule has been very seriously questioned in this country. The general view of the American Courts upon this subject is, that in the absence of special contract, the rule laid down in the earlier English cases, that the carrier is only liable for the extent of his own route, and for the safe storage and delivery to the next carrier, [**28]  is the more just and reasonable one upon the subject, and this is the doctrine which the Courts in this country are more generally inclined to adhere to."--"In this country, the Courts have held that when goods are delivered to a carrier marked for a particular place, but unaccompanied by any other directions for their transportation and delivery, except such as might be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business in which he is engaged, whether that usage is known to the party for whom they were received or not." Vide. 6 Hill N.Y. 157. 18 Ver't Rep., 140. 23 Ib. 209, Redfield on Railways, 282, note 6, and authorities there cited.
The first branch of the appellant's first prayer is strictly 

 [*91]  consonant with the more recent authorities above cited. It is predicated upon the hypothesis that the contract for transportation was from Baltimore to Washington, and the terminus of the appellant's road was at their station in that city, at which, their liability as common carrier ceased, no special contract intervening. The succeeding proposition [**29]  in the same prayer, on the supposition that the oats were hauled beyond the limits of the station upon a road belonging to other parties, etc., "they were at the risk of the appellee," is too broad to be sustained, as it omits all consideration of a special contract between the consignor and the appellant. Taken as a whole, the prayer was properly rejected.
The second prayer of the appellant, based upon the same hypothesis as the first, with the addition "if they shall find it was the custom of the appellant to refuse to transport goods on tracks outside the station, except at the risk of the owner," the plaintiff was not entitled to recover, is subject to the same objection as the first. Usage and custom never prevail where there is a special or express contract, unless, in some particular, as to which the contract was silent. The prayer should have been qualified with the proviso, unless there was a contract to the contrary.
The appellant's third prayer, is directed to the character and effect of the evidence of the contract to carry the oats. It affirms substantially, if the oats were received without bill of lading, and the evidence of the obligation of the defendant to transport [**30]  them, is in the bill of freight offered in evidence, and the cars containing the oats were marked accordingly in Baltimore, then the defendant was bound to convey the oats to Fergusson in said city, (Washington,) and its obligation in this respect was discharged on their safe arrival at the station in Washington; and if the jury believe Putnam was authorised to act for Fergusson, and saw the oats at the station in Washington, then Fergusson 

 [*92]  had notice of the arrival of the oats at their place of destination, and it was his duty to provide for them.
The bills of freight offered in evidence were dated Balto. Feb'y 1, 3 and 8, 1862. They are in the following form, viz:
BALTIMORE, Feb'y 8, 1862.
M. Lt. Fergusson 67.
T. A. Green,   Dr.

________________________________________________________________________________

To the Baltimore and Ohio Rail Road Company,	
  for transportation on 1 load of oats, 250 bags,	
  sent 6th of Feb. from Baltimore to Washington	
  city, 19,200 lbs.	$ 19.20	
  W. street,	2.00	
	$ 21.20	
________________________________________________________________________________

Received payment for the Comp'y,
D. C.
The jury were not to determine what was evidence of the obligation of the defendant, whether it consisted solely in the bills of freight, or in those bills connected [**31]  with the direction on the cars, or other facts and circumstances,--that was the province of the Court. The jury were to find whether the oats were delivered according to the contract upon such evidence as the Court should decide was competent and proper to go to the jury. This prayer was therefore vicious because it submitted to the jury a question of law; but it was objectionable, if understood as a direction to the jury of what was the evidence of the obligation of the defendant, as that did not consist only in the bills of freight.
There was evidence that the cars were marked "to be delivered to Lt. Fergusson, 6th street wharf," and it was admitted streetage was paid. Such an instruction could not have been given upon a partial statement of the facts,--being objectionable for these reasons, it is unnecessary to notice other grounds of exception.

 [*93]  The appellant's fourth prayer affirms, that under the circumstances referred to, it was the duty of the appellee to have an agent on the spot to which the cars were to be transported to receive the same, and the appellant was not bound to give notice of the arrival of the cars. The facts before referred to, not excluding "a [**32]  special contract or course of business, or usage to the contrary," did not warrant the conclusion of law sought to be established, therefore it was properly rejected. The jury, however, after retiring addressed an inquiry to the Court in these words "do we understand the ruling or opinion of the Court is, that the Railroad Company is bound to give notice personally by some of its agents to make a delivery, notwithstanding the usage of the company is to put certain cars at the usual point of delivery?" To which the judge replied: "I instruct the jury that if they find the cars in question arrived in Washington, and for a charge of $ 2 per car were subsequently sent by the defendant to Maryland avenue, or elsewhere, it was the imperative duty of the company to notify the consignee or his agent of that arrival, unless the jury find from the evidence that the consignee or his agent was aware or had knowledge that the cars had arrived at such place of delivery. If the consignee or his agent had knowledge of the arrival of the cars at the place of delivery, such knowledge stood in the place of notice." This instruction taken in connection with the inquiry of the jury, was equivalent to instructing [**33]  them, that no usage or course of business between the company and the consignee, or the company and its customers generally, would, under the circumstances detailed, dispense with notice of the arrival of the cars by the company to the consignee or his agent unless it appeared that he had notice or knowledge of that arrival. It will be seen that railroads, having established and well known places of delivery, and hours of arrival and departure are exempted from the usual obligation of common carriers, to make a personal 

 [*94]  delivery or give notice of arrival. "The general result of the cases is said by Ch. J. Redfield to be, that the question when the duty of the carrier ends, is one of fact or contract to be determined by the jury with reference to the mode of transportation, the special contract, if any, the course of business at the place, and other attending circumstances. It finally often resolves itself into the inquiry whether the carrier did all in respect to the goods, which, under the peculiar duties of his office, the owner had a right to expect of him. Where the facts are not disputed and the course of business of the carrier is uniform, the extent of the carrier's [**34]  liability will become a question of law merely, as all such matters are under the circumstances." And we understand the cases to have settled the question that the carrier by railway is neither bound to deliver to the consignee personally or to give notice of the arrival of the goods." Redfield on Railways, 251, 252.
There was evidence of a course of dealing between the company and the consignee, (not to speak of the evidence of usage which was objected to.) According to the evidence of the clerk of the consignee, the consignee's depot was the 6th street wharf, in the city of Washington, the consignee being the forage agent of the Government; and that it was his duty to report every night all cars that arrived at the foot of 6th street, to Capt. Dearing; that as many as twenty cars a day were received at that depot for Government, whence oats were shipped to Alexandria. The custom was to deliver all cars marked for Lt. Fergusson, at the foot of 6th street.-- Whether such evidence established the fact of such course of a dealing was for the jury, but if they found such a course of a dealing existed, its effect upon the obligation of the appellant to give notice of the arrival of [**35]  the cars, and the necessity of such notice to constitute a delivery, was for the Court. In the language of the Court, in 23 Ver't Rep't, 186, "the inquiry must come to this before the jury: whether it was reasonable 

 [*95]  for the plaintiff, under the circumstances, to expect the defendant to do more than deliver the parcel to the wharfinger? If not, then that was the contract, and that ended their responsibility, etc. But if the plaintiff can satisfy the jury that from the circumstances attending the delivery or course of business, they were fairly justified in expecting the defendant to make a personal delivery at the bank, they must recover; otherwise, it seems to us, the case is with the defendant." Farm's & Mech's Bank vs. Champ. Trans., Co., 23, Ver't Rep., 186, 209. Delivery to a common carrier may be constructive and not actual, so delivery by a carrier may be without actual notice to the consignee if according to the course of business. In other words, the Court should have left it to the jury to find, whether the course of dealing between the company and consignee was such as to make it unreasonable to expect personal notice of the arrival of the cars, and [**36]  if such course of dealing, rendered such notice unnecessary, or dispensed with it, then the company was not imperatively required to give such notice to constitute delivery, notwithstanding the extra charge of streetage. Vide, also, Angel on Carriers, sec. 301.
The fifth prayer of the defendants that there was no evidence to show an undertaking on the part of the defendant to transport the cars to the foot of 6th street, was, under the circumstances, too strong a conclusion to be arrived at by the Court, and was properly rejected.
We affirm the ruling of the Court in granting the appellee's first prayer and rejecting the appellant's 1st, 2nd, 3rd, 4th and 5th prayers, but there appears to be error in the instruction granted by the Court in reply to the inquiry of the jury. We reverse the judgment and order a procedendo.
Judgment reversed, and procedendo awarded. 

82 of 120 DOCUMENTS 

HENRY SCHILLINGER vs. MARTIN KRATT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 49; 1866 Md. LEXIS 42 

June 1, 1866, Decided 

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

This action was instituted by Martin Kratt, the appellee, on the 23d of February, 1863. The declaration contained the common counts, and one count on a promissory note.-- The appellant, Henry Schillinger, pleaded the general issue and set off; the appellee replied, and issue was joined.

Exception. The facts of the case are these: Kratt offered in evidence a promissory note, drawn by Schillinger, for $ 300, the signature to which was admitted, and then rested his case. Schillinger then offered evidence to maintain his plea of set off, and proved that he had purchased, during the month of June, 1860, various articles of household furniture for Kratt, amounting to about $ 300 in value; that he, (Schillinger,) had paid for them with his own proper money, and that they were delivered to and received and used by Kratt.-- Kratt then proved that he had married Schillinger's stepdaughter in June, 1860, but that Schillinger was opposed to the match, and, also, that he was opposed to his wife's giving anything to her daughter at her marriage, and, also, that when the promissory note offered in evidence was presented to Schillinger [**2]  for payment, he got angry, and denied that there was any indebtedness from him to Kratt, because he had purchased and paid for the property hereinbefore spoken of as being delivered to, and received and used by, Kratt. Mrs. Kratt died in August, 1861, shortly after the note was presented to Schillinger for payment.

The evidence as detailed in the foregoing statement, having been given to the jury, the plaintiff offered the following prayers:

1st. That if the jury shall find from the evidence that the defendant made and delivered the note offered in evidence in this case, dated March 5th A. D. 1860, payable one year after date, and that the said promissory note is still unpaid, then the plaintiff is entitled to recover.

2d. That there is no sufficient evidence in the case of any payment on account, of said note.

And the defendant offered the following prayer:

The defendant in this case is entitled to set off against the plaintiff's claim any amount which the jury may believe from the evidence is due and owing from the plaintiff to the defendant, and in making up their verdict the jury may credit the defendant with whatever amount they may find due to the defendant [**3]  from the plaintiff, and if they find that a sum equal to the whole amount of the plaintiff's claim is due by the plaintiff to the defendant, then their verdict should be for the defendant.

The Court below (KING, J.,) granted the plaintiffs' prayers, and rejected the prayer of the defendant, to which ruling of the Court the defendant excepted, and the verdict and judgment being for the plaintiff, appealed to this Court.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

PRAYERS & INSTRUCTIONS TO THE JURY: PLEADING & EVIDENCE: SET OFF. -- In an action on a promissory note and plea of set-off, instructions founded altogether upon admissions of the execution and non-payment of the note declared on, and not referring in any way to evidence offered under the plea of set off, are bad.

And where a portion of the testimony offered tended to support the plea of set off, but other portions of it, if believed by the jury, may have been sufficient in their judgment, supported by a proposition of law properly deducible therefrom, to have established a state of case which would have defeated that defence, a prayer based upon the evidence under the plea of set off alone is also bad.  

COUNSEL:
Benj. F. Horwitz, for the appellant, argued:

1st. That there was abundant evidence from which the jury might have found that there was an indebtedness from the defendant to the plaintiff, which could properly set off against the demand of the plaintiff, and consequently that there was error in the Court's taking the entire case from the jury, and ordering them to find for the plaintiff, nolens volens, ignoring entirely the defendant's plea of set off, and all the evidence offered to sustain it, and looking only to the payment of the note. There is abundant evidence that Schillinger purchased and paid for goods which he delivered to Kratt, who received, used and kept them, and for which goods, there is in law [**4]  an implied promise on the part of Kratt to pay. Where one man receives the property or accepts the services of another, the law presumes a promise to pay; in other words, there is an implied assumpsit, which may be repelled by legal evidence, and which was attempted in this case, by the plaintiff's endeavor to show that the property was intended to be given to him or his wife, but these facts, it is submitted, were questions for the jury, and were improperly taken from them by the Court's instruction, which in fact, blotted out the entire evidence. Ogden vs. Saunders, 12 Wheaton, 341. 1 Blackstone's Commentaries, 159, 162, 163. Chitty on Contracts, 18. 1 Story on Contracts, Sec. 12. Abbott vs. Herman, 7 Greenleaf, (Maine,) 118. Stockett vs. Watkins, 2 G. & J., 326.

2nd. Even if it be assumed that the evidence offered and received from the defendant, was legally insufficient to establish the issue joined on the replication to the plea of set off, or that there was evidence to establish a material fact involved in maintaining that plea, then the granting of the plaintiff's prayers was erroneous, as they did not point out specifically the defects or omissions in the proof, as required [**5]  by the Act of 1825, ch. 117, re-enacted in 1st Code, Article 5, section 12. A general prayer that there is no evidence, (such as the plaintiff's prayers were,) is only proper where there are no facts offered in support of a case, or where the testimony offered has been rejected as incompetent. Hatton vs. McClish, 6 Md. Rep., 407. Tyson vs. Shueey, 5 Md. Rep., 540.

The following cases show the critical strictness which this Court applies to see that a prayer shall by no implication of a fact, or even of the necessary consequence of a fact, exclude from the jury the ascertainment of all facts, and even the operation and result of facts. Charleston Ins. Co. vs. Corner, 2 Gill, 410. Bullitt vs. Musgrave, 3 Gill, 31. Brown vs. Ellicott, 2 Md. Rep., 75. Boyd vs. McCann, 10 Md. Rep., 118. Giles vs. Ebsworth & Hays, 10 Md. Rep,, 333.

3rd. The appellant's prayer, it is submitted, contained the true law of the case, and should have been granted.

Wm. B. Hill, for the appellee, contended:

That the defendant's plea of set off was not sustained by any evidence in the case. The Court below was right in rejecting the defendant's and granting the plaintiff's prayer.

To constitute [**6]  set off there must be a subsisting debt due by the plaintiff to the defendant. But there is nothing in the evidence to show that Kratt ever became indebted to Schillinger on any account whatever. It is not anywhere shown that he promised, either expressly or by implication, to pay the defendant anything. It does not appear, from the evidence, that Kratt was present at the time of Shillinger's purchases; that they were made at his request, or that he had any knowledge of them whatever, until he found them at the house occupied by himself and wife after the marriage. On the contrary, all the evidence tends very clearly to show that Schillinger bought them as part of the marriage portion of his daughter, and gave them to her in contemplation of her marriage. 2 Espinassee Rep., 594, 514. 7 T. & R. Rep., 348. 4 H. & J., 233, 3 Md. Chan. Dec., 65. 4 Md. Chan. Dec., 3, 322.

2. The law presumes a gift to be intended where a father sends chattel property to the future home of his daughter about to be given in marriage. Cole vs. Varner, 3 Alabama R., 244. Olds vs. Powell, 7 Alabama R., 652. Morris' Admr. vs. Dawney, 3 Hen. & Mun., 127. Farrel vs. Perry, Haywood Rep., 2. Carter's Ex'ors [**7]  vs. Rutland, Haywood Rep., 112. Parker vs. Phillips, Haywood Rep., 519. Owen vs. Tandersly, 12 Texas, 405, Bell vs. Strother, 3 McCord, 207. Brasshears vs. Blassingame, 1 Nott & McCord, 223.

In this case the intention of the defendant is obviously to make a gift, or marriage portion, to his daughter. That intention was executed by an unqualified delivery of possession of the chattel property purchased for her, and it was not in his power, at any time afterwards, to retract it. 2 Black's Com., 441. He cannot, in March, 1861, transmute into a debt his voluntary gift of June, 1860. But even upon the hypothesis that this were possible, it would not then be the debt of this plaintiff, and hence, could not be pleaded in set off. Such an indebtedness would lack all those qualities which are indispensably requisite before it could be set off against the plaintiff's claim. The debt must be mutual. It must be in the same right. It must be of such a nature that he can sue for it and recover it at law. 1 Robinson's Practice, 369, 381. Parsons on Contracts, 243. Darnall vs. Hill, 12 G. & J., 388. 8 Gill, 93. 18 Md. Rep., 85.  

JUDGES:
The cause was argued before BOWIE, C. J., and GOLDSBOROUGH, COCHRAN [**8]  and WEISEL, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*54]  GOLDSBOROUGH, J., delivered the opinion of this Court:
We think the instructions contained in the bill of exceptions were improperly granted.
They are founded altogether upon the admission of the execution and non-payment of the note declared on, and do not refer in any way to the evidence offered under the plea of set off, and the effect of granting them was to withdraw this evidence from the consideration of the jury. This, in our opinion, was error. The evidence in question should have been submitted to the jury under instructions sufficiently comprehensive to cover the case actually made by the proof.
The presumption of law growing out of the relationship of the parties was, that the articles furnished by the appellant were a gift to the wife of the appellee, and the Court, if it had been called on to do so, might have so instructed the jury. But it was not authorized to find the facts shown by this evidence, although its legal conclusions upon them might have been substantially correct had they been found by the jury according to the evidence. Some of the testimony tended to support the plea of set off, but other portions [**9]  of it, if believed by the jury, may have been sufficient in their 

 [*55]  judgment, supported by the presumption of law, to establish a state of case which would defeat that defence. The prayer offered by the appellant was too general to meet this view of the evidence, and for that reason was properly rejected.
Judgment reversed, and procedendo awarded. 

83 of 120 DOCUMENTS 

GEORGE M. CONNER AND CONDUCE GATCH vs. THE MOUNT VERNON CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 55; 1866 Md. LEXIS 43 

June 1, 1866, Decided 

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

The appellants, as plaintiffs below, brought an action of assumpsit based upon the following contract:

"Baltimore, Sep. 5th, 1860.

"This Article of Agreement, entered into this day between G. M. Conner, C. C. Gatch, of the city of Baltimore, Md., of the first part, and the Mount Vernon Cotton Manufacturing Company, of the same place, of the second part, witnesseth: that the parties of the first part, (viz: Conner & Gatch,) agree to construct and place in good running order two of the said Conner's Centripital Momentum Water-wheels, in the said company's cotton mill; and the power of the two wheels to be communicated to the driving-shaft to which the steamengine is now attached, by means of a line shaft and spurgearing. All the work, both wood and iron, to be made in the most substantial and durable manner, and placed in good running order, with all the necessary appurtenances and fixtures, and guaranteed to work from twenty to one hundred and ten horse-power, with a full head of water, and to effect a saving of 20 per cent., or one-fifth of the water over the over-shot that was in. The work to be completed and in running [**2]  order on the 12th of October, 1860, unless circumstances over which the parties of the first part have no control should prevent. And the said parties of the first part agree to pay the company five dollars per day for every day after the 12th of October in which the work is not completed. And the said company agree to pay said Conner & Gatch five dollars per day for every day in which the wheels running and driving the mill before the 12th of October. And the said parties of the second part agree to remove the old wheel, and when the two centripetal wheels shall work and perform, according to the guarantee in this Article of Agreement, then the said company will pay the said Conner & Gatch the sum of one thousand seven hundred and forty dollars, current money.--$ 1,740.00.

WM. KENNEDY, Pres't Mt. Vernon Co.

G. M. CONNER.

C. GATCH."

There were eight counts in the declaration. Six were the common counts, and the seventh was an account stated. To these counts, pleas of denial were filed, and issues joined; but no question arose on those issues, at the trial. The eighth count of the declaration was met by two pleas; the ninth, concluded with a verification, to which [**3]  there was a rejoinder and issue; and the tenth, concluded to the country, and issue thereon. The eighth count of the declaration alleged an agreement in writing, between the parties, dated 5th of September, 1860, as above; that the defendant, in consideration promised to pay, &c.; averment of performance by the plaintiffs, and non-payment by the defendant, of $ 1740, the amount claimed.

The ninth plea, after stating that the work was not completed by the day limited, and that the plaintiffs were not prevented from completing the same within said time by any circumstances over which they had no control, pleaded a part of the contract (not set out in the declaration,) by which the defendant was "to pay five dollars additional per day for every day the work should be completed, before said limited day, and that the plaintiffs should and would pay five dollars per day for every day after said 12th of October, 1860, during which, the said work had not been completed before said limited day, nor since; and the defendant claims a large amount as due by the plaintiffs for stipulated damages."

The tenth plea specially denies that the wheels worked and performed according to the guarantee [**4]  set forth in said eighth count, and denies that said wheels were competent and sufficient to work up to the power and to effect the saving of water, mentioned in said eighth count.

The plaintiffs under a commission to St. Louis, took the testimony of William H. Shock; and under a commission to Paita, in South America, took the evidence of Alfred Duvall. These two witnesses testify to certain experiments made by them in order to report on the efficiency of two of Conner's Centripetal Momentum Water-wheels, at the defendant's factory. They were employed for the purpose by the plaintiffs.

Shock, in his answer to the 2nd interrogatory, states that he is an engineer in the U.S. Navy, and familiar with steam machinery, and the mode of calculating results, connected therewith. From his answer to the 5th interrogatory he shews, that (instead of seeing whether the wheels, unassisted by the engine, could work the mill,) he adopted the mode of making experiments in two ways; firstly, when the engine was developing its maximum power, unassisted by the water-wheels; and, secondly, when the engine was reduced to its minimum performance, and the wheels were developing their maximum effect.  [**5]  

Duvall, in his answer to the 5th interrogatory, says, that he measured the water in the flume or forbay, being furnished, as he says, with a surface float of the most desirable form, and with a well constructed float, reaching to within five or six inches of the bottom of the flume. He then details experiments made, and calculations made thereon, and arrives at the conclusion that scientifically, there is a saving, by the use of Conner's wheels, of more than thirty per cent., as compared with an over-shot wheel, using a fall of twenty and a half feet. (He gives no information as to the actual saving, by the use of Conner's wheels, as compared with the over-shot wheel, which was in the defendant's factory, when Conner's wheels were substituted.) The plaintiffs proved, by Hazelhurst, that he considered the mode adopted by Shock to ascertain the horse-power of the engine, to be a correct mode; and by Denmead, that he was present when the experiments were made by Shock and Duvall, and he thought they were fairly made. He testifies that, on one occasion, he was at the factory, and saw both wheels going, and that the pressure on the engine was only four and a half pounds, and that such [**6]  machinery as was in operation was kept going by the wheels. Another witness, Moss, one of the plaintiffs' workmen, was examined on the part of the plaintiffs, to explain the reason of delay in putting in the wheels. Richard Shock, also examined on the part of the plaintiffs, proved, that he had put in the over-shot, which preceded Conner's wheels, and that it was an eighty horse power. He also testified, that Carroll, (the defendants' agent,) after Conner's wheels had been put in, spoke of them as doing very well; but with some qualification, either as to having more wheels, or some improvement.

The defendant proved by Poole, of the firm of Poole and Hunt, mechanical engineers, that he considered a horsepower, as forty-four thousand pounds; and that it is proper to deduct one-fifth for friction; and that the friction is nearly the same, whether the engine is exerting its maximum or minimum power.

Carroll, the defendants' agent, testified that he had built the Mount Vernon Mill; that the over-shot wheels, used before Conner's wheels were put in, afforded sufficient power to drive the entire machinery. The defendant had, also an eighty horsepower engine, which was used when [**7]  the water was low. Alterations were made in the machinery of the mill, after it had been built, but no addition. After Conner's wheels were put in, although the head of water was sufficient, they would not drive the mill. The plaintiffs took out those wheels; and made a change; and then another, and then another, but the wheels would not drive the mill. They would not do more than two-thirds of the work of the old one.

They kept on making these changes up to January, 1861. The company never accepted the wheels; witness was present when Shock and Duvall made their experiments, and suggested to them that the true way was to try the wheels by themselves, but they did not act upon his suggestion.

Kavanaugh, a witness for the defendant, proved that the plaintiffs had put in one of Conner's wheels at the Calverton Carpet mills, and that it did not do half the work of the over-shot wheel with the same water.

The defendants also proved the following facts:

By Cornelius, the engineer at the Mount Vernon factory since 1852, that the new wheels would not drive more than from one-half to two-thirds of the machinery; and that the old over-shot wheel drove the whole mill. This [**8]  witness also proved, that when Denmead saw but four and a half pounds of steam on the engine, but half the machinery was in operation.

By Smith, the general superintendent since 1849, that the over-shot wheel drove all the machinery; that the new wheel did not drive more than half. There are four rooms in the mill; the new wheels drove only two rooms.

At this stage of the cause, a paper was offered by the defendant, containing calculations made by Conner, one of the plaintiffs, of the power of the over-shot wheel with a full head of water. To the reading of this statement, or calculation, the plaintiffs objected. It was admitted by the Court. This formed the plaintiffs' 1st exception.

The defendant also proved by Thompson, that he had made a calculation of the power of the over-shot wheel, and found it to be 85.7 horse-power, and that an over-shot wheel uses from 65 to 70 per cent. of water. And also proved by Wood & Kelly, that they had been connected with the defendant's mill for nine years, and that it could and did run the entire machinery, and that the present wheel run but half.

The evidence on both sides being closed, the plaintiffs by their counsel prayed [**9]  the Court to instruct the jury as follows:

1st. That by the terms of the contract which had been offered in evidence, the plaintiffs undertook to furnish the defendants with two of Conner's Centripetal Momentum Water-wheels, having ability to work from twenty to one hundred and ten horse-power, with a full head of water, and to effect a saving of twenty per cent, or one-fifth of the water of the over-shot wheel that was then in the defendants' mill. And if the jury shall believe from the evidence that the term horse-power is used among engineers and mechanics to describe a standard by which to measure motive power, which there are well known rules and methods for calculating; and if the jury shall believe that the plaintiffs did in fact furnish two of Conner's Centripetal Momentum Water-wheels, and communicated their power to the driving shaft of the defendants' engine, by means of a line shaft and gearing as provided in said contract; and if the jury shall further believe, that after the said wheels were so as aforesaid furnished and connected, the said plaintiffs caused the horse-power thereof to be calculated by the rules and methods aforesaid, while the said wheels were in [**10]  operation, communicating their power to the driving shaft aforesaid, and that such calculations were fairly and bona fide made from data of the taking of which the defendants or their agents had notice, by parties skilled and competent to make them, and which calculations have been offered in evidence; and that the result of such calculations was to show that the amount of horse-power guaranteed in the said contract, has been obtained along with the saving of water stipulated therein:--then in the absence of all testimony to shew that such calculations were erroneous, the jury must find for the plaintiffs, even though the jury should not be satisfied that the said wheels were competent to do the work performed by the old wheel that preceded them, and which has been spoken of in evidence, and although they should believe that it was the intention of the defendants that the new wheels should drive the whole machinery of the said mill, and that they failed to do so.

2nd. That in order to show that the calculations referred to in the first prayer are erroneous, the defendants must show that the data on which they were made were incorrectly taken, or that the rules applied thereto [**11]  were not those applied by persons familiar with the calculation of horse-power of motive machinery.

3rd. That if the jury shall believe that the delay in completing the said wheels by the time stipulated in the contract, was occasioned by circumstances beyond the control of the plaintiffs, then they are not to be subjected to the penalty of five dollars per day mentioned in the contract.

4th. That the penal clause of the contract is distinct from that stipulating for the payment of a certain sum for the two wheels as aforesaid; and that, should the jury find that the plaintiffs are subject to any penalty under the circumstances of this case, they will further find for the plaintiffs the contract price less such payment on account thereof as is admitted in evidence, and after deducting the amount of penalty, if any, from the balance, under their credit for the plaintiffs, with interest from the time when they ceased to work on the said wheels.

5th. That in determining whether the wheels in question worked up to one hundred and ten horse-power, and effected a saving of twenty per cent. over the over-shot wheel therein, the jury are not bound by the fact, should they find [**12]  it, that the wheels were not able to drive the machinery of the mill, provided, the jury shall find that the said wheels possessed the horse-power indicated in the contract, and effected the saving of water mentioned therein, as the same calculated or measured by the rules and methods for ascertaining horse-power, in use among persons skilled and competent to make such measurements and calculations; and provided, the jury shall also find that horse-power is a term used among engineers and mechanics, to describe a standard by which to measure motive power, which, there are well known rules and methods for calculating.

The defendants prayed the Court to instruct the jury as follows:

1st. That by the terms of the contract offered in evidence, the plaintiffs cannot recover, unless the jury shall find from all the evidence in the cause that the wheels constructed by the plaintiffs with their appurtenances and fixtures as arranged by the plaintiffs, were able, when employed by the defendants in running and driving their mill, to work up to one hundred and ten horse-power, with a full head of water, and were capable of effecting a saving of 20 per cent. of water over the over-shot [**13]  wheel that was previously in use, and that the burthen of proof is on the plaintiffs to establish said facts.

2nd. Even if the jury should find that the two wheels constructed by the plaintiffs, with their appurtenances and fixtures, were able to work up to one hundred and ten horse-power, and were capable of effecting a saving of 20 per cent. of water, but shall also find that said work was not completed on or before the 12th day of October, 1860, and that the plaintiffs were not prevented from completing the same on or before said day, by circumstances over which they had no control, then the defendant is entitled to a credit of five dollars for each and every day during which said work remained not completed, after the said 12th day of October, 1860.

The Court, (MARTIN, J.,) rejected the plaintiffs' 1st, 3rd, 4th, 5th and 6th prayers, and granted the 2nd prayer of the plaintiffs, and granted the prayers of the defendants; and to the refusal of the Court to grant the rejected prayers of the plaintiffs, as well as to their granting the defendants' prayers, the plaintiffs by their counsel excepted, and the verdict and judgment being for the defendants, appealed.

The [**14]  6th prayer of the plaintiffs called for in the 2nd bill of exceptions was omitted in the record of the case.

It was agreed that counsel should, in arguing the case before the Court of Appeals, read from Haswell's Engineers' Pocket-book, the Steam Engine by the Artizan Club, and the Ordinance Manual, as though the parts read were extracted and inserted in the record.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

EVIDENCE -- ADMISSIBILITY OF: ADMISSIONS: PRAYERS AND ISTRUCTIONS TO THE JURY. -- In an action of assumpsit, based upon a contract to construct water wheels, guarantied to be of from twenty to one hundred and ten horse-power, and to save a certain amount of water, it was proved by the plaintiff, that the wheels were put in place and connected with the machinery to be driven, and that their power reached the maximum called for by the contract; and evidence on the other side was admitted without objection, that the wheel, for which these were substituted, was of eighty-five and seven-tenths horse-power, and sufficient to drive all the machinery of the mill, and that the new wheels were insufficient for that purpose. A paper was then offered in evidence by the defendants, containing calculations made by one of the plaintiffs, of the power of the displaced wheel with a full head of water, which was objected to as inadmissible. -- Held:

1st. That this evidence being offered generally, if it was admissible for any purpose, there was no error in admitting it.

2nd. That it was admissible in connection with other evidence of the same character, offered for the purpose of showing that the contract had not been performed.

3rd. That it was admissible as an admission by one of the plaintiffs of a fact of which evidence had been introduced without objection.

4th. It was admissible to show the actual power of the displaced wheel, and by that means enable the jury to judge whether the new wheels worked with the power guaranteed by the contract.

5th. That prayers limiting the jury, in passing upon the question of the performance of the contract, to a consideration of the plaintiffs' evidence alone, were properly rejected.  

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

The whole matter in dispute turns upon the construction proper to be given to the above contract.

The difference between the constructions contended for, respectively, by the appellants and appellees, is substantially this: The appellants insist that, if their wheels furnished the horse-power and saved the water mentioned in the contract, they complied with their guarantee, whether they drove the whole machinery of the mill or not.

The appellees, on the other hand, contend that according to the terms of the contract, the fact, that the wheels did not drive the whole machinery of the mill, was evidence, from which the jury might find a non-compliance with the guarantee. This difference appears in the instructions prayed for and rejected [**15]  on the one hand, and those granted on the other.

Thus, the Court left it to the jury to say, whether, from all the evidence in the cause, the wheels were able, "when employed by the defendants in running and driving their mill," to furnish the horse-power, and effect the saving of water mentioned in the contract.

Now, the evidence on this point, as appears from the record, was confined, on the part of the appellee, to showing that the wheels did not drive the entire machinery.

No evidence was offered by the appellee to prove that one hundred and ten horse-power was not furnished, or that a saving of 20 per cent. of water was not effected, except that the whole machinery was not, in fact, driven.

On the contrary, after showing that horse-power was a technical term, well understood among machinists and others, the appellants proved that the wheels furnished it, and as a matter of fact, proved that there was the saving of water which the contract guaranteed, nor was any witness offered to impugn the accuracy of the calculations, or the principle on which these results were arrived at.

And the appellants contend, that the first prayer of the defendants was improperly [**16]  granted, because it permitted the jury to make the driving of the whole machinery the test of compliance with the guarantee of the contract-- whereas the contract contains not one word having reference to such a standard--but, on the contrary, establishes one well understood, and which the appellants are proved to have complied with.

The appellees seem to have made up their mind as to what horse-power they required to drive their mill. Using a steam engine already, they are to be presumed to have known what the term horse-power meant--they fixed upon one hundred and ten horse power as sufficient--it was furnished them--it turns out to have been insufficient--and their refusal to pay the appellants is an attempt to visit them with the consequences of the appellees' own mistake.

Had the appellees intended a guarantee to drive the whole machinery, nothing would have been easier than to insert it. They preferred another standard however.

It is very true that, towards the close of the contract, "the company (the appellees) agree to pay the said Conner and Gatch, five dollars per day for every day in which the wheels running and driving the mill, before the 12th October."

When [**17]  the contract was made, the appellees assumed that one hundred and ten horse-power would drive the mill, and when the "running and driving the mill" is spoken of, as above, it is in reference to this calculation to this effect.

As the case now presents itself, the second prayer of the appellees becomes unimportant.

Among the testimony admitted by the Court below, was a statement or calculation made by one of the plaintiffs of a date prior to the contract. It is objected to, because there was no ambiguity about the contract, which it could be invoked to explain; and again, admitting even that it was exhibited to the appellees before the contract was made, it was superseded by that instrument when subsequently executed.

And the appellants contend, that the 1st, 3rd, 4th and 5th prayers of the defendants were improperly rejected, for the reasons that have been urged in contending that the appellees' first prayer was improperly granted.

Wm. Schley, for the appellees:

1. The evidence stated in the 1st bill of exceptions was properly admitted; it was the work of one of the plaintiffs; it was material and pertinent to the issue; it must stand on the same footing as [**18]  an admission or representation of the plaintiffs.

2. The plaintiffs' first prayer boldly presents the proposition, that, in construing the contract, we are to understand the clause "to work from twenty to one hundred and ten horse-power," as importing theoretical, and not practical, power; and that we are also to understand the clause, "to effect a saving of twenty per cent., or one-fifth of the water over the over-shot that was in," in the same way.

The appellee insists, that upon the true exposition of the contract, the parties intended real working power, and an actual saving of one-fifth of the water. The wheels were intended for practical use.

3. If the last point be well taken, then both the first and fifth prayers of the plaintiffs were properly rejected. Both concede, that the wheels did not, in fact, furnish the horse-power, or saving of water, guaranteed by the plaintiffs; and both seek to introduce calculations as a substitute for reality. The first prayer of the appellee announces the true and only sensible interpretation.

4. The construction of the contract being settled, the law is clear, that the plaintiffs could not recover, unless upon satisfactory [**19]  proof that the wheels did furnish the power, and did save the water, as guaranteed by the plaintiffs in the agreement. Knowing this, the 8th count avers performance; and the right of recovery is thus dependent on proof of performance. Watchman & Bratt vs. Crook, 5 G. & J., 254. Watkins vs. Hodges & Langsdale, 6 H. & G., 38. Speake vs. Shepard, 6 H. & J., 85. Bank of Columbia vs. Hayner, 1 Peters, 465. Whilcher vs. Hall, 11 Eng. C. L. Rep., 224. Sinclair vs. Bowles, 17 Eng. C. L. Rep., 340.

5. The 2nd prayer of the appellee did not make time of the essence of the contract, so far as related to the plaintiffs' right of action. But that prayer affirmed, that by the terms of the contract, the defendant was entitled to a credit of five dollars for each and every day during which the work was unfinished after the 12th day of October 1860, in case the jury should find that the plaintiffs were not prevented from finishing the work, on or before that day, by circumstances, over which they had no control. McIntosh vs. The Midland Counties Railway, 14 Mees. & Welsby, 548. And such deduction is properly to be made in this suit, and a cross-action is not necessary. Van Buren vs. Digges, 11 [**20]  How., 461. Withers vs. Green, 9 How., 213, 227, 231. Gibbon's Law of Contracts, §  20 to §  47.

6. The plaintiffs' third prayer was properly rejected. That prayer transfers the provision, which is annexed to the engagement, that the work shall be completed and in running order on the 12th of October, 1860; which would be a condition precedent to a right of payment for the work, but for the superadded words, "unless circumstances, over which the parties of the first part have no control, should prevent," had been added. Without those words, time would have been so far of the essence of the contract, that the plaintiff could not have recovered at all, unless the work should have been completed and in running order by said day. But although time was not made an absolute condition precedent to a right of recovery,--as in 5 G. & J., 254, and cases of that class; yet, as a bonus for expedition, five dollars was to be paid additional for every day the work should be completed, in advance of that day; five dollars was to be paid as stipulated damages for every day of delay. Whether called a penalty or stipulated damages, it is a fixed compensation for delay, which the defendant was bound [**21]  to accept in full, and which the plaintiffs were bound to pay. There is no qualification to this part of the agreement, nor can any be engrafted on it.

7. The plaintiffs' 4th prayer was properly rejected. The defendant had paid in advance a part of the price, as was admitted, leaving a balance of the contract price. The defendant plead as a set off, the amount due by the plaintiffs in bar. Now this prayer incorporates "the circumstances" in the same objectionable manner as was done in the 3rd prayer. But it goes further, and asks for a positive direction to the jury to find for the plaintiffs,--to render their verdict for the plaintiffs, on a prescribed basis; and with interest from the time the plaintiffs ceased to work. Such an instruction would exclude from the consideration of the jury, the question whether the work was ever completed or not; whether the work,--all the work, both wood and iron,--had or had not been made "in the most substantial and durable manner;" whether it had or had not been placed in good running order, with all the necessary appurtenances and fixtures; whether the wheels did or did not work from twenty to one hundred and ten horse-power with a full head [**22]  of water; and whether they did or did not effect a saving of twenty per cent., or one-fifth of water, over the over-shot that was in at the time the contract was made; and also excluded the enquiry, whether the work was completed and in running order by the day limited, and if not, whether the delay was owing to circumstances over which the plaintiffs had no control. All these were questions material to the question of the plaintiffs' right to recover at all.  

JUDGES:
GOLDSBOROUGH, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*69]  GOLDSBOROUGH, J., delivered the opinion of this Court:
This suit was brought on a contract to construct two Centripetal Momentum Water-wheels and properly connect them with the machinery of a Cotton Mill. These wheels were to take the place of an over-shot wheel then used in driving the mill, and in the language of the contract, were "guaranteed to work from twenty to one hundred and ten horse-power with a full head of water, and to effect a saving of twenty per cent. or one-fifth of the water of the over-shot that was in." Another clause of the contract shows that the contracting parties contemplated the construction of wheels that 

 [*70]  should be sufficient to run [**23]  and drive the machinery of the mill.
After the admission of proof on the part of the appellants that the wheels were put in place and connected with the machinery to be driven, and that their power reached the maximum called for by the contract, evidence was admitted on the other side, without objection, showing that the displaced over-shot wheel was of eighty-five and seven-tenths horse-power with a full head of water, and sufficient to drive all the machinery of the mill; and further, that the new wheels, with a like head of water, were wholly insufficient for that purpose. The written computation of the power of the over-shot wheel, made by Conner one of the appellants, and to the admission of which, the first exception was taken, was then allowed by the Court to be read in evidence. The paper appears to be appended to, or to be part of a paper endorsed "Proposals," which the appellants insist was merged in the contract subsequently made, and for that reason was not admissible as evidence in an action on the contract.
The appellants assume, as the ground of their objection, that this paper tended to vary the contract for the construction of the new wheels, and it must be conceded [**24]  that if it was offered for that purpose, the objection would be fatal.
The specific purpose for which this evidence was offered is not stated in the bill of exceptions--being offered generally, if it was admissible for any purpose, there was no error in admitting it.
It was certainly admissible in connection with other evidence of the same character, for the purpose of showing that the contract had not been performed; and in that view there was no error in admitting it. It contained the calculation of the capacity or power of the over-shot wheel, made by Conner himself; and as an admission by Conner of this fact, of which proof by the estimate of other witnesses was introduced 

 [*71]  without objection. It was admissible to show the actual power of the over-shot wheel, and by that means enable the jury to judge whether the new wheels worked with the power guaranteed in the contract.
A review of the prayers granted and rejected, contained in the second exception, has satisfied us that the cause was submitted to the jury under proper instructions.
The right of recovery depended upon the performance of the contract; and the rejected prayers offered by the appellants appear to have [**25]  been founded on a construction of it that necessarily limited the jury in passing upon the question of its performance to a consideration of their evidence alone.
This, in our opinion, was a mistaken theory, not only as to the meaning of the contract, but in regard to the evidence from which its performance was to be found.
The question of performance was to be determined by the jury upon a consideration of all the evidence in the case.-- As we understand the contract, the instructions given were as favorable as the appellants had a right to ask; they are expressed in the language of the contract, or at least so nearly so, that the only mistake the jury could make, was in the way of construing them in the appellants favor. The judgment must be affirmed.
Judgment affirmed. 

84 of 120 DOCUMENTS 

THE MAYOR & CITY COUNCIL OF BALTIMORE vs. THOMAS POULTNEY & DAVID B. TRIMBLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 18; 1866 Md. LEXIS 39 

May 16, 1866, Decided 

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

This was an action of assumpsit by the appellees against the appellants, for goods sold and delivered. Plea, non assumpsit and issue.

Exception. At the trial of this cause the plaintiffs, to maintain the issue on their part joined, proved by competent testimony, that during the year 1861 and before, and ever since, they were the proprietors and occupants of a house No.    , Baltimore street, in the city of Baltimore, in which they carried on business as partners, under the name of Poultney and Trimble, and there kept for sale, and sold guns, pistols and other arms of various kinds, and ammunition, flasks, &c., and that on Sunday, the 21st day of April, 1861, their said store was broken into by a crowd of persons who had there assembled, and guns, pistols, and other articles were taken and carried away by persons connected with said crowd, to the amount of $ -----; that afterwards, on the same day, the Police of Baltimore city took charge of their said store, and kept possession thereof for the succeeding ten days, and protected it effectually from future like attacks.

The plaintiffs then proved by J. D. Moritz, a competent [**2]  witness, that during said year of 1861, he was in the service of the said plaintiffs as clerk and salesman, and that the goods specified in the filed account were sold and delivered as hereinafter mentioned, at the prices specified, and were charged by the direction of the plaintiffs, or one of them, to the Mayor and City Council of Baltimore, amounting to the sum of $ 1,249.46; that the articles specified in said bill under date of April 25th, 1861, were selected by Grafton D. Spurrier, and were packed in boxes, and were subsequently called for by Wm. Key Howard and a squad of men, who were under his command, and the boxes were placed on a dray and carried away, but witness did not accompany the dray, and does not know whither the boxes were carried; that he saw the dray go down Baltimore street, in a direction eastwardly; that the other goods mentioned in said account were not selected by said Spurrier, nor delivered on his order, but on the order of other persons; that he remembers that some were sold and delivered on the order of Wm. H. Norris, but witness cannot now specify; that the goods delivered to Wm. Key Howard were delivered on an order, but he does not know whose order [**3]  it was.

The plaintiffs also proved by Christian Freibacker, a competent witness, that he was, in the year 1861, a clerk in the store of the plaintiffs, and that he superintended the packing of the goods selected by Spurrier, and that all said articles were packed in the boxes, which were delivered to Mr. Howard and the soldiers under him, and carried off on the dray; that afterwards a duplicate of the account offered in evidence by the plaintiffs was, by direction of the plaintiffs, carried by witness to the Head-Quarters of General Trimble, and there left; and that the witness did not see Spurrier there, and has no knowledge of the position then held by Trimble.

The plaintiffs also proved by Peter Newell, a competent witness, that he was one of the police in April, 1861, and was ordered to go to the store of the plaintiffs on Monday, the 22d April, 1861, and was there, off and on, for ten days, during which period the plaintiffs sold no goods without permission, and delivered none, except upon orders; that the witness was present when Mr. Howard and the guard of soldiers under his command came for and received the boxes of arms which had been packed in the plaintiffs' store;  [**4]  that Mr. Howard produced an order which the witness saw but did not read; that the boxes were carried off on a dray, and that Mr. Howard and his men went with the dray.

The plaintiffs further proved by Henry A. Thompson, a competent witness, that after the passage of said Ordinance, approved the 20th April, 1861, he was appointed by Mayor Brown to disburse the money, authorised by said Ordinance to be raised for the defence of the city, and the said witness produced a printed report made by him, as to the money actually received and disbursed by him, and he paid over to the register the balance appearing to his debit. The said witness being asked whether, in signing his name as Quarter-Master General, he did so in virtue of any commission from the United States, or from the State of Maryland? He replied, that he did not; that said designation was not properly assumed, and that his duties were not precisely those of a Quarter-Master; that the witness knew Isaac R. Trimble, that he took the title of Major General and exercised a military authority in the city of Baltimore for about three weeks, commencing on the 20th April, 1861; that he had about ten aids, (that is who were called [**5]  his aids,) William H. Norris, Grafton D. Spurrier, William Key Howard, Robert M. McLane and others who acted under him as his aids; that the witness understood that Trimble was appointed by the Police Commissioners, but had no personal knowledge whether he was or was not appointed, and that he saw Trimble once in company with Mayor Brown.

The plaintiffs also proved by William W. Taylor, a competent witness, that he was in April, 1861, the superintendent of the Western Maryland Railroad; that he came with the train on the morning of the Monday succeeding the 19th day of April, 1861, intending to run into the city as usual, and intending as usual to run out a train in the afternoon; that the train was stopped outside of the city, and the witness was informed that he would not be permitted to go out with the train in the evening; that the witness thereupon went to Mayor Brown in order to obtain permission for the cars to run, who referred him to the Police Commissioners, the last named in turn referring him to General Trimble, as the person who alone had the power to grant a pass for the running of the cars; that the witness called on him at his Head-Quarters in the custom house,  [**6]  --he was in military dress, and his sword was buckled on;--that after some hesitation he gave to the witness a permit for running the cars, but under very stringent restrictions, one restriction being that no troops were to be transported on the road.

The plaintiffs also proved by     Bates, a competent witness, that he was a member of Police Force of Baltimore, in the month of April, 1861; that he saw Poultney and Trimble at the office of the Police Commissioners on the 22nd April, 1861, and afterwards saw boxes at the Commissioners' office with the name of Poultney and Trimble on them, but did not know what they contained.

The plaintiffs also proved by James McLaughlin, that in April, 1861, he was connected with the office of the Police Commissioners, and filled the situation of Clerk to the Marshal of Police, Col. Kane; that in that capacity he received some boxes brought there by Wm. Key Howard and a body of men as guards; and that the boxes were brought on a dray late in the afternoon, and witness gave Mr. Howard a receipt for them. The said witness also stated, that shortly afterwards, Col. Kenly, as Provost Marshal, took possession of the office of the Police Commissioners,  [**7]  and witness saw persons go up stairs and come down with arms and carry them away.

It was admitted by the defendant that the Police Commissioners had not increased the number of policemen beyond the ordinary number of men who were in the employment of the city previously. Whereupon the plaintiffs, by their counsel, prayed the Court to instruct the jury as follows:

1. If the jury shall find from the evidence in the case, that the plaintiffs, as partners, doing business under the firm of Poultney and Trimble, sold and delivered the several articles of merchandise as stated by the witness, Mr. Moritz, between the 22d day of April, 1861, and the first day of May, 1861, and that they were sold and delivered on the orders and by the authority of Isaac R. Trimble; and shall further find that said Isaac R. Trimble, by appointment of the Police Commissioners of the City of Baltimore, and with the knowledge and consent of the Mayor of the City of Baltimore, and the other authorities was, during said time, in command of a body of men, whom the said Police Commissioners had raised as an additional force, in addition to the permanent Police Force of the city; and shall also find that in [**8]  the judgment of the said Police Commissioners, the exigency of the times and the state and condition of affairs, demanded the raising, employment, equipping and arming of such additional force, in order to enable the said Commissioners to preserve the public peace, prevent crime, arrest offenders and to perform the other duties imposed on said Police Commissioners by law; and shall further find, that said Isaac R. Trimble, after his appointment, and whilst under employment and in command as aforesaid, was authorised by said Commissioners to purchase said articles on behalf of said Police Commissioners for the use of the City of Baltimore; and shall further find that said articles after they had been so purchased, were by direction of said Isaac R. Trimble sent to the office of the said Police Commissioners, and were there received and receipted for by the authorised agent of the said Police Commissioners, and that the plaintiffs in selling and delivering said articles had notice that the same were purchased for the use of the city of Baltimore; and shall also find that the same were sold and delivered on the credit of the defendant, and not on the personal credit of said Isaac R. Trimble,  [**9]  nor on the personal credit of the said Police Commissioners, and that the same were charged at the times of such sales and deliveries to the defendant as purchaser, then the defendant is liable in this action for the price of such articles of merchandise as they may find from the evidence were sold and delivered as aforesaid.

2. Even if the jury shall not find from the evidence, that said Police Commissioners, before said articles were purchased by said Isaac R. Trimble, had given to him any authority to purchase said articles, but shall find all the other facts set forth as the hypothesis of the first prayer, and shall also find from the evidence, that said articles were delivered to, and accepted and received by said Police Commissioners, as the property of the defendant, and had notice that they had been purchased by the said Trimble on account, for the use and on the credit of the defendant, then the defendant is liable as stated in said first prayer.

And the defendants prayed the Court to instruct the jury as follows:

1. That the Police Commissioners had no power to bind the Mayor and City Council of Baltimore for the payment of the account for the recovery of which [**10]  this action is brought, except in the mode specified in the act creating the Police Board, and that the said mode has not been pursued in this case.

2. That there is no authority conferred upon the Police Commissioners by law, either by specific grant or as essential to the execution of powers which are granted, authorizing he said Commissioners to purchase the goods in question, assuming all the facts proved by the plaintiff to be true.

3. That there is no evidence in this cause to show any delegation of authority from the Mayor and City Council to the Police Commissioners to purchase the goods in question, or of any subsequent ratification, sufficient to make the defendants liable.

4. That whenever the Board of Police orders out the military of the city to suppress insurrection, it must be done in the mode prescribed by the Code, and that the plaintiff must show that all the requirements of the Code were complied with by the Board, to make them responsible for the acts of the military, and that even then any act done by the military, without order from the Board of Police, does not make the city authorities responsible, and the plaintiffs are not entitled to recover.  [**11]  

The Court below, (MARTIN, J.,) granted the prayers of the plaintiffs, and rejected the prayers of the defendants, to which rulings of the Court the defendants excepted, and the verdict and judgment being for the plaintiffs, appealed to this Court.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

EVIDENCE: ASSUMPSIT: PRIVITY OF CONTRACT. -- In assumpsit for goods bargained and sold, to establish a privity of contract and enable the plaintiff to charge the defendant, it must appear that the goods alleged to have been sold and delivered, were sold and delivered to the defendant, or to some person or persons duly authorized by the defendant to contract for it or in its behalf.

CODE, ART. 4, SEC. 818: BOARD OF POLICE OF BALTIMORE CITY, POWERS OF. -- Upon a true construction of the Code of Public Local Laws, Art. 4, sec. 818, the Board of Police of Baltimore city have no power to have charged to the Mayor and City Council any claim not embraced in their estimate for each current fiscal year contemplated by said section.

ACT OF 1861, CH. 2. -- UNDER THE ORDINANCE NO. 22 OF 1861, OF THE MAYOR & CITY COUNCIL OF BALTIMORE, appropriating $ 500,000 for "the defence of the city," &c., approved by the Act of 1861, ch. 2, no claim was properly payable out of said fund unless recognized or sanctioned by the Mayor.

PRACTICE IN COURT OF APPEALS: PRAYERS AND INSTRUCTIONS TO THE JURY: ART. 5, SEC. 12, OF THE CODE AS AMENDED BY THE ACT OF 1862, CH. 154, ENACTS -- "That the Court of Appeals shall in no case decide any point or question which does not appear, by the record, to have been tried and decided by the Court below; but no prayer or instruction shall be deemed defective by reason of any assumption therein of any fact by said Court, or because of a question of law having been thereby submitted to the jury unless it appears from the record that such objection was taken at the trial." HELD:

1st. That "the assumption of a fact by the Court" is materially different from giving instructions to the jury without any evidence to support them. To assume a fact is to state as proved, that which is to be proved; as, "if the jury find that after the sale," assumes the fact of the sale, and was therefore erroneous. But to instruct the jury upon an hypothesis of which there was no evidence, is to leave them to assume or find that for which there is no foundation.

2nd. That the errors, though closely similar, are by no means the same; the one is generally incidental and casual, the other is fundamental, deliberate and conclusive, and has always been held to be error for which the judgment would be reversed. The minor error was intended to be cured by the amended Act, but the greater was not included.

IMPLIED AGENCY: CODE, ART. 4, SECS. 806, 821 & 822. -- The Board of Police are declared by law to be a constituted authority of the city of Baltimore, to the same effect as if created and appointed by the Mayor and City Council; they, or a majority of them, constitute a quorum; they are required to have a common seal, to appoint a treasurer, to keep a full journal of all their proceedings, and cause their receipts and disbursements of money to be faithfully kept and entered in books provided for that purpose; and they are authorized and required to issue certificates for their indebtedness which are made receivable for taxes, provided their certificates shall not exceed their estimated expenses more than $ 30,000 in one year. HELD:

That all these provisions indicate that, like other corporations, they must act through some authorized agent having the authority of a majority of the Board.  

COUNSEL:
Wm. Price, for the appellants, maintained:

That the prayers offered on the part of the defendants below contained a true statement of the law of the case and ought to have been granted by the Court.

He cited Code of Public Local Laws, Art. 4, secs. 806, 809, 810 and also secs. 816 and 818, of the same Article.

Wm. Schley, for the appellees:

1st. In support of the defendants' 1st prayer, reliance was placed on § §  818, 767 and 769, of Art. 4 of the Code. But the requirement to give estimates, &c., is merely directory. It is not of the essence of the powers of the board.

2nd. As to defendants' second prayer: The Police Commissioners, undoubtedly, for extraordinary emergencies, have the power to raise such additional force, as the exigency, in their judgment, may demand, §  809. If they can lawfully create an additional police force, they must necessarily have power to provide arms for the [**12]  use of such force; and they may arm and equip them, as they may judge necessary, §  809. Their powers are very large, as shown by the provisions of the different sections of the said article; and the corporation is liable to the same extent as if the Police Commissioners had been appointed by them, §  822.

3rd. The third prayer is based on the assumption that the Police Commissioners could only purchase these goods in virtue of delegated power from the city. But the board is superior to the Mayor and City Council in this respect, §  817, §  808.

4th. The 4th prayer of defendant does not raise any question material to the issue. The plaintiffs do not seek to make the city responsible for the acts of the military, but for the price of goods purchased by authority of the board of Police. It is immaterial to the plaintiffs that they were, in fact, applied to the use of the military acting as special police.

The appellees' counsel also referred to the Ordinances of the Mayor and City Council of Baltimore, No. 22 of April 20th, 1861, and Acts of 1861, ch. 2, and 1862, ch. 154, sec. 12.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN, and WEISEL,  [**13]  J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*30]  GOLDSBOROUGH, J., delivered the opinion of this Court:
The appellees sued the appellant for goods bargained and sold.
This action resting upon either an express or implied assumpsit, the plea of the appellant puts the assumpsit in issue. 

 [*31]  To create a privity of contract between the parties, and to enable the appellees to charge the appellant, it must appear that the goods alleged to have been sold and delivered, were sold and delivered to the defendant or to some person or persons authorized by the defendant to contract for it and on its behalf.
The claim, which is the cause of action in this case, originated at a time of great excitement, owing to the incidents which had occurred on the 19th of April 1861.
The alarm of the citizens of Baltimore appeared to indicate one of those extraordinary occasions on which the Police Board was required to call out an additional police force, according to the provisions of the 809th section of the 4th Article of the Code of Public Local Laws.
No additional force was called out, and it appears from the evidence, that at the time when the goods charged in the appellees' account were taken, their [**14]  store was in the peaceable possession of the regular police.
Here the direct agency of the Police Board seems to have ceased, and Isaac R. Trimble, who assumed the title of Major General, organized a military force, and the goods of the appellees were procured by his orders. They were selected by Grafton D. Spurrier about the 25th of April, he officiating in the capacity of aid to Gen'l Trimble. They were packed in boxes and taken from the appellees' store by William Key Howard, another aid of Gen'l Trimble, and carried towards the office of the Police Board. One witness testified that he saw at their office boxes with the name of Poultney & Trimble on them, but did not know what they contained. When Gen'l Banks became military commander of the city, Col. Kenley was appointed Provost Marshal and took possession of the office of the Police Board, and while he was in possession, persons were seen to come from the office with arms, but whether those arms were a portion of those taken from 

 [*32]  the store of the appellees, or whether the persons having them were a portion of the police force, is not disclosed by the evidence.
There is some evidence that Gen'l Trimble was acting [**15]  in concert with the Mayor and Police Board, but not under their control.
It becomes important to determine in this connection, whether the power conferred on Gen'l Trimble by the Police Board, if it was bestowed, was conferred by authority of the Act under which the board was organized.
If the emergency had arisen, such as is provided for in the 809th section of the 4th Article, then by the 816th section of the same Article, the board had the power to call on the sheriff of the city whose duty it is made to summon the posse comitatus to aid in preserving the public peace under the direction and control of the board. By the same section it is further provided, that in case the board shall deem it necessary, they may call on any officer of any military force in the city of Baltimore, organized or existing under the laws of this State. As Isaac R. Trimble is not shown to be in any way connected with such organized or existing force, we can find no warrant of law for his act in taking the goods in question and having them charged to the appellant.
But there is another objection to this claim of equal or greater weight than the one we have been considering. The whole duty of preserving [**16]  the public peace within the city of Baltimore, with other kindred duties, being imposed upon the Board of Police, by the law (which is to be construed strictly, as it is in derogation of common right,) they are required by the 818th section of Article 4, to estimate annually what sum of money will be necessary for each current fiscal year, to enable them to discharge the duties imposed on them, and forthwith certify the same to the Mayor and City Council, who are required, without delay, specifically to 

 [*33]  assess and levy such amount as shall be sufficient to raise the same, clear of all expenses and discounts, &c. By another provision in the same section it is further enacted, "that in case the amount so as aforesaid to be estimated by the said board shall, from any unforeseen cause, prove insufficient for the necessary expenses of the current year, the said board are hereby authorized and empowered to issue certificates and raise money therefrom, as hereinbefore provided, to meet the said emergency; provided, that no such additional issue shall exceed the sum of thirty thousand dollars in any one year."
It is apparent from the reciprocal obligations and restrictions [**17]  imposed on the Board of Police and the appellant by this section, that the board had no power to have charged to the appellant any claim not embraced in their estimate, and there is no evidence in the record that this claim was so embraced, nor could they delegate that power to Gen'l Trimble. If the claim arose out of the exigency heretofore spoken of, then it was the duty of the board to have paid it out of the money raised by the issue of their certificates.-- They, alone, having the authority to disburse the funds incident to their office. But it is contended that the appellant is responsible for the claim in question because, by ordinance 22 of 1861, an appropriation of $ 500,000, was made "for the defence of the city against any danger that may arise out of the present crisis." That the articles composing the claim were military stores, such as were appropriate to the defence of the city. But the Act of 1861, ch. 2, confirming this ordinance, expressly provides that the appropriation shall be expended under the direction of the Mayor of the city, and we find no evidence in the record, to show that the claim of the appellees was either recognized or sanctioned by the Mayor.
We [**18]  now proceed to consider the prayers of the appellees, which were granted, and those of the appellant, which were rejected.

 [*34]  The appellant objects to the prayer granted by the Court at the instance of the appellee, because there was no evidence in the cause to authorize the hypothesis on which it purported to be founded. The appellee insists it is too late to raise the objection, and relies on section 12, Article 5 of the Code, amended by the Act of 1862, ch. 154. It enacts "that the Court of Appeals shall, in no case, decide any point or question which does not appear by the record to have been tried and decided by the Court below; but no prayer or instruction, shall be deemed defective by reason of any assumption therein of any fact by said Court, or because of a question of law having been thereby submitted to the jury, unless it appears from the record that such objection was taken at the trial." Though, in our opinion, the Act of 1862 is not applicable to the case at bar, it may be proper to say, that the first branch of this Act is but a re-enactment of a former Act, codified originally, in sec. 12, Article 5.
"The assumption of a fact by the Court" is materially different [**19]  from giving instructions to the jury without any evidence to support them. To assume a fact is to state as proved that which is to be proved, as if the jury find "that after the sale," assumes the fact of the sale, was therefore erroneous.  3 Md. 146. But to instruct the jury upon an hypothesis of which there was no evidence, is to leave them to assume or find that for which there was no foundation. The errors, though closely similar, are by no means the same. The one is generally incidental and casual, the other is fundamental, deliberate and conclusive, and has always been held to be error for which the judgment would be reversed 8 Md. Rep. 118. 6 Md. Rep. 88. The minor error was intended to be cured by the amended Act, but the greater, in our judgment, was not included.
The appellant's third prayer expressly called on the Court below to say there was no evidence in the cause of any delegation 

 [*35]  of authority from the Mayor and City Council to the Police Commissioners to purchase the goods in question.
The Board of Police are declared by law to be a constituted authority of the city of Baltimore to the same effect as if [**20]  created and appointed by the Mayor and City Council. Code, Art. 4, sec. 822. They, or a majority of them, constitute a quorum. They are required to have a common seal, to appoint a treasurer, to keep a full journal of their proceedings, and cause their receipts and disbursements of money to be faithfully kept and entered in books provided for that purpose. Secs. 806, 821. They are authorized and required to issue certificates for their indebtedness, which are made receivable for taxes, provided, their certificates shall not exceed their estimated expenses more than $ 30,000 in one year. All these provisions indicate that, like other corporations, they must act through some authorized agent having the authority of a majority of the Board. No journal is produced, or other evidence in writing offered to show the connection between Gen'l Trimble and the Police Commissioners, and to constitute him the deputy of a deputy without some such evidence of the assent of the majority of the Board, would be carrying the doctrine of implied agency to a most dangerous and destructive extent. See Mayor and City Council of Baltimore vs. Reynolds, 20 Md. 1.
After a careful analysis [**21]  of the testimony, a majority of the Court think the Superior Court erred in granting the prayers of the appellees, and in rejecting the first, second and fourth prayers of the appellant.
Judgment reversed. 

DISSENTBY:
BARTOL 

DISSENT:

 [*27contd]  
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however,  this pagination accurately reflects the pagination of the original published documents.] 
BARTOL, J., dissented and filed the following opinion:
The only questions presented by this appeal arise upon the prayers. The appellees, who were the plaintiffs below, asked two prayers which were granted, and the appellants four, which were rejected. In the argument of the cause in this Court, two principal objections have been made to the prayers of the appellees: the first raising a question of law, growing out of the construction of the Code defining the powers and duties of the Police Commissioners; and the other based upon the alleged want of evidence to support the hypothesis of the appellees' prayers.
These questions will be considered in the order above stated.
Assuming that there was evidence legally sufficient to warrant the jury in finding [**22]  the facts hypothetically stated in 

 [*28]  the appellees' prayers, I think there was no error in the instruction given by the Superior Court to the jury "that the defendant was liable in this action." The specific objections to these prayers are clearly and concisely stated in the several prayers offered by the defendant, and may be more briefly examined by considering these last, in the order in which they were offered.
The defendant's first and second prayers are based upon the 818th section of the Code, vol. 2, Art. 4, which directs that the Board of Police Commissioners shall estimate in advance what sum shall be necessary, for each current fiscal year, to enable them to discharge the duties imposed upon them, and to certify the same to the Mayor and City Council of Baltimore; and these last are required to levy, assess and collect the same with the other taxes, &c. It is supposed by the appellants that without such preliminary estimates, it is not in the power of the Board of Police Commissioners to bind the city to the payment of any debt they may contract, or expenses they may incur in the discharge of their duties in preserving the peace of the city, no matter what may [**23]  be the exigency requiring, in their judgment, the employment of extraordinary means for that purpose. This, in my opinion, is too narrow a construction of the provisions of the Code-- the requirement to furnish estimates in advance is directory only. By the 809th section the board is expressly authorized to raise "for extraordinary emergencies such additional force as the exigency may in their judgment demand." This power carries with it the power to arm and equip such "additional force" when raised as the board may judge necessary. For the costs necessarily incurred in this way, it is simply impossible that preliminary estimates could be made, because the emergency contemplated in the Code is an extraordinary one, involving expenditures that could not be anticipated or foreseen by the board. The whole subject of the police of the 

 [*29]  city is placed under their management and control; their duties enumerated in the 808th section are most comprehensive and important, and the plain intent of the Code is to require that the means which, in their judgment, are necessary for the proper discharge of their duties shall be furnished and paid for by the city. By the 818th section, a [**24]  limit is placed upon the amount of expenses they may incur, beyond the annual estimates, in case of emergency; and it is expressly provided that for such extraordinary expenses they may issue "certificates of indebtedness in the name of the Mayor and City Council," which are to be added to the assessment and levy for the ensuing year. But if the Commissioners fail to issue such certificates, or the city to make the levy, that would be no reason why a party furnishing goods or labor for the use of the city, upon the order of the board, should be deprived of his action therefor against the city.
In the discharge of their duties, the board acts independently of the city authorities; but, by the 822nd section, it is declared that "the Mayor and City Council shall be responsible for their acts in the same manner as if they were created or appointed by the Mayor and City Council."
These views seem to me to answer the objection presented by the defendant's third prayer. Upon the subject entrusted to their control, the board is independent of and superior to the Mayor and City Council, (see sections 808, 817;) to purchase the articles furnished by the plaintiffs, and sued for in this case,  [**25]  no delegation of power from the city was necessary.
The fourth prayer of the defendant appears to me to be based upon a mistaken view of the nature of this action.-- The plaintiffs are seeking to recover from the city the price of goods purchased for them by authority of the Board of Police, for the use of the city, and it is immaterial to them how the goods may in fact have been applied or used.

 [*30contd]  The next question to be considered is, whether there was any evidence in the cause to establish the facts enumerated in the plaintiffs' prayers.
I agree with the majority of the Court, that this question is open for examination in this appeal, notwithstanding this objection was not specifically taken at the trial below. The Act of 1862, ch. 154, does not apply. Here the objection taken is not that the Court below failed to submit to the jury a material fact--if this were so, the defect in the prayer would be cured by the Act of 1862; but the objection now taken is that the Court erroneously submitted to the jury to find facts without any evidence to support them. This objection if well founded would require a reversal of the judgment. But I do not agree with the majority [**26]  of the Court in the opinion that there was a total failure of evidence of any fact material to the plaintiffs' case.
It is clearly proved that the goods of the plaintiffs were delivered upon the order of Isaac R. Trimble, and though the proof is not positive, there is evidence from which the jury might well infer, that they were carried directly to the office of the Board of Police. There is also proof that the Mayor and Police Commissioners recognized the authority of Trimble, and that he was acting with their knowledge and approbation, in command of the additional force raised by the authority of the Mayor and Board of Police for the preservation of the peace of the city in the extraordinary emergency then existing.
In my opinion the judgment in this case ought to be affirmed.  

85 of 120 DOCUMENTS 

HENRY THOMAS vs. ISAAC W. MOHLER & JOHN D. GRAFF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 36; 1866 Md. LEXIS 40 

May 16, 1866, Decided 

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

This was an action of assumpsit brought February the 13th, 1863, by the appellant against Isaac W. Mohler and John D. Graff, as partners. The declaration contained the common money counts, and also, several special counts on promissory notes, signed by I. W. Mohler, and one on a protested check, signed in the same name, and which it was averred was the partnership name under which the defendants conducted business as partners.

The defendant, Graff, severed in defence and answered specially every count, tendering issues thereon, and denied the partnership alleged in the special counts, and tendered issues which were joined.

First Exception. When the cause was called for trial, the defendant, I. W. Mohler, not being present in Court, either in person or by attorney, and no plea having been filed by him, or in his behalf, the plaintiff asked for a judgment by default against him for want of a plea, and thereupon the Court ordered and directed a judgment by default to be entered against him for want of a plea, which was accordingly done.

The issues having been made up between the plaintiff and the defendant, John D. Graff,  [**2]  and the jury having been agreed upon, the clerk was proceeding to swear the same, when, before the jury was sworn, the defendant, I. W. Mohler, came into Court by his attorney and moved the Court to strike out the judgment, for the purpose, and only for the purpose, of enabling him to confess judgment to the plaintiff for the whole amount of his claim, including interest and all cost; and the said defendant, I. W. Mohler, in support of said motion, relied on the following rule of Court:

"At any time before a default shall have been entered, a rule may be enlarged. And a judgment by default may be stricken out at any time during the term at which it shall have been entered; every application for such purpose is to be addressed to the discretion of the Court upon affidavit, or other reasonable cause, and the Court may prescribe such terms, on the party applying, as may be equitable. All judgments by default shall be entered in open Court."

To this motion objections were made on the part of the plaintiff, but the Court overruled the said objections and granted the motion, and directed the Clerk to strike out the entry of the judgment by default against the defendant, I. W. Mohler:  [**3]  to which ruling of the Court and order the plaintiff excepted.

Second Exception. After the ruling of the Court on the first bill of exceptions, which bill of exceptions is hereby made a part of this bill of exceptions, the defendant, I. W. Mohler, by his attorney, prayed leave to confess judgment, and requested the plaintiff's attorneys to state the actual amount of their claim, which the plaintiff's attorneys declined to do, and objected to the offer to confess a judgment at that time, but the Court overruled the objection, and thereupon the defendant, I. W. Mohler, by permission of the Court confessed judgment for the amount of the claim stated in the plaintiff's declaration, and said judgment was accordingly entered; to which ruling of the Court allowing the defendant, I. W. Mohler, to confess judgment, and to the entry of the confession of judgment by said Mohler, the plaintiff, by his attorneys, excepted.

Third Exception. After the matter set forth in the first and second bills of exceptions had taken place, which first and second bills are hereby made a part hereof, the jury having been sworn to try the issue between the plaintiff and defendant, John D. Graff, and the [**4]  plaintiff having offered evidence to sustain the issue on his part, the defendant then offered to prove by the aforesaid defendant, I. W. Mohler, that the various sums sued for in the action were contracted for by him, the said Mohler, without the said Graff being in any way concerned in the same, and that he was not a partner in said transactions, and did not participate in any way in the profits of said transactions, but the plaintiff objected to the competency of the witness to give such evidence, whereupon the Court overruled the objection and permitted the witness to testify as above stated, and he having been sworn did accordingly testify to the same. To which ruling of the Court, and to the permitting the witness to testify the plaintiff excepted.

The verdict of the jury and judgment being for the defendant, the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

PRACTICE: JOINDER OF PARTIES: PARTNERSHIP -- PARTNERS: JUDGMENTS BY DEFAULT AND CONFESSION: ONE DEFENDANT, AFTER JUDGMENT BY CONFESSION, A COMPETENT WITNESS FOR HIS CO-DEFENDANT. -- In an action of assumpsit against two, as partners, where judgment by default has been entered against one for non-appearance and want of a plea, upon whose subsequent appearance and motion said judgment by default is stricken out, and a judgment by confession entered for the amount claimed in the declaration, with interest and costs, the defendant so confessing judgment, becomes a competent witness on the trial of the cause against his co-defendant, to show that the latter was not a partner in the transaction out of which the cause of action arose, and that he did not in any way participate in the profits of said transactions.

Where a motion to strike out a judgment by default for the purpose of entering a judgment by confession for the debt, interest and costs, under the rules of Court, addresses itself to the discretion of the Court, the granting of such motion is not a matter proper to be reviewed on appeal.

THE ACT OF 1839, CH. 14, (CODE, ART. 29, SEC. 18), suspended the common law rule by which the cause of action against one of two joint debtors was merged by a judgment against the other and allowed the recovery of several judgments in such cases. Hence the entry of the judgment by confession was not in derogation of any substantial legal privilege attaching to the plaintiff's claim.  

COUNSEL:
Wm. S. Bryan & Levin Gale, for the appellant.

The principal question in this case arises upon the power of the court to compel the plaintiff to accept judgment by confession from one of two joint defendants against the plaintiff's wishes. We leave out of view, for the present, the question of the judgment by default.  [**5]  Assuming the correctness of the decision of the Court below in that respect, which we deny, and the case being that of one of two joint defendants, against whom an action ex contractu is brought, as in this case, who is willing and desires to make a confession of judgment, is the plaintiff obliged to accept the confession, and take final judgment before trial, and verdict against the other co-defendant? We assert not. At the common law, and before the Act of 1839, ch. 14, embodied in the Code, Art. 29, sec. 18, page 194, it was clear that in an action ex contractu, against two or more joint defendants, a judgment recovered against one destroyed the right of action against all the other joint defendants. We need not enlarge on this point. The principle is clearly settled, and will be found to be decided by our own Court of appeals in the case of Moale vs. Hollins, 11 G. & J., 11. This being the case, and treating the question now apart from the above mentioned Act of 1839, it seems to be clear, that it was not in the power of the defendant, Mohler, to confess judgment without the plaintiff's prayer, and especially not against his wishes. In this instance this was done; Mohler confessed [**6]  judgment, and it was entered not only without any application having been made by the plaintiff, but against his remonstrances, as will appear by the second bill of exceptions. We do not mean to assert that Mohler had not a right to say that he admitted there was cause of action against him, but we do deny that he or any other party to the cause, other than the plaintiff, was entitled to demand judgment thereupon, until after the cause against the other defendant had come to verdict or other determination; and for this plain reason, that until the Act of 1839, such a judgment would have precluded the plaintiff from recovering against the other defendant. 11 G. & J., 11. The only question therefore seems to be, whether the above quoted Act of 1839 forces upon the plaintiff the necessity of accepting a judgment from one of two defendants without his consent. We think not. The plaintiff is entitled to a joint judgment, which, for many reasons that we need not specify, is more beneficial than separate judgments against each of the defendants. Besides, there is no principle more clearly established, than that statutes in derogation of common law, and especially those giving additional remedies,  [**7]  do not take away or abridge the rights of parties under the common law, unless so declared. In this case the plaintiff, if his declaration was correct, (as Mohler sought to admit,) had a right to a judgment against both Mohler and Graff. By what pretence is it sought to defeat that right? Could Mohler defeat such a right by a confession of judgment? Clearly, not by the common law, for that would have been to have taken away the plaintiff's remedy against the other co-defendant. Does the Act of 1839 give him any such right? If so, that Act, instead of being for the benefit of the plaintiffs, would deprive them of great advantages which they had before enjoyed, and would entirely subvert the above principle of construction; we have stated that statutes of this kind are intended, not to deprive parties of previous remedies, but to give them additional ones.

If we are correct in these principles, of which we think there can be no doubt, then the action of the Court below, in entering up judgment against the defendant Mohler, before trying the issue against the other defendant, Graff, was erroneous, and must be reversed, and the cause remanded without regard to the other questions [**8]  involved in the record. We may here remark that the question thus involved was raised in the case cited by the appellees, of Barker vs. Ayres, 5 Md. Rep., 202, and the indications in that case, so far as they go, are favorable to the view we have thus taken.

It will no doubt be contended by the appellees, that even if this be true, it does not affect the question as to the other defendant, Graff. But this is not a proper view of the case, because the plaintiff is entitled, if at all, to a joint judgment against both defendants. How far he may have been hampered by the erroneous judgment of the Court below it is impossible to say, but certainly to some extent, and if his rights have been to any degree lessened, impaired or obstructed, he is entitled to a reversal and procedendo.

We also contend that the Court erred in striking out the judgment by default against the defendant, Mohler. We know, that not only according to the rule cited in the record, but apart from such rule, that judgments by default are, in certain senses, within the discretion of the Court during the term at which they are obtained; but that discretion must be a reasonable one, and we are at a loss to know [**9]  for what cause, in this instance, the judgment by default was stricken out. Certainly, Courts ought not to do indirectly that which they are not allowed to do directly. If the object was to permit Mohler, (as he asserts in his application,) to confess judgment against the remonstrance of the plaintiff, it seems to us that the striking out of the judgment by default was clearly wrong.

The question raised by the 3d bill of exceptions is as to the competency of the defendant, Mohler, to testify upon the issue between the plaintiff and his co-defendant, Graff. This, it will be seen, depends in great measure upon the questions already discussed. If the judgment by confession given by Mohler was erroneously entered up, and this Court should hold that there was either no judgment against him at all; or if the judgment by default was still subsisting, then, even by the authorities cited by the appellees, he was not, at the time of his giving his testimony, a competent witness. 1 Greenleaf's Evidence, sec. 355. 1 Phillips' Evidence, 44. Worrell vs. Jones, 7 Bingham, 396. Ward vs. Hayden, 2 Esp., 552.

All the cases cited by the appellee show, that one defendant is not a competent witness [**10]  for a co-defendant where final judgment or other discharge has not been granted for him. In the case of Worrell vs. Jones, one defendant was held to be a competent witness for the plaintiff, not for his co-defendant, but even then because he was the principal debtor and could not call on the other defendants for contribution. The case of Ward vs. Hayden, was a case of tort, which depends on entirely different principles. In sec. 356 of Greenleaf's Evidence, immediately following that cited by the appellee, the principle is laid down, that one co-defendant, even after judgment by default, cannot be a competent witness for his co-defendant.

It may be said that the judgment in this case should not be reversed, because, although Mohler was not a competent witness at the time, yet having become so since by the Act of 1864, ch. 109, which was passed after the trial of this cause, it would be idle to reverse the judgment now; or, even if so, to send the case back to be tried anew. We reply, that if the admission of the testimony was erroneous at the time, no matter what may have since occurred, we are entitled to a reversal and an opportunity of a new trial. But more than this, at that [**11]  time the plaintiff was not competent as a witness, and if Mohler is now to be allowed to testify, by virtue of the Act of Assembly, so also is Thomas, the plaintiff, and we are entitled to the benefit of his evidence. On this point it may also be said, if this Court shall hold--contrary to our view--that although the judgment and other proceedings against Mohler are irregular, and should be reversed, so far as he is concerned, yet it should not affect the judgment in favor of Graff,--which should therefore be affirmed; then the objection to the competency of Mohler comes with greater force, and for that reason the judgment against Graff should be reversed on the grounds mentioned in the 3d bill of exceptions.

Upon the trial of the issues joined between the plaintiff and the defendant, Graff, a verdict was found on all the issues for the said defendant, and judgment was entered accordingly, from which judgment this appeal has been prayed.

Three exceptions were taken. The first relates to the granting of the motion to strike out the judgment by default. The second, to the permission accorded to Mohler to confess judgment for the full amount claimed in the declaration. The third [**12]  relates to the competency of Mohler as a witness on the trial in behalf of the defendant, Graff, said witness having been produced after he had confessed judgment as aforesaid.

The counsel for the appellee, Graff, respectfully insist on the following points:

1. The rules of the Superior Court, embodied in the first exception, authorised the motion to be made to strike out the judgment by default, and upon such application, supported by affidavit, the Court, in its discretion, had rightful power to order the same to be stricken out. The discretion, even if there was any ground to impute error in its exercise, could not be reviewed by this honorable Court.

2. The plaintiff cannot complain of error, inasmuch as the cognovit extended to the entire sum claimed as damages in the declaration. It is the plaintiff's own fault if the confession of judgment was for a larger amount than his just demand, for he refused to specify his real claim. Even if it were possible to suggest any grievance to the plaintiff, by such exaggerated confession, he would be precluded from complaining.--Volenti non fit injuria.

3. But the matters of the first and second exceptions preceded the [**13]  trial. They did not concern the issues joined between the plaintiff and the defendant, Graff. As to him, these matters were res inter alios. The only question as to him, arising upon this appeal, is presented by the 3rd bill of exceptions.

4. The witness, Mohler, was a competent witness for the defendant, Graff, on the issues joined. He had no interest in the result of the case, in favor of the party who called him. His interest was the other way. The formal objections of practice, as to examining a co-defendant, were removed by the judgment against him. Robertson vs. Mills, 2 H. & G., 98. Barker vs. Ayers, 5 Md. Rep., 202. 1 Phil. Ev. 44. Greenlf. Ev., sec 355. Crawford vs. Brook, 4 Gill, 213. Waller vs. Jones & Baker, 7 Bing., 117. (20 Eng. C. L. Rep.) Esp. 552. Lizardi vs. Cohen, 3 Gill, 430.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*44]  COCHRAN, J., delivered the opinion of this Court:
Assuming that the action of the Court in striking out the judgment by default, and entering the judgment by confession, was correct, it is very clear that Mohler was a competent witness for Graff, the other defendant.  [**14]  That point was considered and expressly determined in the case of Barker vs. Ayers, 5 Md. 202, and is not open to further question.
The motion to strike out the judgment by default was addressed to the discretion of the Court. The rule of the Court, exhibited in the record, and under which the motion was filed, is explicit in that particular, and we cannot regard 

 [*45]  the exercise of that discretion in striking out the judgment as a matter proper to be reviewed here. The appellant, however, does not seriously controvert this proposition, but insists that he was entitled to a joint judgment against these appellees, and that the subsequent entry of the judgment by confession against Mohler, was an infringement of that right. We do not concur in this view. That such would have been his privilege at common law, we do not doubt; the proof of his joint cause of action would have established his right to a joint judgment, which neither defendant could defeat by the confession of a several judgment against himself; and this for the simple reason that such a judgment against one would merge the cause of action and deprive the plaintiff of all remedy against the other [**15]  joint debtor. The case of Moale vs. Hollins, in 11 G. & J. 11, fully illustrates this rule. But that is not the state of the case here. Immediately after, or about the time the case of Moale vs. Hollins was decided, the Act of 1839, ch. 14, codified in Art. 29, sec. 18 of the Code, was passed, suspending the common law rule by which the cause of action against one of two joint debtors was merged by a judgment against the other, and allowing the recovery of several judgments in such cases. The only ground, therefore, upon which the appellant in joint right could insist upon a joint judgment has been removed, and there is no reason for supposing that the entry of the judgment by confession was in derogation of any substantial legal privilege attaching to his claim. We may also add, that the defendant, in the judgment by confession, was interested in terminating the case against himself so as to prevent a larger accumulation of costs, and it would seem just, as well as proper, that he should have had the privilege of confessing the judgment in order to avoid the expense and trouble incident to the trial of the case against his co-defendant. He states in his motion [**16]  to strike out that he desires to confess the judgment 

 [*46]  for the purpose of saving himself from unnecessary costs, and we have discovered no sufficient reason for overruling such a motion.
We concur with the Court below in all the rulings to which these exceptions were taken, and therefore affirm the judgment.
Judgment affirmed. 

86 of 120 DOCUMENTS 

MARY E. MYERS, EXECUTRIX OF CHARLES MYERS, DECEASED, vs. JAMES S. FORBES AND EDWARD R. SPARKS, SHERIFF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 598; 1866 Md. LEXIS 37 

May 15, 1866, Decided 

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

The appellant filed her bill in the Circuit Court for Baltimore City, alleging as follows:

"That your oratrix's late husband, Charles Myers, her now testator, in his life time, to wit: on the twenty-eighth day of November, 1860, entered into a contract with a certain James S. Forbes, carpenter of said city, to do and perform the carpenter's work in and about a certain warehouse which he, the said Charles Myers, was at that time about to build, at the corner of South street and Exchange Place in said city; that by the terms of said contract, he, the said Charles Myers, agreed to pay the said Forbes a certain price, for the doing and executing of said carpenter's work at its completion, provided the said Forbes took and received from said Charles Myers a lease of certain lots of ground on the east side of Spring street in said city, as will more fully appear by reference to said contract herewith filed, marked complainant's exhibit M. E. M., No. 1, and prayed to be taken as a part of this bill.

"Your oratrix further shows, that the said Charles Myers has departed this life leaving a last will and testament, and appointing [**2]  your oratrix sole executrix thereof, and that letters testamentary have been issued by the Orphans' Court of Baltimore city, on said estate to her, as will more fully appear by reference to complainant's exhibit M. E. M. No. 2, and that said property at the corner of South street and Exchange Place, (which is leasehold property,) is now in her possession as executrix as aforesaid.

"Your oratrix further shows, that said Charles Myers in his life time often requested said Forbes to comply with the terms of his said contract, and execute and receive said lease, as specified in said contract, but that he refused so to do. Your oratrix further shows, that said carpenter's work on said building, has long since been completed, and that said Forbes has filed with the clerk of the Superior Court of Baltimore city, a mechanic's lien for the whole amount of the same on which there is now due the sum of four hundred and three dollars and sixty-nine cents, which sum your oratrix, as executrix as aforesaid, has tendered to the said Forbes, and offered to pay him on his executing and receiving said leases, as set forth and agreed in said contract herewith filed, which leases have been drawn [**3]  and actually executed by the said Charles Myers, and your oratrix as his wife, in the life time of the said Charles. But yet, so it is, that although said Forbes admits that said sum of $ 403.69, is the entire amount due him under said contract, and said lien, he refuses to execute said leases and receive said sum, as he is bound in law and equity to do, but has issued to the next September term of the said Superior Court scire facias on said mechanic's lien, and the Sheriff of Baltimore City is about to advertise the said property, by way of giving the notice required by the mechanic's lien law of the State of Maryland, although your oratrix has made said tender to said Forbes which she here again repeats and offers to pay him on his executing said leases and complying with the terms of said contract, said sum which is the entire amount he claims to be due him by virtue of said contract, all of which is contrary to equity and good conscience on the part of said Forbes, and to the manifest injury of your oratrix, and in violation of her rights. The bill then prays that the said James S. Forbes, and his agents and servants, and particularly the Sheriff of Baltimore City, may be restrained [**4]  from further proceeding in said scire facias on said mechanic's lien, and from advertising said notice under said lien law; and that said James S. Forbes may be compelled to execute and receive said leases of said lots, and that your oratrix may have a specific performance of said contract, and for general relief. The contract referred to as marked M. E. M., No. 1, is set forth in the opinion of this Court."

On the foregoing bill an injunction was issued, and the defendant filed his answer, after which a commission was issued to take testimony, the substance of which as far as it bears upon the questions passed on in this Court is stated in the opinion of this Court.

The Court below, (ALEXANDER, J.,) passed an order dissolving the injunction and dismissing the bill, and from this order the present appeal is taken.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

SPECIFIC PERFORMANCE OF CONTRACT. -- The term or duration of a lease is an essential part of it, and in the absence of any stipulation in that respect, a Court of Equity cannot decree a specific performance of a contract to lease. Quaere? Whether it is possible to supply such a defect in the written paper by parol evidence? 

COUNSEL:
B. F. Horwitz for the appellant.

It is submitted that this being a contract respecting real estate and being in writing, certain, fair in all its parts, for an adequate consideration and capable of execution, that a Court of Equity will decree its specific performance; which is as much a matter of course as for a Court of law to give [**5]  damages for a breach of it; and especially as there was an entire performance of the contract on the part of the appellant's testator. Smoot vs. Rea, 19 Md. Rep., 398. Story's Equity Jurisprudence, secs. 722 and 751. Furnival vs. Crew, 3 Atkyns, 87. Williams vs. Mayor of Annapolis, 6 H. & J., 529, and see page 533. Sullivan vs. Tuck, 1 Md. Ch. Dec., 59, 63. Tritton vs. Foote, 2 Brown's Ch. Rep., 636. Russell vs. Davison, 2 Brown's Ch. Rep., 639, note. Leading Cases in Equity, Hare & Wallace's notes, p. 645. Howard vs. Moore, 4 Sneed, (Tenn.,) 317. Chance vs. Beall, 20 Geo., 143.

It was contended below by the defendant, Forbes, and it is presumed will be urged before this tribunal, that the specific performance of this contract should not be decreed for the five following reasons:--

1st. Because Mr. Myers in his life-time waived and abandoned the contract.

2nd. Because, if not abandoned, the remedy is at law by action for a breach of contract and a Court of Equity has no jurisdiction to grant relief.

3rd. Because of laches on the part of complainant.

4th. Because Myers agreed to lease one lot to Hammill and did execute a lease to him.

5th. Because the contract [**6]  is imperfect in not stating the term for which the leases were to continue.

1st. It was contended, seriously, that Myers abandoned and waived this written contract for two reasons, first, because it is alleged in the answer, that Forbes did not get money whenever he called for it; and secondly, because nothing was said about the lots at the final settlement on the 28th May, 1861. Mr. Forbes took it for granted the contract to lease was abandoned. As to the first reason, it is submitted there is no evidence to sustain it, and if there were it would amount to nothing--there was no obligation on Myers' part to pay before the work was performed in full. Drummond vs. Burrell, 13 Wend., 308. Ellicott vs. Peterson, 4 Md. Rep., 489.

As to the second reason, it is only necessary to refer to the testimony of Forbes' witness, Allen, to show that he never so supposed, but that he got out the work for those houses in June and July, 1861, just before he left the country. But it is submitted, that if Mr. Forbes did take it for granted, because nothing was said on the subject, that therefore this written contract was abandoned, that would hardly in law be considered a waiver and abandonment [**7]  on Myers' part.

2nd. The second question raised by defendant is the one on which the learned Judge below decided the case. It has already been considered under the appellant's first point. As to true test of jurisdiction see Bolgiano vs. Cook, 19 Md. Rep., 394. It must be remembered too that an injunction was asked for and granted.

3rd. It is alleged that there has been laches on the part of the complainant and her testator, although the evidence shows that the original deed of Myers was given to Forbes "shortly after" the signing of the contract, on the 28th of November, 1860, to take to Thompson to have the leases prepared; that Myers and wife executed them early in 1861; that he demanded and received ground rent and taxes from Keyser, Forbes' agent, in January, 1862, (for rent due 1st of January, 1862,) demanded ground rent due 1st of July, 1862, in August of that year, which being refused, Mr. Myers, (as agent of complainant,) at once went to the record office to find the leases, discovered they were not there, found them at Mr. Thompson's office and immediately demanded their execution, which being refused the bill in this case was filed 8th of September, 1862, and it [**8]  must be borne in mind that Forbes was in Europe from August, 1861, to September, 1862, and that Myers died in June, 1862. It is submitted that there was no laches on the part of Mr. Myers and his representatives, and that no case can be found in the books where the specific performance of a contract in relation to real estate was refused by a Court of Equity, on the ground of laches under such circumstances as these. On the contrary, at the first moment that Forbes showed to the complainant his true character and designs, the utmost haste was used to compel the performance of this contract. Saunders and Wife vs. Simpson, 2 H. & J., 81. Story's Eq. Jurisp., secs. 747, 748, 775.

4th. It is contended that Forbes is relieved from taking more than one lot, as Myers agreed to execute a lease to Hammill for one lot, and that although no such man ever presented himself to Myers or any of his representatives, and was not produced as a witness by the defendant, and in fact is not shown to exist; and although it must be conceded that Myers could not force Hammill to take the lots, nor could Hammill force Myers' representatives to make a lease to him, yet it is contended Forbes is released.  [**9]  It was clearly nudum pactum. Void for want of consideration. Wanting all mutuality. It was merely an act of kindness on the part of Myers, by which he is not legally bound, and of which Forbes, now that he is dead, is seeking to take advantage. Black vs, Cord, 2 H. & J., 100. Tubman vs. Anderson, 4 H. & McH., 357, see Opinion of Chancellor, p. 359.

5th. The last objection is that the contract is imperfect or uncertain in not stating the term for which the lease was to continue. Is this so?

"In construing written instruments the first and chief object is to ascertain the meaning of the parties, and the intention as expressed, unless contravening some rule of law, is to be carried into effect." Williamson et al. vs. Mayor, &c., 19 Md. Rep., 416, 417. Varnum, &c., vs. Thruston, 17 Md. Rep., 496 and 500.

The evidence of Mr. Thompson, the conveyancer of both parties, shows that the contract was perfectly clear and certain to him. He says he prepared "two leases in accordance with the stipulations it contained," such as are usual in the city of Baltimore, that is, for ninety-nine years, and renewable forever. But what is the difference if it be for ninety-nine years, renewable,  [**10]  or for nine hundred and ninety-nine, or forever. They were, as the contract on its face shows, to be perpetual leases, and the evidence of Mr. Thompson, as an expert, merely shows what is considered a perpetual lease in the city of Baltimore, that is for ninety-nine years, renewable forever, with the covenants usual in such a lease. The contract, however, on its face, clearly contemplates and means a perpetual lease. The rent is fixed at twenty dollars "annually." Forbes to have the right to buy out in three years. The rent payable semi-annually. How could the contract be more specific? In no way unless it contained all the specifications of the lease for which it provides. Marsh vs. Milligan, 3 Jurist, N. S., 979. Great Northern Railway Company vs. Manchester, Sheffield and L. Railway Company, 5 De Gex & Smales, 138. Sanderson vs. Cockermouth & W. Railway Company, 11 Beavan, 497. Fry on the Specific Performance of Contracts, 100 Law Library, secs. 204, 54. Gordon vs. Trevelyan, 1 Price, 64. Colerick et. al vs. Hooper, 3 Indiana, 316.

Wm. F. Frick for the appellee.

The case may be considered under two aspects:

1st. As it appears on the face of the bill alone.

2nd.  [**11]  As presented on the bill, answer and proofs.

I. It is well settled that the complainant must recover upon the case made by his bill, and that the defendant, although he answers it, may at the hearing object that the case made in the bill does not entitle the party to the relief he asks. Chambers vs. Chalmers et al., 3 G. & J., 438.

The bill is devoid of equity on various grounds:

1. There was no equitable ground on which to enjoin the defendant's collection by law of a debt admitted to be due to him. The defendant contracted to do certain work, for which he was to be paid a stipulated price. It is conceded that he did the work, and was entitled under the contract to the sum which the complainant unjustly withheld, and which the defendant sought to recover at law. The alleged contract to lease the lots, though appearing to be made in consideration of the other contract, was a separate and independent agreement, and payment for the work was not made dependent by the terms of any part of either contract upon the acceptance of the leases.

This point is made more clear by the fact shown in evidence, that the complainant finally settled with the defendant on the first [**12]  contract, and gave his notes for the balance due without requiring execution of the second contract.

2. There is not in the contract itself sought to be enforced, the essential ingredient of mutuality, so as to entitle the party not bound by it to a decree for its specific performance; it was a contract required to be in writing under the statute of frauds, and signed only by Forbes.

There was no legal obligation upon Myers to give the leases or to perform the contract. Lawrenson vs. Butler, 1 Sch. and Lef., 18. See also Armiger vs. Clarke, Bunbury, 111. Bromley vs. Jeffries, 2 Vernon, 415.

The doctrine in these cases is fully adopted and expounded by Chancellor KENT in Benedict vs. Lynch, 1 Johns. Ch. Rep., 373. It is also fully recognized and adopted as the law of this State, in the case of Geiger vs. Green, 4 Gill, 476. Also in Duvall vs. Myers, 2 Md. Ch. Dec., 404, 405.

The complainant's right to relief does not depend upon his subsequent offer to perform the contract on his part, when events may have rendered it advantageous for him to do so, but upon its originally obligatory character. It would not be equity, says Lord REDESDALE, "that a party not originally [**13]  bound by the agreement should be permitted at his option to compel the other party to perform, when, if the advantage was the other way, he could not himself be coerced into performance." See also Benedict vs. Lynch, 1 Johns. Ch. Rep., 370. Beard vs. Linthicum, 1 Md. Ch. Dec., 350. Tyson vs. Watts, Id., 15-17. Moore vs. Randolph, 6 Leigh, 175.

3. This is an application for a specific execution of an alleged agreement; in such case it is not only necessary to prove that an agreement was made, but its terms must be so clearly and fully shown that the Court must be certain of carrying into effect the contract made by the parties. Stoddart vs. Bowie, 5 Md. Rep., 28. 2 vol. Story's Eq. Jur., sec. 767.

It may be added here that no attempt has been made by proofs to explain this document, and it is settled that this could not be done, for the distinction is well established between the right of a defendant resisting specific performance and a complainant seeking it, to go into parol evidence, to aid his case upon a written agreement. See subject treated at large in 2 White and Tudor's Leading Cases, 355. Hare & Wallace's notes to Woollam vs. Hearn, 2 Story's Eq. Jur., secs. 769,  [**14]  770.

In addition to the other uncertainties and imperfections of the paper, there is one other conclusive objection to a decree for its specific performance, and that is to be found in the fact that it does not specify the term for which the lease is to be made. It stipulates that the rent is to commence 1st of January, 1861, and is to be bought out within three years; but whether the lease is to be for three years, or thirty years, or three hundred years, is not stated, and cannot possibly be made out, except by conjecture and speculation.

The cases on this point are conclusive: See Fry on Specific Performance of Contracts, (98 Law Library, p. 88,) secs. 221, 222. Clinan vs. Cooke, 1 Sch. & Lef., 22. Gordon vs. Trevelyan, 1 Price, 64 to 71. Blore vs. Sutton, 3 Merrivale, 237. Lord Ormond vs. Anderson, 2 Ball & Beatty, 363. Cox vs. Middleton, 2 Drewry, 209. Wheeler vs. D'Esterre, 2 Dow, 359. And see as directly to this point, Allen vs. Burke, 2 Md. Ch. Dec., 538. Parkhurst vs. Van. Courtland, 1 Johns. Ch. Rep., 273. Abeal vs. Radcliff, 13 Johns. Ch. Rep., 299, 300. Jordan vs. Fay, 40 Me. Rep., 130. See also 5 Jones' Eq. Rep., (N. C.) 154.

4. Another objection to the [**15]  equity of the bill is that, from the nature of the case, the complainant has adequate relief at law. 2 Story's Eq. Jur., secs. 717, 742, 746. Fry on Specific Performance, p. 34, sec. 14, referring to Clayton vs. Illingworth, 10 Hare, 451.

II. Considering the case on the bill, answer and proofs, these further objections present themselves.

1. The complainant asks for an entire performance of the contract by Forbes; when it is shown that he consented, after the contract was made, to modify it by taking Patrick Hammill for one lot, and actually executed a lease to Hammill accordingly. By this act, the privity of contract between him and Forbes, as to that lot, was extinguished, and could not be afterwards restored without Forbes' consent. The case of Shaw & Fisher in 5 De Gex, McNaughton & Gordon, p. 596, is directly to this point. See also Byrns vs. Rowceine, 2 Edwards' Ch. Rep., 447.

And in the uncertainty in which the record stands as to which lot was leased to Hammill, it would not be possible to designate, by a proper decree, the dimensions of the lot which should be accepted by Forbes, even if the Court, upon the present bill, without amendment, could pass a decree [**16]  for partial relief.

2. The answer avers, and the proofs show, that when Myers settled with Forbes in May, 1861, he forced him by threats of litigation to vary the contract, and abandon to some extent his plain rights thereunder. And that when he compelled and completed this settlement, he took receipts in full from Forbes, under the contract; ignored the leases; made no demand on Forbes to execute them; and let the 1st July, 1861, pass by without making any demand on him, either to pay the rent then due under the contract, or to accept the leases. This conduct on Myers' part, completely justified Forbes in then concluding that Myers had abandoned his claim on him, touching the leasing of the property, and he accordingly cancelled the bargain he had made for building on the lot, and a sale of the improvements, and let the materials lie by until both they and the lot had become depreciated in value. Nearly two years from the making of the contract, and more than a year from the period of the final settlement between them, were allowed to pass before a demand was made to execute the leases. These facts bring the case within that numerous class, wherein relief is denied, because of [**17]  the laches of the complainant, when, as Lord ALVANLY says, "he has not shown himself ready, desirous, prompt and eager for relief," or in the language of Lord CRANWORTH, "he has not sought relief as promptly as the nature of the case will admit." This rule is especially applied to cases where the lapse of time has induced a change of circumstances, to the disadvantage of the defendant. See Fry on Specific Performance, (98 Law Lib., 218,) secs. 730, 731, 732, 735, 736. Ead vs. Williams, 4 De Gex, McNaughton & Gordon, 691. Lloyd vs. Collett, 4 Brown's Ch. Rep., 469. Southcomb vs. Bishop of Exeter, 6 Hare, 218. 31 Eng. Ch. Rep., and notes of Editor in that case. And especially does this rule apply where the contract is unilateral. Any delay in the party in whose favor the contract is binding is looked at with unusual strictness. And that is this case. Fry on Spec. Performance, sec. 733, p. 218, and sec. 721, p. 216. Benedict vs. Lynch, 1 Johns. Ch. Rep, 373.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*609]  BARTOL, J., delivered the opinion of this Court.
The bill in this case was filed by the appellant to compel [**18]  the specific performance of a contract made by the appellee with the complainant's testator, and also to enjoin the appellee from further proceedings under a scire facias, on a mechanic's lien. The contract is in these words:
"I hereby agree to do the carpenter's work on the warehouse about to be built for Charles Myers, on the corner of South street and Exchange Place, at sixty-one per cent. off carpenter's full measurement price, the work to be approved of by the architect.
"In consideration of the above contract, I hereby agree to lease of Charles Myers, the following lots, that is, all that lot of ground beginning for the same on the east side of Spring street, at the north-west corner of a two story brick house, said lot belonging to Alexander Lowry, and running thence north-westerly 26 feet, thence easterly parallel with Madison street, 60 feet, thence southerly parallel with Spring street 26 feet, thence westwardly parallel with Madison street 60 feet to the place of beginning. The above to be divided into two lots, and the price to be $ 20.00 for each lot annually, payable semi-annually on the first days of January and July, the rent to commence on the 1st day of [**19]  January, 1861--said Forbes to have the privilege of buying out said ground rent within three years, at the rate of six per cent. per annum.
"JAMES S. FORBES.
Baltimore, Nov. 28, 1860.
Endorsed:--PATRICK HAMMILL, 1 lot.
Witness:--C. H. MYERS."

 [*610]  It appears by the proof that the contract for doing the carpenter's work on the warehouse was fully performed by Forbes, the appellee, and after much altercation and dispute between him and Myers, the appellant's testator, with regard to the price of the work, a final settlement of the dispute was made between them on the 28th day of May, 1861, when Myers gave his two notes to Forbes, one for $ 500, payable the first of October, 1861, and the other for $ 468.03, at six months, and a receipt was given by Forbes declaring the same to be, "when paid, in full of all demands against Myers for carpenter's work, materials furnished, &c., on the warehouse.
A claim of lien was filed in the Clerk's office by Forbes, and a balance of $ 403.69 remaining unpaid, a scire facias was issued for its collection, and to restrain further proceedings thereon, was one object of the bill in this case.
The equity of the bill rests upon [**20]  the alleged failure and refusal of the appellant to perform his agreement to lease the lot of ground on Spring street, and the bill prays for a decree requiring a specific performance of the contract to lease.
Objection was taken below to the jurisdiction of the Court, and the Circuit Court, entertaining the opinion that this objection was well taken, on that ground dissolved the injunction and dismissed the bill.
In the opinion of this Court, if the case of the complainant were free from difficulty in other respects, and depended alone on the decision of the question of jurisdiction, the decree of the Circuit Court would have to be reversed.
The case of Smoot et al. vs. Rea and Andrews, 19 Md. 398, and Mercer vs. Howser, (see appendix,) decided at the last term, are conclusive of this question.
In our opinion the evidence in the case fails to sustain the defence on the ground either of waiver and abandonment 

 [*611]  of the contract on the part of the appellant's testator, or of laches and delay as contended for the appellee.
The insuperable difficulty in granting the relief prayed consists, in our opinion, in the want of definiteness and certainty [**21]  in the terms of the contract sought to be enforced. In such a case, to repeat the language of this Court, in Stoddert vs. Bowie, 5 Md. 18, 28, "it is not only necessary to prove that an agreement was made, but the terms of the agreement must be so clearly and fully shown that the Court can have no difficulty in knowing what the terms are, so as to be certain of carrying into effect the contract made by the parties. Passing a decree for specific execution upon proof short of this, instead of executing the agreement of the parties, would be making one for them, which the Court certainly has no authority to do." See also 2 Story's Eq. Jur., sec. 767.
In this case the contract is altogether silent as to the term for which the intended lease was to be made. The term or duration of a lease is an essential part of it, and in the absence of any stipulation in that respect a Court of Equity cannot decree a specific performance of a contract to lease. In Howard vs. Carpenter, 11 Md. 259, 278, it was held that without a stipulation fixing the rent reserved, a contract to lease could not be specifically enforced in equity. But the length of the term [**22]  is just as necessary a part of a lease as the rate of rent reserved.
In our opinion this defect in the contract has not been removed by anything disclosed in the proof.
Two leases for ninety-nine years, renewable, were prepared by A. W. Thompson, the conveyancer, and signed by Myers and wife, but were not delivered to the appellee; nor does it appear from the testimony that he either directed the leases to be drawn in those terms, or 

 [*612]  that he ever saw them or knew their contents, or that they had been executed by Myers until long afterwards, when, according to the evidence of A. W. Thompson, he remarked "that the drawing of the leases was unauthorized by him."
This witness states that according to his recollection the contract was left with him by Charles Myers, deceased. The witness, Charles H. Myers, states that his father told Forbes to leave the original deed with A. W. Thompson, in order to have the leases drawn. It does not appear, however, that either the original deed or contract was taken to Thompson by Forbes, or that he gave any instructions to Thompson with regard to the preparation of the leases. These seem to have been drawn by Thompson, either by the direction [**23]  of Myers or without any particular instructions as to the terms; and there is, in our opinion, not such clear and satisfactory evidence to connect the appellee with the preparation and execution of the leases, as to give to those acts the force of a part performance of the agreement, so as to take it out of the operation of the statute of frauds, or to supply the defect in the terms and provisions of the agreement, so that a Court of Equity may decree its specific performance, even if it were possible to supply such a defect in the written paper by parol evidence.
Considering that the agreement sought to be specifically executed in this case is vague, uncertain and indefinite in its terms, and incapable of being specifically enforced, the decree of the Circuit Court must for that reason be affirmed without costs to the appellee.
Decree affirmed. 

87 of 120 DOCUMENTS 

WILLIAM TAGGART vs. THE WESTERN MARYLAND RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 563; 1866 Md. LEXIS 36 

May 12, 1866, Decided 

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

This action was instituted on the 1st day of February, 1861, by the appellee, to recover from the appellant the amount of his subscription to its stock.

By the Act of 1852, ch. 304, certain persons therein named were appointed commissioners to receive subscriptions to the capital stock of "The Baltimore, Carroll and Frederick Rail Road Company."

The capital was fixed at five hundred thousand dollars, in shares of fifty dollars each; and it was provided that as soon as one thousand shares should be subscribed, the company should be incorporated. It was enacted by the third section, that upon every subscription there should be paid, at the time of subscribing, to the commissioners, or their agents, appointed to receive subscriptions, the sum of one dollar on every share subscribed, and that the residue thereof should be paid in such instalments, and at such times as might be required by the President and Directors of said company, or a majority of them.

By a supplement, 1853, ch. 37, the title of the company was changed to its present name. At the same session, [1853, ch. 363,] authority was given to extend the said [**2]  road to Hagerstown. By the Act of 1856, ch. 289, the State expressly waives all causes of forfeiture, by reason of the company's failure to comply with any of the provisions of the Act of incorporation, and allows the period of six years for the commencement, and twelve years for the completion of said road, from the passage of said Act, that is from the 10th of March, 1856. The Acts of 1858, ch. 405 and 420, and 1860, ch. 20, contain no provision material to any of the questions in this case. They were offered in evidence to show the recognition, by the State, of the appellee, from time to time, as a validly existing corporation.

The appellant made his subscription on the 28th of April, 1853. A condition was annexed to the subscription of the appellant and some other subscribers as follows: "Provided the contemplated road shall be built on the present track of the existing branch to 'Green Spring' of the Baltimore and Susquehanna Rail Road."

The plaintiff offered in evidence a small book, containing the following heading and subscription thereto, viz:

"Baltimore, Carroll and Frederick Rail Road company, capital stock 10,000 shares, at $ -----, per share.

"We whose [**3]  names are hereunto subscribed, do promise to pay to the President and Directors of the Baltimore, Carroll and Frederick Rail Road company, the sum of fifty dollars for every share of stock set opposite our respective names, in such manner and proportions, and at such times as shall be determined by the President and Directors of said company, or a majority of them, in pursuance of an Act of the General Assembly of Maryland, entitled an Act to incorporate the Baltimore, Carroll and Frederick Rail Road company. Witness our hands this 28th day of April, in the year of our Lord one thousand eight hundred and fifty-three."

And it was admitted by the defendant, that the name of the defendant thereto subscribed, was in his hand writing, and it was also admitted by the plaintiff that the defendant had not, at the time of subscribing or afterwards, paid one dollar for each share so subscribed by him.

The plaintiff further offered in evidence, that the commissioners appointed by the charter, to receive subscriptions to the stock of the plaintiff, after notice duly given as required by the original Acts, opened books, pursuant to such notice, and in conformity with the requirements [**4]  of said Act, and having received subscriptions for more than 1000 shares, notified the subscribers, in due form, to meet in Westminster, on the 14th of February, 1853. The plaintiff also proved that the subscribers to said stock, did accordingly meet, at the time and place designated, when the commissioners reported that they had received bona fide subscriptions for 1086 shares of stock, and the subscribers thereupon proceeded to organize the company, by the election of President and Directors.

It was further offered in evidence by the plaintiff, that the Act of Assembly of 1853, ch. 37, was duly accepted by the plaintiff, but was not so accepted until after the defendant's subscription had been made, and also, that at meetings of the board, and of the stockholders, held on the     day of -----, reports were made of the persons who had previously to that date subscribed for stock; some were ordinary subscriptions, and the whole number of these (including what had been received by commissioners, before organization) did not exceed 1500 shares, others of the subscriptions were conditional and these were less than 600 shares.

The subscription of the defendant was taken and [**5]  received by Wm. Fell Johnson, at Rockland, in Baltimore county, without any public notice having been given, of the time and place of receiving such subscriptions, and no proof was offered of any authority from the company to said Johnson to receive subscriptions; but it was proved, that J. Henry Huppe who was a director of said company, was authorized to receive additional subscriptions to the capital stock of said company, in Carroll county, and that said Huppe placed books with the proper headings in the hands of several persons, and as one of said persons in the hands of Mr. Green to receive subscriptions in Baltimore county, by whom one of the said books was placed in the hands of the said Wm. Fell Johnson, who received several subscriptions for stock, besides the defendant's subscription, and the said subscription books were shortly afterwards and before the month of November, 1853, returned to and were, and have thenceforth continued in the possession of the said company, and the name of the defendant and the names of said other subscribers, were reported by said Huppe to said company, and were placed on the list of subscribers to its stock on the books of the said company,  [**6]  and there never was any action by said company refusing to recognize them as subscribers to said stock, so far as the said subscriptions were mentioned, and as conditional subscriptions, so far as the same were conditional.

The plaintiff also offered in evidence a paper, and proved that the same was made, as a report by the President of the plaintiff, to the stockholders of said company, on the 16th day of November, 1853, and that the same on that day was accepted and adopted by the said stockholders; and further proved, that the subscription of the defendant was by the said stockholders, and by the President and Directors of said company, considered and counted as a conditional subscription for stock, according to the terms and purport of said subscription of the said defendant; that the said defendant did not, at any time, give notice to the plaintiff, or to any of its officers or agents, that he had withdrawn, or meant to withdraw or repudiate his said subscription; that the plaintiff, the company, although the commencement of the construction was unavoidably delayed, never did, by any act, express any intention to abandon the making of said road.

It was also offered in [**7]  evidence that the "Green Spring" branch of the Baltimore and Susquehanna Rail Road was adopted by the plaintiff, for the route of its road, on the 31st of March, 1857, and that the road was put under contract, on that day, for its construction on that route. It was admitted that no work was done until the summer or fall of 1857. And it was also admitted that the road was actually built on the track of the branch to "Green Spring," on the Baltimore and Susquehanna Rail Road, as the same existed on the 28th of April, 1853.

It was conceded by the plaintiff, that (except a mere reconnoissance of the route) nothing was done in the execution of the work, until the summer of 1857. It was also proved that no calls were made for payment of subscriptions until the 25th of June, 1857, when the first call was made, payable at the time mentioned in the declaration, others were made from time to time afterwards, as stated in the declaration, and due and proper notice was given of the several calls so made.

Evidence was offered on the part of the defendant that he had never been present at any meeting of the stockholders of the plaintiff, or of the subscribers to its stock.

The plaintiff [**8]  then offered the three following prayers:

The plaintiff, by its counsel, prays the Court to instruct the jury:

1st. That if they shall find from the evidence that the Act of 1853, ch. 37, was duly passed and was duly accepted by the plaintiff, then the change of the corporate name cannot be relied on by the defendant, as a bar to the present suit.

2nd. Even if the jury shall find the facts set forth, as the hypothesis of the defendant's first prayer, but shall also find from the evidence, that said subscription was made in a subscription book, then in the hands of William Fell Johnson, and that said book had been previously placed in the hands of said Johnson by J. Henry Huppe, and that said Huppe, at the time he so placed said book in the hands of said Johnson, was one of the Directors of said company, and that he was authorized by said company to receive subscriptions to said stock, and that as a mode of receiving subscriptions he placed said book in the hands of said Johnson, and that for the same purpose he placed similar books in the hands of other persons at the same time; and shall further find, that shortly afterwards and before the month of November, 1853, said [**9]  books were returned to the said Huppe, by said Johnson, and by the other persons respectively, and were by said Huppe reported to, and accepted by the President and Directors of said company as subscriptions to the capital stock of said company, so far as any of said subscriptions were unconditional, and as conditional subscriptions so far as any of said subscriptions were conditional; and shall further find, that on the 16th of November, 1853, the paper which has been offered in evidence as a report of the President of said company, to the stockholders of said company, was in fact made to the stockholders of the said company, by the President of said company, and that said report was accepted and adopted by the said stockholders; and shall further find, that the President and Directors of the said company, and the stockholders of the said company, at the meeting of the said stockholders, held on the 16th of November, 1853, (in case the jury shall find that such meeting was held on said day, and that a report was made as aforesaid, and accepted as aforesaid) counted and considered the subscription of the defendant as a conditional subscription, according to the terms and purport thereof;  [**10]  and shall further find, from the evidence in the case, that the defendant never, at any time, gave notice to the said company, or any of its agents or officers that he withdrew his said subscription; and shall further find from the evidence in the cause that afterwards, on the 31st of March, 1857, the said company definitely adopted the "Green Spring" route, and on that day made the contract with Messrs. Irwin & Taylor, which has been offered in evidence, and shall also find that the agreement offered in evidence by the plaintiff was made by the said company with the Northern Central Railway company, on the 23d day of February, 1857, and shall further find that the road of the plaintiff was actually built on the track of the branch to "Green Spring," of the Baltimore and Susquehanna company, as it existed on the 28th of April, 1853, then the non-payment by the defendant of $ 1 per share, at the time of subscribing as aforesaid, in case such non-payment and subscription be found, is not of itself a bar to the present suit.

3rd. Even if the jury shall find from the evidence, that the road of the plaintiff was not commenced, in three years from the passage of the Act of 1852, ch.  [**11]  304, but shall also find that the plaintiff never abandoned the intention of making said road; and shall further find that the Act of 1856, ch. 289, offered in evidence, was duly passed, and was duly accepted by the stockholders of the plaintiff, then the fact of such omissions to commence said road, if found by the jury, cannot avail the defendant as a bar to this suit.

And the defendant offered the three following prayers:

1st. If the jury find from the evidence that the plaintiff was organized as a corporation in the month of February, 1853, and that the defendant made the subscription offered in evidence by the plaintiff, on the 28th day of April, 1853, and that said subscription was taken and obtained at Rockland, in Baltimore county, by William Fell Johnson, and that said Johnson then had the possession and control of the book, in which such subscription was made, and that there was not paid at the time of subscribing or afterwards by the defendant, the sum of one dollar on each share subscribed, and shall further find that no book for receiving subscriptions was opened at any specified time or place at Rockland aforesaid, and that no notice was published of the time [**12]  and place of opening books at Rockland, and that less than 1500 shares of the stock of the company, had been subscribed for at the time of the defendant's subscription, then the plaintiff is not entitled to recover.

2nd. If the jury shall find the facts stated in the first prayer, and shall also find that the road of the plaintiff was not commenced in three years from the passage of the Act of Assembly of Maryland, entitled an Act to incorporate the Baltimore, Carroll and Frederick Rail Road company, passed at the session of the Legislature of 1852, ch. 304, and that the President and Directors of the plaintiff did not make any call for the payment of any part of the money subscribed by the defendant until the 25th day of June, 1857, that then the plaintiff is not entitled to recover.

3rd. If the jury find from the evidence, that the defendant made the subscription offered in evidence by the plaintiff, and that there was not paid by him at the time of subscribing or afterwards, one dollar per share for each share of stock subscribed, then the plaintiff is not entitled to recover.

The first prayer of the plaintiff was conceded by the defendant, and the Court, MARTIN,  [**13]  J., granted the second and third prayers of the plaintiff, and rejected all the prayers of the defendant, and from this action of the Court this appeal is taken.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

CORPORATIONS, SUBSCRIPTIONS TO STOCK OF, PRIOR AND SUBSEQUENT TO ORGANIZATION: PRESUMPTIONS: WAIVER: PRINCIPAL AND AGENT: ACTIONS BY AND AGAINST CORPORATIONS. -- A Rail Road Company was incorporated by Act of Assembly, with a clause prescribing certain preliminaries to be observed in opening the books and taking subscriptions for stock; among others, that "upon every such subscription there shall be paid at the time of subscribing, to the said Commissioners, or to their agents appointed to receive such subscription, the sum of one dollar on every share subscribed." Books were opened by the Commissioners, the requisite number of shares subscribed, a Board of Directors and President were elected, and the Company fully organized. After this organization the defendant subscribed for ten shares, in one of the subscription books, upon the terms and conditions prescribed therein and in the charter, with this condition annexed: "Provided the said contemplated road should be built on the then present track of the existing branch to "Green Spring" of the B. & S. R. R.," but did not pay the sum of one dollar per share required by the charter to be paid to the Commissioners at the time of subscribing. In an action brought by the Company to recover the amount of the calls on the defendant's subscriptions to the stock, HELD:

1st. That the preponderance of authority in favor of a strict compliance with the provisions of the charter, in cases of subscription prior to the organization of the Company, is such as is not to be disregarded.

2nd. There is no doubt that, in general, a strict compliance must be shown with the provisions of the charter, but in some cases a compliance will be presumed and in others it may be waived.

3d. The distinction between subscriptions prior and subsequent to organization is clearly recognized in this State.

4th. In this case, the corporation being organized by the subscription of the necessary proportion of the stock and election of officers, succeeded to the powers previously vested in the Commissioners, to sell and dispose of the remaining shares, without regard to the conditions imposed on them.

5th. The act of the agent taking the subscription being recognized by the corporation, by receiving and registering the subscription among the conditional subscriptions, was equivalent to a previous appointment of the agent for that purpose.

6th. A conditional subscription to stock is a continuing offer, which is final and absolute when accepted.

7th. All contracts for stock made subsequent to the formation of the Company, in consideration of a particular location, when complied with by the Company, will be as binding on both parties as if the contract had been absolute and unconditional.

8th. Non-compliance with the provisions of a charter is not a matter of defence, collaterally, between corporations and their stockholders or debtors.

9th. The modifications of a charter, in enlarging the time of commencing and completing the work, is one of those incidents to all charters which comes within the constitutional power of the State to exercise, and with due notice of which all its citizens must be presumed to contract.

STATUTE OF LIMITATIONS. -- Subscriptions to the stock of a rail road company were made on the 28th of April, 1853, conditional upon the adoption by the company of a particular route. This route was adopted by the company on the 31st of March, 1857. No calls were made for the payment of subscriptions until the 25th of June following. In an action by the company to recover the amount of the calls upon the stock subscribed for, HELD:

That the statute of limitations did not begin to run until the several calls were due.  

COUNSEL:
I. Nevett Steele for the appellant.

1st. It is contended in behalf of the appellant, that his subscription to the stock of the appellee was invalid and not obligatory, because he was not required to pay, and did not pay, one dollar per share at the time of subscribing in conformity with the provisions of the appellee's charter. Act 1852, ch. 204, sec. 3. Union Turnpike vs. Jenkins, 1 Caine's Cases, 86, 93, and 94. Highland Turnpike vs. McKean, 11 John., 98. Crooker vs. Crane, 21 Wend., 218, 220, and 221. Hibernia Turnpike vs. Henderson, 8 Serg. & Rawle, 219, 222, 223, 225, and 227. 13 Idem, 252. Massie vs. Poe, 12 Georgia, 182, 184. Angell & Ames on Corp., secs. 527 and 529. Penn. Nav. Co. vs. Dandridge, 8 G. & J., 248. Maltby vs. R. R. Co., 15 Md. Rep., 422. Elysville Manf. Co. vs. Okisko Co., 5 Md. Rep., 152, 158.

Where the charter of a company requires, that a certain amount shall be paid at the time of subscribing to its stock, it is to be presumed that such a peremptory requirement [**14]  was inserted by the Legislature for some sufficient reason; and when a subscription is made to the stock of such company without the specified payment, the transaction is upon its face a palpable violation of the charter, and therefore ought not to be sustained by the Courts.

It is contended for the appellee that whatever may be the rule as to subscriptions received by commissioners, the company had a right, after one thousand shares had been subscribed and its organization effected, to dispose of the remaining nine thousand shares as it thought proper. If by this it is meant, that the company could sell this stock in any manner and at any price it pleased, the proposition is denied. No authority for such action is conferred by the charter, and to admit one stockholder at the price and on the terms fixed by the charter, and another at a different price and on different terms, would be a violation of that perfect equality among the stockholders which is a fundamental principle in this and all similar acts of incorporation. But if it is only meant, that the company could dispose of the untaken stock, by receiving subscriptions therefor, as was done in the case in 31 Penn. State [**15]  Rep., cited on the other side, then even if the proposition be correct, still the company in taking subscriptions was as much bound as the commissioners, to observe the terms on which alone subscriptions are authorized to be received by the charter.

2d. That the Court below erred in rejecting the first prayer of the appellant, because the said subscription was taken and received by Johnson without authority from the appellee, and without conforming to any of the requirements of its charter, and was therefore not binding; and because the said subscription was conditional, and therefore invalid as against public policy and for want of mutuality, or if not absolutely invalid, it could only have effect as a proposition to subscribe, and would only become obligatory, by its acceptance on the part of the appellee within a reasonable time, and in this case there was no such acceptance. Act of 1852, ch. 304, secs. 1, 3, 13, 20. Troy & B. R. R. Co. vs. Tibbetts, 18 Barb., 297, 306, 310. Charlotte & S. C. R. R. vs. Blakely, 3 Strob., 245. Macedora Plank R. vs. Lepham, 18 Barb., 312. Idem vs. Snediker, Id., 319. Butternuts Turnpike vs. North, 1 Hill, 518. Crawford R. vs. Lacey, 3 Younge [**16]  & Jervis, 80. Brinkerhoff vs. Utica R. R., 21 Wend., 139. 1 Parson's on Contracts, (last edition,) 481, 482, 483. Beckwith vs. Chever, 1 Foster, 41. Peru vs. Turner, 1 Fairfield, (10 Maine,) 185. Angell & Ames on Corp., 747, 748.

Not only was the subscription unauthorized because of its conditional form, but it was taken and received by one who had no authority whatever from the company to receive it. The company authorized Mr. Huppe to receive subscriptions in Carroll County, and Mr. Huppe gave Mr. Johnson a book to take subscriptions in Baltimore County. When therefore Mr. Johnson received the appellant's subscription in Baltimore County, manifestly the company was not bound by his act, as he was in no sense their agent, and the company not being bound, the appellant was not bound, and the transaction was a nullity. To this it is replied, that the act of Mr. Johnson was subsequently adopted and ratified, by the company, because the subscription was "by the stockholders and by the President and Directors of the company considered and counted as a conditional subscription for stock." It is submitted that this "considering and counting" stops short of amounting to a binding adoption [**17]  by the company of Mr. Johnson's act; and besides, this was a private matter, unknown to the appellant, which the company might bring to light or not, as its interests dictated.

The condition annexed to the subscription of the appellant was as follows: "Provided the contemplated road shall be built on the present track of the existing branch to 'Green Spring,' of the Baltimore and Susquehanna Railroad." Such a subscription did not take stock, or make the subscriber a stockholder, but was merely a proposition, an offer to take stock upon the terms specified, if the company would agree to and accept them. When a contract or bargain is proposed by one party to another, it does not become a contract or bargain, until that other has accepted the proposition. This acceptance must be communicated within the time limited by the proposal, if it contains such a limitation, and if there be no time fixed, the acceptance must be made in a reasonable time. 1 Parsons on Contracts, 481, 482, and 483. Here the subscription was made early in the year 1853; the Act of 1852, ch. 304, by its 26th section, peremptorily provided that the road should be commenced in three years from the date of its passage [**18]  in 1852, and if not so commenced that "then this Act shall be null and void;" the road in fact was not commenced until some time in 1857, under what was substantially a new charter; calls were not made until 1857 upon stockholders to pay instalments, and then they were published in the newspapers, but no notice was given to the appellant that the company had accepted his proposition, and that he was considered a stockholder; nor is there any evidence in the record that at any time or in any way the company had notified the appellant of its acceptance of his proposition.

3rd. That the appellee having been chartered in 1852, with a provision in its charter that the road should be commenced in three years from the passage of the Act, never having commenced its road or made calls for payment of stock subscriptions until 1857, was then by its long delay barred from making such calls, and was presumed in law to have abandoned the constructing of its road, and therefore the Court below was wrong in rejecting the 2nd prayer of the appellant, and granting the 3rd prayer of the appellee. Codman vs. Rogers, 10 Pick., 112. Laforge vs. Jayne, 9 Barr., 410. Pittsburgh & C. R. R. vs. Byers,  [**19]  32 Penn. State Rep., 22.

A subscription to stock is not the case of a simple debt due by the subscriber, but is a contract by which the subscriber agrees to pay, and the company undertakes to make the calls and deliver the stock. The terms of the contract are to be found in the subscription paper and the charter to which it refers; and the object of the contract is to carry the charter into effect. We are then to look to the contract, here as in other cases, to ascertain not only the acts which each party is to do, but also the time at which they are to be done; and if the terms of the contract do not expressly or by construction fix the time, then resort must be had to the common law doctrine of a reasonable time.

In this case the subscriber undertakes "to pay fifty dollars, &c. in such manner and proportions, and at such times, as shall be determined by the President and Directors of said company or a majority of them, in pursuance of an Act of the General Assembly of Maryland, entitled, an Act to incorporate," &c.

The subscription is thus made with express reference to the charter, and the right to make calls is to make them in pursuance of the charter. As has already [**20]  been stated, it was provided by the 26th section of the Act of incorporation, that if the road was not commenced in three years from the date of its passage, the Act should be "null and void;" and the road was not commenced within the three years. It is said on the other side, that this was cause of forfeiture merely, and that as the forfeiture was never judicially declared at the instance of the State, the company continued to exist. Without impugning the correctness of the general principle thus asserted, its application to this case is denied.

It is not proposed to argue this question fully, because it is not deemed vital to the appellant's case. The Court will find the authorities which bear upon it collected and referred to in Angell & Ames on Corp., secs. 542, 537, 538, and 539.

4th. Without reference to the time at which the calls were made, the contract now sought to be enforced is not the contract into which the appellant entered. His answer to the action is, non in haec foedera veni. A contract to take stock in a road to be commenced in three years from 1852, does not bind him to take stock in a road to be commenced in six years from 1856. The subscription was made [**21]  on the basis of the rights and duties set forth in the charter, as are all such subscriptions, and it would be a fraud on the appellant for the company to procure an alteration of its charter, and still insist on his coming in as a stockholder. At law, time is of the essence of the contract, and in the particular case, the provision that the road was to be speedily commenced, might well induce subscriptions. In the opinion of Judge NELSON, already referred to, it was held that the subscriber was discharged on this ground. Even a stockholder, who is ordinarily bound by the action of a majority of the stockholders, is not bound if they accept a fundamental change of their charter without his assent. But here the appellant was not a stockholder. He was not even a subscriber, in the ordinary sense of the term. He had made an offer to take stock, upon terms which had not been accepted; or, to adopt the view of the appellee, he was a conditional subscriber, and the condition had not been fulfilled at the time of the acceptance of the Act of 1856. He was therefore not then a stockholder, and was in no respect bound by the Company's action.

Wm. Schley for the appellee, argued:

1st.  [**22]  That the subscription made by the defendant, although made in a book then in the possession of Mr. Johnson, was, upon the proof given, a valid subscription, and binding on the defendant. When accepted by the appellee, it became a contract.

The company was organized, and a President and Directors were elected on the 14th of February, 1853, prior to defendant's subscription. The subscription, therefore, was made after the appellee had become an existing corporate body, although before the formal acceptance of the supplement, by which its name was changed. Even if, in case of a subscription, made whilst the commissioners were acting, it would be a good exception, (which, however, is not admitted;) the subscription was not received, after notice given, and at the time and place designated in such notice; yet, when the corporation had been ushered into existence, the commissioners were functi officio. They had fulfilled the commission with which they had been entrusted by the State. Wellersburg and West Newton Plank Road Co. vs. Hoffman, 9 Md. Rep., 560, 569.

The corporation itself, thus having existence and capacity to contract, could receive a subscription, at any time, at any [**23]  place, without notice, and through any agency, or per directum, for any untaken stock. The subscription of the appellant, when accepted by the company, imposed a common law liability, not a mere statutory obligation. Rail Road Co. vs. Rodriguez, 10 Rich. S. C. Law Rep., 278. Maltby vs. Northwestern R. R. Co., 16 Md. Rep., 425, 426, 430, 445.

In cases where a part of the authorized stock is untaken, the corporation, after organization, may validly dispose of such stock. Reese vs. Bank of Montgomery, 31 Penn. Rep., 78.

2nd. The non-payment of one dollar, at the time of the subscription, was not of the essence of the contract. It was not, as between the parties to the contract, an indispensable condition. The subscription, so far as the appellant is concerned, was complete and perfect when he subscribed for the shares, and when his subscription was accepted by the company. It was his own default that he did not pay the instalment, if it was his statutory duty so to pay, at the moment of subscribing. It was competent, however, for the company, in any view that may be taken, to waive the immediate payment, and to rely upon the efficacy of its future calls.

Even if this subscription [**24]  had been received by the commissioners, the non-payment of one dollar per share, at the time of subscribing, would not have rendered the subscription a nullity. The language of the Act is directory, not imperative. It is not made a condition precedent to the perfecting of the subscription.

It is not an integral, elementary, constituent part of the subscription; but, in consequence of the subscription, the Act made it the duty of the subscribers to pay, and if the commissioners chose to waive it, they surely could do so, at their own risk. The company could not be affected by their omission to exact the payment. Indeed, the commissioners would be accountable for the money in the same manner as if actually received.

The following cases are authorities on this point: 2 American Railway Cases, 226, and notes. Vermont C. C. R. R. Co. vs. Clayes, 21 Vermont, 30. Wight vs. R. R. Co., 16 B. Monroe, 5. Judah vs. Life Ins. Co., 4 Indiana, 337, 338. Ill. Riv. R. R. Co. vs. Zimmer, &c., 20 Ill., 654. Eastern Plank Road Co. vs. Vaughan, 20 Barbour, 155. R. W. Plank Road Co. vs. Wetsel, 21 Barbour, 56. Abbott vs. Aspinwall, 26 Barbour, 202. V. R. R. Co. vs. McKean, 12 Louisiana Rep., 638.  [**25]  R. R. Co. vs. Chandler, 13 Metcalf, 311. Chaffin vs. Cummings, 37 Maine, 76. Henry et al. vs. R. R. Co., 17 Ohio, 187. Pierce on American Rail Road Law, 64.

In some of the cases awaiting the decision of this case, this question is involved, otherwise it would not have been considered. For, in this case, the subscription was not received by the commissioners, but by the company after organization. The provisions of the Act in relation to the payment of one dollar per share, whether directory or essential, were intended to apply to subscriptions received by the commissioners. They were not intended as a limitation upon the powers of the corporation, when it should come into being. In the second section of the Act, it is said that the corporation "shall have, enjoy, and may exercise all the powers, rights and privileges, which other corporations may lawfully do, for the purposes mentioned in this Act."

The question then arises, whether the corporation could dispose of its untaken stock. Now, the capital was fixed at five hundred thousand dollars, in shares of fifty dollars each, that is, ten thousand shares. On the subscription of one thousand and eighty-six shares, however,  [**26]  it was organized; leaving nearly nine-tenths of the stock untaken. In fixing the capital at the designated amount, the Legislature assumed that the cost of the road would require, at least, that amount of capital; and the 13th section contemplates the possibility of the necessity of double the amount of capital. Now, who is to dispose of the untaken stock? Not the commissioners; for, after calling together the subscribers, and laying before them their books of subscription, they had fulfilled their duty; they were "functi officio." Plank Road vs. Hoffman, 9 Md. Rep., 569.

The power to dispose of the untaken stock was within the general powers of the corporation. The capital of the company when organized, the provided means for constructing the road, consisted, in part, of the untaken shares: and of which shares the corporation had, of necessity, the jus dispodendi, as owner thereof. It could use those shares, instead of money, in purchasing the right of way, in the construction of the road, or in disposing of them at par for money. Mann vs. Cooke, 20 Conn. Rep., 178. S. C. 2d American Railway Cases, 124. Reese vs. Bank of Montgomery, 31 Pa. State Rep., 78. Rail Road Co. vs. Rodriguez,  [**27]  10 Rich. S. C. Law Rep., 278. Plank Road Co. vs. Hoffman, 9 Md. Rep., 559. Maltby vs. N. W. Va. R. R. Co., 16 Md. Rep., 422.

If, then, the company could dispose of its stock, the transaction was essentially a common law contract, made between competent parties. It was not necessary to fix a time and place for making the contract, or to give public notice thereof, or to require a cash payment, as a condition precedent to the making and perfection of the contract.

Recent decisions place corporations, when acting within the scope of their powers, very much in the condition of natural persons, both in relation to torts and to contracts. A corporation may commit an assault and battery, may act maliciously, and be guilty of publishing a libel; and may commit a fraud, and may be bound by estoppels in pais. Within the scope of its granted powers, and for the purposes of its incorporation, it may make any contract, not illegal or immoral; and there can be no pretence of want of mutuality in a contract made by a corporation, where both parties may legally and validly perform their reciprocal engagements. The objection that a contract is without mutuality is very different from the [**28]  objection that a contract by a corporation is ultra vires. The case of The Pa. Steam Navigation Co. vs. Dandridge, 8 G. & J., 248, is of the latter description. But the test of want of mutuality is properly stated in 2 Williams' Saunders, (note i,) to be, where one party is left without a valid consideration for his promises. To the same effect are Laythorp vs. Bryant, 29 Eng. C. L. Rep., 472. Morton vs. Burn, 34 Eng. C. L. Rep., 21, 22. L'Amoreux vs. Gould, 3 Selden, 349. R. R. Co. vs. Mason, 2 Smith, (16 N. Y.,) 451.

3rd. Was the defendant's subscription void because it was made conditional as to the route of the road? There are cases in which such conditions are discouraged, and others in which they are denounced as against public policy. But the company is authorized to select the route between the termini; and the presumption always is, that the best route will be selected. It is frequently a matter of controversy between localities, as to the most eligible route; and persons residing in a particular neighborhood, may favor the enterprize if the route is to pass through or near it; but may not be willing to subscribe at all, if the road should be differently located. A party,  [**29]  therefore, may be willing to subscribe conditionally, that is to say, if the road shall be located upon a particular route, and the company may validly accept it. And (if the subscription remaining unrevoked,) the designated route is selected, then the subscription becomes absolute.

How is this against public policy? The sovereign power has committed to the corporation the selection of the route for the road; and the terms of subscription are not inconsistent with the honest and faithful exercise of this power. I shall leave the point, referring to the following authorities: Pierce on Rail Road Law, 71. L'Amoureux vs. Gould, 3rd Selden, 349. McMillan vs. Maysville and Lexington Rail Road Company, 15th B. Monroe, 218. Henderson and Nashville Rail Road, vs. Seavell, 16th B. Monroe, 358. Cumberland Valley Rail Road Company vs. Baab, 9th Watts, 458. Rhey vs. The Ebensberg and Susquehanna Plank Road Company, 27th Pennsylvania State Reports, 261.

4th. Was there a forfeiture by the corporation of its chartered rights, by reason of its failure to commence the road within the period of three years from the passage of the Act of 1852?

It is conceded that the language of the 26th [**30]  section of the Act of 1852, ch. 304, is very peremptory, and is unambiguous; and it is also conceded that the reconnoissance for the purpose of deciding the route, was not such a commencement of the road, within three years, as was required by said 26th section. But it must not be forgotten, that this is the language of a sovereign in a grant of corporate powers; and it is in the nature of a condition subsequent. If it were a case of a condition precedent, the case would be essentially different. It is a clause of forfeiture, and must operate, if at all, in defeasance of vested rights. But, unless and until the sovereign shall take advantage of the forfeiture, the granted rights continue.

Individuals cannot enforce the forfeiture; and the sovereign power may not choose to do so, but, on the contrary, may waive the forfeiture. In this particular case, the sovereign not only did not claim the forfeiture for condition broken; but, by the Act of 1856, ch. 289, confirmed the company in its chartered rights, "as though said 26th section had not been a part of said original Act." This doctrine is very clearly and ably elucidated in the case of the Canal Company vs. The Baltimore & Ohio [**31]  Rail Road Company, in 4th Gill and Johnson, 121 to 129; and the applicability of that authority to this case will more plainly appear by comparing the 18th section of the Act of 1784, ch. 33, with the 26th section of the Act of 1852, ch. 304. The Court is also referred to the following cases: Planters' Bank vs. The Bank of Alexandria, 10th Gill and Johnson, 356. Frederick Female Seminary vs. the State, 9th Gill's Rep., 404. See also the Act of 1832, ch. 306.

Since the Constitution of 1852, however, the end proposed by the Act of 1832, might have been obtained, simply, by a repeal of the Act of 1852. (Constitution of 1832, Article 3, section 47.)

But not only was the Act not repealed, but by the Act of 1856, as we have seen, the forfeiture was expressly waived. See also, for illustration: Comyn's Landlord and Tenant, (6th Law Lib.) Reid vs. Parsons, 2nd Chitty's Rep., 247. (18th English Common Law Rep., 322.) Webster vs. Hooper, 14th Howard's Rep., 501.

The moment it is remembered that the only parties to the grant are the State and the Corporation, it will be manifest that no third party could enforce what the State alone could enforce, and was competent to waive. Abbott [**32]  vs. Aspinwall, 26th Barbour's Rep., 202.

5th. Did the plaintiff, by the delay in commencing the road, and in making the calls for the instalments, discharge the defendant from liability on his subscription? The proposition, affirmed by the defendant's second prayer, is this: that as more than three years had elapsed from the passage of the Act of 1852, and as no calls were made by the plaintiff for any part of his subscription until the 28th of June, 1857, the plaintiff was not entitled to recover. In the printed brief of the appellant these facts are relied on, as creating a "presumption in law," that the corporation had abandoned the construction of its road.

The presumption thus claimed by the defendant, is not one of fact but of law. It did not refer to the onus propandi; for there was uncontradicted proof, that, although the commencement of the road was unavoidably delayed, the company never did, by any act, express any intention to abandon the making of the road. But the objection goes to the very cause of action; to the right to recover.

Whatever may be the law elsewhere, the lapse of time, in Maryland, in case of a suit at law upon a contract, goes to the remedy,  [**33]  not to the right; and as to the remedy, the length of time, that will bar recovery, is fixed by the statute of limitations.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*584]  BOWIE, C. J., delivered the opinion of this Court.
The General Assembly, at January session, 1852, incorporated "The Baltimore, Carroll and Frederick Rail Road 

 [*585]  Company," with a clause prescribing certain preliminaries usually observed in opening the books and taking subscriptions for stock, prior to the organization of a company, among others, the pre-payment of one dollar per share on every share subscribed; also requiring the road therein contemplated, to be commenced within three years and finished within ten years from the passage of the Act, otherwise the same should be null and void. Books were opened by the Commissioners, the requisite number of shares subscribed, a Board of Directors and a President were elected, and the company fully organized.
After this organization, the appellant on the 28th April, 1853, subscribed for ten shares, in one of the subscription books, held by a Mr. Johnson, upon the terms and conditions prescribed  [**34]   therein and the charter, with this condition annexed: "provided the said contemplated road should be built on the then present track of the then existing branch to 'Green Spring,' of the Baltimore and Susquehanna Rail Road;" but did not pay the sum of one dollar per share, required by the charter to be paid to the commissioners, at the time of subscribing.
The name of the corporation was subsequently changed by Act of Assembly, to that of "The Western Maryland Rail Road Company." The defendant's subscription, with others, was returned to the stockholders, and classified among the conditional subscriptions. The construction of the road not having been commenced within the time prescribed by the original charter, the Act of 1856, ch. 289, was passed, waiving all claims of forfeiture, by reason of the company's failure to comply with any of the provisions of the Act of incorporation, and allowing six years for the commencement, and twelve years from the passage of the Act, for the completion of the road.
The "Green Spring" branch of the Baltimore & Susquehanna Rail Road was adopted by the appellee on the 31st 

 [*586]  of March, 1857, and the road put under contract for construction.  [**35]  No calls were made for payment of subscriptions until the 25th of June, 1857. The appellee never indicated, affirmatively, any intention of abandoning the work of the appellant; never affirmatively withdrew his subscription, or attended any meeting of the stockholders or subscribers to the stock.
Several calls for instalments having been made and refused, this action was brought on the 1st of February, 1861. The prayers offered by the plaintiff, (now appellee,) and granted by the Court, present three negative propositions:
1st. That the change in the corporate name of the appellee by the Act of 1853, ch. 37, is not a bar to the present action.
2d. That upon the finding of the facts therein before specified, the non-payment of one dollar per share by the defendant, at the time of his supposed subscription, is not of itself a bar to the present action.
3d. That the failure to commence the work within three years from the Act of incorporation, (1852, ch. 304,) the Act of 1856, ch. 289, being duly passed and accepted by the stockholders of the plaintiff, is not a bar to this suit.
The first proposition is admitted, but the second and third propositions are specially denied by [**36]  the prayers of the defendant, which were rejected by the Court, and constitute the ground of this appeal.
The first and third prayers of the appellant are the converse of the appellee's second; the appellant's second prayer, of the appellee's third.
The learned counsel differ as to the range of the first and third prayers. The appellee contends, they present only the question of the effect of the non-payment of the cash instalment of one dollar at the time of subscribing; on the other hand, it is insisted they embrace the conditional 

 [*587]  character of the subscription, and the validity of such. It is observable that these prayers refer specifically to the subscription, in the following terms: "and that the defendant made the subscription offered in evidence by the plaintiff," etc., as one of the facts upon which the proposition of the defendant was based. This specific reference in each of the prayers under consideration, was not merely introductory to the other facts connected with it, but called for an examination of the subscription itself, its character and conditions.
The subscription of the appellant is not set out in terms in the bill of exceptions, but referred [**37]  to as a conditional subscription. In the nar and appellee's brief, it is set out "in totidem verbis," as therein before cited.
Assuming that the evidence, offered by the plaintiff (and refused to the defendant in his prayer,) corresponded with the subscription set out in the nar, the legal sufficiency of such subscription, was necessarily brought before the Court, by the first and third prayers of the defendant, whether the right of action depended on the prepayment of the deposit, or the conditional character of the subscription itself. The supposed contract being in writing, its validity was a question for the Court, and however the latter view may have been overlooked in the discussion of the former, it seems necessarily involved in the disposal of these prayers.
The first point presented by the prayers arises under the 3rd section of the Act of 1852, ch. 304, incorporating the appellee, which directs that "upon every subscription, there shall be paid at the time of subscribing, to the company or their agents, appointed to receive such subscription, the sum of one dollar on every share subscribed." As there are other cases involving the construction of this section,  [**38]  we are requested to interpret it, not only as it may operate upon the facts in this case, but upon subscriptions 

 [*588]  made to commissioners or their agents, prior to the organization of the company. It is contended that this clause applies peculiarly and solely to the latter class of subscriptions, as to which, it is only directory and not indispensable. The class of cases maintaining the contrary, it is insisted, originated in the decision of the case of Jenkins vs. The Union Turnpike Company, by the Court of Errors in New York, 1 Carr's Cases in Error, 86, which was contrary to the better opinion (as it said) of the Supreme Court of New York, and make only a "suite d'erreurs." The defect or vice of the original decision is not pointed out, but it is impeached as emanating from a Court, constituted of laymen, as well as lawyers, and of less authority than the tribunal whose decision it reviewed and reversed. A decision not universally adopted, but questioned, doubted and overruled. We are invoked not to follow such precedents, upon a mere comparison of facts, but to apply the judicial mind to a consideration of the principles of law applicable to them. With this [**39]  earnest exhortation in view, we have examined the series of cases referred to, and will concisely state the result.
The controlling principle, on which those cases are founded is, that all charters or Acts under which highways are erected, and franchise and privileges conferred, are deputations of public power or authority to be strictly construed. The subscription for stock must be founded on a valid consideration, and constitute a contract binding on both parties "eo instanti." The promise of the subscriber being based on the promise or expectation of becoming a stockholder, if the right to the stock is not consummated by payment of the deposit, the obligation to pay the subscription is not binding.
Chancellor LANSING, treating the Act, under which the subscription was made in that case as a public law, the provisions of which he must notice officially whether 

 [*589]  pleaded or not, thus defines the duties of the commissioners: From the record it appears, that commissioners were appointed by the statute, to perform certain duties particularly described. They were to receive subscriptions and to receive for the benefit of the defendants (in error) $ 10 on each share of [**40]  the stock of their company. The plaintiff (in error) subscribed, but it does not appear that he paid. At the time these steps were taken, the corporation described in the Act, was not in existence. It was incapable of contracting. The acts to be performed by the commissioners were merely preparatory to its creation. To give effect to their acts, their power must be strictly pursued. * * They were directed to exact from the persons who were to be admitted members of the corporation, both subscription and payment, as a condition precedent to their admission. If they omitted either to subscribe or to pay, they did not come within the terms of admission. 1 Caine's Cases in Error, 94.
TILGHMAN, C. J., in the case of The Hibernia Turnpike Company vs. Henderson, 8 Serg. & Rawle, (which was a subscription to commissioners before the organization of the corporation,) enlarged upon the principles of public policy, which required a rigid adherence to the letter of the law, and strict compliance with the requisition of prepayment, in all subscriptions made to commissioners. "If (he says) persons are permitted to subscribe without the previous payment of five dollars a share, large [**41]  subscriptions may be made, which would not otherwise have been made, by those who are anxious to give a direction to the road, which may benefit themselves, at the expense of the public. The case is reduced to this simple question: Can a contract be enforced in a Court of Justice, which was made in violation of an Act of Assembly. It is not the first time the question has been asked in this Court, and it has received but one answer: "It cannot be enforced." He refers to the decision of the 

 [*590]  Court of Errors in New York, 1 Caine's Cases in Error, as settling the law in that State.
GIBSON, J., concurred, replying to the argument (which has been urged in this case,) that prepayment was a condition which might be waived, it being intended only for the benefit of the corporation. He asks, "What was the consideration for the charter? Undoubtedly, the benefit which was expected to result to the public; not the profit that might be made by the stockholders. The State, therefore, was a party, and had an interest in preventing the scheme from being turned into a bubble, etc., vide p. 225. The design of the deposit was to prevent the subscription list from being filled with [**42]  the names of nominal stockholders and the creatures of others." 226. ***
Every contract, where the consideration is promise for promise, must be obligatory on both parties or both will be at liberty to recede--the promise which is the consideration of that on which the action is brought, must be such as the plaintiff had power to perform. I do not say there was an express promise here that the defendant should enjoy the rights and privileges of a corporator; but certainly that was understood as being the consideration on which he subscribed. But the company could introduce no one as a member in any other way than that pointed out by the Act of incorporation, p. 227; if they could, it would be requisite that the defendant's title should have been good when he subscribed; otherwise the contract would be without mutuality, and if he acquired no right which he could enforce against the will of the plaintiffs, he incurred no responsibility, 228.
In Crooke vs. Crane, 21 Wend., the question being whether the commissioners, appointed to open books to receive subscriptions, were authorized to receive checks of subscribers in payment of the sum required to be paid at the time of [**43]  subscription.

 [*591]  COWEN, J., said: "I am, therefore, strongly inclined to the opinion that the check in question was void, as contrary to the policy of the statute. Nor can there be any doubt, I imagine, that the contemplated corporation, if I am right as to the facts, failed of going into existence for want of the proper payments as a condition precedent. Such is the doctrine laid down by Chancellor LANSING in Jenkins vs. Union Turnpike Company, 1 Caine's Cases in Error, 934, and recognized by this Court in Goshen Turnpike Company vs. Horton, 9 Johns. 217, and Highland Turnpike Company vs. McKean, 11 Johns. 98. Dutchess Cotton Manuf'y. vs. Davis, 14 Johns. 238.
These cases go further, each subscriber must pay as a condition to his own liability attaching. Payment was a requisite which the commissioners could not waive. Starr vs. Scott, 8 Conn. 480.
The case in 21 Vt. Rep., cited by the appellee, to the contrary, has several peculiar features which distinguish it from the class of cases requiring prepayment of the deposit, as essential to the contract. The defendant, in that [**44]  case, was one of the original associators, and had signed an instrument prior to the Act of incorporation, by which the subscribers agreed to take, and did take the number of shares affixed to their respective names. The defendant subscribed for fifty shares of the stock. The note in question was given for the first five dollars payable on each respective share, which was received in settlement of the first instalment; by the subscription paper it appears there were several subscribers for stock prior to the defendant, and by the Act of incorporation each subscriber per se became a corporator.
These facts were deemed sufficient to show the corporation was "in esse at the time of taking the note, and capable of taking the promise through their agents, the commissioners." Upon all these peculiar circumstances, it was held the action on the note was maintainable.

 [*592]  The learned Judge delivering the opinion of the Court, though questioning whether the opinion of the Supreme Court or Court of Errors, in the case in 1 Caine's Cases in Error, was the better opinion, distinguishes that case from the one under his consideration.
The case in 16 B. Mon. 4, 5, [**45]  declaring prepayment of the deposit to the commissioners, is not essential to the validity of the subscription, presents the anomaly of a decision founded on a case previously and notoriously reversed, without apparent knowledge of the reversal. The Judge in delivering the opinion says: "The decision of the Court in the case of The Union Turnpike Company vs. Jenkins, 1 Caine's Rep., sustains the views expressed in this opinion; and it is only the opinion of the dissenting Judge that is cited in Angell & Ames on Corporations, and referred to by the counsel for the appellants." He seems wholly unaware that the opinion of the dissenting Judge had been affirmed by the Court of Errors, and that of the majority of the Supreme Court on which he relied, overruled.
The 20th Ill., 656, deciding in the same way, relies only on 16 B. Mon. 4, 5, and 21 Vt. 30, which we have before shown, was marked by very peculiar features, distinguishing it from the Union Turnpike Co. vs. Jenkins, and therefore not in point.
The case in 17th Ohio, 191, cited to the same point by the appellee, is a mere dictum, sustained by neither authority or reason.  [**46]  
It would appear from this comparison of the cases cited, that Jenkins vs. The Union Turnpike Company, 1 Caine's Cases in Error, has not been overruled, or abandoned in principle in succeeding cases within the same category; but it has been questioned, criticized and departed from, where the facts would warrant a departure.
It is still recognized as a leading case, not only in the 

 [*593]  State of New York, but in several other States, with such weight of authority and reason as commands our respect in similar cases.
If not expressly adopted in this State, it has been referred to in terms which recognized the principles on which it was decided as properly applied under the circumstances.
In the case of Elysville Manufacturing Co. vs. Okisko Company, it was objected that the appellant had no power under its charter to subscribe to the stock of the appellee, and if it had, the one before the Court was not binding, because at the time of the subscription, the cash payment was not made. In support of the latter proposition the case in 1 Caine's Rep., 381, was relied on. This Court said that case is clearly distinguishable from the one before us. There,  [**47]  no payment was made either at the time of subscription or thereafter by the person whom it was attempted to make responsible on his subscription, while here the whole amount of the subscription was paid; in other words it is a completely executed contract. In the case referred to, the Court evidently founded their decision on the want of mutuality. "The subscriber not having paid in conformity with the authorized terms of subscription, could not have compelled the transfer of the stock to himself, he not having in any way, in part or in whole, performed the contract." 5 Md. 152, 158.
The preponderance of authority in favor of a strict compliance with the provisions of the charter, in cases of subscription, prior to the organization of the company, is such as is not to be disregarded. This Court has said, "there is no doubt that in general, a strict compliance must be shown with the provisions of the charter, but in some cases a compliance will be presumed and in others it may be waived." 16 Md. 422, 444. The distinctions between subscriptions prior and subsequent to organization, 

 [*594]  is clearly recognized in 9 Md. 559, 568, [**48]  in this language:
"Commissioners are appointed to receive subscriptions to stock for the purpose of giving the subscribers a right to organize as a corporation under the charter. So soon, however, as the organization takes place, the authority of the commissioners ceases; and all corporate powers conferred by the charter, vest in the body politic. Such, at least, is the general rule, applying in every case where there is no special provision to the contrary. It was further held, that in that case, there were no provisions requiring the corporation after organization, to have subscriptions taken by commissioners and in no other mode."
Hence in this case the corporation being organized by the subscription of the necessary proportion of the stock, and election of officers, succeeded to the power previously vested in the commissioners, to sell and dispose of the remaining shares, without regard to the conditions imposed on them. The act of the agent taking the subscription, being recognized by the corporation by receiving and registering the subscription, among the conditional subscriptions, was equivalent to a previous appointment of the agent for that purpose.
The objection that the [**49]  subscription was void because conditional and contrary to public policy, is strongly supported by the authority cited by the appellant. 1 Hill, 518. 18 Barbour, 318. But these cases turn upon the provisions of the local statutes, and the subscriptions were made to commissioners prior to the formation of the companies, for the most part.
The first ground upon which the validity of conditional subscriptions has been impeached in the cases before cited, viz: that a contract to be binding must be "concurrent and obligatory upon each at the same time," (as decided in 

 [*595]  18 Barb. 318, and 21 Wend. 139,) has been in more recent cases abandoned, and it is said that such a subscription is a continuing offer, until withdrawn.
But when the offer was accepted the minds of the parties met and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiff constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting, in order to perfect a valid contract [**50]  on the part of the defendants. It was precisely the same, as if the parties had met at the time of the acceptance and the offer had then been made and accepted and the bargain completed at once. Boston & Maine R. R. vs. Bartlett, 3 Cush. 227. Conn. & Pass. R. R. vs. Bailey, 24 Vt. 465, 478. Troy Acad'y vs. Nelson, 24 Vt. 189.
The second objection, that conditional subscriptions are contrary to public policy, is said to be peculiar to New York, and not followed in other States. Vide Pierce on Railways, p. 71. In 15 B. Mon. 218, 235, the Court finds the power of the corporation to accept such conditional subscriptions, under the clause of the charter of the company in that case, authorizing the President and Directors to dispose of their unsubscribed stock for the benefit of the company, and declares it does not seem to be prohibited by sound policy; that such construction is sanctioned by general usage under similar provisions in other charters. Vide also, 16 B. Mon. 358, 364, to the same effect. This conclusion seems to follow necessarily, from the doctrine that a conditional subscription [**51]  is but a continuing offer, which is final and absolute when accepted; all subscriptions becoming thus ultimately unconditional and absolute.
If the corporation after organization, may dispose of 

 [*596]  their stock without limitation, except so far as expressly restrained by their charter, and a conditional agreement when accepted is equivalent to an absolute contract, it would seem a necessary consequence that all contracts for stock in consideration of a particular location, when complied with by the company, would be as binding on both parties as if the contract had been absolute and unconditional. For however adverse to public policy such conditions prior to the formation of the corporation, the location and construction of the road is the peculiar province and duty of the President and Directors, and a contract made by them in execution of their corporate powers must be presumed to be made in promotion of the public interest, unless shown to the contrary.
The second prayer of the appellant, and third of the appellee, require the Court to determine the legal effect on the right of action of the appellees, of their non-compliance with the section of the original charter, requiring [**52]  the road to be commenced within three years; and of the omission of the appellees, to make any call for the payment of any part of the money subscribed by the appellant, until the 25th of June, 1857.
As to the first branch of this inquiry, it is well settled that non-compliance with the provisions of a charter, is not a matter of defence collaterally between corporations and its stockholders or debtors. It belongs exclusively to the State, to determine whether it will exercise its prerogative of forfeiting or annulling the charter. 9 Wend. 351. 4 Johns. Ch. 379. Angell & Ames on Corp., 3d ed., 747. 4 Eng. L. & Eq., 455. 24 Vt. 465, 476. The Planters Bank vs. The Bank of Alexandria, 10 G. & J. 346.
The modification of the charter in enlarging the time of commencing and completing the work, is one of those incidents 

 [*597]  to all charters which comes within the constitutional power of the State to exercise, and with due notice of which, all its citizens must be presumed to contract.
It is not one of those fundamental radical changes, which diverts the funds from the original purpose [**53]  to which they were dedicated, or is manifestly prejudicial to the stockholder, but comes within that class of cases in which the change was held to be auxiliary to the original object of the incorporation, and beneficial to the stockholders, vide Pierce on Railroad Law, p. 78, note 2, and authorities there cited.
As to the effect of the omission to make calls:
Lapse of time, not amounting to the bar of limitations, is not a defence to an action at law. The contract in this case according to the more recent authorities was a continuing offer, which was accepted by the appellees by the adoption of the "Green Spring" route on the 31st of March, 1857. No calls were made until the 25th of June following. The statute of limitations did not begin to run until the several calls were due. 6 H. & J. 57.
The objection to a continuing offer, that it suspends indefinitely the liability of the conditional subscribers is sufficiently answered by the consideration, that all such offers are subject to retraction, and may be recalled, if their acceptance is unreasonably deferred. It results from these views, that the judgment below must be affirmed.
Judgment affirmed. [**54]  

88 of 120 DOCUMENTS 

CHARLES D. HISS vs. STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 556; 1866 Md. LEXIS 35 

May 11, 1866, Decided 

PRIOR HISTORY:
 [**1]  WRIT OF ERROR to the Circuit Court for Baltimore County.

This was a writ of error to the Circuit Court for Baltimore county, in the case of the indictment of one Charles D. Hiss, a Justice of the Peace for malfeasance in office, removed from the Criminal Court of Baltimore City. The facts are stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

INDICTMENT AT COMMON LAW OF JUSTICE OF THE PEACE FOR MALFEASANCE IN OFFICE: MISDEMEANOR: MOTION IN ARREST OF JUDGMENT. -- A Justice of the Peace having discharged a prisoner brought before him, charged with the larceny of certain bank notes and promissory notes, and having refused to deliver the same, which he had taken from the prisoner when on examination, to one W. D., to whom the latter had assigned them, an indictment was found against him, charging that he, being then and there a Justice of the Peace, unlawfully, wilfully, oppressively, corruptly, and in violation and contempt of his duty as Justice of the Peace, neglected and refused to deliver the said bank notes and promissory notes to the said W. D., being then and there requested so to do, well knowing the said W. D. was entitled to receive the same, &c. The traverser having pleaded not guilty, after trial and verdict of guilty, moved an arrest of judgment, which being overruled he sued out a writ of error, HELD:

1st. That the plaintiff in error having been tried and found guilty of the facts as charged, whether by a jury or by the Court, upon submission those facts must be assumed to be true.

2nd. That the facts charged constitute an offense amounting to a misdemeanor, for which the plaintiff in error was indictable and punishable at common law. 

COUNSEL:
John H. Ing for the plaintiff in error.

The indictment charges that "after the release of the negro, Silas Wright, it then and there became and was the duty of the said Hiss, as Justice, to deliver the money to the person legally entitled to demand and receive the same.

The State thus, by its own averment, concedes that the discretion by judgment of the Justice, was to be exercised in determining "the person legally entitled to demand," &c.

For error of judgment in deciding that Mr. Daniel was not entitled, and as a consequence of such error of judgment in neglecting and refusing to pay Mr. Daniel, the appellant is arraigned criminally. Does this constitute a criminal offense? Can the indictment be sustained?

In Martin vs. Mott, 12 Wheaton, p. 31, the Supreme Court of the United States say: "Whenever a statute [**2]  gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts.

It was the plain duty of the Justice to retain the money for the master, or to await proof of the negro's freedom. No man is liable to an action for what he doth as judge. 2 Hawk Pl. of the Crown, 85, sec. 20.

Under the 4th Art., 1st sec. of Constitution of 1851, judicial power was vested in Justices. For an error in judgment a Justice is not punishable. Burr, 556, 785, 1162.

Upon the facts set forth in the indictment, a civil action was the remedy of Mr. Daniel, not an indictment. In Deal vs. Harris, 8 Md. Rep., 40, the Court of Appeals say in substance: "The Judge is to be held harmless for a wrong judgment, provided the error results from an erroneous conclusion at which he arrives.

Negro Peter vs. State, 4 H. & Mc H., 3, is an authority to show that on a writ of error the judgment of an inferior Court may be reversed in a criminal case.

That a writ of error is a remedial writ, and may be used in every case, ex merito justitiae,  [**3]  see Show., 13, 260. I Lev., 149, 189. Hob., 116. Vent., 30, 34, 353, 42, 203. 1 Leon, 325. Salkeld, Walcott's case, Co. Litt., 260 a.

A. Randall, Attorney General for the State.

The State, the appellee, contends that the Court below was correct in overruling the motion in arrest of judgment.

1st. Because the jury by their verdict having found that the traverser by virtue of his office, took these bank notes and promissory notes from Silas Wright, a prisoner charged with stealing them, whom he afterwards released from that charge, and that the notes should have been returned to the prisoner's assignee, William Daniel, who demanded the same, and who was known to the traverser to be the assignee thereof; and that the traverser unlawfully, wilfully, oppressively, corruptly, and in violation and contempt of his duty in that behalf as Justice of the Peace, neglected and refused to deliver the same, &c., did thereby convict the traverser of the charge set forth in the indictment.

This finding of the jury excludes the idea of the negro's being a slave or unable to make the assignment of the notes, and indeed all other of the defences set up in this Court by the traverser [**4]  inconsistent with this verdict.

It was a matter of no consequence whether or not there was any obligation on the part of the traverser officially to receive these notes from the prisoner, as he did in fact receive them by virtue of his office. Having thus received them, and afterwards released the prisoner from the charge of stealing them, it was the duty of the traverser, as Justice of the Peace, to restore them to the prisoner's assignee, known to him as such, which itself excludes the idea of any other ownership.

It was no business of the Justice of the Peace to set up pretended claims for imaginary owners, in violation of his plain official duty to the assignee whom he knew, as the verdict shows, to be the real owner of the notes.

This is not a case of any error of judgment or discretion of a Justice of the Peace in the discharge of his official duty, for his duty officially had terminated when he discharged the negro prisoner, and as an incident these notes should then have been delivered to the assignee, but the traverser having, as the jury find, wilfully, corruptly, unlawfully, oppressively, and in violation of and contempt of duty, refused so to do, excludes [**5]  any such notion as error of judgment or of discretion.

2nd. The facts being thus clearly found, and the wilful, corrupt and oppressive conduct of the Justice of the Peace being clearly proved, and his prostitution of his office to a corrupt purpose, he is subject to punishment, either by information or indictment, as will be seen by the following authorities, viz: 5 Bacon's Abr., 426, (edition in the Library, title, Justices of the Peace, letter F, secs. 1 and 2, p. 429. 4 Burn's Justice of the Peace, pages 30 and 31. 2 Hawkins, 85. Rex vs. Seton, 7 T. R., 374. Rex vs. Barron, 3 Barn. & Ald., 432.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*560]  BOWIE, C. J., delivered the opinion of this Court.
An indictment was found against the plaintiff in error, charging that on the 1st of June, 1863, at the City of Baltimore, Silas Wright, a negro, was arrested and brought before the plaintiff in error, who was then and there a Justice of the Peace of said city, accused of stealing certain bank notes and promissory notes, and upon a hearing by the Justice was discharged; that at the time of the arrest, Wright was [**6]  searched and certain bank notes taken from him and delivered to the plaintiff in error, who was in duty bound to deliver the same to the person legally entitled to demand and receive the same; that William Daniel afterwards became and was legally entitled to receive the same, and the plaintiff in error, then and there, unlawfully, wilfully, oppressively, corruptly, and in violation and contempt of his duty in that behalf as Justice of the Peace, did neglect and refuse to deliver the bank notes, etc., to the said Daniel, being then and there requested so to do, well knowing the said Daniel was so entitled, etc. Upon which indictment, the plaintiff in error being arraigned, pleaded not guilty, and put himself upon his country, and being found guilty, moved in arrest of judgment, which being overruled, the traverser sued out his writ of error.
The points relied on by the plaintiff in error, are:
1st. That a Justice of the Peace is not liable to indictment for error of judgment in the discharge of his official duties.
2nd. That the indictment did not charge any offence for which the traverser was criminally liable.
3rd. That he was under no legal official obligation to receive [**7]  or pay over the money.
It is one of the most ancient, fundamental and cherished maxims of the common law, that a Judge should not be 

 [*561]  liable civilly or criminally, for error in judgment in the discharge of his office.
"This freedom from action and question at the suit of an individual (it has been observed) is given by the law to the Judges, not so much for their own sake as for the sake of the public and the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer justice ought to be." *** But the law distinguishes between error of judgment and corruption, or wilful neglect of duty. For these there is, and always will be, some due course of punishment by public prosecution. Brooms' Legal Maxs., p. 41, L. L., vol. 50. Garnett vs. Ferrand, 6 B. & C. 625, 626. Vaugh, R., 383.
Another venerable authority declares, "Justices of the Peace are not punishable civilly for acts done by them in their judicial capacity, but if they abuse the authority with which they are entrusted, they may be punished criminally at the suit of the King by way of information. But [**8]  in cases where they proceed ministerially rather than judicially, if they act corruptly, they are liable to an action at the suit of the party, as well as to an information at the suit of the King. Hale's Pleas of the Crown, 2 vol., 57.
Lord MANSFIELD, in a case in Burrows, said, "If it clearly appears that the Justices have been partially, maliciously or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information; or even, possibly by action, if the malice be very gross and injurious. 3 Burns' Justice, 31. See also, 2 Bay 385. 4 Bibb, 28. 15 Wend, 277. 6 Cowen, 661. Cited, 5. Bacon Abr., title, Justices of the Peace, Letter J, p. 429.

 [*562]  These principles are plainly recognized in Brevard vs. Hoffman, 18 Md. 484, which was an action against Judges of Election, for refusing the plaintiff's vote; the defence was, that the Judges acted in a judicial capacity, and were not liable. Referring to which, this Court thus defined the law: "When the act in [**9]  question is that of a judicial officer, all the law can secure is a guarantee that they shall not with impunity do wrong, wilfully, fraudulently or corruptly. If they do so act, they are liable, both civilly and criminally; but for an error of judgment they are not liable either civilly or criminally."
All the elements of crime are enumerated in the indictment, the wilful, unlawful, corrupt violation and contempt of duty, as a Justice of the Peace, in neglecting and refusing to deliver the bank notes to the said Daniel, being then and there requested so to do, knowing him to be entitled to the same. It is immaterial whether the law imposed upon him the duty to receive the property, (of which we express no opinion,) it was received by him, under color of his office, if not "virtute officio," and there can be no doubt of his legal obligation to restore it to the person entitled.
The plaintiff in error having been tried and found guilty of the facts as charged, whether by a jury or the Court, upon submission, those facts must be assumed to be true. They constitute in our judgment an offence amounting to a misdemeanor, for which the plaintiff in error was indictable and punishable [**10]  at Common Law. Finding no error in the judgment below, it must be affirmed.
Judgment Affirmed. 

89 of 120 DOCUMENTS 

THE GAS-LIGHT COMPANY OF BALTIMORE, vs. JOSEPH S. COLLIDAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 1; 1866 Md. LEXIS 38 

May 10, 1866, Decided 

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

This was an action instituted on the 3rd day of January, 1862, by the appellee against the appellant, upon a contract by which the latter agreed to supply the former with gas for certain premises described in the contract. The declaration also contained a count in trespass on the case for damages alleged to have resulted from the act complained of. The facts are stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

CONTRACT: GAS COMPANIES, -- THEIR OBLIGATIONS: DAMAGES, -- MEASURE OF. -- J. S. C. sued the Gas-Light Company for the breach of a contract to supply with gas his dwelling and store, No. 465, &c., -- the declaration containing a count in trespass on the case for damages consequent upon the act complained of. The contract was made in August 1852 by the plaintiff's signing the published rules and regulations of the company for the premises No. 465, which declared the terms upon which the public would be supplied with gas. In these the signer consents that gas shall be introduced into the premises described, "and that in default of payment for gas consumed in said premises, the flow of gas shall be stopped until the bill be paid," &c. In December 1857, J. S. C. entered into a similar contract with the defendant, differing therefrom in certain minor details, for the supply of gas to another tenement, No. 461, &c., separated from No. 465, by a small lot and tenement belonging to another person than the plaintiff, but which he used in connection with his business. Separate bills were rendered for Nos. 461 and 465, and regularly paid to February 1st, 1861, when, that for No. 465 was paid, but that for No. 461 disputed as excessive, and payment refused. In June following, the defendant cut off the supply of gas from No. 461. For the quarter ending August 1st, 1861, a bill was rendered for No. 465, which for the first time contained a charge for arrears of gas supplied to No. 461. The plaintiff tendered payment of the bill as to No. 465, but again refused to pay as to 461, and the said tender was refused by the company, who having failed to obtain possession of the meter, on the 8th of September following, cut off the supply of gas from No. 465. It was proved by the Secretary of the company on cross-examination, "that the reason, and the only reason, why the service pipe to house No. 465 was cut, was the failure of the plaintiff to pay for the gas to house No. 461." HELD:

1st. That viewing the chartered powers of the defendant, the peculiar nature of the article to be supplied, the peculiar mode of furnishing it, and the exclusive control which the defendant possessed in its manufacture for the public use, that the defendant was bound by the contract to furnish gas to one who had made the necessary preparation, and incurred the expenditure for its use, and who had contracted for its introduction by signing the terms and regulations of the company, as long as the company manufactured the article for the public use, and the customer paid for the supply to the property described in the contract and complied with its other terms.

2nd. That where several contracts are made between the same parties for different pieces of property, each requiring its own meter, as in this case, a failure to comply with any terms in relation to one, furnishes no excuse or ground to the company to withhold the gas from the other.

3rd. There being an express contract in writing between the parties in this case, the right to discontinue does not depend upon circumstances and facts from which to imply the existence of a contract and its terms, as in the case of Hoddeson, &c., vs. Hazlewood, 95 Eng. C. L. Rep., 239.

4th. That in estimating the damages resulting from the act complained of in the declaration, the jury may consider the deterioration, if any they find, in the value of said property or premises, for sale or for rental, and the cost of removing the gas fixtures and restoring the premises.  

COUNSEL:
Geo. C. Maund and A. Sterling for the appellant argued:

1st. That the contract offered in evidence, to supply the premises No. 465 with gas, was for no definite period and was terminable by either party on reasonable notice, and the facts in evidence were sufficient proof of reasonable notice, and the cutting off the supply was in accordance with the contract. Hoddison Gas Co., vs. Hazlewood, 6 C. B., (N. S.) 239. (95 Eng. C. L. Rep., 238). And see the Act of 1860, ch. 291, to show that the appellant, legally, has no monopoly as contended by the appellee.

2d. That the contracts in evidence as to the supply of gas, both at No. 461 and 465, constituted an engagement with the plaintiff as an individual [**2]  to sell him and supply him with gas, furnished or deliverable at two different places for no specified time, and was terminable by defendant on the exhibition of such conduct by the plaintiff, in his dealing with the defendant, as made him an unprofitable and troublesome customer, or such conduct as would justify a refusal to sell goods on running account; and the deliberate refusal of the plaintiff to pay part of his debt to the defendant for gas sold and delivered to him, though at different points of illumination, was a sufficient legal justification to the defendant to decline to supply the plaintiff with more gas, to be delivered in future, until he had paid for that already consumed. Norwich Gas-Light Co., vs. Norwich City Gas Co., 25 Conn. 19. Regina vs. White, 20 Eng. L. & E. Rep., 585, (proving that gas is the subject of larceny, as goods and chattels.) Hoddison Gas Co., vs. Hazlewood, and Act of 1860, ch. 291, supra.

3d. Because the house No. 461 and the house No. 465 being both owned by the plaintiff and occupied by him in the exercise of his own business, the contract to take and supply gas at No. 461, entered into in 1857, was a contract to supply gas to another part [**3]  of the same premises before contracted to be supplied in 1855, and the bills in evidence only show that a separate account was kept for each meter, which was a mere distribution of the machinery for supply, and that the premises were the same, and the default in paying part of the bills due was a default as to the whole premises.

4th. Because, both by the rejection of the defendant's first prayer and by the instructions the Court neglected and took from the jury, the regulation 10, of the company, being part of the contract, that "the Company and its agents shall at all times have free access into the premises lighted with gas for the examination of the apparatus and the removal of the meter," and also regulation 15, "the Company reserves the right at any time to cut off the service pipe, if they shall find it necessary to do so, in order to protect the works against abuse or fraud;" and also the evidence that the plaintiff, before the supply of gas was cut off from No. 465, refused to allow the agents of the defendant admission to the place where the meter was, and prevented them from examining the apparatus as, by rule 10, they had a right to do, and the further evidence that [**4]  before the supply of gas has been cut off the plaintiff had removed the meter from No. 465, which was the property of the Company, and had detained it from them; and thus, before any of the acts complained of had been done by the defendant, had destroyed the contract by taking away the means of measurement provided by the contract, so that gas could not be supplied to the premises according to the contract, and that the plaintiff had taken possession of and abused the machinery of the defendant. And herein the appellant insists that these acts of the plaintiff, at a time when the defendant had not done any act nor committed any breach of the contract, were a breach of contract on the part of the plaintiff, and constituted a bar to the plaintiff's recovery; that after the removal of the meter by plaintiff they had a right to cut the service pipe, under rule 15, to protect the works from abuse and fraud; that the cutting of the service pipe, after such refusal by the plaintiff to admit the defendant's agents into the premises, and after the meter had been removed and detained by the plaintiff, could not constitute a breach of contract by the defendant, whatever other motive or reason [**5]  they might have had for such cutting off; and that at the time of such cutting off, the plaintiff had put it out of the power of the defendant to comply with the contract or to furnish gas in the mode of measurement and supply therein provided for. That said acts of the plaintiff were the first breach, and that thereafter the contract could not be insisted on by him. Parker Co., vs. O'Hern, 8 Md. Rep. 197. Harris vs. Bradley, 9 Ind., 166. Haskell vs. McHenry, 4 Cal., 411. Webster vs. Engall, 5 Gilman, 298. 2 Smith's Leading Cases, 27. Chapin vs. Norton, 6 McLean, 500. Wright vs. Haskell, 45 Maine, 489, 492. Allen vs. Webb, 4 Foster's R., (N. H.) 281.

The appellant's counsel also urged that the Court below erred in rejecting the second prayer and in that part of the instruction which relates to the measure of damages, for the following reasons:

That the proper measure of damages, if the plaintiff had a right to recover, was the actual damage the plaintiff had sustained by the deprivation of gas up to the time of bringing his action. That on the contract declared on, and proved, the plaintiff had a continuing right of action if broken; that the contract was with the plaintiff [**6]  as an individual, and the supply was cut off for reasons personal to him which did not apply to any vendee or lessee of the plaintiff; that the sale or rental by him of No. 465 would have separated the same from any connection with No. 461, and the bill for 461 could not have been enforced against the vendee or lessee of No. 465, and on the evidence the plaintiff's vendee or lessee would have got the gas from defendant, and therefore the acts of the defendant could not affect the value of the property for sale or rent. But the Court leaves it to the jury to say that the house No. 465 was debarred of gas for all future time, and on that assumption to say what would be the depreciation of the value of that house in the market, and this as the mere result of the cutting off proved, and without any evidence that the house was to be debarred of gas for all time.

The appellant's counsel further insisted that the effect of this was to give the plaintiff damages for depreciation, although he might sell the house for its full value, and although he or his vendee might afterwards get the very thing for the want of which damages were awarded, and herein that there could be no "depreciation [**7]  of the value for sale or rental," if the vendee or lessee could get gas; that the depreciation of value for sale or rent could only occur on the supposition that the company would refuse to contract with Colliday's vendee or lessee to supply him or them with gas, of which there was and could be no evidence, but of which there was evidence to the contrary; and if the vendee or lessee could contract for and get gas he would suffer no loss and would pay Colliday the full value, and he, by sale or rent, could therefore suffer no loss; that the fact that the company had refused to supply Colliday with gas at 465 did not prove or tend to prove that they would refuse to supply his vendee or lessee, but that by the "rules" in evidence it appeared that any new proprietor or tenant had to make a new contract for gas, and Colliday's rights on this contract were not assignable, and did not go with the house; and for these reasons they insisted that the rule of damages was unreal, fictitious, speculative, contrary to law, inequitable and had no evidence to sustain it.

That damages to the permanent value of property are not recoverable when the breach or wrong complained of affects the plaintiff [**8]  only, and does not affect the property in the hands of a vendee or lessee, and that such damages, while they may be given where the property is affected in the hands of a vendee or lessee, can only be given in actions of tort and cannot be given in an action on a contract, to which the vendee or lessee is no party, and which does not run with the land or pass with the interest therein, or vest any rights in him; for if the things to be got by such a contract are of advantage to the vendee or lessee, he must make a new contract therefor; and that such is the contract in this case, and there was no evidence of any effect on a vendee or lessee, nor could there be in law, but there was evidence to the contrary, which the Court by its ruling refused to allow the jury to consider.

They also urged that the Court below erred in rejecting the second prayer, because:

It being admitted that the bill which Colliday refused to pay was a just bill, if the defendant cut off the supply from No. 465, though without legal right, yet if Colliday could have got the gas again by paying that bill, then the amount of that bill being the only thing to be overcome to get the gas, was the true measure [**9]  of damage for the cutting off, in addition to any actual damage to Colliday himself up to the time of suit brought, which might be proved to have occurred; and because, at all events, as the Court left the jury to find a permanent depreciation in the value of the house, the facts stated in the plaintiff's second prayer ought to have been left to the jury as an element of calculation as to whether there was or would be any permanent depreciation; for if Colliday himself could have got the gas on the payment of the bill in dispute, then as the bill was just, although he might recover for actual damage, yet he could not and ought not to have recovered for permanent depreciation, and the Court, by its action, compelled the jury to find permanent depreciation.

They also urged that the Court below erred in allowing the jury to find damages "for the removal of the gas fixtures and the restoration of the premises," because on the evidence such removal was useless, and by the proof of the plaintiff, the taking out the pipes would injure the home and be costly and absurd, and yet the word "fixtures" may include all these, and thus give the plaintiff damage for the expense of doing something,  [**10]  which on the evidence he had not done, did not intend to do, and which no sensible man would do; that even the removal of the gas jets and burners was, on the evidence, not necessary, and there was no proof that the plaintiff intended to remove them, and such removal would have been an injury to the value of the house for rental or sale; and that the language of the Court is uncertain and calculated to mislead the jury, as the words "remove the fixtures and restore the premises," may be construed to mean to put the house in the same state it was in before gas pipes of any kind had been introduced, which would leave the jury to give the cost of tearing down part of the house and rebuilding it.

Wm. A. Fisher, for the appellee, argued:

1st. That in view of the nature of the charter of the appellant, and the rights granted to it by the Ordinance of the Mayor and City Council of Baltimore, the character of its business and the monopoly which it practically enjoys, the relations of parties to the contract toward each other, the obvious purpose of the appellee in entering into such a contract, and the expense to which he had been induced to submit at the invitation of the appellant [**11]  in putting into his premises the necessary pipes and fixtures; and in view, also, of the terms of the printed contract, (and especially Articles Nos. 13 and 15,) the appellant was bound to supply the gas to the appellee for house No. 465, so long as it should continue its manufacture for public consumption, and the appellee should continue to pay for the supply to such house, and comply with the terms of the contract as to that house; that, at the most, the appellant could only claim that the contract being silent as to the precise time for which the supply was to be continued, it was only bound to supply for a reasonable time; and if the latter construction should be adopted, the question of what is a reasonable time, being one entirely dependent upon the circumstance of each case, the Court would here hold that it was reasonable gas should be supplied so long as the manufacture continued, or at any rate for a period reasonably sufficient to compensate the appellee for the changes made in his premises. Shephard vs. Milwaukie Gas Co., 6 Wisconsin Rep., 539. 2 Pars. on Cont., 12. Act of 1816, ch. 251,--Charter. Ordinance June 17, 1816.

2nd. That the contracts for the supply of [**12]  gas to houses Nos. 461 and 465, Fayette street, respectively, were separate and independent, made at different times, and containing stipulations in some respects different, and the appellant had no right, therefore, to violate its earlier contract as to house No. 465, because the appellee chose to differ or litigate with it as to his rights under the contract for house No. 461.

3rd. That in view of the particular circumstances of the case, the general use of gas, and the great expense or impossibility of its manufacture by the appellee at the time the supply was cut off, the manner of improving and renting houses in the city of Baltimore, and the wrongful, deliberate and apparently final refusal of the appellant to supply the house No. 465, the Court properly laid down the rule of damages. Scott vs. Bay, 3 Md. Rep., 444.

4th. The second prayer of the appellant is defective:

1. Because there is no evidence, whatever, from which the jury could infer a willingness on the part of the appellant to supply gas to No. 465, provided the appellee would pay the disputed bill.

2. Because even if there were such evidence as the appellant has sought to show, to coerce the appellee [**13]  into an abandonment of his position as to the bill for No. 461, by means of its breach of contract for No. 465, it could not seek to diminish the damages by showing a willingness to enter into a new contract, provided the appellee would yield to its illegal pretensions.

5th. The appellant having before, and at the time that it cut off the gas from No. 465, assigned as a reason for so doing only the refusal of the appellee to pay the disputed bill for No. 461, cannot now be heard to say that it did so owing to the failure of the appellee to comply with some article or articles of the contract, on which it then made no claim or demand. Shephard vs. Milwaukie Gas Co., 11 Wisconsin, 234.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*10]  WEISEL, J., delivered the opinion of this Court:
We are to inquire, on this appeal, whether the Court below erred in its instruction to the jury, as to the plaintiff's right to recovery, and the rule for estimating his damages if entitled to the verdict.
The appellee, who was the plaintiff below, sued the Gas-Light Company of Baltimore in the Court of Common Pleas for that city, for [**14]  the breach of a contract between them for supplying with gas his dwelling and store, on the north-east corner of Schroeder and Fayette streets, No. 465, the breach consisting in severing the pipe which conveyed the gas to the premises from the main pipe, although all dues on the contract had been paid or tendered. The declaration also contained a count in trespass on the case for damages consequent upon the act complained of.
No question was made upon the pleadings or the evidence.
It appears from the record that the contract was made for the premises in question, in August 1852, by the plaintiff's 

 [*11]  signing the rules and regulations of the company, he having first placed the necessary pipes and fixtures in the house for the admission and consumption of the gas.
He, also, in December, 1857, entered into a similar contract with the defendant for the supply of gas to another tenement on Fayette street, No 461, separated from the former by a small lot and dwelling belonging to another person than the plaintiff, but which he used in connexion with his business. The rules and regulations signed for the premises No. 461 were, in some particulars, variant from the other contract.  [**15]  Separate bills for gas for each house had been regularly made out and presented, quarterly, to the first of February, 1861, when that for No. 465 was paid, but the other, for 461, was disputed as excessive, and payment refused. This dispute and refusal to pay were continued to June following, when the company cut off the gas from it, with a claim for the arrearages due upon it. In the mean time a separate bill had been rendered for No. 465 to 1st May 1861, and was paid. For the quarter ending 1st August 1861, another bill was rendered, which, for the first time, contained a charge for arrears of gas supplied to No. 461 to June 3d. The plaintiff tendered payment of what was due as rendered on No. 465, but refused again to pay for the arrears on No. 461.
This tender was refused by the company upon the ground that it was entitled to the payment of the bills for both houses as the condition of continuing to furnish gas for No. 465, and the plaintiff was notified that if he did not pay the disputed bill for house No. 461, the supply of gas would be cut off from the other. This was accordingly done on the 8th September following by the company's severing the service pipe from the main pipe [**16]  in the street, five feet from the curb stone.
There was proof that the gas-meter, (an instrument for measuring and ascertaining the quantity of gas consumed,) 

 [*12]  for house No. 461 was in good condition and registered correctly, and that the bill for the disputed quarter was correctly made out from the figures indicated by the register on the face of the meter; and that this bill was admitted to be true and correct, by the plaintiff's counsel, for the purposes of this case. It was further proved that after the notice to the plaintiff, as already stated, and his declaration that he never would pay the disputed bill for house No. 461, because it was excessive, the company proceeded, by its agent, to remove the meter from the house No. 465, but that the plaintiff refused to admit him to the place where it was; that a writ of replevin for the meter was then resorted to, and search made for it, but it could not be found by the officer in charge of the writ; and that thereupon the service pipe was severed as before stated. The meter was the property of the company, but affixed to the pipes at a certain cost to the consumer. It was distinctly proved, however, by Mr. Brown, the secretary [**17]  of the company, on his cross-examination, "that the reason, and the only reason, why the service pipe to house No. 465 was cut, was the failure of the plaintiff to pay for the gas to house No. 461."
The "Rules and Regulations" signed by the plaintiff when he applied for gas for house No. 465, contain the stipulations of the contract. They are declared to have been adopted by the Directors for the introduction of gas-fittings, and the terms upon which the public would be supplied with gas, and were ordered to be printed in pamphlet form for distribution, and a copy enrolled in a book in the office to which the names of all applicants for a supply of gas should be subscribed. The applicant in these consents that gas should be introduced into the described premises, "and that in default of payment for gas consumed in said premises, he also consents that the flow of gas shall be stopped until the bill be paid." The other material provisions in these rules are the following:

 [*13]  Rule 2, provides for the supply of the gas by the meter, and for changing the meter if found defective, and for arriving at the quantity consumed by other modes when the meter ceases to register.  [**18]  
No. 4, prescribes the costs to the consumer for the service pipe and the meter, to be furnished and put up by the company.
No. 5. "The company shall have the authority, whenever it may deem it necessary, to substitute alcohol for water in the meter."
Nos. 6 and 7 regulate the size and character of the tubing, fittings and screws in the house to be provided and put up by the proprietor of the building, and for their examination and approval by the Inspector of the company before gas will be supplied.
No. 8. "The Inspector shall at all times be in readiness to examine the apparatus and premises of applicants, free of charge, on receiving three days' notice."
No. 10. "The company, its inspector and other authorised agents, shall at all times have the right of free access into the premises lighted with gas for the purpose of examining the whole gas apparatus or for the removal of the meter and service pipe."
13. "In default of payment for gas consumed within thirty days after the end of each month, or in case of a leak or injury done to the meter or pipes within the premises of any consumer, the flow of gas may be stopped, until the bill is paid or the necessary repairs are made.  [**19]  "
14. "The company reserves to itself the right to refuse to introduce gas into any premises until all arrears due on the said premises shall have been paid."
15. "The company reserves to itself the right at any time to cut off the communication of the service pipe, if they shall find it necessary to do so, in order to protect the works against abuse or fraud."

 [*14]  The plaintiff having entered into the contract, (of which the foregoing are the particulars most important to the inquiry,) for the supply of gas, and having been supplied for a series of years, for house No. 465, until the difficulty arose about the bill for the other premises, the question as to the right of the company to discontinue it under the contract, for cause assigned and proved by the evidence in the bill of exceptions arises, and is to be considered and determined.
The character of the defendant, (the appellant in this appeal,) cannot be overlooked in such an inquiry. The "Gas-Light Company of Baltimore," was incorporated by the Legislature of Maryland in 1816, for the purpose of manufacturing gas and for lighting with it the streets, squares, &c., and the houses and other buildings and places in the [**20]  city and precincts of Baltimore or elsewhere within the State, with all necessary powers and rights for the purpose under the law and the ordinances of Baltimore, and for raising by subscriptions of stock a capital, and for the holding of real and personal estate of a value adequate to such an undertaking. At the time of the contract in 1852 for house No. 465, the appellant was the only incorporated institution in the city of Baltimore for the manufacture of gas, and therefore it enjoyed a monopoly in this branch of business. Those who were induced to fit their houses for the introduction and use of gas could look only to this company for their supply, and it was upon its proffers and in accordance with its prescribed terms and rules that the necessary tubings and fittings were placed in their houses. In considering the question of the obligation of a party or company of this character to continue the supply of gas to a customer, such matters cannot well be overlooked.
It is very clear in this case that the gas was cut off from the building No. 465, not because the plaintiff had failed to pay for the gas furnished to it as charged by the company,--not 

 [*15]  because it was necessary [**21]  to do so in order to protect the works against abuse or fraud, or for the purpose of repairs, but solely because the plaintiff failed or refused to pay for the arrears of gas to house No. 461. If the defendant had no right to withhold the gas on this account, then its act in severing the service pipe was a violation of the contract for which the plaintiff was entitled to recover. Does this appear?
The contracts for the two houses were separate and distinct, and in no wise dependent. They were entered into at different times, each for its distinct property. The bills had been made out and rendered separately. Each house had its own meter. The terms in one case were different in some respects from those in the other. For the failure to discharge the bill for arrearages on lot No. 461, the gas to that property had been cut off, the company availing itself of its right to do so, reserved in the terms of the contract. The plaintiff had complied with all the terms in the contract respecting the house No. 465, and the defendant continued to manufacture gas for the public, and there was no legal hindrance to supplying it to the property in question. The non-payment on one house and contract [**22]  constituted no ground, upon a proper construction of the contracts, as this Court thinks, for withholding the gas from the other house. It is our opinion, viewing the chartered powers of the defendant, the peculiar nature of the article to be supplied, the peculiar mode of furnishing it, and the exclusive control which the defendant possessed in its manufacture for the public use, that the defendant was bound by the contract to furnish gas to one who had made the necessary preparation and incurred the expenditure for its use, and who had contracted for its introduction by signing the terms and regulations of the company as long as the company manufactured the article for the public use, and the customer paid for the supply to the property described in the contract, and complied with its other terms. 

 [*16]  We are also of opinion that where several contracts are made between the same parties for different pieces of property, each requiring its own meter, as in this case, a failure to comply with any terms in relation to one, furnished no excuse or ground to the company to withhold the gas from the other. As long as the terms in regard to the latter are complied with, the company,  [**23]  continuing its manufacture, is bound to continue the supply of gas to it.
Without adopting or rejecting the views of the Court of Common Pleas in England, in the case of the Hoddison Gas & Coke Company vs. Hazelwood, 95 Eng. C. L. Rep. 239, relied upon by the appellant in this case, it is sufficient to say that in this case there is an express contract in writing be-between the parties, and the right to discontinue does not depend upon circumstances and facts from which to imply the existence of a contract and its terms, as in the reported case. It would be going very far for this Court to lay down the principle that the company can discontinue when its convenience or caprice may dictate, even after notice. We would not be prepared to advance such a doctrine even in the case of an implied contract, when one of the parties enjoys, in effect at least, a chartered monopoly from the sovereign power to deal in an article of public use and benefit, and when the citizen, designed to participate in the benefit, has adapted his premises to its introduction, avails himself of the proffered advantage, and complies with all the just and legal requirements of the company.  [**24]  
Some stress was laid upon the conduct of the appellee in reference to the meter, as constituting a breach of the contract by him in the first place and putting it out of the power of the company to continue to him the flow of gas afterwards, and therefore the breach complained of could not be insisted upon. It will be remembered that the removal of the meter was determined upon and attempted by the company as one 

 [*17]  means of cutting off the gas for not paying the bill in arrears on house No. 461, and the plaintiff had been so notified. The company then resorted to the other mode of accomplishing the same thing, and it cannot ask to be shielded from responsibility by any conduct of the plaintiff which he may have interposed for his protection against an act which the company had no right to do. Besides, the testimony of Mr. Brown, the Secretary of the company, is a complete answer to the ground taken, and that was, "that the reason, and only reason, why the service pipe to house No. 465 was cut, was the failure of the plaintiff to pay for the gas supplied to house No. 461."
We are therefore of opinion that the act of the appellant in cutting off the gas from the premises No.  [**25]  465, for the cause assigned, was unauthorized by the terms of the contract, and was a breach of its provisions, for which the appellee, who was the plaintiff below, was entitled to recover, and that the instruction of the Court below was correct.
We see no objection to the rule of damages as laid down in the Court's instruction. There was evidence that the property was a good business stand, calculated to command, with the advantages of water and gas, a certain rent, which would be materially diminished by being deprived of either, and that to restore the property, by cutting off even the projections of the pipes into the rooms, should the owner not choose to remove the pipes themselves, would be attended with a certain expense. The condition which the company asserted as the only one upon which gas would be restored to the premises, was one which it had no right to impose; and unless the company chose to recede from this position, the owner, his tenant or alienee, could avail himself of the improvement only by a compliance with an unauthorized and illegal demand. This operated to depreciate the property to a value below that of surrounding premises which 

 [*18]  enjoyed the privileges [**26]  and benefits of the improvement. This depreciation, in case of sale or lease, would therefore be a proper and fair element in the estimate of damages.
The residue of this branch of the instruction is not very clear as to its precise meaning; but the jury had a right to consider the costs of restoring the premises in any of the modes covered by the proof. The disuse of gas would naturally lead to a change in the arrangements of the house, more or less expensive, and the cost of which, under the circumstances of the case, the jury were at liberty to consider and allow.
There being no error in the instruction given by the Court below, the judgment will be affirmed.
Judgment affirmed. 

90 of 120 DOCUMENTS 

SAMUEL A. DAVIDSON vs. CHARLES H. MYERS AND ALEXIUS J. MYERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 538; 1866 Md. LEXIS 34 

May 2, 1866, Decided 

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

On the 14th of December, 1863, the appellant filed his bill of complaint in the Superior Court of Baltimore City, stating as follows:

"That at January Term, 1862, of the Court of Common Pleas for Baltimore City, your orator obtained a judgment by default against a certain William Rogers, which was afterwards extended by the agreement of the parties on the 30th day of October, 1862, for the sum of $ 277.50 cts., with interest from the 24th day of October, 1862, and costs, that on the 18th day of August, 1863, your orator caused a writ of fieri facias to be issued on said judgment, which was duly executed by levying the same on certain leasehold estate belonging to said Rogers, lying on Hoffman street, in the City of Baltimore, and by a sale thereof, at public sale to your orator, all of which will more fully appear by a short copy of the docket entries in said Court of Common Pleas, herewith filed, marked A, and by a copy of the Sheriff's deed herewith filed, marked B, and prayed to be taken as part hereof.

"That all said proceedings were regular and bona fide on the part of your orator, and as he charges, vested a perfect [**2]  legal title in him, and he especially avers that the judgment as finally extended as aforesaid, was for the real debt due by said Rogers to your orator, and for which he held the note of said Rogers. Your orator further showeth, that on the 9th day of September, 1862, a certain Charles H. Myers and Alexius J. Myers, who are prayed to be made defendants hereto, obtained a judgment against said Rogers in your honorable Court by confession, as appears by the short copy thereof herewith filed, marked C, and prayed to be taken as part of this bill of complaint; that the said plaintiffs last named since the execution of the Sheriff's deed to your orator, to wit: on the 29th day of October, 1863, caused a writ of fi. fa. to issue on said last judgment, and placed it in the Sheriff's hands for the avowed purpose of levying the same on and selling the identical property described in said Sheriff's deed, under the pretence that said judgment so obtained in your honorable Court, is prior in legal effect to the aforesaid judgment of your orator; whereas your orator charges that the same is subsequent, and that the only effect of such levy and sale will be to harass and injure your orator, by casting [**3]  clouds of doubts upon the title thus legally acquired by him, and by causing him to institute proceedings against the purchaser, whoever he may be, under the said fi. fa. now in said Sheriff's hands as aforesaid, with a view to the cancelation of his said purchase, and the removal of the cloud about to be cast over the title of your orator by the illegal acts and continuances of said Charles H. Myers and Alexius S. Myers in the premises, all of which proceedings your orator charges are oppressive and contrary to good conscience, wherefore inasmuch as your orator is remediless, at and by the strict rules of the common law, and to the end that the said Charles H. and Alexius J. Myers, and the Sheriff of Baltimore City, may be enjoined from proceeding further in the execution of said writ of fieri facias so issued from your honorable Court, and that your orator may be decreed to have a perfect and valid title to said property as against the pretended lien of the judgment so obtained by said Charles H. and Alexius J. Myers, and such other and further relief as to your honor may seem right and proper; may it please your honor to grant the State's writ of injunction, restricting and enjoining [**4]  the said Charles H. and Alexius J. Myers, their aiders and abettors, and John J. Dannecker, the Sheriff of Baltimore city, from proceeding further in the execution of said writ of fieri facias issued at the suit of said C. H. & A. J. Myers, by levying the same on the property described in the deed of said Edward R. Sparks, Sheriff, as aforesaid to your orator, a copy of which is herewith filed, marked B; and in case your honor should hold that the said defendants are entitled to priority by reason of their said execution and judgment, then your orator herewith tenders himself ready to pay into Court, and he does hereby tender himself ready under the order of your honor to pay to said defendants the full amount due to them.

The defendants answered, admitting the material facts stated in the bill, and the cause being heard on the bill and answer, the Court, MARTIN, J., on the 13th of January, 1864, delivered the following opinion:

In this case the application for an injunction is refused, and the bill dismissed, as the judgment obtained by the complainant by default, in the Court of Common Pleas, on the 15th of January, 1862, is to be treated as a mere interlocutory judgment,  [**5]  on the case of Kierstead vs. Rogers & Garland, 6 H. & J., 282, and supported by approved writers on the practice of the Courts, (Evans' Practice, 335. Bingham on Judgments, 3,) and as such created no lien on the leasehold estate of the debtor, until it became a final judgment, by being extended by the Court on the 30th of October, 1862. United States vs. Morrison, 4 Pet., 136. Eschbach vs. Pitts, 6 Md. Rep., 71. Clements & Barry, 11 How., 398.

The judgment therefore obtained by the complainant in the Court of Common Pleas on the 15th of January, 1862, and not extended until the 30th of October, 1862, must be considered as subordinate to the judgment regularly and fairly obtained by the defendants in the Superior Court, on the 9th of September, 1862, and I will sign a decree refusing the prayer for an injunction as asked for by the complainant, and dismissing the bill, with costs.

This appeal is taken from the order passed in conformity with the foregoing opinion.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

LIEN OF JUDGMENT: INTERLOCUTORY AND FINAL JUDGMENT. -- A judgment by default was entered on the 15th of January, 1862, and final judgment for the amount of the claim with interest was entered up on the 30th of October, 1862, HELD:

1st. That this judgment could not in the nature of things relate back and take effect as of the date of the judgment by default; nor could the judgment by default, in establishing the jurisdiction of the Court and the simple fact of the plaintiffs right to recover, be said or understood to constitute a recovery.

2nd. That treating the judgment by default as interlocutory merely, it could not operate as a lien on the real or leasehold property of the defendant.

The Act of 1861, Ch. 70, declares that judgments shall be liens for their amount and from their date, HELD:

That by this provision final judgments alone were contemplated.  

COUNSEL:
R. J. Brent for the appellant.

The point at issue is whether a judgment by default in an action of assumpsit imports a lien on a leasehold interest from the date of its entry or from [**6]  the date of its extension. The appellant obtained in the Court of Common pleas, in January, 1862, the judgment by default against Wm. Rogers. The last count of the nar described correctly the promissory note constituting the cause of action. By our well settled practice the Court could have extended this judgment by a simple inspection of the note when filed to see if there were any credits. Evans' Pr., 335. Kierstead vs. Rogers et al., 6 H. & J., 285.

The rules of Court, as shown in the agreement, require an affidavit to prove the note, but it is questionable whether such rules can alter the law, which decides that the note is proved by the judgment. 6 H. & J., 285. But be that as it may, if the Court of Common Pleas extended this judgment on the note when filed without the required affidavit, its error cannot be collaterally shown. Powles vs. Dilly, 9 Gill, 222. Ranoul vs. Griffie, 3 Md. Rep., 54. Clark vs. Diggs, 5 Gill, 109.

But the rule of Court is merely to provide for an ex parte extension of the judgment, and the affidavit is unnecessary when defendant's counsel agrees to the execution of the note and the extension of the judgment. The Court when it extended the complainant's [**7]  judgment on the 30th of October, 1862, had before it not only the agreement of the parties that it might be so extended, but the note itself as declared on and established by the default.

The fallacious idea of the appellee is that the agreement of October 30th, 1862, and the extension of the judgment thereon makes a judgment by confession, and that is the foundation of our title. Before such final or second judgment could be entered, the judgment by default should have been stricken out, as there cannot be two judgments. Magruder vs. Darnall, 6 Gill, 279. Gainsford vs. Griffith, 1 Saund. R., 58, and Roberts vs. Mariett, 2 Saund, 187.

The form of a judgment by default, where the Court assess the damages, is given in 2 Ev. Harris, 346, 347. The true question is, to what date does our judgment, as extended, relate? We maintain that there is but one judgment, and that is the judgment by default, which establishes conclusively the right of the plaintiff to recover what shall be found to be due to him. Green vs. Hamilton, 16 Md. Rep., 328, 329. Mailhouse vs. Inloes, 18 Md. Rep., 333. 1 Code, 530, 62. 2 Wilson, 374 and 3 Id., 61 and 62. Gould vs. Hamersley, 4 Taunt., 748. Jarett [**8]  vs. State, 6 G. & J., 27.

If it be objected that the parties might extend the judgment collusively for too much to the prejudice of an intervening incumbrancer or judgment creditor, the answer is that a bill in equity would relieve against the fraud or other grievance complained of, as held in Doub vs. Thomas, 8 Gill, 1. It is true that the English books of practice speak of judgments interlocutory and final, as if they were separate judgments; but we submit that it is only to distinguish the same judgment in its incomplete phase and when perfected. At common law the true date of the lien created by an interlocutory judgment could not be material, as lands were only affected by elegit, &c., and chattels by the fi. fa. It is said that the lien on lands in Maryland is created by the right to levy fi. fa. Eschbach vs. Pitts, 6 Md. Rep., 71. And there is no lien until the plaintiff can execute. But this is not so, as it would prevent the lien where the judgment is stayed by agreement or by law. Anderson et al. vs. Tydings et al., 8 Md. Rep., 443. The same lien on leasehold estates is conferred by the Act of 1861, ch. 70.

The defendant will also contend that there can be no lien [**9]  until the amount of the judgment is ascertained and entered. If this be so, what did the Court of Appeals mean by declaring judgments to be final, so as to extinguish the original cause of action, although they say they are not absolute or capable of being executed by sci. fa. or fi. fa. until the amount is ascertained. If they are final judgments, as repeatedly held, before the amount is ascertained, why is not an interlocutory judgment equally final before the amount is extended? See Turner vs. Plowden, 5 G. & J., 52. State vs. Jones, 2 Gill, 49. Clark vs. Diggs, 5 Gill, 110. Young vs. Reynolds, 4 Md. Rep., 388. Ing vs. State, 8 Md. Rep., 287.

The lien takes effect from the date of the interlocutory judgment, which pro hac vice is final, though it is not final for an execution until it becomes absolute by the amount being ascertained of record. 15 Texas, 32. 11 How., 409. It is true that in the last case Chief Justice TANEY dissented, but gave no opinion, and the dissenting opinion of Judge CATRON shows that he regarded the interlocutory judgment as a mere office judgment by the Tennessee practice. But our Code regards all interlocutory judgments as final by declaring that interest [**10]  must be computed from their date. 1 Code, 15.

In conclusion, if as decided in 18 Md. Rep., 323, and 16 Md. Rep., 328, Dr. Davidson had his right to recover established by the default, then the defendant, Myers, could not impair that right by taking a confession of judgment subsequently from Rogers, the defendant, in the prior judgment by default, because if Rogers could thus confess away all his property it would defeat practically the rights of Dr. Davidson as vested previously. Martin vs. Martin, 7 Md. Rep., 368.

The fact that the judgment by default was not a final judgment when entered, but becomes so subsequently, does not prevent the lien from relating back to the date of the entry of the judgment, in the same manner that the right to interest relates back to the day of default. A judgment of condemnation nisi in attachment is not absolute until the lapse of the term, yet when the term passes it becomes absolute from its date and not from the end of the term. Walters et al. vs. Munroe, 17 Md. Rep., 505. Graff et al. vs. Merchants and Miners, 18 Md. Rep., 370.

Our bill is therefore properly filed to prevent a clear legal title, as vested under a prior judgment,  [**11]  from being obscured by the cloud which the defendant insists on casting over that legal title. As a bill would lie to cancel the title which the defendant might give to the purchaser under his junior judgment, so will this lie to prevent such an injustice effecting the integrity and value of our title. Taylor vs. McCann, 10 Md. Rep., 418.

Lastly, it is clear than in an action upon such a judgment the cause of action would be considered as running from the date of the judgment by default, in the case of limitations being pleaded to an action of debt or scire facias on the judgment as extended.

"The Act of 1861, ch. 70, enacts, that judgments shall be liens on leasehold interest to the amount and from the date thereof to the same extent and effect as liens are now created by judgment upon real estate." Under this Act the first question is, what is the date of the judgment obtained by the appellant?

If there be but one judgment, and that is the interlocutory one, made final when the amount is ascertained, then its true date is the day of the judgment by default.

In the preceding pages we have shown that by the Code the judgment is to bear interest from the day of default,  [**12]  and this is a legislative interpretation to fix the date of the judgment when perfected.

The second question relates to the amount, but the cases cited on our brief hereinbefore, conclusively establish that the amount must be ascertained to make the judgment effectual, but it is not the less a judgment before the amount is ascertained.

In conclusion, we assume under the express decisions of this Court, that our judgment by default established our right to recover something, and whatever might be the rights of the appellees if they were judgment creditors in an adversary proceeding, yet in this case they stand on the record as mere volunteers holding a judgment by confession alone. If such a judgment can overreach our elder judgment by default, then it is in the power of every debtor while under default upon the record to nullify the right of the creditor as conclusively established by that default, for it is of no avail to say the creditor has a paramount right to something, if the debtor can, by his own voluntary confession, appropriate his whole real estate to a preferred creditor by a confession of judgment, and thus defeat the elder title.

B. F. Horwitz, for the [**13]  appellees, argued:

1st. That the judgment by default obtained by Davidson on the 15th January, 1862, was an interlocutory judgment. Judgments by default are either interlocutory or final. When the action sounds in damages, as in assumpsit, covenant, trover, trespass, the judgment is only interlocutory --that the plaintiff ought to recover his damages-- leaving the amount to be afterwards ascertained; and the judgment for the plaintiff in these actions is also interlocutory on demurrer. In debt the judgment is commonly final, though a writ of inquiry is sometimes required. 1 Tidd's Practice, 568. Bingham on Judgments, 3. And as to the mode of ascertaining the damages after an interlocutory judgment, see 1 Tidd, 570. The law in Maryland is the same. Evans' Practice, 335. And in Turner vs. Plowden, 5 G. & J., 52, the Court lays down the rule that where there is nothing to be done by the Court, the judgment is final; but wherever there is an act to be done by the Court, then merely interlocutory. The elementary works above referred to, as well as the case of Kierstead vs. Rogers, 2 H. & J., 282. Clammer vs. State, &c., 9 Gill, 279, and the 12th rule of Court, show this judgment was [**14]  but interlocutory until extended or made final by the Court.

2nd. An interlocutory judgment is not a lien on real estate. What makes a judgment a lien on real estate? It was not so at common law, because, under that system, based on the feudal system, the real estate of the defendant in a judgment could not be seized and sold under an execution issued on the judgment. The feudatory could not voluntarily alienate his land, and, a fortiori, the creditor could not involuntarily deprive him of it. But by statute, 13 Edward I, ch. 18, passed in the year 1285, and commonly called the Statute of Elegit, the right to seize and hold the real estate of the judgment debtor was given, and from that time the judgment became a lien. It is, therefore, alone the right to seize and sell the real estate under the judgment which creates the lien--a lien which is not the result of statutory provision and which is not incidental to, but flows from, the judgment. It is a matter of construction; it is the creature of the Court, and follows as a consequence of the Court's action. By statute of 5 George II, ch. 7, relating to the Colonies of Great Britain, and which has ever since been the law of Maryland,  [**15]  the same right to take in execution and sell the real estate of the debtor as his personal estate was given. The statute of 29 Charles I, ch. 3, sec. 16, however, exempts personal property from the lien until an execution is actually placed in the Sheriff's hands, which was the law of Maryland until the passage of the Act of 1861, ch. 70, distinguishing between chattels real and chattels personal. Coombs vs. Jordan, 3 Bland, 284, 297. Jones vs. Jones, 1 Bland, 443. Eschbach vs. Pitts, 6 Md. Rep., 71. United States vs. Morrison, 4 Peters, 124. Miller vs. Allison, 8 G. & J., 35. 1 Powell on Mortgages, 273, note o. It then follows that there can be no lien until there is a right to issue an execution and consequently a judgment which will support an execution under which the land can be sold. Scriba vs. Deanes, 1 Brockenbrough, 170. Bank of U. S. vs. Winston's Exc'rs., 2 Brockenbrough, 252. An interlocutory judgment of course will not. It settles nothing but the jurisdiction of the Court, and that the plaintiff ought to recover something, but the amount is unsettled. It does not even merge the cause of action. Turner vs. Plowden, 5 G. & J., 52. A final judgment determines that he do recover [**16]  and what he recovers. An interlocutory judgment is but an intermediate step between the beginning and the end of the suit, like an interlocutory decree in chancery; the end is the final judgment. In fact, after the interlocutory judgment, the whole case remains to be determined, non constat but that the plaintiff may only recover one cent on the final judgment. There may be a regular trial, instructions asked from and given by the Court, exceptions to the Court's ruling, motions, an appeal, &c. Is it not preposterous to say that it is a lien, when even a verdict of a jury is not a lien in a case where there is an issue and trial by jury? It might as well be contended that the filing of a declaration constituted a lien. Again, a lien must be for something, some fixed amount. The very term implies it. How can this be in the case of an interlocutory judgment where the cause of action is not even merged? Evans' Practice, 335-337. Bingham on Judgments, 13 Law Lib., 1, 2. Patrick vs. Ridgaway, 4 H. & J., 312. Wilmer vs. Harris, 5 H. & J., 1. Green vs. Hamilton, 16 Md. Rep., 317. Mailhouse vs. Inloes, 18 Md. Rep., 328. Acts of 1864, ch. 175. Murphy vs. Cord, 12 G. & J., 182.

A stay of [**17]  execution does not destroy the lien. The execution is but the enforcement of the lien which springs from the judgment. The right to sell remains; it is only put off or suspended. Anderson vs. Tydings, 8 Md. Rep., 443. The lien dates in Maryland only from the day of the rendition of the judgment. That is the final, absolute judgment. Taylor vs. Thomson, 5 Peters, 358. Miller vs. Allison, 8 G. & J., 35. Jones vs. Jones, 1 Bland, 443. Davidson vs. Clayland, 1 H. & J., 546. Hanson vs. Barnes, 3 G. & J., 359. Hampson vs. Edelin, 2 H. & J., 64. See also, 1 Powell on Mortgages, 275c, 279a. Murfee's Heirs vs. Carmack, 4 Yerger, 270. Clements vs. Berry, 11 How., 398.

3d. The very language of the Act of 1861, ch. 70, (under which the lien in this case is claimed,) shows that no other than a final judgment can be a lien under it.

4th. As to the position of the appellant that the judgment of the Messrs. Myers was by confession, and therefore could not defeat Davidson's prior lien. This position assumes that Davidson had a prior lien, the very question to be determined; but besides, it was a judgment regularly and fairly entered at the second term, and such a judgment as Rogers' attorney [**18]  was obliged to enter under the 25th Rule of the Superior Court, which is in the following words, to-wit:

"25th. On the second day of the term, the trial docket will be called for the purpose of entering judgments by confession, or default, rules and other entries necessary to bring the causes to issue. The Court will expect judgment to be entered in all cases where the demand is for a sum certain and evidenced by writing under hand; or by an account verified by affidavit, unless there is a defence to the action upon which the defendant intends to rely. And where the trial of an action is stayed by injunction, or other cause for continuance exists, on which the party intends to rely, the motion is properly to be made at this time."

The cause of action was a promissory note. It was not, therefore, such a confession of judgment as was contemplated by the case of Martin vs. Martin, 7 Md. Rep., 368, relied on by the other side. It was a judgment which Rogers' attorney was obliged to confess, and not one voluntarily confessed with a view to prejudice Davidson or any one else, which, if it were so, would have to be proved and could not be presumed. It is therefore submitted that [**19]  the appellees acquired on the 9th September, 1862, an absolute judgment, and therefore a lien on the property of said Rogers, which was at that time covered by no lien in Davidson's case.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*554]  COCHRAN, J., delivered the opinion of this Court.
The appellant rests his claim to relief on a judgment by default, obtained in January, 1862, and upon which, as appears from the record, a final judgment by confession was entered in the month of October following. The Act of 1861, ch. 70, declares that judgments shall be liens, "for their amount and from their date," on leasehold interests, in the same manner as upon real estate; and the appellant's proposition is, that the judgment by default, relied on here, operated as a lien on the leasehold property of the debtor from the time of its rendition.
The character of such a judgment is well defined in our practice. "Judgments by default, on demurrer, and non obstante veredicto, are interlocutory; and final judgment cannot be given until the damages to be recovered are assessed." Bingham on Judgments, 3. Evans'  [**20]   Prac., 335. Generally, a defendant on whose default a judgment by default is entered, confesses the cause of action, and the judgment so entered is conclusive in respect to the jurisdiction of the Court and the right of recovery; but it goes no farther, for the amount remains to be ascertained, and the recovery thereof to be finally adjudged to the plaintiff. Kiersted vs. Rogers, 6 H. & J. 282. Green vs. Hamilton, 16 Md. 317. Heffner vs. Lynch, 21 Md. Rep.
The mode of ascertaining the amount for which the final judgment can go, in all cases of interlocutory judgments whereby the right of the plaintiff is established, and the damages cannot be ascertained without the intervention of a jury, is prescribed in the Code, Art. 75, sec. 62. In this class of cases, the final judgment is entered upon the inquisition of the jury; but where the parties fix the amount by agreement, and in that manner waive the inquisition, 

 [*555]  or the cause of action is such that the Court may ascertain the amount without an inquisition, then the final judgment may be entered.
The judgment in question here, was clearly interlocutory; and the record of the case in [**21]  which it was obtained shows that another and final judgment was entered on the 30th of October following. It was agreed by the parties on the 29th of October, that the judgment should be entered for $ 277,50, with interest from the 24th of October, 1862, and costs, and it was thereupon adjudged that the appellant should recover from the defendant the amount thus ascertained. This judgment could not, in the nature of things, relate back and take effect as of the date of the judgment by default; nor could the judgment by default, in establishing the jurisdiction of the Court and the simple fact of the plaintiffs' right to recover, be said or understood to constitute a recovery. Strictly speaking, there was no recovery until it was adjudged by the Court on the 30th of October; and the only privilege secured to the appellant by the judgment by default, was that of proceeding by inquisition or otherwise, to assess the damages and obtain a final judgment, without delay to the defendant.
Treating the judgment by default as interlocutory, merely, it could not operate as a lien on the real or leasehold property of the defendant. The reason why a judgment constitutes a lien on the property [**22]  of the debtor, as stated in Coombs vs. Jordan, 3 Bland 284, and in Eschbach vs. Pitts, 6 Md. 71, is that it clothes the judgment creditor with the right to make his debt out of the land of the judgment debtor; this right, on the one side, and consequent liability of the debtor's property on the other, constituting the lien. And it surely cannot be maintained that a creditor is clothed with any such right by an interlocutory judgment, where the amount to be recovered remains to be ascertained, and the recovery of it 

 [*556]  to be adjudged by the Court. The cases of Clements vs. Berry, 52 U.S. 398, 11 How. 398, 13 L. Ed. 745. United States vs. Morrison, 4 Peters 136, and Eschbach vs. Pitts, are conclusive on this point. But further, the Act of 1861 declares in specific terms, that judgments shall be liens for their amount and from their date, and as we construe this provision, final judgments alone were contemplated. The decree of the Court below must be affirmed, with costs to the appellee.
Decree affirmed. 

DISSENTBY:
WEISEL 

DISSENT:

 [*550contd]  
[EDITOR'S NOTE: The page numbers of  [**23]   this document may appear to be out of sequence; however,  this pagination accurately reflects the pagination of the original published documents.] 
WEISEL, J., dissented, and delivered the following opinion:
I am constrained to differ from my brother Judges in their view of the character of the judgment in this case.
It is true there was a judgment by default entered for want of plea, but it was entered without leave to take out 

 [*551]  a writ of inquiry; nor was an inquisition necessary. The plaintiff, besides the common money counts, counted upon a promissory note. The personal appearance of the defendant was entered by order of the Court, under the Act of Assembly, and he being under rule plea, judgment on nil dicit went against him for the damages laid in the declaration. Afterwards, and at a subsequent term, the promissory note was filed and directions given by the attorneys of both parties (the defendant then appearing by attorney) to extend the judgment for the amount of the note and interest to the 24th day of October, 1862, with interest from that time and costs. The clerk in extending the judgment, under the orders of the attorneys, made a special memorandum [**24]  in these words:
"The extension of the judgment in this case is made in accordance with the foregoing order and agreement of counsel.
"Memorandum: Judgment was rendered in this case by default of plea, on the 15th day of January, in the year 1862, for the claim laid in the declaration and costs, and extended on the 30th day of October, 1862, for $ 277.50, with interest from the 24th of October, 1862, and costs."
"The judgment by default is an admission of the cause of action, and the defendant's liability to the amount of the note, which must be produced on the trial, that it may be seen whether any part of it has been paid, but which need not be proved." EARLE, J., in Kiersted vs. Rogers, 6 H. & J. 282. And where a judgment by default is regularly entered, "it is as binding as any other, as far as it respects the power and jurisdiction of the Court, in declaring that the plaintiff is entitled to recover, though the amount of the recovery, in some cases, remains to be ascertained by the jury." Green vs. Hamilton, 16 Md. 317, 329. "A judgment by default is interlocutory or 

 [*552]  final. When the action sounds in damages, as covenant, trover,  [**25]   trespass, &c., it is only interlocutory, that the plaintiff ought to recover his damages, leaving the amount of them to be afterwards ascertained. 1 Tidd's Pr., 568. But where the amount of the judgment is entered by the calculation of the clerk, no further steps being necessary, by a jury or otherwise, to ascertain the amount, the judgment is final;" &c. Clements vs. Berry, 11 Howard's Sup. C. U. S., 409, 410.
It was not necessary in this case that a jury should have been impanelled to ascertain the amount due. A judgment by default had been entered, and the extension afterwards, agreeably to the direction of counsel, was what the clerk himself could have done upon the examination of the note and any credits upon it. This was formal, and added nothing (in the language of Justice MACLEAN in the case last cited,) to the legal effect of the judgment by default. What follows in that opinion is strictly applicable to this case: "The defendant failed to plead [by the rule day] and a judgment by default consequently followed. The action being debt, founded upon notes of hand, which were admitted to be genuine by the default, the Court saw that no inquiry was necessary, and [**26]  the judgment was therefore directed to be entered. That judgment was final according to the forms of entering judgments at the common law. The omission by the clerk to make the calculation of the amount of the judgment, and enter it in form on the 8th of March, was supplied by the entry on the 10th. Such entry, therefore, we think, may be considered as having relation to the first judgment." 52 U.S. 398, 11 How. 398, 410, 13 L. Ed. 745.
The judgment entered in this case, in my judgment, was final and not interlocutory in its character. Such judgments by the Code are to be entered to carry interest from the time they were rendered. "All judgments by confession, 

 [*553]  on verdict, or by default, shall be so entered as to carry interest from the time they were rendered." 1 Code, Art. 29, sec. 15. This is conclusive to my mind that they are to be judgments on that day, and therefore liens on real estate from that time.
Had the note been filed in this case on or before the day the judgment by default was entered, no doubt would have arisen as to the lien of the judgment from that date. The note happened then not to be on file, and the judgment was not extended or [**27]  entered for its precise amount. This was done afterwards, and although it was so extended as not to bear interest from the day of the default, but from a day subsequent, yet I do not think that this irregularity or deviation from the requirement of the Code should have the effect of postponing the lien of the judgment. A judgment having been entered for the damages in the declaration, the extension of it afterwards for the amount really due, would operate as a release of the damages upon the payment of the sum so ascertained, with the interest and costs.
There is a class of cases in Maryland in which the amount recovered in a judgment remains to be ascertained, and yet the lien attaches from the date of its entry; as where a judgment is entered by confession for such sum as some person named or agreed upon shall say is due. Such judgment is final, and yet no execution can be sued out upon it until the sum shall have been ascertained. There is no difference between such and judgments by default, where no inquisition is necessary. The right to the execution exists in both cases, but its exercise is suspended until the judgment becomes effective. But the lien of the judgment has in both [**28]  cases attached. I regard them essentially the same in this respect.
In cases of default, requiring an inquisition, it is not 

 [*554contd]  
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

 clear to my mind, (nor does this case call for the examination,) whether the doctrine of relation applies.  

91 of 120 DOCUMENTS 

THOMAS MATTHEWS, JOSEPH MATTHEWS, JAMES MURRAY, AND OTHERS, vs. AUGUSTUS J. ALBERT AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 527; 1866 Md. LEXIS 33 

May 1, 1866, Decided 

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

The facts of this case are stated in the opinion of this Court.  

DISPOSITION:
Decree reversed, with costs to the appellants, and cause remanded for further proceedings.  

HEADNOTES:

CORPORATIONS: INDIVIDUAL LIABILITY OF STOCKHOLDERS UNDER THE ACT OF 1852, CH. 338, SEC. 9: RECOUPMENT: PRACTICE IN EQUITY: CONTRIBUTION. -- A company was incorporated under the provisions of the Act of 1852, Ch. 338, the 9th section of which provides, that the stockholders "shall be severally and individually liable to the creditors of the company in which they are stockholders to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company until the whole amount of capital stock fixed and limited by such company shall have been paid in, one-half thereof in one year, and the other half thereof within two years from and after the incorporation of said company, or such corporation shall be dissolved." On a bill filed by creditors of the company to make certain of the stockholders liable under this clause, the latter, besides a general denial of liability, sought to set off the amount of certain loans made by them to the company, against the claims of the creditors, HELD:

1st. That though the doctrine of recoupment might properly arise between the company claiming the payment for stock subscribed, and the stockholders who had loaned money to the company, to an amount equal to their stock, or had paid debts of the company to that amount, it by no means follows, that the stockholders are absolved from liability to the creditors of the company.

2nd. The statute does not refer to them in their corporate capacity, but as individual stockholders; and it declares their liability without reference to the amount they may have paid in on their stock.

3rd. If the stockholders had paid for their stock, and subsequently became creditors of the company to an amount equal to their stock, by so doing they would be clothed with equities equal to any other creditors who may have become so by contracts with the company.

4th. That the stockholders were not liable for debts contracted by the company subsequent to their parting with their stock.

5th. That a creditor of the company who receives stock from the company as collateral security for his loan, is not personally subject to any liability as stockholder, but is protected by the provision of the 13th section of the Act of 1852, Ch. 338.

6th. That this proceeding being in equity, where the liability of the several defendants may be ascertained and enforced with respect to each other, each of them may insist upon contribution from the others, and such other of the stockholders as are liable under the statute should be made to contribute rateably their proportion of the complainants' claims.  

COUNSEL:
George H. Williams for the appellants, argued:

1st. That the 9th section, of the Act of 1852, ch. 338, makes all the shareholders, "severally and individually liable" to an amount equal to their stock, unless the capital be paid in as therein prescribed.

2nd. That sec. 12, of said law, peremptorily declares "that nothing but money shall be considered as payment of any part of the capital stock."

3rd. That sec. 13 provides that no person holding such stock as collateral security shall be personally subject to any liability as stockholders of such company; but the person pledging the stock shall be considered as holding the same, and shall be liable as stockholders accordingly.

4th. That the prayer of the bill suffices to cover responsibility for all indebtedness of the company, certainly up to the 29th of January, 1859, and further, if any liability exists by the true construction of the 9th section of the Act; and it is submitted the liability by it [**2]  is not restricted to debts while the defendants were shareholders, on the contrary, in the event of the capital not being paid in, all the stockholders (without saying at what time they must be such) are to be liable. The proof shows the indebtedness to have existed at the time the Alberts were shareholders, except the sum of $ 263.77 due to Murray & Hazlehurst, and this amount is too trifling when compared with the rest of the debts to be worth much controversy; all the residue of the indebtedness beyond doubt existed while the Alberts' held the stock.

5th. That as nothing but money can be considered as payment for stock, how stand the Alberts? Usury is not payment in money. The Legislature stipulated in these charters (for the protection of creditors and the community) for actual cash, and which was to be paid within a certain time.

Taking stock from the company at an usurious bonus on a loan to the company, is not paying in money for its capital stock. William J. Albert therefore owes for his stock $ 12,000, and for his liability under the 9th section $ 12,000 more, say $ 24,000. Now assuming the case cited, Garrison vs. Howe, 14 N. Y. Rep., to be good law (and which is [**3]  denied), after crediting him with his claim of $ 12,000 as a creditor of the company, he is still liable for the remaining $ 12,000.

So with A. J. Albert, he is liable for $ 1,500 for his stock; and for his liability under the 9th section for $ 1,500 more. And after, in like manner, crediting him with his claim, as creditor, he also yet remains liable for $ 1,500.

6th. That there can be no pretence upon the proof that Tiernan ever was, or meant to be anything but a creditor holding stock as a collateral security, and exonerated from all liability by the thirteenth section; that a corporation may pledge its own stock, and that the word "person" includes "corporations." Angel and Ames on Corp. The Germania vs. The State, 7 Md. Rep., 6.

And further, that said stock was issued to Tiernan without his knowledge, and in the hope that he would also take it as usury; but that so soon as sent to him and before the maturity of the loan, he returned it for the purpose of having the truth endorsed on it, declining the usury. There is no proof in the cause that anything was said to him about taking it as a bonus. On the contrary he would not hold it as issued.

7th. That the object [**4]  of the appellees as endorsed by the decree below is to add to the simple and plain language of the Act of Assembly, words not placed there by the Legislature, and such as the following: Provided, however, that if any stockholder pays in his proportion of the capital stock within the time prescribed, he shall not be further liable, and provided also that if liable, stockholders may offset to the claims of creditors seeking to make them liable, any demands of their own against said company, though the capital be not so paid in. And provided also, that furnishing commodities to such company or usury charged to it, shall be equivalent to money, and considered as money paid in, the 12th sec. of this Act, to the contrary notwithstanding. Upon the construction of statutes, see Abley vs. Dale, 73 Eng. C. L. Rep., 390. Allen vs. Mutual Fire Insurance Co., 2 Md. Rep., 111. Collins admr. vs. Carman's Exc'r, 5 Md. Rep., 529. Alexander vs. Worthington et al., Id. 485. Scaggs vs. Balto. & Wash. R. R. Co., 10 Md. Rep., 277. Frazier vs. Warfield, 13 Md. Rep., 301. State vs. Wayman, 2 G. & J., 254.

J. Mason Campbell and Bernard Carter for the appellees.

The alleged liability of the defendants [**5]  grows out of the provisions of the Act of Assembly of Maryland of 1852, ch. 338; the 9th section of this Act is in these words:

"And be it enacted, That all the stockholders of every company incorporated under this Act, shall be severally and individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock, fixed and limited by such company, shall have been paid in, one-half thereof in one year, and the other half thereof within two years, from and after the incorporation of said company, or said corporation shall be dissolved."

The prayer of the bill of complaint in this case is, "that the liability of the defendants may be decreed as to debts created while they were stockholders." The complainants must therefore establish, that the Alberts were stockholders of the "Coal Oil and Paraffine Company," and that the debts of the complainants were created while they were such stockholders.

W. J. Albert first became a stockholder on the 12th of October, 1858, when he took 80 shares; on the 12th of [**6]  November, 1858, he took 400 shares; and on the 7th of December, 1858, he took 40 shares. He ceased to be a stockholder on the 29th of January, 1859. Augustus J. Albert first became a stockholder on the 15th December, 1858, when he took 60 shares; and ceased to be a stockholder on the 29th of January, 1859.

Each of the complainants must therefore show, in order to recover against William J. Albert, that their debts were contracted between the 12th of October, 1858, and 29th of January, 1859; and as to Augustus J. Albert, that the said debts were contracted between the 15th of December, 1868, and 29th of January, 1859.

We have said that the prayer of the bill limits the liability of the stockholders to debts of the company contracted while they were stockholders. That this is the limit of their liability, see Holyoke Bank vs. Burnham, 11 Cushing, 183. Curtis vs. Harlow, 12 Met., 3. Moss vs. Oakley, 2 Hill, 265, 268. Tracey vs. Yeates, 18 Barb., 152, 154. Adderly vs. Storm, 6 Hill, 624. Garrison vs. Howe, 17 N. Y. Rep., 465. See also 9 Cush., 199.

It will hardly be contended we suppose by the complainants, (though hinted at in the bill,) that the transfer of their stock [**7]  by the Alberts, on the 29th of January, 1859, did not divest them of their interest in the stock, nor end their liability under the statute, so far as any are concerned who became creditors of the company after the 29th of January, 1859. There is nothing in the language of the Act of 1852, ch. 338, which compels those who become stockholders, always to remain so; and whatever might be the principles of law governing the case of a stockholder who should transfer his stook to an insolvent, for the purpose of defeating creditors, it is sufficient for this case to say, that there is nothing in this record which gives any such character to the transfer of this stock by the Alberts.

That a stockholder in these manufacturing corporations may transfer his stock, and so end his connection with the company and his liability for its debts, subsequent to the date of the transfer, see Angell & Ames on Corp., sec. 534. Holyoke Bank vs. Burnham, 11 Cushing, 183.

But secondly, we contend that upon a proper construction of the Act of 1852, ch. 338, considered in connection with the facts in the case, neither of the complainant creditors can recover against either of the Alberts. The relation [**8]  of each of the Alberts to the company is two-fold; they are stockholders in the company, and at the same time they are creditors of the company. The amount of stock held by William J. Albert, in the company, was 520 shares, which, at $ 25 per share, is $ 13,000. The 9th section of the Act of 1852, ch. 338, makesthe amount of stock held, the measure of the liability of the stockholder to the creditor of the company. If, therefore, the only relation which W. J. Albert occupied to the company was that of stockholder, he would be liable to the creditors of the company to discharge the debts due by it to them, to the extent of $ 13,000. But W. J. Albert is a creditor of the company to the amount of $ 13,000, for money loaned and which was appropriated to the payment of the debts of the company from time to time.

We contend, therefore, that though bound as stockholder to discharge the debts of the company to the extent of $ 13,000, yet that in point of fact he has fulfilled this duty by paying the debts of the company, by advancing the $ 13,000, the advancing of which constitutes him a credtor. Garrison vs. Howe, 17 New York, (3 Smith,) 461. Bank of Poughkeepsie vs. Iverson, 24 Wend.  [**9]  , 479. See also 4 J. J. Marshall, 1.

But, 3rd, we contend that William and Augustus Albert, as creditors, are entitled to stand on the same footing, and share with the complainants in any recovery which may be had against the stockholders in the company, the Alberts themselves included. Briggs vs. Penniman, 8 Cowen, 387 and 392.

4th. We have been so far considering the right of the complainant creditors to recover their respective debts as if the rights of each stood on the same basis.

We insist, however, that William H. Tiernan, one of the complainants, is not a non-stockholder creditor, but is a stockholder in the "Coal Oil and Paraffine Company," and as such, is to the extent of his stock, as much liable to the non-stockholder creditors as are the Alberts. Tiernan supposes that he is relieved from any responsibility as stockholder by the 13th section of Act of 1852, ch. 338, and that he stands as a creditor of the company, and on a par with other creditors who are not stockholders.

The evidence in the cause shows that on the 8th of January, 1859, a certificate of stock in the usual form of certificates of this company, and absolute on its face, was issued to William [**10]  H. Tiernan for 80 shares, which certificate was delivered to Tiernan and held by him without objection or exception, till more than a month after the 8th of January, 1859; after which interval, on application to the President of the company, this certificate was endorsed by the latter in words declaring that said certificate had been deposited with Tiernan as collateral security for the payment of a loan of $ 2,000 made by said Tiernan--the certificate to be returned on payment of the loan. Now we contend: That the 13th section of Act of 1852, ch. 338, does not refer to the case of a person taking stock from the company as collateral security for a loan made to it by such person, when it declares that "no persons holding stock as collateral security shall be personally subject to any liability as stockholders of such company." 

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*534]  GOLDSBOROUGH, J., delivered the opinion of this Court.
On the 1st of September, 1858, the "Coal Oil and Paraffine Company of Baltimore," became incorporated in accordance with the provisions of the Act of 1852, ch. 338. Soon after [**11]  the organization of the company, it incurred sundry liabilities, and amongst them, the claims alleged to be due to the complainants named in the bill of complaint in this case. Judgments were obtained by the complainants against the company on their claims. Executions were issued thereon, and were returned nulla bona. Being, as they allege, without remedy, except in a Court of Equity, and having discovered that the appellee, Wm. J. Albert, had become a stockholder of the company to a large amount of shares, the complainants seek by this bill to recover their claims from him under the provisions of the 9th section of the Act of 1852, ch. 338.
This bill was subsequently amended by making the corporators and Augustus J. Albert, (who had become a stockholder) parties defendant.
The corporators suffered a decree pro confesso to go against them. In this state of the case, it was "agreed that the question of the liability of the defendants other than William J. Albert and Augustus J. Albert, shall be postponed until the determination of the liability of 

 [*535]  the said Alberts, and that any decree passed in regard to the liability of said Alberts may be taken to the Court of [**12]  Appeals, to be there decided without objection, either in this Court or in the Court of Appeals, on the ground that the liability of the other defendants is left undetermined by said decree. The responsibility of the Alberts is claimed upon the ground, that under the terms of the 9th section of the above Act, they, as stockholders, were "severally and individually liable to the creditors of the company to an amount equal to the amount of the stock held by them respectively, for all debts and contracts made by such company, until the whole amount of the capital stock, fixed and limited by such company, shall have been paid in; one-half thereof in one year, and the other half thereof within two years, from and after the incorporation of said company, or such corporation shall be dissolved."
The claims sought to be recovered in this suit, were contracted while the Alberts were stockholders.
Though the doctrine of recoupment, upon which the bill in this case was dismissed, might properly arise between the company claiming the payment for stock subscribed, and the stockholders who had loaned money to the company to an amount equal to their stock, or had paid debts of the company to that [**13]  amount, it by no means follows, that the stockholders are absolved from liability to creditors of the company. This responsibility is absolutely fixed by the Act of 1852, from which there is no escape, until the provisions of the 9th section are complied with, and it is not pretended that such is the case.
The defendants occupied the two-fold relation of debtors to the company for the amount of their stock at par value, and as debtors under the Statute, to the creditors of the company to an amount equal to their stock, for all debts and contracts created while they were stockholders. In Briggs vs. Penniman, 8 Cowan 396, the Court say, "the 

 [*536]  Statute does not refer to them in their corporate capacity, but as individual stockholders; and it declares their liability, without reference to the amount they may have paid in on their stock."
In this connection, it is proper to say that in the terms which controlled the decision, the State of N. Y. is substantially the same as the Act of 1852, ch. 338.
The Judge of the Superior Court has correctly construed the decision in Garrison vs. Howe, 17 N.Y. 458, 462, that if the stockholders had paid for their [**14]  stock, and subsequently became creditors of the company to an amount equal to their stock, by so doing they would be clothed with equal equities to any other creditors who may have become so by contracts with the company. This theory is sustained by the case of Briggs vs. Penniman, before referred to. But the Alberts cannot claim to hold this relation, as they have never paid anything for their stock according to the evidence in the cause. It appears from the record that William J. Albert became the owner of 480 shares of stock, equal to $ 12,000, between the 3rd of October, 1858, and the 5th of November of the same year, and that Augustus J. Albert became the owner of 60 shares, equal to $ 1,500, on the 6th of December, 1858. Both of these defendants parted with their stock on the 29th of January, 1859.
According to the evidence of Samuel M. Dukehart, the claim of the appellants, Thomas and Joseph Matthews, consisted of a judgment on a note of the company for $ 1,092.40, given on the 1st of January, 1859, and a bill of lumber furnished the company between the 4th and 15th of January, 1859.
The claim of Murray & Hazlehurst consisted of a judgment on a note of the company [**15]  for $ 2,238.20, issued on the 1st of January, 1859, and an open account for materials 

 [*537]  furnished between the 21st of January, 1859, and the 30th of March of the same year.
These claims are proved by Compton Spencer. But as it does not appear from the evidence what portion of the account was contracted before the Alberts parted with their stock on the 29th of January, 1859, the account is not so proved as to justify its allowance.
The claim of W. H. Tiernan is for $ 2,000, money alleged to be loaned to the company on the 8th of January, 1859, and is proved by James C. Barry. But it is insisted by the appellees that Tiernan, instead of being a non-stockholder creditor, is, according to the evidence, a stockholder, and as much liable as the Alberts. We do not concur in this view of the relation of Tiernan to the company. In our opinion his claim is for money loaned, and the stock transferred to him was held by him as collateral security for his loan, and so holding it, he is not personally subject to any liability as stockholder, but is protected by the provision of the 12th section of the Act of 1852, ch. 338.
According to our construction of the 9th section of this Act,  [**16]  we think the appellees, the Alberts, are severally and individually liable for the claims of the appellants, to the extent of their stock, except the claim of Murray & Hazlehurst for $ 263.77. This construction is sustained by the case of Briggs vs. Penniman, in which the Court say, "every stockholder in a company of this description incurs the risk of not only losing the amount of stock subscribed, but is also liable for an equal sum, provided the debts due and owing at the time of dissolution are of such magnitude as to require it."
In construing the 9th section of the Act of 1852, it is manifest that the Legislature designed to protect creditors of the company from loss. The language is unequivocal, and clearly intends that until the amount 

 [*538]  of all the stock is paid up, the stockholders shall be respectively liable to the creditors of the corporation to an amount equal to the whole of the stock respectively held by them. The proceeding here, however, is in equity where the liability of the several defendants may be ascertained, and enforced with respect to each other, and when each of them may insist upon contribution from the others; and as it is just and proper [**17]  that such other of the stockholders as are liable under the Statute, should contribute rateably their proportion of the complainants' claims, we will sign a decree reversing that of the Court below, and remand the cause, that an account may be stated in conformity with this opinion.
Decree reversed, with costs to the appellants, and cause remanded for further proceedings. 

92 of 120 DOCUMENTS 

IN THE MATTER OF THE TRUST ESTATE OF MURRAY AND HAZLEHURST.--REGISTER AND WEBB vs. COMPTON SPENCER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 520; 1866 Md. LEXIS 32 

April 28, 1866, Decided 

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

The facts of this case are sufficiently stated in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

EVIDENCE: USAGE: MEANING OF THE TERM BORROWED MONEY: ADMISSIBILITY OF PAROL EVIDENCE TO AID IN THE CONSTRUCTION OF DEEDS. -- A deed of composition with creditors contained a provision for the payment of "all borrowed money and accommodation notes, and then all notes which were originally given in the course of business, and have been extended by the holders thereof," &c. On exceptions taken to the claim of a creditor allowed as if borrowed money, upon the ground that it was not "borrowed money" within the terms of this deed, HELD:

1st. That the words "all borrowed money," include, in ordinary popular sense, all sums of money loaned by a creditor to a debtor, without regard to the mode, or the existence of any security or evidence of indebtedness. And there being nothing in the context to limit the meaning of the words, it was incumbent on the exceptant to establish by clear satisfactory proof, that the terms used have acquired and were used in a technical or peculiar sense.

2nd. An usage to be admissible must be known to the parties, or be so general and well established that knowledge and adoption of it may be presumed, and it must be certain and uniform.

3rd. These principles apply as well to the admission of parol proof by the Court in aid of the interpretation of a deed, as to the admission of such proof when offered to establish the meaning of a contract, to be submitted under the directions of the Court to a Jury.

4th. Where a debtor executes a deed of composition with his creditors, the discussions among the creditors, and their impressions about the claim of one of the creditors, before accepting the deed, and afterwards cannot be allowed to control its interpretation and construction, in the absence of all charges of fraud in procuring the composition. 

COUNSEL:
Geo. Wm. Brown and F. W. Brune, for the appellants, argued:

1st. That the evidence of these witnesses, with the other proof in the record, was competent testimony to show that the words, "borrowed money," had a technical and peculiar meaning amongst the merchants and business men of Baltimore, and were used in this technical and peculiar sense by the grantors in this deed, and that such evidence does not contradict or vary the deed, but only explains this phrase contained in it.

2nd. That such evidence may as well be applied to explain a term in this deed, as in any mercantile contract.

3rd. That from the face of the deed, aided by the proof, it is sufficiently apparent that the loans of the appellee, constituting his claim for $ 10,000 and interest, should not be embraced under the term borrowed money, and preferred in the creditor's account. The appellants refer to the following authorities: Powell on the Law of Evidence, 345, 351. (96 Law Lib., 222, et seq.) Shaw vs. Wilson, 9 Clarke & Finelly, 525, 528, 555, 566.  [**2]  Wigglesworth vs. Dallison, 1 Smith, Le. Ca., 305. (43 Law Lib. 410.) Dorsey vs. Eagle, 7 G. & J., 331. Williams vs. Woods, 16 Md. Rep., 251. Brooms' Legal Maxims, 294. (50 Law Lib., 192.)

George H. Williams, for the appellee, contended:

1st. That a deed is a common law instrument, and is to be interpreted according to the received meaning of words, and that no attempt can be permitted to graft an ambiguity upon, and distort the meaning of simple English as understood by the whole world, when used in such an instrument or elsewhere.

2nd. That the deed of a merchant is not to be interpreted differently from that of any other grantor; and that to make the occupations in life of grantors a key to the meaning of words, and to give them a narrow and restricted meaning, especially when free from ambiguity, is a novelty hitherto unheard of.

3rd. That a custom and usage of merchants so to use the words "borrowed money," in their deeds, even could such a thing be proved, cannot be made to apply to the deeds of machinists; and so to construe deeds would unsettle grants to a frightful extent; and in searching titles parties would have to go outside of deeds and find out the [**3]  business occupations of grantors, and then also inquire whether any such occupations had established a custom and usage to distort or narrow the meaning of plain, simple, unambiguous English. Williams vs. Woods, et al., 16 Md. Rep., 251. Foley et al., vs. Mason, 6 Md. Rep., 49.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*522]  BOWIE, C. J., delivered the opinion of this Court.
This appeal involves the true construction of a deed of composition with creditors, made by Murray & Hazlehurst to Messrs. Abbott, Keyser and Rogers, on the 18th of February, 1861. After collecting all outstanding debts, and selling and disposing of the property conveyed to them, the trustees are required to apply the proceeds among certain classes of creditors as follows, viz:
1st. To discharge the interest due on all mortgages, together with the ground rent, taxes and insurances accruing or incurred while the property was in the possession of the trustees.
2nd. To pay wages or hire of all agents or workmen due and accruing during the continuance of the trust.
3rd. To pay out of the surplus "all borrowed money and accommodation notes," and [**4]  then all notes which were originally given in the course of business and have been extended by the holders thereof, etc.
4th. To pay individual creditors of partners out of their individual estates.
5th. To pay to such creditors as shall within sixty days signify their assent and execute a release.
The appellee filed his claim under this deed in the form 

 [*523]  of an open account against Messrs. Murray & Hazlehurst, debiting them as follows:

________________________________________________________________________________

1857, March 2nd. To this amount of money	
     borrowed of me by them	$ 10,000	
Interest until paid	
1859, Nov. 19th. This amount of money borrowed	
     of me by them	351	
Interest until paid	
________________________________________________________________________________

To which is annexed the affidavit of the creditor and one of his debtors, "that the account is just and true."
This claim was allowed in account C as a claim for borrowed money entitled to preference as such, under the third class of crediting. To which the appellants excepted, contending that said claim should be classified with the general creditors of Murray & Hazlehurst. This is purely a question of interpretation and construction. "The terms of every written instrument are to be understood in their plain, ordinary [**5]  and popular sense, unless they have acquired, by known usage, a peculiar sense, or unless the context points out that in the particular instance, in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense." 1 Greenlf. Ev., sec. 278. In Broom's Legal Maxims, upon the authority of a very eminent Judge, it is said: "The true interpretation of every instrument, being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has been always considered an exception from, or perhaps to speak more correctly, not so much an exception from as a corollary to the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence, dehors the instrument itself, 

 [*524]  for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party." TINDAL, C. J., 5 Scott N. R. 1037, 1038.
The question then [**6]  recurs, is there any doubt about the true sense of the words of the third clause.
The words, "all borrowed money," would seem at first view incapable of misconstruction. They include in ordinary, popular sense all sums of money loaned by a creditor to a debtor without regard to the mode or the existence of any security or evidence of indebtedness. If there had been money borrowed, secured by mortgage, bond, bill or note, or without any such security, the comprehensive monosyllable all would embrace it, unless there is in the deed some qualifying clause. We look in vain to the context for such a limitation. It is then incumbent upon the exceptant to establish by clear, satisfactory proof that the terms used have acquired and were used in a technical or peculiar sense. Without excluding the evidence of usage to explain words of equivocal import in mercantile and other instruments, the decided tendency of the most eminent Judges is to restrain rather than encourage it. Justice STORY, in 2 Sumner 567, 20 F. Cas. 458, deprecates the practice, and says: "I rejoice to find that of late years the Courts of law, both in England and America, have been disposed to narrow [**7]  the limits of the operation of such usages and custom and to dicountenance any further extension of them." This Court, in the case of Foley & Woodside vs. Mason, etc., 6 Md. 37, quote the energetic language of C. J. TILGHMAN, in which he says: "Miserable will be our condition if our property is to depend, not on the contract of the parties, expounded by established principles of law, but what is called the custom of particular places, so that we may have different laws in every town and village." And they decide an "usage to be admissible, 

 [*525]  must be known to the parties or be so general and well established that knowledge and adoption of it may be presumed; and it must be certain and uniform."
These principles apply as well to the admission of parol proof, by the Court, in aid of the interpretation of a deed, as to the admission of such proof, when offered to establish the meaning of a contract, to be submitted under the direction of the Court to a jury. In this case the meaning of the term or phrase "borrowed money," as sought to be established by the usage among merchants in Baltimore, is not shown to be so certain and uniform as to be capable of practical [**8]  application. The testimony is inconsistent and contradictory. In one place "borrowed money" is defined as money loaned on call for which "no charge is made." In another, "if a person ask me to take money on interest for fifteen or twenty days it would be borrowed money." In another, "if money is loaned for twelve months on interest it is not a debt of honor, nor if loaned for an indefinite time." Again, "if a party lends me money for my accommodation, trusting to my honor, for an indefinite time, I consider it a debt of honor."
These definitions of "borrowed money" have no fixed invariable quality by which to establish the peculiar meaning of the words. Sometimes it is, the loan being on call, "without interest;" then it may be with interest for fifteen or twenty days if offered by the lender; if loaned for twelve months on interest, or an indefinite time, it is not in their sense borrowed money according to the usage of merchants. A standard so variable is incapable of application and cannot control the well understood meaning of words. But if such testimony were admissible for the purpose, there is nothing to show the appellees' claim was not borrowed money in their sense. One of [**9]  the debtors says the appellee loaned 

 [*526]  the firm $ 10,000, he could not then give the details. Sometimes they were in the form of notes, which were afterwards canceled; "the matter extended over three or four years;" the lender was the clerk of the firm, had expectations of being taken into the co-partnership; after that was abandoned it was proposed to give him a mortgage, which he relinquished in favor of another party so that his debtors might raise more money.
Could any circumstances constitute a debt of honor if these fail? With most unbounded disinterestedness he placed his whole claim upon the word of his debtors, declining all security and preferences.
There is some discrepancy in the evidence as to the mode in which the debt was contracted and the inducements to the loan, but this is not sufficient to countervail the concurrent testimony that the amount claimed was lent and advanced, which, according to the usual meaning of the words "borrowed money," brings the claim of the appellee within the third class of creditors. In either view, whether considered in its enlarged or more restricted sense, it was properly allowed.
The discussions among the creditors, and [**10]  their impressions about the appellee's claim before accepting the deed, and afterwards, cannot be allowed to control its interpretation and construction in the absence of all charges of fraud in procuring the composition.
We think the order of the Court below, overruling the exceptions of the appellant, and ratifying account C, should be affirmed with costs to the appellee.
Order affirmed. 

93 of 120 DOCUMENTS 

HENRY P. BROOKS, TRUSTEE, vs. DAVID HAYS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 507; 1866 Md. LEXIS 31 

April 26, 1866, Decided 

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

On the 27th of May, 1861, the appellant, as trustee, executed to the appellee a mortgage of certain real estate in the city of Baltimore, and in said mortgage was contained the assent of the mortgagor to the passing of a decree for the sale of the mortgaged property in accordance with article IV, title "City of Baltimore," secs. 782 to 792 inclusive, of the Maryland Code, volume second.

The mortgage debt became due on the 2nd of May, 1862, and not being paid, the mortgagee on the 18th of June, 1862, filed his ex parte petition in the Circuit Court of Baltimore City, accompanying the same with the mortgage, and a statement of his mortgage claim, sworn to on the 12th of June, 1862, and asking the passage of decree of foreclosure. On the same day the Court passed a decree for the sale of the mortgaged property, requiring that the trustees appointed to make the sale, should first file their bond, &c. That they should then proceed to make the sale, "having given at least three weeks notice by advertisement inserted in such daily newspaper or newspaper published in the city of Baltimore, as they shall think proper, of the time, place,  [**2]  manner and terms of sale," &c. &c. And in conclusion it was provided, "that before the sale hereinbefore decreed shall be made, a statement of the mortgage claim duly verified by affidavit as required by law, be filed in said cause, and any stay created by the stay law and the amendments thereto, shall have ceased to operate."

No statement of the mortgage debt, other than that accompanying the petition for foreclosure, was filed. The trustees bond was not filed until the day of the sale, on which day and before the sale, it was filed and approved.

The sale under this decree was advertised in two of the daily newspapers in Baltimore, in one of which by mistake the day named for the sale was the 9th day of December, 1863, instead of the 9th day of December, 1862; but before the sale this mistake was corrected, the correction being made within three weeks from the day of sale.

The sale as made by the trustees was reported by them to the Court, when the appellant filed the following exceptions thereto:

The above named defendant by way of exceptions to the sales made and reported in this case, and as causes against the ratification of said sales, alleges as follows:  [**3]  

1st. That the trustees named in the decree of sale did not file their bond as required by said decree until the day of sale.

2nd. That notice of said sale was published prior to the execution of the bond of said trustees, and no notice whatever of said sale was published after the execution and filing of the trustees' bond.

3rd. That no affidavit of the amount due on said mortgage was made by the said mortgagee at the time of the instituting of the proceedings in this cause, or at any time thereafter, or after the decree of sale and before said sale was made, as required by law.

4th. That the decree of sale required said trustees to give at least three weeks notice of the time, place, terms and manner of said sale by advertisement to be inserted in such daily newspaper or newspapers published in the city of Baltimore, as they, the said trustees, shall think proper; and the said trustees, in pursuance of said decree, caused such advertisement to be inserted in the Baltimore American, and the Baltimore Sun, two of the daily newspapers published in Baltimore; but this exceptant alleges that the said notice, as published in one of said newspapers up to a period short [**4]  of two weeks before said sale, was variant from the notice as published in the other of said newspapers in this, that the said notice advertised said sale as intended to be made on the 9th day of December, 1863, and the same was only corrected in said advertisement within a period less than two weeks before said sale took place; the effect of which discrepancy in said advertisement was necessarily to prejudice the sale, and to disregard the terms of said decree as to the notice of said sale.

5th. That the property was misdescribed in the advertisements in this to wit: that the property advertised as beginning at the distance of twenty-two feet from the corner of Ross and Union streets, is advertised as improved by five brick buildings, whereas in fact it was improved by six brick buildings.

6th. That the lot secondly described in said advertisement is advertised as subject to a ground rent of $ 65, whereas the true rent is $ 65.50 per annum.

7th. That the trustees offered this property for sale in such parcels and lots as prevented it from bringing its fair value.

8th. That there are other errors manifest on an inspection of the proceedings.

9th. That said [**5]  property was sold at a price grossly inadequate to its market value. And this exceptant prays that said sales and all of them may be set aside.

And afterwards, the said defendant filed the following additional exceptions to wit:

The above named defendant by way of further and additional exceptions to the sale made and reported in this case, and as causes against the ratification of said sales alleges as follows:

1st. That the annuity or sub-rent of $ 26.25, reported to have been sold, was severed from the ground or lot out of which it issued, and sold thus severed from the lot.

2nd. That there are other important errors, besides those mentioned in the exceptions filed on the 12th January, 1863, in the description of the property in the advertisement of sale, manifest on the inspection of the mortgage filed as an exhibit with the petition in the cause.

3d. That in other respects the property as sold was misdescribed, and afterwards the defendant filed the following further and additional exception to wit:

The above named defendant by way of further additional exception to the sale made and reported in this case, and as cause against the ratification thereof,  [**6]  alleges as follows: That the petition and mortgage were filed in this cause on the 18th June, 1862, which was subsequent in point of time to the period limited in said mortgage, for the forfeiture of said mortgage, after which period it was not competent for this Court to proceed to decree a sale of the mortgaged premises in this proceeding, or in any mode, except according to the usual course of proceeding in Chancery Courts.

After a hearing, the Court (KREBS, J.,) passed an order overruling all the exceptions but the 5th, which was sustained, and the sale of the lot of ground covered by that exception was set aside. This appeal is taken by the mortgagor from the order overruling the other exceptions.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

FORECLOSURE OF MORTGAGE: CODE, VOL. 2, Art. 4, Secs. 782, &c. -- Where a mortgage of realty in the city of Baltimore contains the assent of the mortgagor to the passage of a decree for foreclosure, as authorized by the Code, Vol. 2, Art. 4, Sec. 782, a decree passed after default is within the meaning and purview of the law.

A sworn statement of the amount due, filed by the mortgagee with his petition, after the forfeiture and before the time of sale, is in compliance with sec. 783 of the same article of the Code.

FORECLOSURE OF MORTGAGE: CODE, VOL. 2, Art. 4, Secs. 782, &c.: TRUSTEES BOND: PRACTICE IN EQUITY. -- The bond required by sec. 783 may be given by the trustee at any time before the sale.

FORECLOSURE OF MORTGAGE: CODE, VOL. 2, Art. 4, Secs. 782, &c.: TRUSTEES SALE: PRACTICE IN EQUITY. -- Where a trustee under a decree for foreclosure inadvertently described one of the lots advertised to be sold as subject to a ground rent of $ 65, instead of $ 65.50, the true amount, HELD:

That this furnished no adequate ground for interfering with the sale.

MISTAKE: TRUSTEES SALE: PRACTICE IN EQUITY. -- A mistake in the year in one of the advertisements of sale, not calculated to mislead -- the advertisement of the same sale in another newspaper being without exception -- is an irregularity which the Court may overlook in the ratification of the sale.  

COUNSEL:
R. J. Brent and J. L. Brent for the appellant.

By an analysis of Art. 4, secs. 782 to 792, in 2nd Code, it will be seen that by virtue thereof the whole power of the Court is to decree a sale upon application by the mortgagee, "at any one of the periods limited in said conveyance for forfeiture of said mortgage or limited for a default of the mortgagors."

By section 783, the trustee shall, after giving bond and security, and after [**7]  the arrival of the period limited by the decree, sell; and by same section, the mortgagee or his assignee is to verify on oath, and file in Court, the amount due, and such verification is to be made after the period limited as aforesaid, (that is in the decree,) and before the sale.

By section 784, such sales, if ratified, are to have the same effect as if made under decrees between proper parties, and in the usual course, &c.

Article 4, sections 782 and 792, (of the 2nd volume of Code,) is copied from the Act of 1833, ch. 181. The proceeding is nothing more or less than an ex parte statutory foreclosure of a mortgage, and being a summary proceeding without notice or summons, it clearly falls under the principle of law which forbids the exercise of jurisdiction by the Court, unless every direction of the law is strictly complied with. Boarman vs. Israel, 1 Gill, 372. Savage Man. Co. vs. Owings, 3 Gill, 497. Emery et al. vs. Owings, 7 Gill, 429. Winchester vs. The Union Bk. of Md., 2 G. & J., 73. Clarke & Jackson vs. Bryan & Lunt., 16 Md. Rep., 177.

The case of an ex parte statutory foreclosure, stands on a footing with tax sales, and any irregularity will vitiate. It [**8]  is decided in 7 Hill, 433-4, that statutory foreclosures of mortgages are to be strictly in conformity with the law, or they are void. And to same effect see 7 Blackford, 12. 7 Gray, 202. 28 Maine, 336. 9 Barb., 278. 20 New York, 354. The irregular foreclosure operates as an assignment of the mortgagee's interest to the purchaser. See Walker's Ch. R., 494. 2 Hilliard on Mort., 48.

There must therefore be strict proof of the fulfillment of every legal requirement. Our objections to the ratification of this sale are as follows:

1. The decree was obtained after the day limited for the payment of the mortgage debt, and no power is vested in the Court to make such a decree under Art. 4, secs. 782 and 792 of the 2nd Code. This point was expressly ruled by this Court in a case arising under the same words as found in the Act of 1833, ch. 181. Kenly vs. Bierman, 18 Md. Rep., 303.

The Act of 1839, ch. 9, was enacted to supply the "casus omissus" in the Act of 1833, ch. 181, but this amendatory Act is not adopted in the Code. See Act of 1839, ch. 9.

2. The affidavit of debt due, must be made after the decree, and strictly it should be on the day limited for the sale, while [**9]  here it is made before the filing of the petition for sale. 2nd Code, pp. 308, 783.

That the affidavit must be strictly made as required by the law, see Gatchell, &c., vs. Presstman et al., 5 Md. Rep., 163. 20 N. York Rep., 354.

3. The trustees advertised before they bonded, which is not in compliance with the terms of the decree, nor had they any authority to advertise the sale until their bond was filed and approved.

We do not consider the adverse case decided by Chancellor JOHNSON in 4 Md. Ch. Dec., 309, to be analagous to the present. Because the purchaser sought to avoid the sale which was advantageous to the parties in interest, and being advantageous to the parties in interest, they could hold the purchaser to it on the case of Glenn vs. Clapp, 11 G. & J., 8. Nor do we think that this decision of the distinguished Chancellor was made with his usual care and investigation. He seems to have overlooked the fact that irregularity would vitiate the proceeding, because the foreclosure was under a special jurisdiction, and without notice to the mortgagor. The case decided by this Court in 5 Md. Rep., 163, seems to conflict fatally with this decision of the learned Chancellor,  [**10]  which is opposed to the whole current of authorities. It matters not in what part of the proceedings irregularity is found, the effect is to vitiate the whole. Here the decree of sale expressly requires that "they shall first file a bond," &c., "and then proceed to make the sale, having given at least three week's notice," &c. The plain import of this decree is that they shall do nothing until they give approved bond, and it is a fatal departure from the decree that they advertised the sale before they had bonded.

4th. There is no proof that the sale was advertised for three weeks, as required, except the general recital in the reports of sales "that having, in all respects, complied with said decree, they did pursuant to previous notice," &c. There is no direct affirmation that they advertised for three weeks as required, and they might be mistaken when they report a general compliance.

The Supreme Court of the United States have held that the general recital in the deed of the marshal who had sold for taxes, that he had complied in all respects, was not sufficient evidence of such compliance in a summary proceeding of that character. 4 Wheaton, 75. And this case in 4 Wheaton [**11]  is a strong authority to show the necessity of a strict observance of all the requirements in summary proceedings of this character. We also refer on the same point to Games vs. Stiles, 14 Peters, 331. These views show that the Court erred in overruling the 1st, 2nd and 3rd exceptions. And also erred in overruling the last exception filed.

5th. The trustees failed to meet by proof our 4th exception, which assails the advertisement, because it was altered two weeks before the sale. If the facts were as alleged in this 4th exception, the advertisement was fatally defective, and there should have been proof of its having been duly published for the length of time required by the decree, as the onus was on the trustees to overcome our exception by proof, and yet the Court overruled the 4th exception without any proof whatever being adduced to support the correctness of the advertisement thus put in issue. If the advertisement in one of the newspapers, notified the sale for the 9th day of December, 1863, instead of 1862, it was clearly prejudicial to the sale. Rawlings vs. Adams, 7 Md. Rep., 44, Act of 1836, Ch. 249.

6th. The Court erred in overruling our sixth exception, and [**12]  first and second additional exceptions for the reasons therein stated. Our first additional exception was right and should have been sustained. The annuity or sub-rent of $ 26.25 appears to have been advertised and sold, but not the ground rent out of which it issued. The trustees had no right to make such a severance; and the lot now stands in this condition; that the administratrix of Lawn holds all the interest that a sub-lessor has, except the mere right to the naked annual sum of $ 26.25. If the purchaser ever has more than this right, he must get it by a deed from the trustees, or by enforcing the execution of such a deed, by a proceeding in equity. How far this mistake may have affected the bidding can only be matter of conjecture.

Our second additional exception should have been allowed, because the advertisement of the fourth piece of property does not coincide with the deed.

1st. Because it describes the property as binding from a certain corner, south-westerly on Ross street, while the deed makes it bind north-westerly.

2nd. Because it runs the second line parallel with Union street one hundred feet, which is wholly variant from the line in the deed.

Such [**13]  defects must seriously have affected the biddings-- they are covered by the terms of our second additional exception, and if not sufficiently pointed out, this Court must look to the regularity of all the proceedings on the question of jurisdiction.

Again, the report of sales states that there were six instead of five houses, on the seventy-three feet lot on Ross street, thirdly described, but the advertisement places the five buildings on the Biddle street property, secondly described. If this report be true, there were no improvements in fact on the Biddle street property, secondly described, or if there were such improvements they are not properly described. Besides, this lot is advertised as subject to a ground rent with the next below described lot of $ 100, whereas the deed shows it is subject alone to a ground rent of $ 65.50.

In conclusion, we observe that all proceedings in which no notice is given, are void, so far as they operate in personam. 14 How., 334. 6 How., 186. 5 Johns., 57. And the Court has decided the same principal in Clarke & Jackson vs. Bryan et al., 16 Md. Rep., 178.

It therefore results that in a proceeding in rem there must be the strictest [**14]  compliance with the directions of the law. No man's property can be taken from him without an opportunity or notice to him, that he may intervene for the protection of his rights. 5 Wendell, 157. 14 How., 341. Flowers vs. Forman, 23 How. The allegation of a jurisdictional fact on the record does not estop a party from controverting the jurisdiction. 5 Wendell, 161. 4 Connecticut Rep., 280. The purchaser in such a case buys at his peril. Hollingsworth vs. Barbour, 4 Peters, 475. In proceedings in rem the seizure gives jurisdiction, but here there being no seizure, in fact, the only ground for jurisdiction is in a strict observance of all legal requisites.

Thomas Donaldson and J. J. Snyder, for the appellee, argued:

1st. That the trustees named in the decree in this case, conformed their action and proceedings to the requirements of said decree and the law, and will here maintain that their bond was filed in abundant time. Speed vs. Smith & Boyle, 4 Md. Ch. Dec., 299.

2nd. That the advertisement relied upon by the exceptants as defective, is regular, and a sufficient compliance with said decree. 2 Md. Code, Art. 4, secs. 786, 787. Hays vs. Dorsey, 5 Md. Rep., 99. Robertson [**15]  vs. Am. Homestead Association, 10 Md. Rep., 407.

3rd. That if exceptions numbered 4th, 7th and 9th, could avail the exceptants, if made out, still there is no evidence to sustain them or either of them. 2 Code, Art. 4, secs. 786, 787.

4th. That if it be true as stated in exception 6th, that said ground was advertised as being subject to a lesser rent than was actually reserved, yet that this furnishes no ground to set aside the sale, provided the purchaser makes no objection, as in this case.

5th. We contend, that under the existing Statutes of Maryland it was perfectly competent for the mortgagee to apply for and obtain his decree, at the time and in the manner and form in which he did, and that the case of Kenly vs. Wierman's Exc'rs, 18 Md. Rep., 302, does not hold a different doctrine. Hays vs. Dorsey, 5 Md. Rep., 99. Ing vs. Cromwell, 4 Md. Rep., 31. Art. 4, 2 Code, 782. 1833, ch. 181. 1839, ch. 9, sec. 3.

6th. That the affidavit of the amount due on said mortgage is pursuant to law, both as to time and form. Ing vs. Cromwell, 5 Md. Rep., 99. Gatchell vs. Presstman et al., Id., 163. Robertson vs. Am. Homestead Association, 10 Md. Rep., 407. Cunningham vs. Schley,  [**16]  6 Gill, 207. A trustee's sale may be ratified though the terms prescribed by the decree may not have been complied with, if the reasons for the ratification are more satisfactory than those offered against it.

Exception numbered 5th, of original, and No. 1, of additional exceptions, have no application to this appeal.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*517]  WEISEL, J., delivered the opinion of this Court.

 [*518]  The principal exception to the sales reported in this case, and ratified by the Court below, is that which denied the jurisdiction to it to pass the decree, on the ground that the period limited in the mortgage for its forfeiture had previously expired, and that under the provisions of the Code referred to in the mortgage, no decree could take place except at a time prior to such forfeiture.
This Court has already disposed of this question in the appeals of Black vs. Carroll, and Frank vs. The Teutonia Building Association at the last term, (ante pp. 251 & 259) in which it held that decrees passed after default were within the meaning and purview of the provisions of [**17]  the Code upon this subject, and can be sustained. We need only here refer to the opinions of the Court filed in those cases for its views on this question.
We also think that the affidavits of the mortgagee filed in the case were in compliance with the Code requiring such a verification of the amount due upon the mortgage. It was made at the time the petition was prepared, and filed with it, and after the forfeiture of the mortgage, and consequently before the time of sale. The purpose of the provision was accomplished by it--a sworn statement of the amount due after the forfeiture and before the time of sale. 5 Md. 161, 163. 10 Md. 407.
The trustees did not file their bond until the day on which they advertised the sales to take place, the decree prescribing that they should first file a bond to be approved, and then proceed to make sale, having given at least three weeks notice, &c. And it is objected that this was a fatal irregularity, at variance with the terms of the decree. Neither the language of the Code (sec. 783,) nor that of the decree requires the filing of the bond before publishing of the advertisement of sale. Looking at both, the [**18]  filing of the bond on the day of, but before the sale, might be regarded as no deviation from either. But we 

 [*519]  think the late Chancellor JOHNSON, of this State, has furnished the true grounds and reasons for meeting the objection in a case of trusteeship like this. The trustee in this case was the agent and appointee of the Court, and a strict observance of its terms may be dispensed with in this as well as other particulars, in proceeding to ratify a sale made by him, care being taken that the requirements of the law are substantially complied with, and the interests of all parties fully protected. Speed vs. Smith, 4 Md. Ch. 299, 309, 310. In this case a bond was filed and approved before the sales were made.
We agree also with the Court below that the inadvertence of advertising one of the lots as subject to a ground rent of sixty-five dollars, instead of sixty-five dollars and fifty cents, the true rent, had no tendency to injure its sale. On the contrary, its tendency would be to improve it, and the purchaser, if any one, would be the party most apt to complain. He is not before the Court as an objector, and the matter furnishes no adequate ground [**19]  for interfering with the sale.
The 4th exception, relating to an error in the year in the advertisement published in one of the newspapers selected by the trustees, presents an irregularity which, like that of the bond, the Court could overlook on the ratification. The advertisement in one of the newspapers is without exception, and by the terms of the decree a publication of the notice in one daily newspaper would have been sufficient. The mistake, however, in the one objected to was of such a nature as not to mislead any one of ordinary care in its perusal.
We think there is nothing material in the other objections to the sale, and that the order of the Court below, from which the appeal was taken, should be affirmed, with costs to the appellee.
Order affirmed, and cause remanded. 

94 of 120 DOCUMENTS 

THE NORTHERN CENTRAL RAILWAY COMPANY vs. THE CANTON COMPANY OF BALTIMORE, LESSEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 492; 1866 Md. LEXIS 29 

April 25, 1866, Decided 

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

This is an action of ejectment brought in the Superior Court of Baltimore City for certain land described in the declaration as "a certain lot, piece or parcel of ground situate and lying in the city of Baltimore, which is described as follows, to wit: Beginning at the intersection of the south side of Sixth Avenue with the west side of Clinton street, and running thence westwardly with the south line of Sixth Avenue about seven hundred and fifty feet to the Port Warden's Line, thence southerly parallel to Clinton street about two hundred feet, thence eastwardly at right angles with said last line and parallel with said Avenue about seven hundred and fifty feet to the west side of Clinton street, thence northerly on the west side of Clinton street, about two hundred feet to the place of beginning with the appurtenances, situate and being in Baltimore city aforesaid." By consent of the parties and under rule of the Court the cause was referred to I. Nevett Steele, Esq., at the same time with the trespass case between the same parties, (Reported post, p. 500,) and while pending before him the same proceedings by injunction and motion [**2]  were taken to prevent an award, with those stated in the trespass case, and with a like result. The award in this case made by the referee is as follows:

"I, I. Nevett Steele, appointed referee in this cause by the Superior Court of Baltimore city, having given due notice to the parties of the times and places of hearing their respective allegations and proofs, and having heard and duly considered the same, do award and determine that the said Northern Central Railway Company is guilty of the trespass and ejectment, in manner and form as the said John Doe, lessee of the said Canton Company of Baltimore, in the declaration in this cause has complained; and that the lot of ground in the declaration aforesaid mentioned, situate and lying partly in the city of Baltimore, and partly in Baltimore county, is contained within the metes and bounds, courses and distances following; that is to say, beginning at the intersection of the south side of Sixth Avenue, with the west side of Clinton street, as laid down on 'the plan of the harbor of Baltimore, in connection with the Canton Company's lands,' compiled by William Dawson, and published in 1853, and running thence westwardly at right [**3]  angles with Clinton street, and with and in continuation of the line of the south side of Sixth Avenue, as laid down on said map, to the Port Warden's Line, thence southerly with said Port Warden's line, and parallel to Clinton street two hundred feet, thence eastwardly at right angles with said Port Warden's Line and parallel to the first line of the lot now being described, to the west side of Clinton street, and thence northerly with the west side of Clinton street to the place of beginning; and I do assess the damages of the said John Doe, lessee of the said Canton Company of Baltimore, by reason of the trespass and ejectment aforesaid, to the sum of one cent current money; and I do further award, that judgment be entered up by the said Court for the said John Doe, lessee of the said Canton Company of Baltimore, against the said Northern Central Railway Company, as well for his term aforesaid yet to come and unexpired, of and in the said lot of ground contained within the metes and bounds, courses and distances above set out, as the said sum of one cent for his damages, which he had sustained by reason of the trespass and ejectment aforesaid, together with his costs and charges,  [**4]  by him about his suit in the said Court expended. Witness my hand and seal this 30th day of May, in the year 1863.

"I. NEVETT STEELE,   (Seal.)

Referee."

The Court, MARTIN, J., overruled the exceptions taken to this award by the defendant, and rendered its judgment as follows:

"Therefore it is considered by the Court here, that the said plaintiff recover against the said defendant his term aforesaid, yet to come and unexpired, of and to the lands and premises aforesaid mentioned and described in the declaration aforesaid, with the appurtenances, as well the said sum of one cent, the damages aforesaid, by the arbitrator in form aforesaid awarded, as the sum of six dollars and eighty-eight cents for its costs and charges by it about its suit in this behalf laid out and expended. And the said defendant in mercy," &c.

"Memorandum:--July 3rd, 1863, judgment on award for the plaintiff for property and one cent damages and costs."

From this judgment the present appeal is taken by the defendant.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

AMENDMENT OF PLEADINGS: JURISDICTION IN EJECTMENT: ARBITRATION AND AWARD: PRACTICE IN COURT OF APPEALS. -- The Declaration in Ejectment described certain lands sued for as "lying in the city of Baltimore." By order of the Superior Court of Baltimore City, where the action was instituted, the cause was referred to an arbitrator, who rendered his award in favor of the plaintiff, for "the lot of ground in the declaration aforesaid mentioned, situated and lying partly in the city of Baltimore and partly in Baltimore County," &c., &c., "beginning at the intersection of the South side of Sixth Avenue with the west side of Clinton street, as laid down on the plan of the harbor of Baltimore in connection with the Canton Company's lands, compiled by William Dawson, and published in the year 1853, and running thence," &c. On appeal by the defendant, besides the exceptions taken in the Court below, the appellant contended that there was a want of identity between the land claimed in the nar, and the land in the award; that there was want of certainty in the award; and that the nar was defective in not stating whether the greater portion of the land sued for lay in the city or in the county, or where the defendant resided, so as to show whether the Court had jurisdiction under the provisions of sec. 46, Article 75 of the Code, HELD:

1st. That if in the prosecution of this case in Court, the defendant had objected to its jurisdiction that it did not affirmatively appear in the plaintiff's nar, that the greater part of the land was within the city of Baltimore, the Court could have allowed an amendment of the pleadings. Failing to avail itself of this defect, it would have been too late after verdict, as every reasonable intendment would be made to support it. And such an intendment will apply with equal or greater force to support an award.

2nd. That there is no want of identity between the land claimed in the nar and that set out in the award.

3rd. That the land is sufficiently described in the award.  

COUNSEL:
J. Mason Campbell and R. B. T. Campbell, for the appellant.

The award and judgment rendered thereon are erroneous.

1. Because of [**5]  the want of identity between the land claimed in the declaration, and the land awarded.

2. Because of uncertainty in the award. The "Plan of the Harbor," is not a matter of record. It was not made by public authority; and there is nothing, therefore, by which a stranger can locate the recovery.

3. Because the judgment is for the land described in the declaration, and not for that mentioned in the award, nor does it in any way refer to the award. Smith vs. Jenks, 10 Serg. & Raw., 153.

4. Because if part of the land lies in Baltimore county, the jurisdiction of the Superior Court in respect to that part is special, being conferred by Act of Assembly, to meet the particular case, and not included in its general powers, (Code, vol. 1, Art. 75, sec. 46,) and therefore the facts giving the jurisdiction must appear on the face of the pleadings. But such is not the case here. The nar describes the land as lying in Baltimore City, and the judgment is for the property described in the nar; but the award describes the property as lying both in the city and county. Now the judgment is founded on, and must be co-extensive with the award, or else it is a nullity, and yet, if it be [**6]  so treated, it will cover and apply to property outside of the ordinary jurisdiction of the Court, while the pleadings only present a case of ordinary jurisdiction within the limits of the city.

And apart from the objection that the pleadings do not show that the land lay both in the city and county, it is contended further, that under the section of the Code above referred to, the jurisdiction where land lies in two counties is not given indiscriminately to the Court of either county, but to the one in which the defendant resides, and in such case the pleadings must show affirmatively that the suit is brought in the county or city where the defendant resides, which is not done in this case; so that for this reason there is want of jurisdiction in the Court which must be fatal to the judgment. Patterson vs. Wilson, 6 G. & J., 505, 506. Shivers vs. Wilson, 5 H. & J., 130.

Geo. W. Brown and F. W. Brune for the appellee.

The appellee contends:

1st. That the land claimed in the declaration, and the land awarded, are the same as shown by the metes and bounds and by the award, which sets forth particularly the metes and bounds of "the lot of ground in the declaration [**7]  aforesaid mentioned," and by the bill in the trespass case filed by the appellant against the appellee in the Circuit Court for Baltimore City, which is referred to in the exceptions filed by the appellee in this case; the only difference is, that the award describes the ground with a little more particularity and accuracy. This it is proper that the award should do, and it could correct any error or supply any omission in the declaration. Ing vs. State, 8 Md. Rep., 287, and cases there cited. Cromwell vs. Owings, 6 H. & J., 12.

2nd. The award is not uncertain, but is certain in every particular. To make it certain, it is not necessary that the plan of the harbor therein referred to should be a matter of record.

3rd. The memorandum of the judgment is "Judgment on award for the plaintiff for property." This is the original entry and the true judgment in the case, and refers exclusively to the property mentioned in the award. But the judgment, when formally extended, (which is the act of the Clerk of the Court,) is, that the plaintiff recover the land and premises aforesaid mentioned and described in the declaration aforesaid. This is equivalent to saying the land and premises [**8]  aforesaid mentioned in the award and memorandum of judgment, and also described in the declaration. But even if this be not the true construction, and if the extended judgment refers only to the land described in the declaration, inasmuch as the same land is described in both the declaration and the award, the judgment is correctly entered.

4th. In order to sustain an award, the Court will consider any amendment that could be made as having actually been made. If, therefore, it was necessary to allege in the declaration that the lot lay partly in Baltimore city and partly in Baltimore county, the Court will consider that the allegation was made. But the Superior Court is one of general, not special jurisdiction, and therefore the acts establishing its jurisdiction need not be set out. The same considerations apply to the residence of the defendant, which it is not necessary to allege, but only to prove. Besides, the residence of the defendant need not be alleged by the plaintiff; the suit is brought against Richard Roe, who gives notice to defendant of the suit. Ing vs. State, 8 Md. Rep., 287.

5th. The Court of Appeals, on reversing any judgment or part of a judgment at law,  [**9]  has power to give such judgment as ought to have been given by the Court below. Code, 22, Art. 5, sec. 14. If, therefore, there was any error in entering this judgment on the award, it is the right and duty of the Court to correct it. This Court, before the adoption of the Code, would have had a similar error corrected in the Court below by ordering a writ of diminution. Duvall vs. Wells, 4 H. & McH., 164. Fisher vs. State, 1 H. & J., 416.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*498]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The action of ejectment in this case was instituted by the appellee against the appellant, in the Superior Court of Baltimore City, to recover a parcel of land lying partly in Baltimore city and partly in Baltimore county, but alleged in the nar to lie in Baltimore city. This suit was pending at the same time, in the same Court, with an action of trespass q c. f., between the same parties. Both suits were referred, under the provisions of the 7th Article of the Code, to I. N. Steele, Esq., as referee.
While the subject of this and the other suit was under the consideration [**10]  of the referee, and before any award was made, the appellant obtained an injunction out of the Circuit Court for Baltimore City to restrain his proceedings. He, however, proceeded to make and return his award, and judgment being rendered thereon, this appeal was taken. The Canton Company appealed from the order of the Circuit Court granting the injunction, and entered into an appeal bond to prosecute the appeal. This appeal was pending in the Court of Appeals when the referee returned his award and when judgment was rendered thereon.
We have considered the effect of the appeal and the 

 [*499]  appeal bond in the action of trespass between the same parties, post, 500. The conclusion we arrived at in that case is equally applicable to this. Besides the exceptions in the record, the appellant contends that there is a want of identity between the land claimed in the nar, and the land in the award, and also the want of certainty in the award; and that the declaration is defective in not sufficiently defining the land, to show affirmatively that the greater part of it was within the city of Baltimore, thus securing to the Superior Court jurisdiction under the provisions of the [**11]  46th section of the 75th Article of the Code.
The jurisdiction conferred by the above article and section is general, extending to all the Common Law Courts of the State, and has for its object the prevention of a multiplicity of suits. If in the prosecution of this case in Court the defendant had objected to its jurisdiction, because it did not affirmatively appear in the plaintiffs' nar, that the greater part of the land was within the city of Baltimore, the Court could have allowed an amendment of the pleading. Failing to avail itself of this defect, it would have been too late after verdict, as every reasonable intendment would be made to support it, and such an intendment will apply with equal or greater force to support an award. See 2 G. & J. 68. 10 G. & J. 193.
We cannot sustain the objection made by the appellant that there is a want of identity between the land claimed in the nar and that set out in the award, and that the award does not sufficiently describe the land.
Comparing the description in the nar with that in the award, we find them identical except the statement of the referee that the land lies partly in the city [**12]  and partly in the county. In both the nar and award the description embraces "calls" so notorious, that no difficulty could possibly arise in locating the claim and pretensions of the plaintiffs.

 [*500]  For these reasons and those assigned in the trespass case we shall affirm the judgment.
Judgment affirmed. 

95 of 120 DOCUMENTS 

THE NORTHERN CENTRAL RAILWAY COMPANY vs. THE CANTON COMPANY OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 500; 1866 Md. LEXIS 30 

April 25, 1866, Decided 

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

The appellee instituted an action of trespass q. c. f. against the appellant in the Superior Court of Baltimore, and by consent of the parties the case was referred under rule of the said Court to I. Nevett Steele, Esq., as referee. While the matter was pending before the arbitrator, the defendant instituted proceedings in the Circuit Court of Baltimore City, and procured an injunction from that Court, restraining the plaintiff from proceeding with said reference. The plaintiff having filed an answer to the bill, took an appeal from the order granting the injunction, and filed an appeal bond, which was approved.

The arbitrator, treating the appeal as a suspension of the injunction, was proceeding with the arbitration when the defendant filed in the Superior Court the following motion, to wit:

"The defendant moves for a rule on the arbitrator, to whom this case has been referred, to stay further proceedings under said reference until the further order of this Court, upon the ground that an injunction has issued out of the Circuit Court for Baltimore City to restrain the plaintiff from its prosecution, and that the appeal [**2]  taken by the plaintiff in this cause from the order granting said injunction, is now pending and to be heard at the ensuing June term of the Court of Appeals."

The plaintiff having filed its reasons why this rule should not be granted, the Court (MARTIN, J.) passed the following order:

"In this case the rule to show cause must be discharged. As soon as the cause was referred under a rule of Court, in conformity with the 1st section of the 7th Article of the Code, all jurisdiction over the case was transferred to the arbitrator, as a personal tribunal, selected by the parties themselves, and the Court in which the suit originated lost all control over it, except for the purpose of reinstating it under the 5th section of the 7th Article, or of setting aside the answer, when it was returned, for errors apparent on its face, or for some matter of fraud, imposition or surprise aliunde the award. And for this reason the injunction granted by the Circuit Court was addressed to the referee and not to this tribunal. An appeal bond having been given by the Canton Company in the equity suit, as authorized by the Code, the case is to be treated as if no injunction had been issued. 11 [**3]  Md. Rep., 365. And as this Court has no power over the arbitrator in the present position of the case, the rule to show cause is discharged."

The arbitrator thereupon filed his award, which was excepted to by the defendant for the following reasons:

1. "For that while the said cause was pending before the said referee and before the same was brought to a final hearing before him, and before any award had been made or rendered by him, the Circuit Court for Baltimore City, a Court of competent jurisdiction in equity, on a bill of complaint filed therein by said defendant, had passed an order restraining and enjoining the said plaintiff from further proceeding with the said cause, before said arbitrator referee, until the further order of said Circuit Court for Baltimore City, which said order of said Court was duly served on said plaintiff and its attorneys, on 29th day of April, 1863, and of which order the referee on the same day, had due and final notice.

"That said order of injunction has never yet been dissolved, but that notwithstanding said order of injunction, and the protest of the said defendant to said referee made, the said referee did after full notice of [**4]  said order, and in violation thereof, proceed with and to hear said cause and determine the same, and made the award so as aforesaid, filed in this cause on the 5th day of June, 1863.

2. "For that after the service of said order of injunction on said defendant and its attorneys, and notice thereof to said referee as aforesaid, and before the final hearing of said cause before said referee had taken place, and before said award had been made, the said plaintiff appealed from the order of the Circuit Court for Baltimore city, on the 6th day of May, 1863, to the Court of Appeals of Maryland, which said cause stood for hearing at the June Term, 1863, of said Court, and was assigned for hearing on the first day of said term, and was heard and argued by the attorneys of said plaintiff, and of said defendant, at said time, and was thereupon submitted to said Court of Appeals, and before any award had been filed in this cause, or any notice of said award served on the defendant or its attorney; all of which proceedings relating to said appeal were with the full knowledge of the said referee.

"That notwithstanding the pendency of the said cause in the Court of Appeals on said appeal,  [**5]  and which appeal was taken to test, and the decision wherein will test whether the said referee should or could go on with said reference, and render an award in said causes, or whether the matters in litigation in said cause were not exclusively for a Court of Equity jurisdiction; and notwithstanding said cause had been heard in the said Court of Appeals, and was then in the breast of the Court, the said referee did proceed after said appeal taken, and with knowledge that it would be heard, as it was heard, to finally hear said cause and to make up his award, and after said argument in the Court of Appeals, did deliver said award to the plaintiff, by whom, on the 5th of June, 1863, a copy of the same was served on the attorney of the defendant."

The Superior Court, (MARTIN, J.,) overruled these exceptions, and ordered judgment to be entered up upon the award. From which order the present appeal is taken.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

ARBITRATION AND AWARD. -- When an award is made on a case referred, under the 7TH ARTICLE OF THE CODE, no objections can be ordinarily made to it, except such as are specified in the 2nd section of the above article, or to such legal objections as appear on the face of the award.

ARBITRATION AND AWARD: CODE, ART. 5, SEC. 23: EFFECT OF APPEAL FROM ORDER GRANTING AN INJUNCTION. -- A case was referred to an arbitrator by consent, under rule of the Court in which the suit was pending. While the matter was still before the arbitrator the defendant obtained an injunction, restraining the plaintiff from proceeding with the reference. The latter filed an answer and took an appeal from the order granting the injunction, and gave bond as required by law. The arbitrator having filed his award during the pendency of the appeal, on exceptions to it for that cause, HELD:

1st. That by the true construction of sec. 23, Art. 5 of the Code, upon appeal taken, and the giving an appeal bond, the operation and effect of the injunction entirely ceases until judgment shall be pronounced by the appellate tribunal.

2nd. That the arbitrator was not prevented by the pendency of the injunction case from going on with his award.  

COUNSEL:
J. Mason Campbell and R. B. Taney Campbell, for the appellant.

The counsel for the appellant contend that the judgment below should be reversed.

1. Because the referee had no right to proceed with the award, after being served with notice of [**6]  the injunction.

2. Because the appellee having appealed from the order granting said injunction, the referee had no right to go on with his award while said appeal remained undetermined in the Court of Appeals.

George W. Brown and F. W. Brune, for the appellee, argued:

1st. That the decision of this Court in the said injunction case of the Canton Co. vs. The Northern Central Railway Co., is conclusive of this case. That the point was directly raised in said injunction case, that this case had been referred to an arbitrator, and was then pending before him, and it was alleged by this appellant in said injunction case that it was vested with an equitable title in the property in question in this case, and was entitled to the equitable relief of an injunction restraining this appellee from proceeding further in this case before the referee; but the Court of Appeals decided that the appellant had no title, legal or equitable, in or to said property, and was not entitled to the injunction which had been granted by the Circuit Court, and accordingly reversed the decree of said Court, and dissolved said injunction. The grounds on which this Court refused to interfere by injunction [**7]  with said award and judgment, are equally conclusive against such interference on this appeal.

2nd. Even if the injunction had been violated by the Canton Company, such violation while it would be a contempt of the Court of Equity issuing the injunction, would be no ground for the reversal of the judgment of a Court of Law on such award.

3rd. That the entire case was submitted to the referee by consent of parties, and rule of Court, and that the referee had entire and exclusive jurisdiction thereof. That the only points now before this Court are those raised in the exceptions filed by appellant, and that neither exception furnishes any legal objection to said award and judgment thereon.

4th. Because the effect of said injunction was stayed by the appeal in this case, and said injunction was dissolved by this Court as having been issued improvidently and improperly. Code, Art. 5, secs. 21 and 23; Art. 1, secs. 1 to 6 inclusive. Blondheim vs. Moore, 11 Md. Rep., 365.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*505]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The appeal in this case is taken [**8]  from a decision of the Superior Court of Baltimore City, overruling exceptions to an award of I. N. Steele, Esq., and rendering judgment on the award for the appellee.
The case referred to Mr. Steele originated in an action of trespass q. c. f., by the appellee against the appellant, to recover damage for the trespass alleged in the plaintiff's declaration. While this action was pending in the Superior Court, it was referred to Mr. Steele by consent of both parties, in accordance with the provisions of the 7th Art. of the Code.
The question in dispute being under consideration of the referee, and before any award was made by him, the appellant, at the May Term, 1863, of the Superior Court, made a motion for a rule on the referee to stay the proceedings, on the ground that an injunction had issued out of the Circuit Court for Baltimore City, to restrain the appellee from the further prosecution of the case thus referred, and that an appeal taken from the order granting the injunction was then pending in the Court of Appeals. This order was subsequently reversed.

 [*506]  The Court discharged the rule, and at the same time the referee filed his award. The reasons filed by the [**9]  appellant fer setting aside the award and reversing the judgment of the Superior Court, rendered on the award, are set out in the record, and we have maturely considered them.
Where an award is made on a case referred under the 7th Art. of the Code, no objections can be ordinarily made to it except such as are specified in the 2nd sec. of the above article, or to such legal objections as appear on the face of the award. In reviewing the exceptions filed to this award, we find no intimation that the referee acted otherwise than with perfect impartiality between the parties litigant. The only substantial allegation is, that he disregarded the injunction and the pending of the case in the Court of Appeals.
It is important in this connection to bear in mind that the appellee appealed from the order of the Circuit Court, and entered into an appeal bond to prosecute the appeal with effect.
In such case the 23rd sec. of Art. 5 of the Code, provided that "upon giving such bond, the appeal shall stay the operation of such orders," (that is those orders mentioned in the 21st sec.) "in the same manner as do appeals from final decrees."
This provision of the Code is a transcript of the Act [**10]  of 1853, ch. 374, and this Court has given a judicial interpretation of that Act, which we see no just reason to disturb, and it will control our decision in the present case. In the case of Blondheim and others vs. Moore, 11 Md. 365, 371, 372, this Court construing the Act of 1853, ch. 374, as to the language "shall stay the operation of all such orders in the same manner as do appeals from final decrees," ask, "what is the manner? It is nothing more than this, everything is stayed, suspended, until judgment shall be pronounced by the appellate tribunal; 

 [*507]  that is to say, the operation and effect of the injunction wholly and entirely ceased."
For these reasons and those assigned by the learned Judge of the Superior Court, the judgment from which this appeal was taken must be affirmed.
Judgment affirmed. 

96 of 120 DOCUMENTS 

GEORGE JACKSON AND OTHERS vs. JAMES HODGES AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 468; 1866 Md. LEXIS 28 

April 18, 1866, Decided 

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

The bill in this case was filed on the 28th of September, 1860, by the appellees against the appellants. After 1st, setting forth the original indebtedness of the defendant, George Jackson, to the complainants, the bill alleges:

2nd. "That the said George Jackson being so indebted to your orators, and also to various other persons and firms in large amounts, amounting in the whole, as your orators are informed and believe, and therefore charge, to the sum of fourteen or fifteen thousand dollars, and having a large amount of property, personal and leasehold, sufficient to enable him to pay his debts, and to have several thousand dollars of surplus, he conceived the idea of defrauding his creditors, and for that purpose increased his indebtedness much larger than it usually was, or the necessities of his business required, and having so increased it, represented himself as being compelled to suspend payment at a time, when he was able to pay his debts and have a considerable surplus, and when he was secretly lending his money to his brother, James Jackson, in large amounts, and having thus, and in other ways secreted a great portion [**2]  of his property and money, represented to his different creditors that he was unable to pay them in full, and that he was unable to pay more than forty per cent. of his liabilities, which your orators and his other creditors, as your orators are informed and believe, refused to accept; but after repeated representations as to his inability to do more for them than to pay forty per cent. on their claims unless by the aid of friends, he proposed to them to pay fifty per cent., one-half in six months and one-half in twelve months without interest; your orators confiding in the representations, and believing that said George Jackson could not pay more than fifty per cent. of his debts, agreed, that is your orators and the said Lewis, Dorst & Co., and all his other creditors, agreed to accept in satisfaction of their claims, fifty per cent. thereon, payable without interest in two equal instalments, averaging twelve months after date thereof, upon which the said George Jackson delivered to your orators and said Lewis, Dorst & Co., and all his other creditors, his promissory notes as aforesaid, and they respectively received them in full satisfaction of their respective claims, and delivered [**3]  to the said George Jackson all the notes of his in their possession to be canceled and executed to him a release of all debts, except the compromise notes so delivered to them by him as aforesaid.

3rd. That having fraudulently procured the release aforesaid, in the manner aforesaid, the said George Jackson soon after secretly and fraudulently deposited with said James Jackson, his brother, at different times, from the perpetration of said fraud until about a year afterwards, upwards of five thousand dollars; and about the same time the said George Jackson purchased several valuable lots of ground, namely; a lot on Lee street from Edward Chamberlain, worth about two thousand dollars; a lot on Howard street which was leased by Henry Hursh and wife to said George Jackson and James Jackson, and which, with the money of the said George Jackson, they improved at an expense of about five thousand five hundred dollars; besides the property aforesaid, the said George Jackson owned at the time of the perpetration of the fraud aforesaid, a lot on Buren street worth about one thousand dollars, and a lot on Aisquith street worth about twelve hundred dollars.

4th. That sometime in the [**4]  year eighteen hundred and fifty-seven, the said James Jackson conveyed to said George Jackson his interest in the said lot of ground on Howard street; that in the month of January, 1858, the said James Jackson became embarrassed, as your orators are informed and believe, and being indebted to said George Jackson in a large amount of money, namely: between five and six thousand dollars, sold to said George Jackson his entire stock of merchandise, worth about six or seven thousand dollars, in payment to the extent of said indebtedness from said James Jackson to George Jackson. The creditors of said James Jackson, knowing the insolvency of said George Jackson as aforesaid, and not doubting the reality thereof, and having no knowledge of said fraud, having received information of the said last mentioned conveyance and sale, concluded that said George Jackson could not have it in his power to make said purchases, and were of opinion that the said sale and conveyance were made to defraud the creditors of said James Jackson, threatened the said George Jackson that they would file a bill in Chancery against him, and have said last mentioned conveyance and sale set aside, and the proceeds of [**5]  the property so sold and conveyed by James Jackson to him, applied to the payments of the debts of said James Jackson, upon which, fearing an investigation thereof, and as your orators believe, and therefore charge that the creditors of George Jackson would discover the fraud which had been perpetrated on them, in order to defeat their claims, and those of the creditors of James Jackson, by deed bearing date the 6th day of November, in the year 1858, and recorded among the Land Records of Baltimore City, in Liber "G. E. S.," No. 159, folio 188, &c., the said George Jackson assigned the said lot on Howard street to James Atchison for the pretended consideration of five thousand five hundred dollars, though as your orators are informed and believe, no consideration was given for said deed, but the same was made in secret trust for George Jackson, and by deed bearing date the 12th day of November, in the year 1858, and recorded among the Land Records of Baltimore City, in Liber "G. E. S.," No. 159, folio 415, &c., the said George Jackson, for the pretended consideration of twenty-five hundred dollars, assigned the said lot of ground on Lee street to George Russell, though no part of the [**6]  consideration mentioned in said deed was paid, but the same was made to said Russell in secret trust for said George Jackson.

5th. That by deed bearing date the 28th day of December, in the year 1858, and recorded among the Land Records of Baltimore City, in Liber "G. E. S.," No. 162, folio 151, &c., made by said George Jackson to said George Russell, the said George Jackson assigned to said George Russell the said lot of ground on Aisquith street, and the said lot of ground on Buren street, as is pretended for the consideration of two thousand dollars, though no part thereof was paid, but the same was made in secret trust for said George Jackson.

6th. That by deed bearing date the 6th day of November, in the year 1858, and recorded among the Land Records of Baltimore City, in Liber "G. E. S.," No. 169, folio 506, &c., the said James Atchison, at the instance and request of said George Jackson, assigned to Elizabeth Jackson, the wife of said George Jackson, the said lot of ground on Howard street, for the pretended consideration of five thousand five hundred dollars, though no part of said consideration was in fact paid.

7th. That by deed dated the 12th day of November,  [**7]  1858, and recorded among the Land Records of Baltimore City, in Liber "G. E. S.," No. 170, folio 141, &c., the said George Russell, at the instance and request of said George Jackson, assigned to said Elizabeth Jackson, the said lot of ground on Lee street for the pretended consideration of two thousand five hundred dollars, though no part of said consideration was in fact paid.

8th. That by deed dated the 8th day of December, 1858, and recorded among the Land Records of Baltimore City, in Liber "G. E. S.," No. 172, folio 510, &c., the said George Russell, at the request and instance of said George Jackson, assigned to said Elizabeth Jackson the said lot of ground on Lee street, and the said lot of ground on Buren street, for the consideration, as is pretended in said deed, of two thousand dollars, though no part thereof was paid.

9th. That since the fraudulent compromise aforesaid, effected by said George Jackson with his creditors, the said Lewis, Dorst & Co., for a valuable consideration, assigned their said claim to said Hodges Brothers. That your orators had no knowledge that they had been so defrauded until within three months before the filing of this bill, and they [**8]  are informed and believe, and therefore charge, that none of the creditors of said George Jackson had any knowledge until within the three months last past before the filing of said bill, that they had been defrauded by the said George Jackson.

10th. That the said James Jackson being indebted to said George Jackson for a portion of said money, on or about the 16th of July, 1859, as your orators are informed and believe, passed to said George Jackson two promissory notes, made by a certain John Foley and endorsed by said James Jackson. That said George Jackson passed to a certain Silas M. Hamilton, said promissory notes, made by a certain John Foley and said James Jackson, and obtained a judgment against said John Foley and against said James Jackson, for the money mentioned in said promissory notes, namely: about four hundred and twenty dollars, and that the consideration for said promissory notes was part of the money secretly and fraudulently deposited by said George Jackson in the hands of said James Jackson as aforesaid, or a part of the proceeds thereof.

11th. That the said George Jackson, as your orators are informed and believe, paid said Silas M. Hamilton the said [**9]  judgments, and has had the same entered to his use, and has caused to be issued thereon writs of "fi. fa," directed to George H. Dutton, Sheriff of Baltimore City.

12th. Your orators further charge that by the making of said deeds to James Atchison and George Russell, he, the said George Jackson, rendered himself hopelessly insolvent, and unable to pay the debts he owes your orators and his other creditors, and also that the said Elizabeth Jackson had no money or property at the time of her intermarriage with said George Jackson, and that she has no money, property or effects, except that which was conveyed to her by the deeds aforesaid.

13th. That should said George Jackson obtain possession of said money mentioned in said judgments, and that owing to him by said James Jackson and said John Foley, he would, as your orators believe, fraudulently secrete it, and if in his power, place it beyond the reach of your orators and his other creditors.

14th. Your orators therefore charge, that the said property so conveyed to Elizabeth Jackson was obtained by her, through the instrumentality of said George Jackson, and without any money or other valuable consideration having [**10]  been paid by her therefor, but that the same is held in secret, trust by her for said George Jackson, and that a portion thereof was owned by said George Jackson at the time he fraudulently persuaded his creditors to release him as aforesaid, and that the balance thereof was purchased with money, or the proceeds of the sale of property then owned by said George Jackson; and that the same or no part thereof, was acquired by him through any acquisitions he may have made subsequent to the perpetration of said fraud; and that the same was purchased from the proceeds of the sales of goods, sold by your orators and other creditors of said George Jackson, to said George Jackson, out of a part of which they have been as aforesaid, for the present, defrauded, and they now urge that in equity and justice, that said property and credits of said George Jackson, if not considered as theirs, should, so far as their said debts are concerned, be subject to the payment thereof, and also to the payment of all other creditors of said George Jackson fraudulently delayed as aforesaid.

15th. Your orators therefore charge, that the said promissory notes of George Jackson, delivered by your orators to [**11]  George Jackson on the making of said compromise with him, were procured by him through fraud, and that the said deeds made by said George Jackson to James Atchison and to George Russell, and the deeds aforesaid, made by James Atchison and George Russell to said Elizabeth Jackson, were fraudulent and made with the view and intent to hinder, delay and defraud the creditors of said Geo. Jackson, of their lawful accounts and claims; and, also, that the money deposited in the hands of James Jackson was so deposited with the view, purpose and intent to hinder, delay and defraud the creditors of said George Jackson of their lawful accounts and claims, of which money so deposited in the hands of James Jackson, or the proceeds thereof, there is in the hands of John Foley and James Jackson, about three thousand dollars.

The bill concludes with a prayer, that the said George Jackson, Elizabeth Jackson, his wife, James Jackson, John Foley, James Atchison, George Russell and George H. Dutton, may answer the matters and things hereinbefore stated and charged, as fully and particularly as if they were herein again repeated, and they were thereto especially interrogated; and that said George [**12]  Jackson may state what property, real, personal and mixed, and money and effects of which he was seized or possessed, immediately after the execution of said deeds to said James Atchison and George Russell, and of what the same consisted, and where located, and if out of his possession, in whose possession it was immediately after the execution of said deeds, and that he will state the value of each particular parcel of the property of which he was so seized or possessed at the time last aforesaid, and the value of the entirety thereof, and the amount of the money of which he was possessed, and the amount if any of the debts due to him, and by whom owing, and the amount owing by each of said debtors, and the residence of each of said debtors, and how, and in what manner such debts were contracted; and that the said James Jackson and John Foley may be restrained from paying to said George Jackson the money mentioned in said judgments, or any money they owe him, and that they or either of them may be ordered to pay the same into Court, and all other money which they or either of them may owe him, the said George Jackson; and that the said George H. Dutton, Sheriff of Baltimore City,  [**13]  may be ordered and restrained from collecting the money mentioned in said writs of "fi. fa.," from said John Foley or James Jackson; and the said George Jackson and Elizabeth Jackson, his wife, may be restrained from collecting the rents, selling, disposing of or conveying any of the property conveyed to said Elizabeth Jackson, by the deeds aforesaid, made to her by said George Russell and James Atchison, and from collecting the rent thereof, and that an account may be taken of the rents of said property since the date of said deeds, and that Elizabeth may be decreed to pay the same to your orators and the other creditors of George Jackson, as this Hon. Court may direct from said John Foley or James Jackson; and that a decree may be passed setting aside as fraudulent and void the said deeds made by said George Jackson to said James Atchison, and the said deeds made by said George Jackson to said George Russell, and the said deeds made by said George Russell to said Elizabeth Jackson, and the said deed made by said James Atchison to said Elizabeth Jackson; and that the property mentioned in or described in said deeds from George Russell to said Elizabeth Jackson, and that described [**14]  in the said deed from said James Atchison to said Elizabeth Jackson, be sold, and in the meantime that a receiver may be appointed to collect the rents of said property, and the said debts owing by James Jackson and Foley, and the proceeds thereof, together with the money mentioned in said judgments, and that which may be owing by James Jackson and John Foley, to said George Jackson, be applied, so far as may be necessary, to the payment of said claims of your orators, and to the claims of all the other creditors of George Jackson, defrauded by him as aforesaid; and that said releases may be declared void, and that your orators may have such other and further relief as their case may require.

The defendants, George Jackson and Elizabeth Jackson, filed an answer to the bill, and a decree pro confesso was taken against the other defendants. Under the commission for testimony a number of witnesses were examined and a mass of documentary evidence was filed."

James Alchison, examined by the complainants, and being shown complainants' Exhibit A, filed under the commission, stated as follows:

The property therein described was conveyed to me by George Jackson; I gave Jackson [**15]  my notes for the consideration money therein mentioned, viz: $ 5,500; I gave him eleven notes of $ 500 each; I paid no money on account of the said notes; I renewed said notes some five or six months ago; Jackson has never demanded payment of the notes from me; I do not know who prepared the deed; I did not pay for preparing the deed--I presume Jackson did; Jackson paid for acknowledging the deed--he also paid for the recording of the deed; I never got possession of said property,--never got any part of it,--never paid any ground rent on it or taxes; I am not related to Jackson.

"Complainants' Exhibit B," filed under the commission-in-chief in this cause, was here shown to witness, who further testified as follows:

On the same day that Jackson conveyed the property above referred to, to me, I conveyed it to Elizabeth Jackson, his wife, without any consideration; Mrs. Jackson is not related to me; I was acquainted with Mrs. Jackson from one to two years previous to making the conveyance to her; she was not present when I executed the conveyance to her; she did not give or promise me anything for the conveyance; nor did her husband give or promise me anything for making the [**16]  said conveyance, and I did not ask him for anything.

George Russell, a witness for complainants, testified as follows:

I know the house of Hodges & Brother, and I know all the parties defendants; George Jackson made a deed of some property to me in 1858,--I think there were two houses conveyed to me--one of them in Lee street and the other somewhere in Old Town; I paid very little attention to them; I did not, to my knowledge, see the house in Old Town before it was conveyed to me; I cannot say that I saw the house in Lee street before it was conveyed to me, but I may have seen it afterwards, as Jackson is now living in a house on Lee street where I have been, and presume it to be the house that was conveyed to me; Jackson came to me and proposed selling the houses as he had got into some difficulty with his brother; I did not want to buy the houses; I did, however, take an assignment of them.

"Complainants' Exhibits C and D," filed under the commission-in-chief in this cause, was here shown to witness, who proceeded:

I gave Jackson my notes for the consideration mentioned in said Exhibit C; I gave him five notes for $ 500 each, payable at 4, 8, 12, 16 and 20 months;  [**17]  I did not pay said notes; I did not pay a cent on account of them; I renewed said notes about six months ago; I don't know who prepared the deed; I don't know who paid for drawing the deed; nor do I know who paid for the recording of the deed; I did not pay for any; I never got possession of the property, or received any rents from it, or pay any ground rent or taxes; on the same day I conveyed said property to the wife of George Jackson, for which I received no consideration, and I was not promised any consideration; I think Mrs. Jackson was not present at the making of the conveyance to her; I had known Mrs. Jackson from one to two years; neither Mr. or Mrs. Jackson are related to me.

"Complainants' Exhibits E and F," filed under the commission-in-chief in this cause, were here shown to witness, who continued as follows:

The first conveyance from Jackson to me was for one lot, and in a subsequent conveyance there were two lots conveyed to me by him; I don't know where the two lots named in the subsequent conveyance are situated; I never went to examine them before I took the conveyance for them; I gave him four notes for the consideration money for $ 500,--each payable [**18]  in 4, 8, 12 and 16 months; I did not pay said notes, or anything on account of them; they were renewed at the same time with the others; I don't know who prepared the deed,--I did not pay the cost of preparing it, or acknowledging or recording it; I never got possession of this property, and never asked for it; I can't tell where the lots are located; I think one is in Buren street; I don't know where the other is; I conveyed said property on the same day to George Jackson's wife without consideration; I received none, asked for none, and none was promised me; I understood from my conversation with George Jackson that I would be called upon to pay the notes I gave him, and that he was making the property over to his wife to avoid the payment of his brother's debts, and this was the mode he adopted to accomplish it.

James Jackson, a witness for the complainants, then testified as follows: I know all the parties to this suit with the exception of Sheriff Dutton, and I am not able to say whether I know him or not. My business in 1855 was coach-making, and I was engaged in that business seven or eight years previous to 1855. My brother, in the year 1855, was engaged in peddling with [**19]  a horse and wagon, and had been so engaged for five or six years; he failed in business in the year 1855; before he failed I had a conversation with him in reference to his postponing the payment of his debts. In talking over matters he told me he had made up his mind to fail. In the course of his conversation he said he was going to put off the payment of his notes by renewals, or getting extensions for the purpose of getting in debt as deep as he could; he said he was going to fail, and that he intended not to fail empty-handed-- those were about the words he used. This conversation was some four or five months before he failed; he failed in the summer of 1855. I had been in the habit of borrowing money from him before he failed; he was in the habit of loaning money to me about the time he told me he was going to get his paper renewed. When he failed I was indebted to him in about $ 500 or $ 1,000; he did not call in the loans he made me at the time he failed; he continued to loan me immediately after he failed; from the time of his failure up to the year 1858, my indebtedness to him increased up to $ 5,000. "Complainants' Exhibit F F," filed under the commission-in-chief on 17th [**20]  December, 1860, being shown to witness, he further proved as follows: The property therein described is the property that he and his brother, George Jackson, leased from Henry Hursh and wife. Almost immediately after we leased said property we began to improve it, and had the improvements completed in about six months thereafter at a cost of about $ 5,500; George advanced the greater part of the money for the improvements. "Complainants' Exhibit g," filed under the commission-in-chief on 17th December, 1860, now shown to witness, is the assignment of said property from witness to his brother George. At the time of the said assignment we adjusted our accounts, and I was found indebted to George, after having made the assignment, in the sum of $ 2,378 or $ 2,379 and some cents. George went into my employ about the 1st January, 1857, at a salary of $ 500; he was my general superintendent; he remained in my employ from January, 1857, until the fall of 1858, during which time he was absent about three months. I know a lot of ground on Lee street which my brother George told me he paid $ 2,000 for. I have seen the house on Aisquith street; he leased the said lot from Jas. Mullin, and George [**21]  himself improved it; he told me it cost $ 1,400 to improve it. I have seen the property he owned on Buren street; he said it cost him from $ 1,000 to $ 1,100. Some time after George's failure, he stated in a conversation that he had with me, that if he was successful in winding up his business he expected to be worth from $ 16,000 to $ 18,000. I remember that in a conversation with George, soon after his failure, George told me that he could have paid all his debts and have something left. I remember when George was compromising with his creditors--I endorsed his compromise notes. I do not know the amount I endorsed; I did not, about that time, refuse to endorse any notes that he wanted me to endorse. I never refused to endorse any of the compromise notes on the ground that I wanted the old notes held by the creditors first to be returned; I endorsed all the compromise notes when and as he wanted me to endorse them. About the time of the compromise George never asked me to advance any money for the payment of any of his creditors; I had no communication with any of George's creditors in reference to the compromise; I did not tell George that I would pay his creditors fifty cents on [**22]  the dollar, deducting one per cent. a month for twelve months. From the time I had the settlement with George in February, 1857, when we adjusted our accounts, he increased my indebtedness to him by loans and merchandise, so that in the summer of 1858 I was indebted to him in the sum of $ 5,000.

The cause having been heard, the Court (KREBS, J.) on the 28th of November, 1861, passed a decree by which the deed dated the 6th of November, 1858, from Geo. Jackson to James Atchison; the deed dated the 6th of November, 1858, made by James Atchison to Elizabeth Jackson; the deed dated the 12th day of November, in the year 1858, made by George Jackson to George Russell; the deed dated the 12th day of November, in the year 1858, made by Geo. Russell to Elizabeth Jackson; the deed dated the 28th day of December, 1858, made by George Jackson to George Russell, and the deed dated the 28th day of December, in the year 1858, made by George Russell to Elizabeth Jackson, were vacated, annulled, and declared to be utterly void and of no effect as against the complainants, and all others the creditors of said George Jackson, for debts contracted before the 28th day of December, in the year 1858.

And [**23]  it was further adjudged, ordered and decreed, that so much of the property intended to be conveyed by said six deeds, as may be necessary to satisfy the complainants and all others, the creditors of said George Jackson, for debts contracted before the 28th day of December, 1858, with the interest that may have accrued thereon, and the costs of this cause, be sold, unless the said George Jackson or Elizabeth Jackson shall, on or before the 1st day of May, 1862, pay and satisfy, or bring into this Court to be paid to said creditors the amount of their claims and of the costs in this cause; provided, however, that no part of said property be sold until such sale can be made consistently with the provisions of the Act of Assembly of 1861, ch. 17, and any other Act staying such sales; that John McLaughlin be and he is hereby appointed trustee to make said sale; that the course and manner of his proceedings shall be as follows, &c., &c.

And the decree then proceeds as follows:

It is further adjudged, ordered and decreed, that the proceedings in this cause be referred to the auditor to state an account between George Jackson and James Jackson and John Foley, and to ascertain the [**24]  amount due from said James Jackson and John Foley and each of them, to George Jackson, arising from money loaned by said George Jackson to said James Jackson, before the 28th of December, 1858, and for rent accrued for, or on account of, any ground conveyed by said deeds.

It is further adjudged, ordered and decreed, that the said James Jackson and John Foley pay to said John McLaughlin, trustee, the money that may be so found due by them and each of them, to said George Jackson.

It is further adjudged, ordered and decreed, that the auditor state an account of the rents collected by said Elizabeth Jackson for or on account of the property mentioned in said deeds since the execution thereof, deducting therefrom ground-rent, taxes and expenses of keeping said property in order.

It is further adjudged, ordered and decreed, the said trustee shall bring into this Court the money arising from said sales, and collections by him to be made by virtue of this decree, to be distributed by the Court after deducting all costs and expenses necessarily incurred in the collection thereof, and such commission to the said trustee as the Court shall think proper to allow in consideration [**25]  of the skill, attention and fidelity, wherewith he shall have discharged his trust.

And it is further adjudged and decreed, that the defendant, George Jackson, pay the costs of this suit, to be taxed by the clerk; reserving however for further consideration and decree or order, all equities and priorities, as to the distribution of the money so to be brought into Court, and also the disposition of the certificate of Baltimore City six per cent. stock, in reference to all of which the parties hereto are permitted to take testimony before the auditor, and also in reference to the accounts to be stated as aforesaid.

From this decree the present appeal is taken.  

DISPOSITION:
Decree affirmed and cause remanded.  

HEADNOTES:

DEBTOR AND CREDITOR: COMPROMISE WITH CREDITORS PROCURED THROUGH FRAUD. -- Where a debtor, having assets sufficient to pay all his debts, makes a false and fraudulent misstatement of his assets to his creditors, and thereby procures a settlement with them, by which they agree to accept his notes for fifty cents in the dollar on their claims, and surrender the original notes and execute a release of all their claims on his paying the compromise notes, -- a Court of Equity on proof of the fraud, will set aside the settlement, and apply the property withheld from his creditors to the payment of the balance of their claims.

DEBTOR AND CREDITOR: THE STATUTE OF LIMITATIONS will not begin to run in such a case, until the fraud has been discovered or becomes known to the complainants.  

COUNSEL:
Bernard Carter for the appellants.

The bill of complainant is a long one; but an examination of it will show that, in order to sustain it, the appellees must prove that the settlement made by George Jackson with his creditors in 1855, was procured by fraud on his part. This allegation is the sole foundation of the bill. All other allegations in the bill, and all the evidence in the case, need only be considered as they bear upon this one single inquiry. If the appellees [**26]  fail to make out affirmatively the above proposition, their bill will have to be dismissed. The bill itself alleges that the complainants released their indebtedness in 1855; if, therefore, there was no fraud on the part of George Jackson, that indebtedness is entirely extinguished; and no matter how prosperous Jackson became afterwards, the bill must be dismissed.

The bill charges that this release and settlement was procured by fraud. Then the appellees must prove it. 12 Cush., 30. Duvall vs. Coale, 1 Md. Ch. Dec., 168. Paige vs. Bent, 2 Medcalf, 371.

In what is the fraud alleged to have consisted? In this: That George Jackson, just prior to his declaration to his creditors, that he could only pay a part of his indebtedness, had purposely increased that indebtedness, and then declared he had not assets sufficient to pay it with, though he had in fact enough, and more than enough, and knew he had enough and more than enough. And 2d. That he so concealed and hid away his assets from his creditors, that they could not ascertain their real condition.

Two things must therefore be shown: 1st. Sufficient assets, and knowledge on the part of Jackson of such sufficiency. 2nd.  [**27]  Concealment of the means of such knowledge from the creditors, and false and fraudulent representation of the condition of said assets.

The appellees say, that Jackson is shown to have had money and to have bought property soon after the settlement; and that therefore he must have had assets sufficient to pay his debts when he made the settlement. There is no doubt that he did purchase property subsequent to his settlement, and loaned money to his brother James. But in order that this acquisition of property should benefit the case of the complainants, it must be shown: That this possession of said property after the settlement of August, 1855, was absolutely inconsistent with any representations which he is proved to have made to his creditors.

We respectfully submit that in the absence of all direct proof to show that Jackson had more stock in his store, or more debts due him, or more money in hand than was embraced in his written or oral statements made to his creditors, no Court will infer a fraudulent and false representation of his assets, from the possession by him of the amount of property shown to have been in his possession subsequent to the settlement. Sto. Eq.  [**28]  Jur., § §  191-197-199. Sto. Eq. Pl., §  271. Code, Art. 16, sec. 35. Brown vs. Brinkershoeck, 6 Johns., 139. McDowell vs. Goldsmith, 2 Md. Ch. Dec., 341, and 6 Md. Rep., 337. Murray vs. Costar, 4 Cowen, 627. Yeaton vs. Lenox, 8 Peters' Rep., 127.

P. McLaughlin for the appellees.

The plea of limitations cannot avail the defendants in this cause, because they do not reply to the allegations of fraud secretly perpetrated, and no discovery thereof, though the bill alleges that the frauds were perpetrated secretly, and that the creditors had no knowledge thereof until within three months of the filing of the bill. Secs. 2, 3, 4, 9 of the bill. 2 Story's Eq. Jur., §  1521, 1521 a. Story's Eq. Pl., 754. South Sea Co. vs. Wymndsel, 3 P. Wm., 143. As to the frauds, see 7 Cowen, 301, 305. Rollins vs. Moore, 23 How., 474, 479.

On the question of multifariousness, see 1 Code, Art. 5, secs. 26 and 27; also Art. 16, sec. 16, title "Chancery," sub-title "Amendment." The objection of multifariousness ought to have been taken below, for under the Article and section last referred to we could have amended. There is no multifariousness in this case as to parties. Story's Eq. Pl., §  286.  [**29]  The usual practice of raising the objection as to parties is by demurrer, but when raised at the hearing it is not always fatal, and will be allowed at the discretion of the Court. But where the Court can see that the reason of the rule upon which such objections are founded, does not apply, and the objection is not made by demurrer, the Court will not interfere sua sponte. Hamilton vs. Whitridge, 11 Md. Rep., 129. Story's Eq. Pl., §  271, note a, and cases there cited. Parr vs. The Att'y Gen., 8 Clarke & Fin., 434.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*486]  BARTOL, J., delivered the opinion of this Court.
In the year 1855, the appellant, George Jackson, being indebted to the appellees and others, in large sums, represented to his creditors that he was unable to pay more than fifty cents in the dollar of his debts, and proposed to them to accept that proposition in full satisfaction of their 

 [*487]  claims; they confiding in his honesty, and relying upon his representations with regard to the value of his assets, accepted his proposition and received from him promissory notes endorsed by his brother, James [**30]  Jackson, payable on an average of twelve months, without interest, to the amount of fifty per centum of the sums respectively due them, and released and surrendered their claims.
Afterwards, a short time before the filing of the bill of complaint in this case, the appellees being informed that George Jackson, the appellant, had not truly represented his pecuniary condition, but had concealed and secreted a large amount of property for his own benefit, instituted this suit for the purpose of annulling and setting aside the settlement made in 1855, and subjecting the property of George Jackson to the payment of the balance of their claims.
The main allegation of the bill, upon which the appellees' claim for relief depends, is that the settlement of 1855 was procured by fraud on the part of George Jackson. The fraud is alleged to consist in his falsely representing himself as unable to pay more than fifty per centum of his debts, when in fact he had property enough to pay them in full; and in his concealing from his creditors the real amount and value of his property, and thereby inducing them to accept the composition proposed.
As fraud is never presumed, but must be established by [**31]  proof, it is our duty to examine the evidence contained in the record, and to determine whether in our opinion, it is sufficient to prove the fraud and deception charged in the bill of complaint.
It appears from the evidence, that in order to induce his creditors to accept the terms offered, George Jackson exhibited to them a statement of the amount of his debts, and the estimated amount or value of his property, consisting 

 [*488]  of his stock of goods on hand, and the debts due him considered as good. These statements are not produced, nor is there any very distinct evidence of the several amounts or estimates contained in the statement.
It plainly appears from the testimony of Allen T. Lewis, one of the creditors, who was examined as a witness both for the complainants and the defendants, that the statement exhibited by George Jackson did not contain an invoice of his stock of goods, or specify in detail either the items of his property or a list of the sperate debts due him, but merely the aggregate amount of his liabilities, and two items showing the aggregate amount of his property and sperate debts.
There is no dispute about the amount of his liabilities; by an agreement [**32]  signed by the solicitors, they are admitted to have been in the aggregate $ 18,546 16.
The witness, Allen T. Lewis, states that he made the calculation from the statement shown, and the result was that after paying fifty per cent. there would be left to George Jackson a surplus or margin of $ 1,800 or $ 2,000, which he thought was "no more than he was entitled to have for selling the goods, making the collections, and for the risk he would run, and including also a little margin to enable him to go on and continue business." He also states that George Jackson represented that the statement "embraced all his property except his household furniture, which he (witness) thought the creditors ought not to require of him."
This evidence is conclusive to show that the whole amount of his property as represented to his creditors, was from $ 11,000 to $ 11,273. This is ascertained by adding $ 1,800 to $ 2,000 to the sum of $ 9,273, the sum proposed to be paid to the creditors.
What was the whole value or amount of his assets at 

 [*489]  that time is not proved by direct evidence. But he concedes in his answer that the estimate he then put upon his stock of goods was $ 13,000, (and [**33]  that they were actually sold for more.) James Jackson, his brother, owed him $ 500 to $ 1,000. What other debts were due him is not shown. He owned two improved lots, one on Buren street, and one on Aisquith street, both of which, however, were encumbered with mortgages, and their value, if any, beyond the amount of the incumbrances, does not clearly appear. But estimating only the stock of goods on hand, and the debt then due him from James Jackson, it is clear that these items together exceed by the sum of $ 2,500 or $ 3,000, the whole amount represented by him on his statement, shown to the creditors to be the whole value of his property. In addition to this, the proof shows that within six months after he effected the composition with his creditors, he purchased a lot on Lee street for $ 2,000, and in little more than a year had advanced in cash for the improvement of the property on Howard street (leased by him and his brother James,) the additional sum of $ 5,500. And as no other explanation is afforded by the evidence, we are compelled to the conclusion that his property and effects at the time of the settlement greatly exceeded the amount represented by him to his creditors,  [**34]  and were sufficient to pay his debts in full. This is the irresistible conclusion from the evidence in the cause, independently of the positive testimony of James Jackson, of which we shall speak presently.
There are some other facts conclusively established by the proof, that are inconsistent with honesty, truth and fair dealing on the part of George Jackson, in procuring the settlement with his creditors.
He represented that his disasters in business had been occasioned by the protracted illness of his wife, and the consequent large expenses incurred by him. The proof 

 [*490]  shows that her illness was of short duration; and though he had the misfortune to lose her in the spring of 1855, the evidence of Dr. Flemming, the family physician, shows that his medical bill did not exceed twenty dollars, and there is no evidence of any large losses or expenses incurred by him.
His correspondence with his creditors in New York and Philadelphia, Messrs. Johns & Payne, Sharpless Brothers, Amer & Co., and Hammil, Wevil & Co., exhibited in the record, both in its tone and substance, shows a reckless disregard of truth and fair dealing on his part.
While dictating to them his own terms [**35]  in a most arbitrary way, he represents to them that his brother James, whom he offers as endorser on his notes, insists upon having the old notes surrendered before he is willing to become his surety, when in fact, according to James' testimony, he was not even consulted on the subject. He represents that his brother James is willing to discount the new notes at the rate of one per cent. a month, and in some cases the new notes were actually shaved at that rate, not by his brother James, but by himself; showing that he had at that time ready money on hand.
From these facts, combined with the evidence that within a brief period after his composition with his creditors, he was in possession of property of large value, amounting, according to his own statement made to Hayward, the Justice of the Peace, in 1859, to $ 15,000 or $ 20,000, as proved by the witness McCauley, in the absence of any satisfactory explanation of the way in which this property was acquired, are convincing proofs that the statement made to his creditors by George Jackson, upon which they relied, and by which they were induced to enter into the composition with him, was grossly untrue and fraudulent.
If there were [**36]  any doubts, however, on this subject, they would be removed by the positive evidence of James Jackson, 

 [*491]  who testifies to the fraudulent purposes of George Jackson, and the deception practiced by him upon his creditors in procuring the settlement of 1855.
If the case of the complainants rested exclusively upon the testimony of this witness, unsupported by other proof, we should hesitate in affirming the decree of the Circuit Court. But that testimony is corroborated by other proof, and in those particulars in which it is not positively supported it seems to us to be consistent with the other evidence, and is therefore not to be absolutely rejected.
The result of a most careful examination of the whole case, has convinced us that the fraud charged in the bill has been established by the proof, and therefore that there is no error in the conclusion reached by the Circuit Court upon the facts of the case.
We are of opinion that the exceptions to the bill, on the ground of multifariousness, are not well taken, even if they had been made in time.
We are also of opinion that the defence, under the statute of limitations, is not supported. In such case, according to all the [**37]  authorities, the statute does not begin to run until the fraud has been discovered, or becomes known to the complainants, which the proof in this case shows was not until a few months before the filing of the bill. A decree will be signed affirming the decree of the Circuit Court, with costs, and remanding the cause for further proceedings.
Decree affirmed and cause remanded. 

97 of 120 DOCUMENTS 

THE YORK COUNTY BANK OF PENNSYLVANIA vs. MEYER STEIN AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 447; 1866 Md. LEXIS 27 

April 11, 1866, Decided 

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

This was an action instituted by the appellant to recover a balance due on a loan of $ 3,000 made by it to the appellees on the 11th of March, 1861, payable in 90 days.

Exception.--At the trial of the cause, the plaintiff, to maintain the issues on its part joined, proved by George Small, a competent witness, that a few days before the transactions out of which this case arose, the president of the plaintiff, who was the father of the witness, and who lived in York, Pennsylvania, being then in the City of Baltimore, called, at the suggestion of the witness, at the office of several brokers, in company with the witness, and among others, at that of J. R. McGinn, and stated that the plaintiff had money to lend on good collateral security, and inquired if said broker knew of any one who wished to borrow, and that said McGinn, in reply to the inquiry made of him, said that one of his customers, then present, would take said loan, and in the presence of said customer named the collaterals which he had to offer, and that the president replied that he was not authorized to make said loan on said collaterals without the authority [**2]  of his board, and promised on his return home to telegraph the witness, Small, on the subject; that he did so telegraph said witness, and that said loan was not made; that said McGinn, in a few days after, called on the witness and inquired whether or not the plaintiff still had any of said money to lend, and stated that one of his, the said McGinn's customers, desired to borrow $ 3,000 thereof, on $ 5,000 of Virginia bonds as collateral security; that said witness communicated said proposition to the president of the plaintiff, and in reply received a letter, which he had diligently searched for, but was unable to find, authorizing him to accept said proposition, and enclosing him for that purpose a check for the amount of the loan after deducting the discount; that when witness received the check and the authority of the bank to make the loan, he notified McGinn, and closed the transaction he thinks in McGinn's office; that the loan was of $ 3,000, for 90 days on the security of $ 5,000 Virginia bonds; that witness handed McGinn the check, and received from him the bonds.

The plaintiff then produced the paper marked A, which is as follows:

"We have this day received of [**3]  Mr. George Small the sum of three thousand dollars ($ 3,000) returnable on 11th day of June next. And we have deposited in their hands, as collateral security for the payment of the same, the following securities, viz: $ 5,000 Virginia bonds, viz: No. 11,297, $ 1,000; No. 11,296, $ 1,000; No. 11,298, $ 1,000, No. 11,303, $ 1,000; No. 11,302, $ 1,000; with the understanding that if the said loan is not promptly paid, according to agreement, they are authorized, without further notice, to sell the said collaterals for the purpose of satisfying the same, any excess or deficiency to be paid or received by us, as the case may be. We also agree that a satisfactory margin shall be kept up.

"J. R. MCGINN & Co."

Baltimore, March 11, 1861.

The witness then stated that the paper produced was the agreement entered into between him and McGinn; that the words "we also agree that a satisfactory margin shall be kept up," were not then in said paper, but were, several days after, added thereto at the request of the witness; that witness went to McGinn and asked him to add those words, saying that witness had made the same agreement in other cases; that McGinn at once consented, and added [**4]  them; that nothing had been said between them about margins when the agreement was originally made and signed; and that on the 11th of March, 1861, at the time of receiving said check, the said McGinn also delivered to the witness, Small, the Virginia bonds described in the paper marked "A."

And the said witness further testified that after the troubles of the 19th of April, said bonds began to decline, and said witness called on McGinn for a margin, and again, a few days after, for another margin, and in response to said calls received from him $ 500 on the 22nd of April, and that he never received from him any other sum; that the $ 500 received by McGinn was sent by witness to the bank soon after its receipt, (communication with York having been interrupted for some days after the 19th of April,) and that when sent, witness informed the bank that it was the amount of a margin he had called for on the loan in question, and it was credited by the bank; that as soon as he heard that McGinn had failed, the witness fearing that inasmuch as he had called for two margins and received only one, McGinn might have obtained from his principal more than he had paid over to the witness,  [**5]  went to the office of McGinn to inquire who the principal was, and learned from McGinn's clerk that the defendants were the principals; that this was after the receipt of the $ 500; that up to that time the witness knew that McGinn was acting as a broker for some one else, but did not know for whom he was so acting; that witness then went to the counting-room of the defendants, and asked if said bonds were theirs, and if said loan was effected for them; to both of said inquiries they replied "yes;" that witness asked how many margins they paid, and they replied, "two;" that witness informed them that he had received but one; and that he notified the defendants when the loan became due, and they tendered him $ 2,000.

The correspondence between the parties preliminary to the sale of the bonds was then read in evidence, and the defendants' counsel admitted that said bonds were sold at the stock board in the customary and most advantageous way, for the amount indicated in the account sales thereof, which account was offered in evidence.

On cross-examination the witness proved that he had known McGinn for some considerable time; they were neighbors, and had known him three or [**6]  four years as a stock, note and bill broker, and had never known him in any other capacity; that he had had a good many transactions with him, and had given him stocks to buy and sell, and had bought paper of him; but had never had any other transaction with him in which the plaintiff was concerned; that the witness had, once or twice before, bought paper and lent money on collaterals for the plaintiff; that he had bought the paper from Messrs. William Fisher & Son, brokers; that witness called on McGinn for the first margin, probably for the second, before the 19th of April --he was not certain about the date; that he called first for $ 500, and it was paid on the 22nd; that about the 19th, he called for the second margin but did not receive anything from McGinn on account of the second call; that the witness called on McGinn to go to his, McGinn's principals, and make the demand for the margins; that witness did not then know or inquire who the principals were; that McGinn requested the witness to make the demand in writing, and he complied; that witness's impression was, he told McGinn to go to his, McGinn's, customers or principals, and make the demand; that witness's understanding [**7]  was, that McGinn was to bring the money to him; that about the 26th of April, he went to McGinn's office to learn why the money had not been put up (this was the day after McGinn's failure); that he then asked for McGinn's principal (this was the first time he made the inquiry, and the first information he had who were his principals); that the net proceeds of the sales of the bonds were credited by the bank, and also the $ 500 received from McGinn; and that he thinks he mentioned to the president of the bank that he had added the words authorizing him to call for a margin.

On being recalled, the witness said that he gave McGinn no authority to make said loan, nor any other authority in connection therewith, but himself acted as agent of the bank; that the $ 500 received by McGinn was sent by witness to the bank soon after its receipt, (communication with York having been interrupted for some days after the 19th April,) and that when sent, witness informed the bank that it was the amount of a margin he had called for on the loan in question, and it was credited by the bank; that witness had been in the habit, from time to time, of doing business for the bank in Baltimore; that [**8]  he recollects buying notes for them, and is under the impression that he made another loan on collaterals for them; that when he wrote to his father about this transaction, he told him a broker had offered to borrow $ 3,000 on $ 5,000 Virginia bonds, and asked him if he would make the loan, and in reply he received the check, and the bank's authority to lend it.

The defendants' counsel then produced, and showed to the witness the following papers:

"Messrs. J. R. McGinn & Co.:

"GENTS.--I hereby call a margin of 10 per cent. on the $ 5,000 North Carolina 6's, on which I loaned you $ 3,000, March 11th.

GEO. SMALL.

"Balto., April 17th, 1861."

"Messrs. J. R. McGinn & Co.:

"GENTS.--Please pay twenty per cent. on the $ 3.000 loan on Virginia 6's; this is additional to the 10 per cent. already called.

Oblige   GEO. SMALL.

"Baltimore, April 20th, 1861."

And the witness identified the said papers as those he had written and delivered to said McGinn, and said that the words North Carolina bonds, mentioned in one of them, were used by mistake for the Virginia bonds, about which he had been testifying.

The defendants then, to maintain the [**9]  issues on their part joined, proved by J. R. McGinn, a competent witness, that he was, throughout the year 1861, a broker, engaged, in the name of J. R. McGinn & Co., in negotiating loans for other persons, and as such had a regular place of business; that he did not remember ever to have had with the witness, Small, as the agent of the plaintiff, any other transaction than that out of which this case had arisen; that after learning from the president of the bank, in the manner testified to by Small, that the plaintiff had money to lend, a gentleman came into his office and told him that he thought the defendants wanted the money; that he did not think he was at that time acting as their broker in any other matters; before going to the defendants, he went to Small to know if the latter had any of the money which had been referred to in their former interview, as testified to by Small; that the latter promised to write to the president of the plaintiff, and ascertain whether or not it still had any of the money to lend; that in the meantime the witness went to the defendants and told them he thought he would get some money for them, if they wanted it, and would let them know the next [**10]  day; that after they told witness that they were willing to borrow $ 3,000 on $ 5,000 of Virginia bonds as collateral security, the witness went to Small and reported that one of his (witness's) customers would take said loan on said terms; that on the 11th March, 1861, George Small handed to the witness the check for $ 2,980.83, referred to in Small's testimony, and the witness at the same time handed to Small the Virginia bonds referred to in Small's testimony, which bonds he had received from the defendants for that purpose, and signed and delivered to him the paper marked "A," also referred to by him; that the words "we also agree to keep up a satisfactory margin," were not then on said paper, but were, several days after, added thereto, at the request of Small, without consultation with the defendants. On the 11th of March, 1861, the following counterpart thereof, marked B, was signed and delivered to the defendants;

"We have this day advanced to Messrs. Stein Bros., the sum of three thousand dollars, ($ 3,000,) returnable 11th day of June next. And they have deposited in our hands, as collateral security for the payment of the same, the following securities, viz: $ 5,000 [**11]  Virginia bonds, viz: No. 11,297, $ 1,000; No. 11,296, $ 1,000; No. 11,298, $ 1,000; No. 11,303, $ 1,000; No. 11,302, $ 1,000. 

'$ 496.40, and in cash rec'd April 18th, as additional margin.
'$ 500.00,   "   "   "   22nd,   "   "

F. HARDESTY.'

"With the understanding that if the said loan is not promptly paid, according to agreement, we are authorized, without further notice, to sell the said collaterals for the purpose of satisfying the same; any excess or deficiency to be paid or received by us, as the case may be.

J. R. MCGINN & Co.

"Balto., March 11th, 1861."

That the credits of $ 496.40 and $ 500, endorsed on said paper, were put there by witness' clerk, on the day said sums were paid to witness by defendants, as stated; that at the time of delivering this paper to the defendants, the witness paid them the proceeds of the check he had received from Small, less a quarter per cent. commissions, charged the defendants by the witness, for negotiating the loan for them; and that neither Small nor the plaintiff paid him any commissions. The witness then proved the genuineness of the following letters, written by him to the defendants:  [**12]  

"Messrs. Stein Bros.:

"GENTLEMEN:--We have been called upon to pay up a margin of 10 per cent. on loan of $ 3,000, made by us for your account on 11th March last, on $ 5,000 North Carolina 6 per cent. bonds. You will please respond accordingly.

"Yours, respectfully,

J. R. MCGINN & Co.

"Baltimore, 17th April, 1861."

BALTIMORE, 20th April, 1861.

"Messrs. Stein Bros.:

"GENTLEMEN:--We have been directed to call an additional margin of twenty (20) per cent. on loan of $ 3,000 Virginia bonds.

Yours, respectfully,

"J. R. MCGINN & Co."

The witness further proved, that in response to the first letter, the defendants paid him, on the 18th of April, $ 496.40; that they calculated what sum then paid would be equivalent to $ 500 at the maturity of the loan, and paid the above mentioned sum as such, preferring to pay it in that way, and that he never paid that to Small; and that on the 22nd of April the defendants paid the witness $ 500 more, which witness on the same day paid to Small.

On cross-examination, the witness testified that the first time he went to Small in reference to the loan in question, he told him that one of his, the [**13]  witness's, customers would take $ 3,000 on $ 5,000 of Virginia bonds as collateral security; that at the time of paying the money, the proceeds of the check he had received from Small, to the defendants, he told them they were safe, that their bonds were in the custody of the plaintiff, and that the money paid them was the plaintiff's money--at all events, he was perfectly certain he told them so before any demand was made for a margin; that he thinks he stated to the defendants that he got the money from George Small, who was acting as agent for the plaintiff; that it is not customary to tell the borrower who the lender is, but in this case, as only six per cent. interest had been charged, he did inform the defendants; that he did not, however, inform the plaintiff who was the borrower; that the first margin was paid on the 18th of April; that the troubles of the 19th and 20th then ensued, which interrupted business and involved the witness in embarrassments, which rendered him unable to pay to Small what he had received.

The said witness also proved that he had received from the defendants the bonds mentioned in the papers marked "A" and "B," for the purpose of borrowing for [**14]  them $ 3,000 thereon, as collateral security.

The defendants then proved by the witness, McGinn, and by Pittman, another broker, that they invariably charged the lender commissions for loans, without reference to the person by whom they were employed, and they so understood the universal usage of brokers to be, unless there was some understanding to the contrary.

And the plaintiff proved by Martin Lewis, that he is a broker, largely engaged in negotiating loans, and familiar with the usage of brokers; that the invariable usage, in the city of Baltimore, is for the broker to charge the party by whom he is employed, whether borrower or lender, with commissions for effecting loans, unless there is a previous understanding to the contrary.

And thereupon the plaintiff offered the following prayer:

The plaintiff, by its counsel, prays the Court to instruct the jury, that if they believe from the evidence in the cause that the President of the plaintiff, in company with the witness, George Small, called at the office of several brokers, and among others, that of J. R. McGinn, and stated that the plaintiff had money to lend on good collateral security, and inquired if said [**15]  brokers knew of any one who wished to borrow, and that the said McGinn, in reply to the inquiry made of him, said that one of his customers, then present, would take said loan, and in the presence of said customer named the collaterals which he had to offer, and that the president replied that he was not authorized to make said loan on said collaterals without the sanction of his Board, and promised, on his return home, to telegraph the witness, Small, on the subject, and that he did so telegraph said Small, and that said loan was not made, and that said McGinn afterwards called on the said witness, Small, to know whether or not the plaintiff still had any of said money to lend, and stated that one of his, the said McGinn's customers would borrow $ 3,000 thereof, on $ 5,000 of Virginia bonds as collateral security, and that said Small communicated said proposition to the president of the plaintiff, and received, in reply, a letter authorizing him to accept said proposition, and enclosing him, for that purpose, the check for $ 2,980.83, which has been offered in evidence, and that the said Small, on the 11th March, 1861, handed said check to said McGinn, and that the same was paid on [**16]  presentation, and that said McGinn, in receiving said check, delivered to said Small the Virginia bonds mentioned in the paper marked "A," which has been offered in evidence, and that said bonds had been entrusted by the defendant to the said McGinn, as a broker, for the purpose of borrowing thereon, as collateral security, the said money for them, and that the said McGinn, at the time of receiving said check, also signed and delivered to said Small the said paper marked "A," and that the words "we also agree that a satisfactory margin shall be kept up," were not then on said paper, but were, several days after, added thereto by said McGinn, at the request of said Small, and on the 11th of March, 1861, the said McGinn paid to defendants the proceeds of said check, less the commissions charged by him to them for negotiating said loan, and at the same time signed and delivered to them the paper offered in evidence by them, marked "B," and that the said McGinn informed the defendants, before they had paid anything on account of said loan, by way of margin or otherwise, and before any demand for a margin was made, that they were safe, because their bonds were in the custody of the plaintiff;  [**17]  that the money paid to them was the plaintiff's money, and that he had procured it from Geo. Small, who was acting as the plaintiff's agent, and that during all of said transactions the said McGinn was a broker in the city of Baltimore, engaged as such in the name of J. R. McGinn & Co., in negotiating loans for other persons, and that the several letters dated respectively the 10th, 11th, 13th and 14th of June, 1861, were on the dates thereof, respectively, received by the parties to whom they were addressed, and that the said Small, on the 14th of June, 1861, placed said bonds in the hands of William Fisher & Son, stock brokers, for sale, and that the same were in good faith, in the customary and most advantageous way, sold at the Stock Board for the amount indicated in the account sales thereof, marked "C," then the plaintiff is entitled to recover in this action, and the defendants are not entitled to be credited as against the plaintiff with any money paid by them to the said McGinn, and not paid by him to the said Small.

The Court (KING, J.) rejected said prayer, and verbally instructed the jury that the defendants were entitled, as against the plaintiff, to be credited with [**18]  all the money paid by them to McGinn, whether paid over by him to Small or the plaintiff, or not, if the jury believe the facts stated in the foregoing bill of exceptions. To which said ruling of the Court, rejecting his said prayer, the plaintiff excepted, and the verdict and judgment being for the defendant, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

PRINCIPAL AND AGENT: CONTRACT. -- The law is well settled, that the principal is personally responsible in all cases of contracts made by an agent within the scope of his authority; and this is not varied by the fact that the agent contracts in his own name, whether he discloses his agency or not, provided the circumstances of the case do not show that an exclusive credit was given to the agent.

The circumstance, that the name of the principal was not disclosed at the time of the contract, does not determine the election of the plaintiff to look to the agent alone for the fulfillment of the contract. The principal is notwithstanding answerable when discovered.

And such is the law with regard to a plaintiff principal who contracts by an agent. If the agent contracts in his own name without disclosing the principal, either the agent or the principal may sue upon the contract; the defendant in the latter case being entitled to be placed in the same situation at the time of the disclosure of the principal as if the agent had been the contracting party.

In all cases of contracts by agents without disclosing their principals, the Courts in affording remedies will look to the substantial parties in interest, in order to avoid circuity of actions; saving however to the defendant any rights which he may justly acquire as against the plaintiff by the course of dealing anterior to the disclosure, either with the agent of the plaintiff or his own agent.

The principal will not be made personally liable if in the intermediate time he has settled with his agent without any suspicion of his own personal liability, or if he would otherwise, without any default on his own part be prejudiced by being made personally liable.

In such cases it is essential that the plaintiff should in some way have either deceived the principal or induced him to alter his position and account towards his agent before he is deprived of his remedy against the principal.

It is now settled that the simple fact that the principal has paid his agent the funds with which to pay the plaintiff, does not deprive the plaintiff of his right to look to the principal if the agent fail to pay over according to his orders.

PRINCIPAL AND AGENT: CONTRACT: PROVINCE OF COURT AND JURY. -- In an action at law where the question of agency is involved, if there is evidence to establish such agency, the jury are the exclusive judges of its weight.  

COUNSEL:
S. Teackle Wallis and John H. Thomas for the appellant argued.

1st. That Small and McGinn, both being agents, and so known to each other, had no right to make the con-contract in their own names, and the rights of the parties to this cause were precisely the same as if the principals had themselves negotiated the loan without the intervention of agents. Story on Agents, sec. 28.

2nd. That the appellant was entitled to sue, either on the implied assumpsit arising from the ownership of the money or on the express contract, notwithstanding its having been made in the agent's name. Higdon vs. Thomas, 1. H. & G., 153. New Jersey Steam Nav. Co. vs. Merchants' Bank, 6 Howard, 378. Ford vs. Williams, 21 Howard, 289.

3rd. Even if credit was given by Small to McGinn, although he knew that McGinn was acting as a broker,  [**19]  he did not know for whom he was so acting, and the undisclosed principal can, when discovered, be sued. Henderson vs. Mayhew, 2 Gill, 408.

4th. The appellees were not entitled to credit for any payments made to McGinn after they knew that the appellant was a principal; the proof is that they were so informed when they received the money, long before they made any payment, and were then told that Small was the appellant's agent. Any payment subsequently made by them to McGinn was at their own risk. 6 Howard, 381.

5th. Small was only an agent to consummate the loan on the terms which had been proposed and accepted. That done, he was functus officio. He had no right to alter the contract after it was made so as to authorize a a call for margin. He was not entitled to receive the money even when it was due, still less to receive a payment in advance, still less to authorize any one else to do so; and the appellant was not bound by his call for a margin, except as to the $ 500, which it received. Story on Agency, sec. 109.

6th. If Small's agency was more extensive he had no right to delegate his trust to any one else. The bank would not, therefore, be chargeable with the [**20]  money paid to McGinn, even if Small authorized him to receive it. But it is clear he gave no such authority. He called on McGinn for margins, which McGinn had contracted to furnish; McGinn acted throughout as the agent of the appellees, and they have no right to shift upon others the loss resulting from their misplaced confidence.

7th. The contract between Small and McGinn, before it was altered by them without authority from the appellant, gave Small no right to call for margins. The contract between McGinn and the appellees gave McGinn no right to require any. The appellees recognized no such right. Instead of paying the margin called for they made a payment in advance on account of the loan. This was the payment which McGinn appropriated, and about which the controversy exists. It is clear that, even if McGinn had been the agent of the appellant, he had no right to receive such a payment, and the appellant is not bound thereby.

8th. The fact of the appellees having paid McGinn for negotiating the loan shows that he was their agent. If not clearly so, there was, at least, evidence from which the jury was entitled to find that he was, and the Court erred in deciding that [**21]  the appellant was responsible for all the payments made to him without leaving that question to the jury.

9th. Even if McGinn had been originally the agent of the appellant, or of both parties, his agency terminated with the making of the loan, and he was not entitled, as against the appellant, to receive margins or payment in advance. Story on Agency, sec. 109.

Wm. F. Frick for the appellees contended.

I. That Small was the agent of the plaintiffs, not merely to make the loan, but to do all that he did in the transaction. And that the plaintiffs are not at liberty to repudiate any of his acts. It was on their behalf that he made the contract, in manner and form as he did; on their behalf that he superadded to the contract, the condition about "margins;" and on their part, and for their benefit, that he called for the margin, received one, and paid it over to the plaintiffs. Whether originally authorized to go to this extent, matters not. Their subsequent conduct ratified his acts. Story on Agency, secs. 253, 259. Also secs. 244, 249. And their receipts of the margin precludes them from objecting to his proceedings. In ratifying them in part they adopt the whole. Story [**22]  on Agency, sec. 250.

II. The allowance by the bank of the manner and terms in which Small contracted with McGinn, and called for margins through him, and the acceptance by the bank of the margins received under that contract and call, justified the act of Small in making McGinn the sub-agent in the bank; and McGinn became, quoad the calls for and receipts of margins from Stein, the agent of the bank. Story on Agency, sec. 249.

III. But whether these points be well taken or not it is clear that this is a case where the contract was in writing, and on its face McGinn was the principal. It is true that he was known to be only an agent, but his principal was not disclosed or asked for by the other party. McGinn was therefore personally responsible upon the written contract, and cannot be discharged as such by parol evidence. It is true that the principal when disclosed was also bound; but with this important qualification, that if he in the intermediate time had settled with his agent, he could not be held bound. Story on Agency, sec. 449, and note. And Paley on Agency, (by Lloyd,) 246--254.

The different cases in which the agent alone, or the principal alone, or both are [**23]  bound, are well put in this note. The point, however, is settled by the case of Thompson vs. Davenport, 9 Barn. & Cress., 78 et seq. Lord TENDERDON says, the case of a party dealing with an agent, knowing him to be such, but not inquiring who is the principal, is like that of a party dealing with an agent, and supposing him to be a principal. That is to say, in both cases, the principal when disclosed may be charged, "subject, however, to this qualification, that the state of the account between the principal and agent is not altered to the disadvantage of the principal." Justice BAYLEY puts it in this language: "If the principal has paid the agent, or if the state of the accounts between the agent and principal would make it unjust that the seller should call on the principal," it is an answer to the action, &c.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*463]  WEISEL, J., delivered the opinion of this Court.
The appeal in this case is from a judgment of the Court of Common Pleas for Baltimore City, and the questions raised by the record and briefs are:
First. Whether the action can be maintained between the parties;  [**24]  
Secondly. If so, whether the defendants were entitled to a certain credit for five hundred dollars claimed by them under their plea of payment, which was resisted by the plaintiff.
The facts set out in the exception, as proved in the cause, and which were to be found by the jury, show that the contract sued on was made by the agents of the respective parties; the plaintiff being made known to the defendants at the time of the contract, but the defendants not being disclosed until some time afterwards, but before the day of payment arrived; it being known however to the plaintiff at the time of the contract that McGinn, a broker, was acting as an agent in the premises for one of his customers. As to the liability of the defendants to the plaintiff in such a case this Court entertains no doubt or difficulty. The law is well settled that the principal is personally responsible in all cases of contracts made by an agent, within the scope of his authority, and this is not varied by the fact that the agent contracts in his own name, whether he discloses his agency or not, provided the circumstances of the case do not show that an exclusive credit was given to the agent. The circumstance [**25]  that the name of the principal was not disclosed at the time of the contract, does not determine the election of the plaintiff to look to the agent alone for the fulfillment of the contract. The principal is, 

 [*464]  notwithstanding, answerable when discovered. Story on Agency, sec. 446 and notes. Thomson vs. Davenport, 9 Barn. & Cres. 73. And such is the law with regard to a plaintiff, principal, who contracts by an agent. If the agent contracts in his own name without disclosing the principal, either the agent or the principal may sue upon the contract; the defendant in the latter case being entitled to be placed in the same situation, at the time of the disclosure of the principal as if the agent had been the contracting party. Sims vs. Bond, 5 Barn. & Adol. 389. New Jersey Steam Nav. Co., vs. Merchants' Bank of Boston, 47 U.S. 344, 6 How. 344, 380, 381, 12 L. Ed. 465. In all cases of contracts by agents, without disclosing their principals, the Courts in affording remedies, will look to the substantial parties in interest, in order to avoid circuity of actions, saving however to the defendant any rights which [**26]  he may justly acquire as against the plaintiff by the course of dealing anterior to the disclosure, either with the agent of the plaintiff, or his own agent.
The liability of the defendants in this case, under the law as herein stated, was not disputed by their counsel in the argument, but it was insisted, and that is the main point of inquiry, that their responsibility must be taken with this qualification, that if in the meantime, before their names were disclosed, they had settled with their agent they could not be held bound, and that the payment by them of both the margins called for the plaintiff to their agent before their names were made known, enured to their benefit and should be credited on the plaintiff's claim in suit, whether paid over by their agent to the plaintiff or his agent, or not. That the rule of the defendant's liability is subject to a qualification, arising from his transactions in relation to the contract with his agent in the interval, which will discharge it under certain circumstances, is true. This qualification is stated by Judge 

 [*465]  STORY (Agency, Sec. 449,) thus: "That the principal will not be made personally liable, if, in the intermediate [**27]  time, he has settled with his agent, without any suspicion of his own personal liability, or if he would otherwise, without any default on his own part, be prejudiced by being made personally liable." Examples are given and the authorities cited both in the text, and in the notes, to illustrate and explain the extent and bearing of this qualification, and the section concludes with the author's view of it, as derived from the later decisions. In all the cases he declares it essential that the plaintiff should in some way have either deceived the principal, or induced him to alter his position and account towards his agent, before he is deprived of his remedy against the principal; and that it is now settled that the simple fact that the principal has paid his agent the funds with which to pay the plaintiff, does not deprive the plaintiff of his right to look to the principal, if the agent fail to pay over according to his orders. Same sec. and PARKE BARON in Heald vs. Kenworthy, 10 Ex. 739, and other cases cited in note 1.
The instruction of the Court below to the jury on the trial of this cause, was, that if they believed the facts stated in the bill of exceptions,  [**28]  then the defendants were entitled, as against the plaintiff, to be credited with all the money paid by them to McGinn, whether paid over by him to Small or the plaintiff, or not. This was given upon one of two grounds, either that McGinn, in the matter of the margins, acted as the agent of the plaintiff, and that his receipt of them was the receipt of the plaintiff; or, that the payment of the margins to McGinn, as the agent of the defendants, exonerated them under the circumstances from their amount in this action.
If the former, then the Court erred, inasmuch as it took from the jury the question of fact as to McGinn's agency for the plaintiff in the receipt of the margins, and assumed 

 [*466]  that there was not only evidence, but sufficient evidence of it, and upon such assumption absolutely instructed the jury to allow the credits. If there was evidence to establish such an agency, the jury were the exclusive judges of its weight. Henderson vs. Mayhew, 2 Gill 393, 409.
If, however, the Court acted upon the other ground, and considered, as a conclusion of law, that the payment of the margins by the defendants to their own agent, before the disclosure of [**29]  their names to the plaintiff, discharged them from further liability for such amount of them as was not paid over to the plaintiff or its agent, we think that in this view the Court also erred in the instruction given. In looking at the evidence in the exception we discover nothing that would tend to show that the plaintiff or his agent, in calling for the margins through McGinn, either deceived the defendants or induced them to alter their position or account towards their agent, or so acted as manifestly to make it unjust in the plaintiff to recover the amount. The contract was made with McGinn as a broker and agent for a then unknown principal, the defendants, who received by way of loan the plaintiff's money, upon a security that was failing to answer the purpose, and which it was agreed should be strengthened by what are termed margins, or additional collaterals. Under the circumstances, McGinn was the proper party to whom the application for the margins should have been made. They were made to him as the only known channel of communication with the real borrower, or as the party personally bound to furnish the required collaterals, and within three days of each other; and the [**30]  only response to both was the receipt of five hundred dollars which was applied to the plaintiff's claim; but whether this was the money of the agent, or was paid by the defendants, neither the plaintiff nor its agent, Small, then knew. In this we see nothing that could bring the payment of the margins to 

 [*467]  the defendant's agent, within the qualification of the rule of liability as understood and settled by the authorities to which we have adverted. In other words, we do not see in the record any evidence that would exempt the defendants from the payment they claim to have made.
The instruction given to the jury being therefore erroneous upon both grounds, the judgment of the Court below must be reversed.
In passing upon the prayer of the plaintiff and the instruction asked in it, we see nothing objectionable in them as presented. The controversy was narrowed by the pleadings to the one margin that had been received by McGinn and not paid over by him to the plaintiff or its agent. It was not therefore necessary for the Court to instruct the jury that the defendants should be protected in their verdict for the proceeds of the collaterals sold. Looking at the evidence we [**31]  can discover no proof which would have justified the jury in finding that McGinn acted in the matter of the margins and of their receipt by him from the defendants, as the agent of the plaintiff. In view, therefore, of this state of the case and of what has been said of the law governing it in its other aspects, the instruction asked by the plaintiff was correct, and its prayer, in our opinion, should have been granted.
Judgment reversed and procedendo awarded. 

98 of 120 DOCUMENTS 

THE BALTIMORE MARINE INSURANCE COMPANY vs. WILLIAM F. DALRYMPLE; AND, WILLIAM F. DALRYMPLE vs. THE BALTIMORE MARINE INSURANCE COMPANY.--CROSS-APPEALS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

25 Md. 269; 1866 Md. LEXIS 56 

APRIL 1866, Decided 

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

This suit was brought by Dalrymple against the Baltimore Marine Insurance Company. There was filed in the case a declaration in trover for the conversion, by the defendant, to its own use, of seven hundred and seventy shares of the capital stock of the Baltimore and Ohio Rail Road Company, one thousand one hundred shares of the stock of the Northern Central Rail Road Company, five bonds of the Baltimore and Ohio Rail Road Company, each for the payment of $ 1,000, with interest, and ten bonds of the same Company, each for the sum of $ 500, with interest. To this declaration there was a plea of not guilty, and issue joined on this plea. A jury was sworn, and after a trial of some days, and upon the motion of the plaintiff, a juror was withdrawn, and the case continued. Subsequently an agreement was made, "that, in lieu of formal pleadings, the plaintiff shall be considered as having amended his declaration by adding such other counts in tort as the state of the facts, as they appear at the trial, may justify, and that defendant shall be considered as having filed such pleas as the state of the facts, as they appear at the trial,  [**2]  may justify, and that replication shall be considered as having been filed to such pleas, and issues thereupon joined;" and with this agreement, the case was to be "tried upon the pleadings as they then stood, all errors in pleadings on both sides released, with leave to each party to give the special matter in evidence." The same benefit of appeal is given as if formal pleadings had been put in.

The verdict of the jury and judgment were for the plaintiff. Both parties excepted to the rulings of the Court below, (MARTIN, J.,) upon the prayers respectively submitted by them, and to the instruction given by the Court, and both parties appealed.

For a full statement of the facts of the case, see the opinion of this Court.  

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

HEADNOTES:

CONTRACT, -- CONSTRUCTION OF: BAILMENT: PLEDGOR AND PLEDGEE: SALES BY PLEDGOR TO THIRD PARTIES AND TO SELF: PLEADING: TROVER AND CASE: TORTIOUS CONVERSION: ELECTION. -- W. F. D. sued the Insurance Company to recover damages for the alleged conversion, to its own use, of certain shares of stocks and bonds which the plaintiff had pledged to the defendant to secure the re-payment of money lent to him by the defendant. The first declaration filed was in trover, which was amended by adding certain counts in tort as in the preceding case. The same agreement was filed as to the pleadings. The terms of the pledge, as evidenced by written contracts were also similar to those in the preceding case, binding the plaintiff to repay the loans, some on one and some on three day's notice; and in case of default authorized the defendant, without further notice, to sell the pledges for the payment of the same. Some of the stocks and bonds were pledged as "margins" or further security on the general loans, and on a portion of them an additional loan was made -- no express stipulation being made as to these further pledges. In November, 1865, due notice, according to the contracts, was given to the plaintiff to repay the money lent, and upon his default the defendant sold the stocks and securities pledged, publicly at the Board of Brokers in Baltimore, -- all of them except certain shares of the Baltimore and Ohio R. R. Stock, to third parties, after express notice of such intended sales to the plaintiff. The stocks above excepted were bought by the defendant through the agency of a broker, -- HELD:

1st. As to the sales of the collaterals to third persons: that these sales, not being impeached on the ground of fraud or unfairness, were legal and valid, and in respect to them the plaintiff cannot maintain the present suit.

2nd. As to the sale by the pledgee to itself: that such sale, in the absence of consent or acquiescence on the part of the pledgor, was, both at law and in equity, illegal and ineffectual to pass the absolute title to the pledgee as purchaser; that it did not operate as a conversion of the property so as to break up the bailment, except at the election of the pledgor; and in the absence of such election, the bailment continued in the same manner as if such attempted sale had not been made.

3rd. That the securities "put up as a margin," were pledged according to the terms of the written contracts relating to the original pledges, -- the rule being, that the accretion follows the main body, and is subject to the same conditions.

CONTRACT, -- CONSTRUCTION OF: BAILMENT: PLEDGOR AND PLEDGEE: SALES BY PLEDGOR TO THIRD PARTIES AND TO SELF: NOTICE: SALES OF STOCK AT BROKERS BOARDS, AND AT PRIVATE SALE: TORTIOUS CONVERSION: ELECTION: DAMAGES, MEASURE OF, IN TROVER AND CASE: RECOUPEMENT: GENERAL LIEN. -- After the sale of the stock of the Balto. & Ohio R. R. Co,, and the purchase of the same by the defendant, the said stock was sold by it to a third party at private sale, and immediately thereafter the plaintiff was informed of such sale. On the 17th day of December, 1862, the plaintiff tendered to the defendant the amount of the loans with interest, and demanded a return of all the stock and collaterals pledged, which tender and demand were refused. It was in evidence that the stock of the Baltimore and Ohio Rail Board Company fluctuated in value between November, 1860, and December, 1862, from $ 77 to $ 40 per share; that there were dividends on the said stock on the 27th of October, 1860, the 15th of April, 1861, the 28th of May and the 30th of September, 1862; and that on a portion of said securities, viz: "Extra Dividend Bonds," interest was paid to June 1st, 1862. -- HELD:

1st. That the attempted sale and purchase by the defendant, at the Brokers' Board, was inoperative; that the possession of the stock remaining unchanged, the bailment continued thereafter as before; but notice having been given under the contract, and the plaintiff being in default, the power to sell continued, and if it had been legally exercised no action of tort could be maintained.

2nd. That the defendant had not the legal right to dispose of the stock at private sale; that the sale so made, on the 21st of November, 1860, was, therefore, contrary to the duty of the defendant as pledgee, and in law tortious, for which the plaintiff is entitled to maintain his action either in trover or in case.

3rd. That an instruction, that the jury might, in their discretion, assess the value of the stocks at their highest market value, on the day of trial, or on any other day before that time, and after the day of the demand and refusal, was erroneous.

4th. That an instruction to the jury, "that in estimating the damages they were bound to give to the plaintiff what they might find, from the evidence, to have been the market value of the seven hundred and seventy shares of stock, on the 17th of December, 1862, with interest thereon, deducting therefrom the sum loaned and interest," was also erroneous.

5th. That the tort complained of, and which is the ground-work of this action, was the sale and transfer of the stock to D., on the 21st of November, 1860, and not the refusal to accept the tender and to comply with the demand for the return of the stock; to treat the latter as the tortious act would not only be contrary to reason, but in direct opposition to the well settled principles of the law.

6th. That the tortious act of the defendant, being in the breach of the legal duty arising out of the contract, the damages should be compensatory merely.

7th. That the demand and refusal in this case could have no effect, either in giving to the plaintiff a right of action, or to fix the measure of damages.

8th. Treating this case as an action of trover, the general rule is well established, that the proper measure of damages is the actual value of the stock at the time of the conversion, deducting, of course, the amount of the debt due the defendant by way of recoupment; and if it be treated as a special action in case, the change in the form of the declaration cannot alter the rule of damages.

9th. That there may be special circumstances which will take a case out of the operation of the general rule, and entitle a party to recover in trover or case more than the value of the property at the time of the conversion; but in this case there are no such facts or circumstances which, either in law or justice, entitle the plaintiff to claim more than compensation for the injury actually suffered by him at the time the tort was committed.

10th. That it is clear, that in ascertaining the damages, the amount of the debt due the defendant, to secure which the stock and other collaterals were pledged, ought to be deducted; and that such mode of ascertainment is consistent with the general doctrine of recoupement established in modern cases, and recognized by this Court in several cases.

11th. That in a case like the present, the application of this doctrine does not rest upon the principle of lien.  

COUNSEL:
I. Nevitt Steele and Wm. S. Waters, for the Baltimore Marine Insurance company:

First. The appeal by plaintiff. The questions upon the appeal by the plaintiff grow out of the rejection of prayers presented by him, and the granting of the ninth prayer of the defendant.

1st. His first prayer was rejected. This prayer is based upon the sale of the 1,000 shares of the Northern Central Rail Road [**3]  stock, pledged for the loan of $ 17,000. The Court was asked to say that the sale of this stock was illegal, because no sufficient notice was given under the contract. Although payment or additional security was demanded, no time was named for payment, and no specific amount or value of additional security was named. When the loan was demanded, according to this contract, it became payable one day thereafter, and no further notice of the sale was required. The demand was not rendered ineffective by proposing to take additional security instead of the money. This was in mitigation of the pledgee's right, and in mercy to the pledgor. No notice was required as to additional security. As to that, the pledgor contracted absolutely. The written agreement governs the case, and its true meaning is, that all notice is waived, and the pawnee is only held to a sound discretion. Wheeler vs. Newbold, 16 N. Y., 401. Story on Bailments, 317. Lawrence vs. Farmer's Loan and Trust Co., 3 Ker., 201.

2nd. The second prayer of the plaintiff was rejected. This is in relation to the one hundred shares of the Northern Cen tral Rail Road stock, pledged as margin or additional security. The Court was requested [**4]  to say, that in order to warrant the sale of this stock, there must have been an express authority to sell this stock, without further notice, (as in the written contracts;) or the jury must find reasonable notice. The prayer was properly rejected. The one hundred shares, put up as margin, was of course pledged according to the terms of the written contracts. This is the meaning of the language of the contract, and the general rule is that the accretion follows the main body, and is subject to all its conditions.

3rd. The third prayer of the plaintiff was granted with an addition thereto, and there is no exception, on the part of plaintiff, to such modification of the prayer.

4th. The plaintiff's sixth prayer was rejected. It proposes to give to the jury a discretion in regard to damages, allowing them to give the highest market value of the stock, on or before the day of trial. The question involved in this prayer will be considered hereafter with the question of the proper measure of damages, and it is contended that the prayer was properly rejected for the reasons hereafter to be given.

5th. The eighth prayer of the plaintiff was rejected. This prayer denies to the [**5]  defendant the right of recoupement. The rejection of this prayer was right. Chinery vs. Viall, 5 Hurl. & Nor., 288. Story on Bailments, 315. Johnson vs. Stear, 3 Am. Law Reg., (N. S.,) 753. Abbott vs. Gatch, 13 Md. Rep., 332.

6th. The ninth prayer of the plaintiff was rejected. It requires the defendants to account for dividends on the Baltimore and Ohio Rail Road stock, which accrued after the sale. These dividends were never received by the defendants, and could not have been received. The stock itself was not in their possession, or under their control, when such dividends were collectable. Upon no principle of the law of bailments could they then be considered as bound for them. The principle applicable to this question will be considered in connection with the question of the measure of damages.

The only prayer of the defendant granted was the ninth. It is as follows: If the jury find from the evidence, that the one hundred shares of this railroad stock, and the $ 5,000 of Ohio Railroad bonds were put up by the plaintiff as a margin on the previous indebtedness and pledge of stock of the plaintiff to the defendant, as offered in evidence, with the stipulation, that a [**6]  further advance of $ 4,000 should be made by the defendant, and that said $ 4,000, it was agreed by the parties, should be combined with, and form part of, the said general indebtedness, then the defendant had the right to sell said bonds upon the longest term of notice, stipulated in the written agreements, offered in evidence as to the previous existing loans and pledges constituting said general indebtedness in the terms thereof. The same subject is embraced in the second prayer of the plaintiff. (See "2nd" above.)

Second. The appeal of the defendant. This embraces the granting of the third prayer of the plaintiff, with modification, and the rejection of all the prayers of the defendant, except the ninth.

1st. The granting of the third prayer of the plaintiff as modified: The court, by this instruction, gives the rule of damages governing this case, and the reasons for it, viz: that the refusal to deliver the seven hundred and seventy shares of the Baltimore and Ohio Rail Road stock, upon the tender and demand, gave a cause of action upon which the defendant is entitled to recover under the pleadings and agreement in this cause. The prayer assumes that the sale of this [**7]  stock, at the Stock Board, by the defendant, through their agents, and the purchase of the same, through their agents, was a nullity. That is to say, that the relationship of pledgor and pledgee was not changed thereby but remained as before. The effect of the subsequent sale to Denison, in the opinion of the Court below, can only be inferred. Is it a nullity? Does the relation of pledgor and pledgee remain after as before it? Or are those broken up and ended by it? If either of the sales were legal no action can be sustained. For the purpose of the immediate question involved in this prayer, it will be conceded that both were illegal. Yet, by the operation of the last sale, the property completely passed from the possession and control of the defendant.

In view of that state of the case, the following propositions, illustrating the effect upon the relations of the parties, are true:

1st. The contract of bailment, in its very essence, requires that the subject matter of it be some specific thing known as having been, and still being the property of the bailor. The bailee holds the possession, and has such qualified property as the nature of the contract imposes, but the bailor [**8]  still retains the general property. The particular bailment here involved is that of a pledge; a specific article identified and described is the subject of it. Johnson vs. Stear, 3 Am. Law Reg., (N. S.,) 760. Dykers vs. Allen, 7 Hill, 497. Wilson vs. Little, 2 Com., 448. Jones on Bail., 36 & 117. Story on Bail., § §  286, 287, 288, 290, 294, 297, 299.

2nd. The contract, on the part of the pledgor, could not be met, upon a tender and demand, by returning other stock of a like kind. The duty is imposed upon the pledgee to keep the identical property, and the relation of pledgor and pledgee could only last while the property was so kept. This was the essential element of the relation. If the defendant could have satisfied a demand of the property, upon tender of the loan, by returning property of a like kind, the sale of property to Denison would not be a wrong or a violation of the contract. A contract for the delivery of stock upon a loan, and upon a tender of the loan to pay stock of a like kind, is not a bailment or pledge; it is a contract special in its character, and the implied power to dispose of the stock advanced at any time is unquestionable. See Dykers vs. Allen, 7 Hill,  [**9]  497, and other authorities next above.

3rd. Whenever the pledgee places the property pledged entirely beyond his control, and parts with his possession and interest, the relation of pledgor and pledgee is ended. That relation was terminated in this case by the sale to Denison. If this sale was right, there was a rightful end of it. If it was wrong, there was a wrongful end of it, and all the consequences of a disrupted contract and violated duty would result at once. The pledgee was liable to assumpsit or case, and the matter sought to be recovered, in either action, would be the entire value of the property, the subject matter of the bailment so wrongfully disposed of. If this property had been wilfully burned, or otherwise destroyed by the pledgee, the scope and object of a suit against him could not be wider than under the circumstances of this case. Story on Bail, § §  322 & 341. Chinery vs. Viall, 5 Hurl. & Nor., 293. Fenn, et al., vs. Bittleson, 8 Eng. L. & E. Rep., 483. And see authorities above cited.

4th. As against a third party who, by and under the wrongful sale, might come to the possession of the property, if the pawnee choose to do so, he could proceed for the [**10]  recovery of the identical property. His right to the possession would be re-vested in him in consequence of the breaking up of the bailment. There are instances when the pawnor could not recover the identical property from the vendee of a pawnee in a wrongful sale, but those instances are not determined upon the principle that the bailment still continues, and the right of possession does not re-vest in the pawnor, but they are cases where the pawnor has placed the pawnee before the world with a right to make an unqalified sale, and such sale is made to a bona fide purchaser for value.

5th. At the time, then, of the tender, demand, and refusal, no relation of pledgor and pledgee existed between the parties. The essential element which constituted it no longer existed; the pledgee could not keep the property safely. He could not return it upon tender and demand, because it was not within his power to control. See authorities above cited.

The character of the remedy provided by the agreement in this cause, when considered in reference to the facts, shows that the particular act set out in the prayer cannot be the basis of any action contemplated by the agreement. By the agreement [**11]  in the cause an appropriate declaration must be considered as filed, based upon any tort disclosed by the facts in the case. As no other form of action, except that of an action on the case embracing trover, can be considered as applicable, the only inquiry is as to the scope of that action. The sale to Denison had taken place, and no vestige of control remained over the property in defendant. This was known for two years to the plaintiff, and no subsequent wrong took place. He then tenders the loan and demands the return of the property; to which the agent of defendant replies, that he thought the matter was settled. The demand was to return "the capital stock," which was "pledged" for the purpose of the loan, "and to account for and pay the dividends on said named capital stock, and the interest on said named bonds" which had been realized. Was the failure to return the stock, under the circumstances, the proper subject of an action on the case?

1st. If, by the contract, the pledgee could discharge his duty by returning equivalent stocks and bonds, this was not demanded, and there has, therefore, been no refusal of performance.

2nd. Torts, upon which actions on the case [**12]  are based, are injuries to the rights of person or property. They are the performance or omission of some act in reference to the rights of person, or to property, contrary to the general obligations of law, the particular rights and duties of the parties, or of some express or implied contract between them. The contract, in the last case, establishes the relation between the parties and creates the duty, and where property is concerned, and not personal right, the act, which is the ground of the action, is some omission or act in reference to the property itself. 1 Ch. on Pl., 151. 2 Arch. Nisi Prius, 413. 2 Ch. on Pl., 674.

3rd. Torts that grow out of the relation of bailor and bailee are injuries to the property bailed by the performance or omission of some act, contrary to the duty of the parties growing out of that relation. 1 Ch. on Pl., 153, 154. Corbett vs. Packington, 6 Barn. & Cress., 268. Orton vs. Butler, 5 Barn. & Ald., 652.

4th. The refusal to deliver the stock could work no new result in reference to the property bailed. Everything that could be done to deprive the plaintiff of the property in question had been done before. The act of refusal was simply nugatory.  [**13]  It placed the defendant in no worse condition in regard to his property. The wrong which had already been done exhausted all the pledgee's power to do any further wrong or injury to the subject matter of the bailment. Granger vs. George, 5 Barn. & Cress., 149.

5th. In all declarations in cases of torts, growing out of contracts, the contract, and the duties arising out of it, and the breach of the contract are set out merely as inducement but the ground of the action is some act or omission in reference to the subject matter of the contract. It is the breach of duty or trust, arising out of the contract, and created by it, and not the breach of contract upon which case is sustained. A mere breach of contract is not a tort. It is ground for an action of assumpsit, not case. If this were not so, where is the distinction between the two forms of action? Granger vs. George, 5 Barn. & Cress., 149. 2 Arch. Nisi Prius, 401, 402. 2 Ch. on Pl., 674. 1 Saund. Pl. & Ev., 735. Corbett vs. Packington, 6 Barn. & Cress., 268. Burnett vs. Lynch, 5 Barn. & Cress., 589.

7th. The refusal to do a thing, which it was entirely out of the power of the party to do, cannot be a tort. If an act has [**14]  been done which puts it out of the power of the party to comply with his contract, that act may be a tort, and the basis of an action on the case. That act, in this case, was performed when the stock was sold to Denison, and it was then that the cause of action in this case accrued. Edwards vs. Hooper, 11 M. & W., 363.

8th. Although it is not very material to this investigation, yet the question may well be asked: Was the refusal to deliver, in obedience to the demand, even a breach of contract for which the plaintiff could bring assumpsit? The relation of pledgor and pledgee having been broken up between the parties, and the act of the pledgor, known to the pledgee, having thus rendered it impossible to deliver upon demand, could a mere refusal, under the circumstances of the demand, be considered a breach of contract? Williams vs. Woods & Bridges, 16 Md. Rep., 221. Tempest vs. Kilnor, 3 M. G. & S., 253. Shaw vs. Hilton, 15 M. & W., 145, 146.

The question of the measure of damages depends mainly upon the application of these principles. The views of the defendant, however, will be strengthened by other considerations drawn from the equity of the case.

1st. The invariable [**15]  rule for damages in trover, in Maryand, is the value of the property at the time of the conversion. This is the rule in trespass de bonis asportatis. The rule is based upon the theory that the payment of the judgment vests a title to the property in the wrong-doer. This rule, of course, applies to cases where there is a total deprivation of the property. Sterling vs. Garritee, 18 Md. Rep., 476. Hepburn vs. Sewell, 5 H. & J., 211. Schindel vs. Schindel, 12 Md. Rep., 109. 9 Bac. Abr., 631. Edwards on Bail., 272. Story on Bail., secs., 122 & 349. Clark vs. Marriott, 9 Gill, 331.

2nd. The form of action in this case comprehends trover. Trover is one of the counts in case. The same wrong and injury which constitute the gravamen of the Court in trover must constitute the gravamen of every possible form of a count in case which can be framed upon the facts in the bill of exceptions. Upon what principle of law is it that a different measure of damages will be applied to different counts in the declaration upon the same facts, merely because the technical structure of those counts is different? Sterling vs. Garritee, 18 Md. Rep., 469. Johnson vs. Stear, 3 Am. Law Reg., (N. S.,) 760. Chinery [**16]  vs. Viall, 5 Hurl. & Nor., 293. Sydenham vs. Jenkins, 2 Saund. S. C. Rep., 614.

3rd. The rule that damages are to be assessed as of the value of the property at the time that the act which creates the cause of action occurred, is not confined to tort. It is the rule in assumpsit. Williams vs. Woods & Bridges, 16 Md. Rep., 259. Shaw vs. Hilton, 15 M. & W., 145, 146. Tempest vs. Kilnor, 3 M. G. & S., (54 Eng. C. L. Rep.,) 7, 8. Woods vs. Fellows, 20 Wend., 288.

4th. This is the rule where there is a breach of trust by the trustee purchasing at his own sale, a case analogous to this; or when any wrongful act of the trustee deprives the cestui que trust of his property. Ricketts vs. Whittington, 13 Md. Rep., 493.

5th. The invariable rule in Maryland, and the general rule elsewhere, for damages growing out of legal or equitable relations, when the party has been deprived of property wrongfully, is the value of the property at the time of the deprivation, with interest on that sum. Cases cited above. Edwards vs. Hooper, 11 M. & W., 363. Johnson vs. Stear, 3 Am. Law Reg., 760. Sydendam vs. Jenkins, 2 Saund. S. C. Rep., 614. Chinery vs. Viall, 5 Hurl. & Nor., 288. Read vs. Fairbanks,  [**17]  24 Eng. Law & Eq. Rep., 225, and 76 Eng. C. L. Rep., 720, 759.

6th. The rules above named are not invariable in other States, and indeed in England, although they are general rules everywhere. The authorities from other States and from England are not always applicable, and are likely to mislead unless this difference is considered. Wilson vs. Little, 2 Com., 449. Cortelyou vs. Lansing, 2 Cain's Cases in Error, 200,

7th. A variance from the above general rule, (5th above,) as existing out of Maryland, grows out of supposed equitable considerations not applicable to this case. It is conceded that generally the value of the property, at the time of the deprivation, is full compensation for all loss, because the party injured could then go into the market and buy the same property for that price. Suppose, however any article is involved, which a party, in all probability, would keep, and a loan is made of it to be returned on a given day. If it is not returned the party may not have the money to go into the market and buy. Suppose, also, the sale of an article to be delivered on a future day, and the purchaser has paid the cash, if delivery is not made at the day, the purchaser [**18]  may not have the money to go into the market to buy other goods. Such cases as these have been considered as presenting claims for the highest price of the article, or the price at the trial, as a measure of damages in other States and in England. See cases above, and Shepherd vs. Johnson, 2 East., 211. Tempest vs. Kilnor, 3 M. G. & S., 253.

8th. The present case is not within the equity of the above exception. The pawnor had no right to the return of his stock, because a right to sell had accrued. He was deprived, by the act of the pawnee, of no money that rightfully belonged to him, with which to go into the market. His loan was due and was rightfully payable out of the proceeds of the stock. He never complained of the sale until there was a rise in the price of his stock. If, at the day of sale, a balance had been struck between the parties, and damages on both sides considered, on the one side for a breach of duty, and on the other for breach of contract, there would have been no difference between them. At the time of the breach the interest which both parties had in the broken relation between them was measured in gold, and two years after, the interest of the pawnor is [**19]  measured in legal tender notes, and it will be found, by the evidence, that it is this difference which is sought to be recovered. Is there any equity in giving this inflated value to the the interest of the pawnor, and not to that of the pawnee also? They were in reality both affected alike by the rise in gold. See cases above. Lockwood vs. Ewen, 2 Atk. 302.

The next ground of exception is the rejection of the defendants's first prayer. This may be taken in connection with the rejection of the second also. The law asserted by these prayers is, that the sale and purchase of the stock by means of agents of the defendant, as stated in the bill of exceptions, was good in law, if it was fair and bona fide. This question is involved in the other prayers already discussed, but is more directly presented in these. 1st. The transaction referred to in these prayers, being made through third persons in behalf of defendant, constitute a sale in law. Williams' Ex'r vs. Marshall, 4 G. & J., 376. Jackson vs. Walsh, 14 John., 414. 1 Pars. on Contracts, 87, note (o) New Ed. Mason & Martin vs. Kemp, 4 Md. Rep., 124. Pickering vs. R. R. R. Co., 1 Am. Law Reg., 96. Hill vs. Smith, 32 Verm. Rep.  [**20]  , 433.

2nd. The sale, if fair and bona fide, is good in law, and the question of fairness and bona fides is for the jury alone.

3rd. The power of sale given in the contract of pledge is, in every respect, similar to other powers of sale given to agents and trustees, and is governed by the same laws. Edwards on Bailments, 255. Hart vs. Ten Eyck, 2 Johns. Ch., 100. Wilson vs. Little, 2 Com., (2 N. Y.,) 448. Lawrence vs. Farmer's Loan & Trust Co., 3 Kern., 210. Sperry vs. Miller, 16 N. Y., 410.

4th. It is only in a Court of Equity that such sales are treated as void. Williams' Ex. vs. Marshall, 4 G. & J., 376. Jackson vs. Walsh, 14 John. 414. 1 Par. on Con., 87, (note o) New Ed. Mason & Martin vs. Kemp, 4 Md. Rep., 124. 9 Paige, 650. Ward vs. Smith, 3 Sandf. Ch. Rep., 592.

The third prayer of the defendant sets out the circumstances which follow the sale mentioned in the first prayer, viz: the sale to Denison, the information given by Denison to the plaintiff of the sale, the reply of the plaintiff thereto, the subsequent further depression of the stock, the lying by for two years, the tender, demand and refusal, and the reply thereto; and it is submitted that, under [**21]  the circumstances, the refusal was no tort. This question has already been discussed.

The fourth prayer of the defendant submits, in addition to the above facts, that the plaintiff knew of the transfer of stock, and that the delivery to him was impossible, and did not make said tender and demand with the intention that it should be effectual; and that, therefore, the tender and demand were nugatory acts and no tort upon which to ground the action. This prayer states with great force a proposition already discussed.

The fifth prayer asserts the proposition that, under the circumstances of the case, after the sale to Denison, there was no duty in the defendant to keep the stock. This question has already been discussed.

The sixth prayer submits that there is evidence in the case of acquiescence in the sales made by the defendant.

1st. What is acquiescence? The pawnee in this case was a quasi agent. Whatever acts would have given the authority to sell before the sale, would ratify it after the sale. Ancona vs. Marks, 7 Hurl. & Nor., 686. Byrd vs. Randall, 3 Burr., 1353.

2nd. This is not the case of a breach of duty and a waiver of the party's right to sue for [**22]  this breach, but the question is, was there a breach of duty at all if the party consented to the act after it was done? Is not this evidence from which the jury may infer the authority before the sale?

3rd. Denison had purchased and then informed plaintiff. Ought he not to have notified Denison of his intention to treat the sale as a wrong? Could he lie by and see the stock depreciate until loss would have accrued to the defendant if it had returned it, and not have warned it that he intended to hold it responsible, so that it might have protected itself? Such conduct amounts to an estoppel in pais.

4th. The purchase by the defendant was not absolutely void, and may be cured by acquiescence. Williams' Ex. vs. Marshall, 4 G. & J., 376.

The seventh and eighth prayers of the defendant are upon the question of damages. The seventh asserts that the jury ought to have been allowed to give a less sum than the value of the stock at the time of the demand.

The eighth prayer asserts that the jury should have been allowed to consider the fact that the sale was made while the banks paid in specie, but that the value of the stocks two years afterwards, for the purpose of swelling [**23]  the damages, was taken in legal tender notes. A view of this question has already been taken, and upon computation it will be found that the entire increased value of the stock was the premium on gold.

The tenth prayer presents again the question of acquiescence already referred to.

Thos. S. Alexander and Wm. Schley, for Dalrymple:

In opposition to the appeal taken by the defendant, the plaintiff will insist:

I. That the sale by the defendant, through the agency of one broker to itself, purchasing through the agency of another, was contrary to its duty as pledgee, and did not alter the property in the pledge so attempted to be sold and purchased. Hence, the stock pledged, still remained, after such pretended sale, in the hands of the defendant, subject to redemption by the plaintiff; and the demand made for the return thereof, on the 16th of December, 1862, with the tender of the loan for security, whereof the deposit was made, completed the right of action of the plaintiff.

Authority will not be required for the purpose of showing that a pledgee, or other person, standing in a fiduciary relation, cannot sell to himself the thing pledged or intrusted to him [**24]  for the purpose of sale. It will, therefore, be incumbent on the defendant to show some specialty which is to prevent the application of the rule of this case.

The defendant's first and second prayers were overruled as inconsistent in principle with the instruction given by the Court, and it is submitted, were properly overruled.

Where the trust is a pure trust, the execution of which, belongs to a Court of Equity, the parties aggrieved, must necessarily resort to equity for relief against every breach of duty on the part of the trustee. And in many cases of quasi trust, equity has interfered in order to afford the parties a better remedy than he could have obtained at law. But the relation of pledgor and pledgee is a legal relation. The rights and duties resulting from such relation are defined by law. And the remedy for a breach of duty, on the part of either party, if susceptible of compensation in damages, is to be found only in a Court of Law. Jones vs. Smith, 1 Ves. Jr., 378. Cortelyou vs. Lansing, 2 Caine's Ca., 200. Story on Bail., 287. And see 2 Story's Eq. 1032, to show that the pledgor cannot go into equity to redeem, except under special circumstances. Hasbrouck [**25]  vs. Vandervoort, 4 Sandf. S. C., 74. Mark vs. Lawrence, 5 H. & J., 64, is a direct authority that a sale by a fiduciary to himself may be avoided at law. Singstuck vs. Harding, 4 H. & J., 186. Middlesex Bank vs. Minot, 4 Metc., 325. Bank vs. Dubuque R. R. Co., 8 Clark, (Iowa,) 278. Fox vs. Magrath, Wh. & Tud. Le. Ca. in Eq., 65, Law Lib., 107, 141. Walter vs. Smith, 5 Barn. & Ald., 439, (7 Eng. C. L. Rep., 155.)

The defendant's 3rd, 4th, 5th, 6th, 10th and 11th prayers were properly rejected, for the following reasons:

1. If the sale by the pledgee to itself of the pledge was a tortious act, (as is assumed by the Court in its instruction to the jury,) it operated no conversion of the thing pledged. The plaintiff was, therefore, at liberty to ignore the fact of such sale, and to make a tender and demand at a time subsequent. And the refusal of the defendant to respond to such tender and demand by a return of the pledge, was a conversion upon which a recovery might be had. Swayn vs. Stephens, Cro. Car., 433. Middlesex Bank vs. Minot, 4 Metc., 325. Bank vs. Dubuque R. R. Co., 8 Clarke, 278. Carpenter vs. Hale, 8 Gray, 157. 1 Ch. Pl., 160. 2 Id., 674. There could be no conversion [**26]  until there was tender of payment. Vincent vs. Cornell, 13 Pick., 294, 296.

2. The right of the plaintiff thus to redeem his pledge, was not prejudiced by the depreciation in value thereof at any time subsequent to the alleged tortious sale, and its enhancement in value at the time of the offer to redeem made by the plaintiff; nor is it to be affected by the knowledge of the plaintiff, that the defendant had, by a tortious disposition of the thing pledged, disabled itself from complying with his demand. Conceding, argumenti gratia, that the sale or sales in November, 1860, effected an actual conversion, and not a conversion at the election of the pledgor, his remedy for that tort could not be prejudiced by laches simply for any period short of the statutory limitation, nor by any state of facts within that time, which is not imputable to his direct agency.

3. The only evidence of acquiescence in the alleged tortious sale is to be found in the statement by Denison, that at the time the plaintiff was notified of the fact of the sale "he made no objection to said sale, but said it cannot be helped, it is unavoidable." Taken in connexion with the admitted facts that the defendant [**27]  had been repeatedly pressed by requisitions for additional margins, with which he was unable to comply, and that the sale was made in the face of his earnest remonstrances, the language imputed to the plaintiff imports nothing more than a confession on his part of his inability to prevent the sale thus effected by the defendant. In one sense this was acquiescence. The plaintiff acquiesced in the wrong perpetrated against him, just as the convict is supposed to acquiesce in his sentence by bowing his neck to the noose of the hangman. But acquiescence simply after the wrong has been consummated cannot bar the right to avenge that wrong. Confirmation is something more than acquiescence. And to give to confirmation the effect of barring the remedy against fraud actual or imputed, it must be shown that the party acted considerately, with intent to confirm, and with full knowledge of the facts and of the law thence resulting. None of these conditions exist in this case. The language imputed to the plaintiff was not considerately used. It was uttered by him immediately after he had received intelligence of the sacrifice of his property, and was provoked by the consciousness of his inability [**28]  to protect himself. There is nothing in the language used, nor in the circumstances under which it was expressed, to justify the inference that the plaintiff intended to ratify or confirm the sale thus recently made; and certainly there is no evidence from which the jury could be permitted to find that at the time of the interview between Denison and the plaintiff the latter was aware of the illegality of the sales reported to him.

It is not to be forgotten the defendant had parted with the stock to Denison, and at an advance in price, before the fact of either sale was communicated to the plaintiff. There is no pretext, therefore, for the suggestion that the defendant was mislead by the language imputed to the plaintiff on the occasion referred to. It is not alleged even that Denison, in visiting the plaintiff, acted, or professed to act, for the defendant, or that he imparted to the defendant what had passed between the plaintiff and himself. To sustain the position, that the onus was on the defendant to show that the tortious sale made by it to itself of the stock pledged was confirmed by the plaintiff deliberately and with knowledge of the facts and of his legal right to impeach [**29]  such sale, reference is made to Hoffman Co. vs. Cumberland Co., 16 Md. Rep., 506, 507, 508.

II. As to the measure of damages:

The Court's instruction assumed that the refusal of the defendant, on the 16th of December, 1862, to accept the money tendered and to restore the stock was evidence of the conversion of the pledge on that day, and that under the circumstances the measure of damages was the value of the pledge on the day of such conversion.

It will be insisted that the defendant has no cause of exception to this instruction for the following reasons:

1. That the value of the thing wrongfully converted, as of the day of conversion is, in general, the measure of damages is settled by. Hepburn vs. Sewell, 5 H. & J., 211. Stirling vs. Garritee, 18 Md. Rep., 468.

In the discussion of the appeal taken by the plaintiff below, it will be shown that under special circumstances the jury may allow damages according to the value of the thing at the time of the trial, or at any intermediate time. But there is no authority in favor of the position that the jury may reduce the damages below the value of the property as of the day of conversion. On the contrary, it is [**30]  settled that the motive of the defendant, and by parity of reason, any other special circumstance of mitigation is material only as an answer to the plaintiff's demand for exemplary damages. Hence, the Court did right in rejecting the defendant's 7th prayer. Harker vs. Dement, 9 Gill, 17. Finch vs. Blooms, 7 C. & P., 478.

2. The Court was also right in rejecting the defendant's 8th prayer, which insists that the jury are not bound to take, as the true value of the stock, the price at which it sold on the day of conversion, payable in depreciated bank notes or legal tender notes, but are at liberty to consider the depreciation of the currency in which said price was payable, in connection with other evidence in the cause. The prayer, if otherwise unexceptionable, would be liable to the objection, that it does not define the character of the "other evidence" which is to be considered by the jury in connection with the proof of depreciation. Looking to the line of defence pursued, it will be apparent that the defendant, under the guise of other evidence, intended to include those circumstances of supposed hardship, which it had already supposed by its seventh prayer, would in themselves [**31]  warrant the jury in giving less in damages than the real value of the property which the defendant had wrongfully converted.

But the prayer is wrong in supposing that any disparity in value, between the gold currency of the country and paper made a legal tender by Act of Congress, can affect the assessment of damages for the property of which the plaintiff has been wrongfully deprived by the defendant. The paper current as a legal tender at the time of the conversion, remained current as a legal tender at the time of trial, and so remains at this day. A verdict rendered in current money of the United States might, therefore, have been, and yet may be, satisfied by the payment of an equal sum at par in the paper currency. Hence, it will be apparent that the defendant could sustain no injury by the assessment of damages according to the value in that paper currency. On the other hand, great wrong would ensue to the plaintiff if the market value of the property was supposed to be represented by an equivalent in paper at par, and this paper was to be reduced to its equivalent in gold, and then the reduced verdict was subject to be satisfied by a payment of an equal sum in paper at [**32]  its par value. And yet, this is precisely the conclusion to which the defendant's eighth prayer, if granted, would lead.

Where the law of the country has established an equality in value between gold and paper, it is not competent for Courts of Justice to discriminate between them, or to commute the one into the other at any assumed rate of premium or discount. But in truth, the paper issued by authority of Congress is not, and does not profess to be, current money of account. It is issued primarily in payment of certain classes of public debts; and it is then made a tender or receivable in payment of certain description of public dues, and of private debts, termed domestic, in contradistinction to others which are esteemed foreign debts. It lacks, therefore, that universality which is inseparable from money of account. The privilege of making payment in paper is personal to the debtor. He may exercise or waive that privilege at his pleasure. If he does not avail himself of the privilege of making payment in paper he must be content to remain debtor for so much money of account, that is to say, so much gold or silver money.

In view of the fluctuating value of paper relatively [**33]  to coin, it is possible that the Court would sustain a contract for payment in paper at a future day; and in the event of the repeal of the law, by which paper was made a tender, would assess damages in money of account, agreeable to the marketable value of the paper at the time of the breach. But in the absence of any special agreement, that is, where the contract is to pay in dollars, the parties must be taken to mean dollars according to their value in account as regulated and established by law. Lodge vs. Spooner, 8 Gray, 166. And, indeed, the very enactment of a tender law assumes that the debt is payable, by the terms of the contract, in money different from that which is made, by the tender law, to answer the purposes of money. And the same conclusion is supplied by the Constitution of the U. S., Art. 1, sec. 30, s. 1, "No State shall emit bills of credit, or make anything but gold and silver a tender in payment of debts." The paper issued by Congress is thus defined to be "Bills of Credit," and it is affirmed that the debtor is bound, by the obligation of his contract, to make payment in gold or silver. Upon this hypothesis, that the contract imports an obligation to pay in [**34]  gold or silver money, money performs its office as the standard of values, and at the same time the debtor may indulge his privilege of making payment in paper so long as the tender law shall remain in force. Such is the general understanding.

On quantum meruit for services rendered, the measure of damages would be the value of those services expressed in paper currency. On quantum valebat, for goods or other property sold, damages would be assessed according to the market value of the article expressed in the same currency. But, in either case, the judgment would be rendered for so much current money of account, which would import gold or silver coins. And the reason of the rule is, that the damages, as thus assessed in paper, current in the usual commerce and business of the country, may be satisfied in the same currency in which it is valued.

As a practical illustration of the consequences of the defendant's position, let us assume that, at the time of conversion, gold was at a premium of 100, payable in legal tender paper, and the stock converted was, at that time, worth 80 in money, the defendant would require the jury to value the stock at 40 in metallic currency, and [**35]  would then exercise his privilege of satisfying that verdict in paper at its par value.

Upon the plaintiff's appeal two questions arise in relation to the measure of damages:

1. Whilst the capital stock of the Baltimore and Ohio Rail Road Company was actually held by the defendant, dividends were declared thereon, which were received by the defendant. Those dividends were accounted for to the plaintiff.

But after the 20th of November, 1860, and before the 16th of December, 1862, other dividends were declared and were paid to Denison, to whom the stock had been transferred by the defendant. The plaintiff insisted, by his ninth prayer, that the amount of those dividends ought likewise to be included in the estimate of damages to be made by the jury. But the Court rejected this prayer. It will be insisted, that if the conversion attempted in 1860, was tortious, and if the plaintiff was at liberty to treat the stock as remaining in the hands of the defendant on the 16th of December, 1862, and to sue as for a conversion on that day, the defendant is chargeable with all dividends declared on that stock, the fruits of that stock, which might have been realized, and would have [**36]  been realized by the defendant but for its own wrongful act.

2. The plaintiff's sixth prayer claimed that the jury might, in its discretion, assess the value of the said capital stock at its highest market value on the day of trial, or on any other day before the said day, and after the day of demand and refusal.

This prayer was rejected by the court, but erroneously, as the plaintiff insists: Where property comes into possession of a party accidentally--without force or fraud--and is converted by him, under a fair color of title, the measure of damages ought to be the sum realized by such conversion, or the current value in the market of the property converted. But where the defendant acquires the possession from or in privity with the title of the plaintiff, and the conversion is an act of bad faith,--in such case the measure of damages is not limited to the actual value of the property at the time of conversion, but may be aggravated to the full value thereof at the time of trial, or at any intervening period. Cromwell vs. Owings, 7 H. & J., 60. Harker vs. Dement, 9 Gill, 17. Bosley vs. Reynolds, 8 A. & E. (N. S.,) 779. Greening vs. Wilkinson, 1. C. & P., 625. Martin vs,  [**37]  Porter, 5 M. & W., 352. Fisher vs. Prince, 3 Bun., 1363. Whitten vs. Fuller, 2 Bl., 602. Cortelyou vs. Lansing, 2 Caine's Cases, 200. West vs. Beach, 3 Cowen, 82. Wilson vs. Matthews, 24 Barb., 295. Harger vs. McManus, 6 Watts, 418. Backenstoss vs. Stahler, 33 Penn., 251. Young vs. Frost, 1 Md. Rep., 402. Rex vs. Bank of England, 2 Doug., 524. Hepburn vs. Sewell, 5 H. & J., 211. Kortright vs. Com. Bank, 20 Wend., 932. Same case in 22 Wend., 350, 365. Pars. on Cont., 473, (note b.)

In equity the cestui quc trust may recover the specific property from the trustee, or any person claiming under him with notice of the trust; or may, at his election, claim the value realized by the misapplication; or may pursue the value or equivalent throughout its mutations into other properties.

The principle on which this equity is administered is, that the trust fastens itself on the property, and substantial justice demands that the cestui que trust shall have his specific property, or all the profits which the trustee may or might have realized by a misapplication of the property. The same principle applies where a pledgee, in fraud of the bailment, withholds the pledge, or delivers it to [**38]  another. The pledgor ought to have a return of the thing pledged, or the highest value which could have been realized therefor, either by the pledgee or the person to whom it may have been wrongfully delivered. The pledgor is not bound to show that such highest value was actually realized, nor is the pledgee to be permitted to show that the sum realized by his breach of faith falls short of such highest value.

In an action for non-delivery of the stock of goods sold-- for which the purchase money has been paid--the measure of damages is the highest value of the thing sold at the time appointed for delivery, or time of trial, or at any intervening period. Shepherd vs. Johnson, 2 East., 211. McArthur vs. Seaforth, 2 Taunt., 257. Downes vs. Buck, 1 Stark, 251. Gainsford vs. Carroll, 2 B. & C., 624. Owens vs. Routh, 25 Eng. L. & E. Rep., 306. Clarke vs. Pinney, 7 Cowan, 681. Rankin vs. McCullough, 12 Barb., 103.

Now, the condition of the bailor, whose stock is pledged for less than its value, is analogous to the case of a purchaser of stock who has advanced his purchase money. These cases are very different from that of a purchaser of stock to be paid for on delivery, who, on [**39]  failure of the vendor to comply with his contract, may go into the market with his money and purchase other stock.

3. On the plaintiff's appeal is likewise presented the question whether the defendant can reduce the damages by discounting therefrom the sums loaned by the defendant to the plaintiff, and for security of which the stock was pledged?

The question was presented by the plaintiff's eighth prayer, which was rejected by the Court. It is submitted there was error in rejecting the prayer for the following reasons:

1. The lien of the pledgee is inseparable from the possession of the pledge. The pledgee, by surrendering or parting from the possession of the pledge, extinguishes his lien. The lien on the stock in question was, therefore, destroyed by the transfer made by the defendant to Denison, November, 1860.-- Sweet vs. Payne, 2 East., 4. McCombis vs. Davis, 7 East., 5. Jacobs vs. Latour, 5 Bing., 130.

The lien did not pass with the stock to Denison. Hence, if the plaintiff had brought his action against Denison, he must have recovered in that action the full value of the stock, without discount or abatement, on account of the debt due from the plaintiff [**40]  to the original pledgee. Shipley vs. Kymer, 2 M. &. S., 29.

But as a sale of personal property by a vendor in possession carries with it an implied warranty of title, Denison might have a recovery over against the present defendant for the full sum recovered by the plaintiff against him. Mairs vs. Taylor, 40 Penn., 446.

To prevent circuity of action, therefore, the measure of damages ought to be the same where the action is brought against the pledgee, as it would be where the action is against his transferee, else the aggrieved party would be tempted to waive his remedy against the wrong-doer and proceed directly against an innocent purchaser from him.

Tender, demand and refusal is said to be evidence of conversion. The pledgee in possession, under the bailment, is not bound to surrender the pledge, except on payment or tender of the debt secured by the pledge. But if he has tortiously converted the pledge, the bailment is thereby broken up, and a tender is not necessary to perfect the cause of action of the pledgor. Coggs vs. Barnard, 2 Ld. Raym., 917. Walter vs, Smith, 5 Barn. & Ald., 439. Boardman vs. Sill, 1 Camp., 410.

The lien is, by the tortious conversion,  [**41]  destroyed. It is so expressly held where the party, having a general lien which he cannot enforce by a sale, tortiously sells or parts with possession. Siebel vs. Springfield, 9 L. R., (N. S.,) 324. Johnson vs. Shae, 3 Am. Law. Reg., N. 8, 753. Mark vs. Lawrence, 5 H. & J., 64. Fishwick vs. Sewell, 4 H. & J., 393. Salmon vs. Horwitz, 28 Eng. L. & E. Rep., 175.

And the same law must apply where the lien is special and the sale or disposition is tortious.

The rule is established to enforce the obligation of the bailment, and for the protection of the debtor. The debt is not discharged by the extinguishment of the lien, or even by the destruction of the pledge. But the pledgee, who has willfully broken up the bailment, shall not protect himself from responsibility by sheltering himself under a right, which had its origin and continued existence in that bailment. Clark vs. Ridout, 39 N. R., 238. Backenstoss vs. Stahlor, 33 Pa., 251. Boardman vs. Sill, 1 Camp, 410 (note.) Thompson vs. Trail. 6 Barn. & Cress., 36. Chinery vs. Viall, 5 Hurl. & Nor., 288. Jacobs vs. Latour, 5 Bing., 120, Co. Lit., 289. Saltus vs. Everett, 20 Wend., 267, 273, 286. Whitaker vs. Sumner, 20 Pick. 399.  [**42]  Fishwick vs. Sewell, 4 H. & J., 393. 2 Pars. on Cont., 246, 247.

Nor is the recoupement to be claimed on the principle of discount or set-off. A debt is not to be set-off in an action on the case for damages. And there is nothing more than reciprocity in this. For if the creditor sues, as he may for the recovery of the debt, the debtor cannot set-off in that action the value of the pledge or damages for its tortious conversion; and as the debtor shall not embarrass the creditor in his action for the recovery of the debt, by tendering issues which concern the dealing of the creditor with respect to the pledge, neither shall the creditor seek to embarrass the debtor in his pursuit of damages for a tortious disposition of the pledge, by tendering issues which address themselves to the validity or amount of the debt. We say nothing of the right of the debtor to discount from the debt the proceeds realized by a valid sale of the pledge. Abbott vs. Gatch, 13 Md. Rep., 332. Van Buren vs. Ijams, 11 How., 47. Withers vs. Green, 9 How., 213. Winder vs. Baldwin, 14 How., 443, 444. Jervis vs. Rogers, 15 Mass., 389.

The only conceivable ground on which the pledgee can be permitted to [**43]  set-off the debt against damages claimed for a tortious disposition of the pledge is, that ex equo et bono, the debtor, obtaining full compensation for the wrong done to him, ought not to decline payment of what is justly due from him to his creditor. "He who would have equity, must do equity." The maxim will be applicable if we are to assume that the parties stand as they would stand in equity, and that the account is to be taken as it would be taken in equity. In equity it is certain that the debtor may require the creditor to restore the pledge specifically in recovering the payment of the debt. The measure of damages ought, therefore, in such case, to be the value of the pledge at the time of trial, with all its intermediate profits reduced by the debt and interest thereon to the same time.

The plaintiff's second prayer ought to have been granted. There was evidence from which the jury might well have found the hypothesis of that prayer. The prayer itself, for perspicuity, is limited to the one hundred shares of Northern Central Rail Road stock last deposited, but the principle of law would equally have applied to the one hundred shares of Baltimore and Ohio Rail Road stock,  [**44]  and the four or five thousand of bonds of the Baltimore and Ohio Rail Road Company deposited at the same time. No special agreement was made in relation to these deposits, as to the notice to be given upon calling for payment of the loans, nor as to the right to sell these deposits upon failure to pay. In support of this prayer the following positions are submitted:

1. That reasonable notice for payment of the loans should have been given to the plaintiff, so that he might, if in his power, redeem the stocks; and what would, under the circumstances, have been reasonable notice, was a question for the jury,

2. No sale should have been made without reasonable notice to the plaintiff of an intention to sell said stock, specifying time and place of sale.

3. Sale, if made, should have been made at public auction, and not at the Stock Board.

4. Public notice should have been given by advertisement in the public papers, of the time, place, and cause of sale. Brown vs. Ward., 3 Duer., 660, Wheeler vs. Newbold, 5 Duer, 34. Same case in 16 N. Y. Rep., 392, 399. Stearns vs. Marsh, 4 Denio, 227. Rankin vs. McCullough, 12 Barb., 103. Washburn vs. Pond, 2 Allen, 474.  

JUDGES:
The [**45]  cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*299]  BARTOL, J., delivered the opinion of this court.
This suit was brought by Dalrymple to recover damages for the alleged conversion by the defendant, to its own use, of seven hundred and seventy shares of the capital stock of the Baltimore and Ohio Rail Road Company, eleven hundred shares of the stock of the Northern Central Rail Road Company, five bonds of the Baltimore and Ohio Rail Road Company, each for the payment of $ 1000, with interest, and ten bonds of the same company, each for the sum of $ 500, with interest.
The first declaration filed was in trover, to which the defendant pleaded and issue was joined; afterwards, it was agreed, "that in lieu of formal pleadings the plaintiff shall be considered as having amended his declaration by adding such counts in tort as the state of facts, to appear at the trial, would justify; and that the defendant shall be considered as having filed such pleas as the state of facts, as they appear at the trial, would justify,--and issues thereupon joined;" and with this agreement the case was to be tried upon the pleadings [**46]  as they then stood, "all errors in pleading on both sides released, with leave to give the special matter in evidence; reserving to each party the same benefit of appeal as if formal pleadings had been put in."
After the evidence, disclosed in the bill of exceptions, had been given, the plaintiff presented nine prayers, of which 

 [*300]  the forth and fifth were withdrawn, and the seventh has been omitted from the transcript of the record; the rest were all rejected by the Court below except the third, which was granted with a modification set out in the Court's instruction.
The defendant offered eleven prayers, all of which were rejected except the ninth. Both parties excepted to the ruling of the Court, and both parties have appealed.
It is not considered necessary here to state the several propositions of law contained in the prayers and the Court's instruction, or to recapitulate the facts offered in evidence and contained in the bill of exceptions. The former will be noticed incidentally in the course of this opinion; and with regard to the latter, so far as we deem them material in the decision of these appeals, there seems to have been no dispute.
The stocks and securities [**47]  for the alleged conversion, or illegal disposition of which by the defendant, the suit is brought, were pledged by the plaintiff to the defendant as security for certain loans. The terms of the pledge are evidenced by written contracts offered in evidence, and are very similar to those recently before us in the case of The Maryland Fire Insurance Company vs. Dalrymple. They contain the same stipulations, requiring additional securities, by way of margin, to be furnished when called for during the continuance of the loans; binding the plaintiff to repay the loans within a certain stipulated time after the same shall be demanded, and in case of default authorize the defendant, "without further notice," to sell the stock and securities pledged for the purpose of satisfying the same. Some of the loans were repayable on one day's notice, and some on three days' notice.
It appeared in evidence that some of the securities, that is to say, one hundred shares of the stock of the Northern Central Rail Road, one hundred shares of the Baltimore and Ohio Rail Road Company stock, and $ 5000 of the dividend 

 [*301]  bonds of the Baltimore and Ohio Rail Road Company, were deposited in [**48]  pledge with the defendant as margins or further security on the general loans; and on these last an additional loan of $ 4000 was made. With regard to these particular pledges, thus deposited by way of margin, no express stipulation was made, and the defendant, in its ninth prayer, asked the court to instruct the jury, that it (the defendant) had the right to sell them upon the longest term of notice stipulated in the written agreements offered in evidence, as to the previous existing loans and pledges constituting the general indebtedness, in the terms thereof. This prayer the court granted, and in our opinion there was no error in this ruling, or in rejecting the second prayer of the plaintiff relating to the same subject. It is obvious that the securities put up as margin were pledged according to the terms of the written contracts--this is the plain meaning of the contract --the rule being that the accretion follows the main body, and is subject to the same conditions.
It appears from the proof, that in November, 1860, due notice, according to the contracts, was given to the plaintiff to repay the money loaned, and upon his default, the defendant proceeded to sell the stocks and [**49]  securities pledged, publicly at the Board of Brokers in Baltimore, all of them except the seven hundred and seventy shares of the Baltimore and Ohio Rail Road stock were then sold, that is to say: five hundred shares of the Northern Central Rail Road stock, on the 15th of November; and on the 20th of November, the other collaterals, except the stock of the Baltimore and Ohio Rail Road Company, were sold in the same manner to various persons, after express notice of such intended sales had been given to the plaintiff.
The effect of such a sale has been fully considered by this Court in the case of The Maryland Fire Insurance Company vs. Dalrymple, (ante p.    ,) in which it was held, that sales so 

 [*302]  made are valid and legal under contracts like those now before us; and for reasons stated in the opinion in that case, it was decided that no valid objection could be urged against them by reason of their being made at the Board of Brokers. It follows, therefore, that the sales of the collaterals which were made to third persons in this case, not being impeached on the ground of fraud or unfairness, were legal and valid, and in respect to them the plaintiff cannot maintain [**50]  the present suit.
It remains now to consider what are the rights of the parties in respect to the seven hundred and seventy shares of the stock of the Baltimore and Ohio Rail Road Company.
That was put up for sale at the Board of Brokers on the 20th of November, 1860, and bought by the defendant through the agency of a broker employed for that purpose. Precisely the same kind of transaction came before us for examination in the case of the Maryland Fire Ins. Co. vs. Dalrymple, before referred to, and it was declared that both in a Court of Law and a Court of Equity such a sale by a pledgee to itself, in the absence of consent or acquiescence on the part of the pledgor, was illegal and ineffectual to pass the absolute title to the pledgee as purchaser. Secondly, that it did not operate as a conversion of the property so as to break up the bailment, except at the election of the pledgor, and in the absence of such election the bailment continued in the same manner as if such attempted sale had not been made. According to that ruling the first and second prayers of the defendant in this case were properly refused.
After the attempted sale and purchase of the stock by the defendant,  [**51]  as stated in the testimony of Marcus Denison, some apprehension was felt that the stock, which had been bid in at $ 54 3/4 per share, would still further decline, and at a session of the Finance Committee of the defendant, the same evening, objections were made to holding the stock; whereupon the witness offered to purchase it at $ 55 per 

 [*303]  share, and proposed that his offer might be held till the next day. On the next day the committee declined the offer, but offered to sell at $ 56 per share, at which price witness purchased the seven hundred and seventy shares on the 21st of November, 1860, and the stock was transferred to him. Immediately afterwards, the plaintiff was informed of the sales of the stock at the board, and also of the purchase made by the witness.
There is some conflict of testimony as to the reply made by the plaintiff on receipt of this information. It has been argued on behalf of the defendant, that there was evidence from which the jury might find consent and acquiescence on the part of the plaintiff in the disposition that had been made of the stock, and on this hypothesis the sixth, tenth and eleventh prayers of the defendant are based. In the view [**52]  we take of the case, the question presented by these prayers is not material. We think, however, there was no error in rejecting them, and shall proceed to consider the other questions presented, assuming that there was no evidence of such acquiescence on the part of the plaintiff as to defeat this action.
Proof was offered that on the 17th day of December, 1862, the plaintiff tendered to the defendant the amount of the loans with interest, and demanded a return of all the stock and collaterals pledged; the tender was made to the defendant's agent, who replied, that "he thought the matter was settled," and refused the tender. Evidence was given that the stock of the Baltimore and Ohio Rail Road Co. was worth $ 77 per share on the 17th of December, 1862; and it was also proved that the same stock had fluctuated in value from November, 1860, selling in April, 1861, as low as $ 40 per share.
It was also proved, that there were dividends on the same stock on the 27th of October, 1860, the 15th of April, 1861, the 28th of May, 1862, and the 30th of September, 1862, 

 [*304]  and that the interest on extra dividend bonds was payable in June and December, and was paid in full to all parties [**53]  claiming it to June, 1st 1862, when it ceased to bear interest and was converted into stock of the company.
The questions presented for our decision are: 1st. As to the plaintiff's right to recover. 2nd. As to the measure of damages. 3rd. As to the right of the defendant to recoupe from the damages the amount of the loans.
We have virtually determined the first question in the case of The Maryland Fire Insurance Company vs. Dalrymple. As we have already said the attempted sale and purchase by the defendant at the board was inoperative; the possession of the stock remaining unchanged, the bailment continued thereafter as before. But notice having been given under the contract, and the plaintiff being in default, the power to sell continued, and if it had been legally exercised no action of tort could be maintained. But according to the rule laid down in the former case, the defendant had not the legal right to dispose of the stock at private sale. The sale so made to Denison on the 21st of November, 1860, was therefore contrary to the duty of the defendant as pledgee and in law tortious, for which, the plaintiff is entitled to maintain his action either in trover or [**54]  case.
The next question is, what is the measure of damages? The plaintiff in his sixth prayer asked for an instruction to the jury that they might, in their discretion, assess the value of the stocks at their highest market value on the day of trial, or on any other day before that time, and after the day of the demand and refusal.
The Court rejected that prayer, and instructed the jury that "in estimating the damages they were bound to give to the plaintiff what they might find from the evidence to have been the market value of the seven hundred and seventy shares of stock on the 17th of December, 1862, with interest thereon, deducing therefrom the sum loaned and interest."

 [*305]  After a mature consideration of this question and a careful examination of all the authorities cited in argument, we are of opinion that this instruction was erroneous, and we consider the proposition contained in the plaintiff's sixth prayer as still more untenable. The tort complained of here, and which is the ground of this action, was committed on the 21st of November, 1860, by the sale and transfer of the stock to Denison. The plaintiff, well knowing the fact, lay by until December,  [**55]  1862, when he made the tender and demand, long after the stock had been parted with, and when it was no longer in the defendant's power to return it, and then assuming to treat the refusal to comply with the demand as the tortious act, attempts to make it the ground of his action. This is not only contrary to reason, but in direct opposition to the well settled principles of the law.
The sole object and design of the law in awarding damages to a plaintiff, is to compensate him for the injury he has actually suffered from the wrongful act of the defendant. We leave out of view that class of cases in which, by reason of the bad faith or moral turpitude of the act complained of, exemplary or primitive damages, by way of smart money, are allowed. This is not a case of that kind. The torticus act of the defendant was in the breach of legal duty arising out of the contract, and the damages ought to be compensatory merely.
In actions ex contractu between vendor and vendee, brought to recover damages for a breach of the contract of sale, the rule of damages is well settled. In Tempest vs. Kilnor, 3 Man Gr. & Scott, (54 Eng. C. L. Rep., 248,) decided in 1846,  [**56]  which was assumpsit by vendee on a contract for the sale of shares in a projected railway, it was held that the measure of damages was the difference between the contract price and the actual price at the time when the shares ought to have been delivered, that is, at the time of the breach, and the 

 [*306]  plaintiff could not recover beyond that day. TINDAL, C. J., said "the plaintiff had no right to lie by until the concern became profitable." The same rule was applied in trover, in Reid and Stewart vs. Fairbanks and others, in the Common Pleas, 4 J. Scott, (76 Eng. C. L. Rep., 692.) In Hill vs. Smith and Carpenter, 32 Vt. 433, assumpsit by vendee claiming damages for a failure to deliver merchandise purchased, it was held that the measure of damages was the market value at the time stipulated for delivery, and that the rule was not altered by the payment of the price in advance.
The same rule has been expressly recognized and adopted by this Court in Williams vs. Woods, Bridges & Co., 16 Md. 220. There is no reason why this rule should not apply to a case like the present, and the plaintiff be confined [**57]  to the damages actually suffered at the time the tort was committed. On what ground can the plaintiff claim compensation on the basis of the value of the stock in December, 1862? There was no tort committed at that time by the defendant, nor did the tender, demand and refusal operate to give him a cause of action. They were merely nugatory. It is settled that if there has been a wrongful sale of the pledge, no tender of the debt due need be made before bringing an action therefor. Story on Bailments, sec. 349.-- Stearns vs. Marsh, 4 Denio 227. Fenn vs. Bittleson, 8 Eng. L. & E. Rep. 483. Edwards and others assignees vs. Hooper and another, 11 Mees. & Wels. 362. In the case last cited the plaintiff's assignees in bankruptcy relied on a demand and refusal as the ground of their action, the conversion having taken place before the fiat in bankruptcy, it was held the suit could not be maintained. Parke, Baron said: "if the goods were in possession of the defendants, a demand and refusal would be evidence of a conversion. But it is not so in a case where the goods have been previously parted with by sale. There cannot be [**58]  an effectual demand and refusal 

 [*307]  unless the party has at the time possession of the goods and has the means of delivering them up."
In Greenleaf's Ev., vol. 2, sec. 644, the effect of a demand and refusal is correctly stated, and many cases cited. In Dietus vs. Fuss, 8 Md. 148, the case in 11 Mees. & Wels., and the sections of Greenleaf on this subject were cited and approved. It follows from these authorities that the demand and refusal in this case could have no effect either in giving to the plaintiff a right of action, or to fix the measure of damages.
Treating this case as an action of trover, we consider the rule well established, that the proper measure of damages is the actual value of the stock at the time of the conversion, deducting of course the amount of the debt due the defendant by way of recoupment, of which we shall speak presently. This is the general rule in actions of trover and has been long recognized in Maryland. See Hepburn's Admr. vs. Sewell, 5 H. & J. 211. Stirling vs. Garritee, 18 Md. 468. In Massachusetts the same rule is established. See Kennedy vs. Whitwell, 4 Pick. 466, [**59]  and other cases cited by Sedgewick on the Measure of Damages, 504, note. In Kentucky the rule is the same, and it has been recently recognized by the Supreme Court of New Hampshire, in Pinkerton vs. Manchester and Lawrence Rail Road, reported in 1 Am. Law Reg., N. S. 96, where many authorities are examined and the question discussed in a very elaborate and well considered opinion. See also the note of Judge Redfield appended to that case, pages 115, 116. The reported cases in New York are not uniform, and in some of them the rule has been departed from; nor is it easy to reconcile all the English cases where this question has arisen.
In our opinion the general rule above stated as laid down in Hepburn's Admr. vs. Sewell, and Sterling vs. Garritee, is a stable, sound and just rule, and ought to be applied in this case, whether we consider the action as in trover for the 

 [*308]  conversion, or as a special action in case. The change in the form of the declaration cannot alter the rule of damages. In Chinery vs. Viall, 5 Hurl. & Nor. 287, where the declaration contained a special count, and a count in trover, the rule of damages [**60]  above stated was applied. Bramwell, B., said: "the principle deducible from the authorities was, that a man cannot by merely changing the form of action entitle himself to recover damages greater than the amount to which he is in law entitled, according to the true facts of the case and the real nature of the transaction."
We do not deny that there may be special circumstances which will take a case out of the operation of the general rule and entitle a party to recover, in trover or case, more than the value of the property at the time of the conversion; such was the case of Bodley vs. Reynolds, 8 Ad. & E. 779. (55 Eng. C. L. Rep.) So in Wilson vs. Little, 2 Comstock 443, much relied on by the plaintiff's counsel; that was an action on the case by a pledgor against the pledgee for wrongfully selling stock pledged in security for a loan. It appeared in proof that the stock was disposed of on the 24th of December when the market price was $ 68 the share, when the defendant had no right to sell. The plaintiff, not being aware that the stock had been sold, offered to redeem the pledge, and at the instance of the defendant, who promised [**61]  to return it, consented to wait, and it was not till the 2nd of January that the defendant ceased to hold out the expectation of restoring the stock, or stock of the same kind and equivalent value, which the plaintiff was willing to take; at that time the stock was worth $ 85 per share. It was held, under the circumstances, that the plaintiff was entitled to recover according to the value of the stock on the second of January, when the defendant finally failed in his promises to restore it. We consider that decision as manifestly just, and not in conflict with the general rule before stated. The special rule there applied can have no application to the 

 [*309]  present case. Here there are no special facts or circumstances which, either in law or justice, entitle the plaintiff to claim more than compensation for the injury actually suffered by him at the time the tort was committed; and that can only be properly estimated by considering the actual market value of the stock at the time it was sold and transferred to Denison.
We consider it perfectly clear, that the view taken by the Court below on the question of recoupement was correct; and that in ascertaining the damages,  [**62]  the amount of the debt due the defendant, to secure which, the stock and other collaterals were pledged, ought to be deducted. The law is so expressly stated by Story in his work on Bailments, secs. 315, 349. It is supported by the authorities cited by him, and is consistent with the general doctrine of recoupement, established in modern cases, and recognized by this Court in Abbott vs. Gatch, 13 Md. 314. * See also, Stewart vs. Rogers, 19 Md. 98, 117, 118. In such a case as this, the application of this doctrine does not rest upon the principle of lien, and the cases of that description cited in argument by the plaintiff's counsel are, in our opinion, inapplicable. In the recent case of Johnson, Assignee, vs. Stear, decided in the Common Pleas in England, and reported in the 3rd Am. Law Reg., (N. S.,) 753, the doctrine of recoupement in a case like this was considered and decided, and we fully concur in the conclusions of the Court there stated.

* NOTE BY REPORTER.--In the head notes to the case of Stewart vs. Rogers et. al., 19 Md. 98, the following appears to have been omitted:
The assumption that the plaintiff forfeited all claim to charges for services, management, advances, &c., if the jury believed he sold the bark without authority, is erroneous; the plaintiff might by the course of dealing between the defendant and himself have become entitled to a balance on account against the defendant, and the latter have a claim against the former for the value of the vessel improperly sold; the conversion or trespass of the plaintiff would not extinguish the debt of the defendant.

 [**63]  

 [*310]  Considering that there was error in the ruling of the Superior Court, as to the measure of damages in this case, the judgment will be reversed on the defendant's appeal, and the plaintiff will have leave to take out a writ of procedendo.
Judgment reversed, with leave to take out procedendo. 

99 of 120 DOCUMENTS 

BALTIMORE & OHIO R. R. CO. vs. STATE, USE OF KELLY ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 271; 1866 Md. LEXIS 17 

March 22, 1866, Decided 

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

This action was brought by the appellee, in the Superior Court of Baltimore city, to recover damages under the Act of 1852, ch. 299, for the killing of a certain William Henry Kelly.

Exception.--The plaintiff to maintain the issues on his part joined, at the trial of the cause offered evidence tending to prove:

That the deceased was one of the employees of the Baltimore and Ohio R. R. Company before and on the 20th July, 1857; and that on said day he was killed "by being caught and crushed between an engine and tender, on the former of which he was at work;" that the company's agent in charge of the locomotive that caused the accident was incompetent for his place; that said locomotive was defective, and that the company had knowledge of said facts; that said Kelly was at the time of his death from thirty to thirty-six years of age; a sober, moral, industrious man, enjoying good health; that he left surviving him a widow, a son about five years old and a mother, which survivors were the cestui que uses in the present action; that for about four years prior and up to the time of his death, said Kelly kept house in Baltimore,  [**2]  supporting his wife and child, who lived with him; that he left little or no property; and that since his death his widow had supported herself and child by her own exertions.

It was further proved that said Kelly had been for four years prior to and up to the time of his death employed by the company as one of the hands in the boiler shop at Mount Clare; that he was an industrious man, a good hand, &c. "There was no proof of the specific wages paid to Kelly at the time of his death."

No prayers were offered by the plaintiff below; seven prayers were offered by the defendant, all of which were granted by the Court except the fifth, which was in these words:

"That in the absence of proof, (other than the death, age and condition of health, and members and state of the family of said Kelly,) of actual damage, the verdict of the jury, in the event of its being for the plaintiff, must be for nominal damages only."

To the refusal of the Court (MARTIN, J.,) to grant this fifth prayer the defendant excepted, and the verdict being for the plaintiff, this appeal was taken.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In an action under the Act of 1852, ch. 299, by the wife for damages consequent upon the death of the husband, resulting from the carelessness of the defendant, a rail road company, evidence was given of the age, habits, health and occupation of the deceased at the time of his death, and also of the number of his family and their condition before and after his death, but no evidence was offered of the specific wages paid the deceased at the time of his death, HELD:

That a prayer -- "That in the absence of proof, other than the death, age and condition of health, and members and state of the family of said deceased, of actual damage, the verdict of the jury, in the event of its being for the plaintiff, must be for nominal damages only" -- was properly rejected.

2nd. That in assessing the damages the jury should confine themselves to such compensation to the surviving members of Kelly's family as would supply to them the same results as would have followed from his labor during the probable period he would otherwise have lived and earned a livelihood; but that they might take into consideration his age, health and occupation, and the comfort and support afforded his family at the time of his death.  

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

The prayer in question was suggested [**3]  by the belief that, with the power to prove what the wages were, the plaintiff was unwilling to show that they are comparatively small, and went before the jury at a venture. Now, the rule of law is well known, that the best evidence of which a case is susceptible must be produced where practicable. 2 Stevens' Nisi Prius, 1509. The question here was as to the amount that would compensate the widow and children for the loss they had sustained.

Punitive damages were not claimed; no prayer was offered by the plaintiff asking for them. The naked question was the compensatory damages. To ascertain what would be the best proof of them we must look at the elements properly entering into the calculation; these were:

1st. The age of the party and the probable length of life, during which he would be able to earn a support for his family, in a case where, like the present, his family was dependent on his daily labor. Sufficient evidence to this extent, it admitted, was given.

2nd. The wages of such a person at the time of his death. These, unquestionably, ought to have been shown, when the jury would have had the elements for a fair conclusion as to the actual pecuniary loss sustained [**4]  by the widow and children in consequence of the death. It stands to reason that the widow and children of a man, say, for illustration, at ninety cents a day, suffer less pecuniary damage from the loss of the husband and father than the widow and children of a man earning two dollars a day would suffer.

The verdict in this case was for $ 5,000. The income from this at six per cent. is $ 300 per annum in perpetuity, which will be the income paid to the plaintiffs if the present verdict stands; when, allowing even that the earnings of the deceased were one dollar per day, and that he would never have lost a day until he was sixty years of age, (a most improbable supposition.) The plaintiff, had he lived, would have had such an income for twenty-five years only, and from this income even there would have had to have been deducted the cost of his own support. In other words, the finding of the jury in the case is a perfect illustration of the importance of the best evidence where it can be procured, where damages purely compensatory in their character are sought.

The exception to the rule requiring the best evidence is the case where it is impossible to obtain it. But here there [**5]  was no difficulty of the sort.

The authorities seem to be conclusive that the verdict, if for more than nominal damages, must be based, not merely on the fact of the death, but upon data which the jury may weigh in coming to a pecuniary result.

The Maryland Act is, in the main, taken from Lord CAMPBELL'S Act, 9 and 10 Victoria, ch. 93, and on this several decisions have taken place in England, showing that the pecuniary loss is the only loss to be considered. Armsworth vs. South Eastern R. R. Co., 11 Jurist, 758. Gilbard vs. The Lancashire and Yorkshire R. R. Co., (See Chitty on Carriers, 413. Blake vs. the Midland R. R. Co., 83 Eng. C. L. Rep. See also New York vs. Ransom, 23 How., 487.

A. W. Machen and R. J. Gittings for the appellee.

The only question is, whether the Court below was justified in rejecting the defendant's fifth prayer. There is no question of the plaintiff's right to recover, nor as to the amount of the verdict if actual damages were allowable; for the jury were properly instructed upon the measure of damages, and the quantum was a matter for their own determination, subject only to the discretion of the Superior Court on a motion for a new trial.  [**6]  

The defendant's fifth prayer demanded a peremptory instruction to the jury, that in finding for the plaintiff they must give nominal damages only.

1. It is a conclusive objection to the prayer that in pronouncing that there was no evidence of actual damage, other than the death, age and condition of health, and members and state of health of the family of William H. Kelly, the deceased, it altogether excluded the material facts, that by means of his labor he was keeping house and supporting his family, who by his death were thrown upon their own exertions.

The prayer has the vice condemned in the second prayer of the defendant in Planters' Bank vs. Bank of Alexandria, 10 G. & J., 350, 351, 357, and in the prayer contained in the fourth exception in Byer vs. Etnyre, 2 Gill, 162.

2. The statute of 9 and 10 Victoria, ch. 93, adopted-- with modifications immaterial to the present inquiry--in our own Act of 1852, ch. 299, has now received a settled construction in England. If the deceased himself, had he not been killed, could have sued, there is a foundation for a case against the defendant. The extent to which the actual plaintiffs can recover depends upon another [**7]  consideration, viz: Their reasonable expectation of pecuniary benefit from the continuance of the life of the person killed. They do not recover as his executors, (although in England the action is in the name of the executor,) nor is the quantum of damages fixed by the injury to his estate. And their expectation does not need to be founded on a right--if it is a reasonable expectation this is all that is required. Dalton vs. South Eastern R. R. Co., 4 C. B. N. S., 296. 93 Eng. C. L. Rep., 296.

In every trial there are some things which may be safely left to implication from matters of general knowledge. This rule of evidence, which is common to all jurisprudence, is well stated by Domat. "Some facts are such that they are always reputed to be true till the contrary has been proved; and there are others which are always reputed contrary to truth, unless they are proved. 1 Domat by Cushing, §  2070, (1 Dom. Loix. Civ. L., 3 s., 4 pl., 7.) It was upon this principle it was held in Fay vs. Prentice, 1 C. B., 828, 50 Eng. C. L. Rep., 728, that the jury might find that rain fell in a certain garden at Islington, in Middlesex, sometime during the interval between the 1st of May and [**8]  the 2nd of July, in the year 1844, although no evidence of the fact had been offered.

The tortuous killing being established, only two things, as we have seen, were necessary to make up the claim to damages: 1st, that the person killed, if he had survived, would have been able to render pecuniary assistance to the parties for whose use the suit was brought; and 2nd, a reasonable probability that he would have bestowed such benefits.

The proof in this case more than supplies the demands of the law.

Now, as to the worth of that support and maintenance, including as to the child, his education also, the jury had before them the age and habits of the parent, the age of the child, and especially the condition or station in life of all the parties. Who can say that the pecuniary value to a wife and her child five years old, of the support, which, during the child's minority at least, and the mother's life time, they would have continued to enjoy in the household of a laboring man of the character of Kelly, living in the degree of comfort which we all know belongs to such homes in our favored city of Baltimore, was not worth five thousand dollars? But, be this as it may, such [**9]  support has some actual value, and the question of amount was for the jury. Duckworth vs. Johnson, 4 Hurls. & Nor., 653, 657. Dorsey vs. Gassaway, 2 H. & J., 413. Fishwick vs. Sewell, 4 H. & J., 403. Gaither vs. Blowers, 11 Md. Rep., 552, 553. Oldfield vs. N. Y. & Harlem R. R. Co., 3 Smith, 103. Same case on appeal in 14 N. Y. Rep., (4 Kernan) 310.

The only case relied upon by the learned counsel of the appellant in support of the theory of his fifth prayer, The Corporation of New York vs. Ransom, 23 How., 487, has, we submit, no bearing on the present question. It is only necessary, however, to refer to Seymour vs. McCormic, 16 How., 485, the case mentioned in the opinion of the Court in The Corporation of New York vs. Ransom, as the foundation of their judgment, to perceive that there is no analogy between that class of patent cases, and actions for personal injury and killing like the present. So far as there is anything common in the law applicable to them it is of the most elementary and undisputed description. Whatever is novel in the decisions under the patent law, proceeds upon grounds peculiar to the subject matter.

As to the other cases cited by the defendant's [**10]  counsel, Blake vs. the Midland R. R. Co., 88 Eng. C. L. Rep., 93, (also on the appellee's brief,) it only settled that the verdict is not to be regulated by the idea of giving a solatium for mental sufferings. Our jury were so instructed. Armsworth vs. The South Eastern Railway Co., 11 Jur., 758, (also cited by Mr. Latrobe,) one of the earliest cases upon Lord CAMPBELL'S act--a nisi prius ruling of Baron PARKE'S--though less important now than formerly, when there were no decisions in banc on the subject, is still instructive as illustrating how impracticable it must always be to take away a reasonable freedom of judgment from the jury. The whole passage forming the close of the learned Judge's charge, of which the first sentence is extracted in the brief of the appellant, is far from justifying any inference adverse to the appellee.

The rule requiring the production of the best evidence, which seems to be invoked by the counsel of the appellant, has no application to such a case as the present. All the evidence here brought into comparison is of the same quality, and the rule has nothing to do with the question of the quantity, or amount of proof. That less evidence is offered [**11]  than might have been adduced, or that weaker proofs have been selected in preference to stronger, or that there has been an omission to supply all the proofs capable of being produced, constitute no infringements of it. Richardson vs. Milburn, 17 Md. Rep., 67, 71. 1 Phill. Ev., 570. The operation of the rule, where it applies, is as a rule of exclusion--it excludes certain evidence because some better evidence is presumed to be behind, and justice refuses to listen to that which is of inferior quality. But here there is no exception to the admission of any of the evidence which was actually introduced. The other, and, as the learned counsel of the appellant contends, less satisfactory evidence, did come in, and it came in without objection. So it is too late to appeal to the rule. 1 Phill. Ev., 567. 1 Stark. Ev., 641.

3. But, at any rate, simply refraining from instructing the jury to give only nominal damages was not error, the Court having already given positive instructions as to the measure of damages, which, if followed and applied by the jury, were sufficient to keep them within just bounds.-- Pennsylvania R. R. Co. vs. Ogier, 35 Penn., 60. Consistently with the instructions [**12]  given, the jury could not award real damages unless they were due.

4. There was evidence also from which it was competent to the jury to find that gross carelessness on the part of the defendant in the management of its dangerous machinery which, according to the rule of law forcibly expounded in Hopkins vs. The Atlantic & St. Lawrence R. R., 36 N. H., 1, is equivalent, in these great railroad corporations, to bad motives, and equally justifies the exaction of exemplary damages. And for this reason, besides others, the defendant had no right to require the Court to prohibit the jury from going beyond nominal damages. Penn. R. R. Co. vs. McCloskey, 23 Penn., 531.

In conclusion, relying on the points and authorities mentioned in the brief, as well as the additional cases above referred to, we submit that there was evidence of actual damage, and that the Court, after giving every instruction which the defendant asked for the guidance of the jury, as well with respect to the liability of the company, as the rules for estimating the damages, committed no error in refusing to confine the jury in a case of such character to merely nominal damages. Britton vs. South Wales R. R. Co.  [**13]  , 3 Hurls. & Nor., 963.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*279]  COCHRAN, J., delivered the opinion of this Court.
This suit was brought by the appellee, under the Act of 1852, ch. 299, to recover damages resulting from the death of William Kelly, which it is alleged was caused by negligence on the part of the appellant. The exception, on which the case was brought up, contains evidence of the age, habits, health and employment of the deceased, at the time he lost his life, and also of the members of his family; that he supported them by his labor, and that after his death his widow supported herself and child by her own exertions.
All the prayers of the appellant were granted excepting the 5th; and by the 7th, the last of the series, the jury were instructed that in assessing the damages they should confine themselves to such compensation to the surviving members of Kelly's family, as would supply to them the same results as would have been afforded by his labor during the probable period he would otherwise have lived and earned a livelihood; but that they might take into consideration his age, health [**14]  and occupation, and the comfort and support afforded his family at the time of his being killed.

 [*280]  The proposition submitted by the 5th prayer, to the rejection of which this exception was taken, was that, in the absence of proof as to the wages or earnings of Kelly, no standard was shown by which the jury could find the amount of damages sustained, and that their verdict should, therefore, have been for nominal damages only.
Vindictive or punitive damages were not claimed, and, indeed, as we have recently held, punitive damages are not recoverable in such a case as this, under the Act of 1852. But looking to the concession made in the 7th prayer, that the jury might, in assessing the damages, take into consideration the age, health and occupation of the deceased, as well as the comfort and support afforded by him to his family, it is a little difficult to understand why the appellant should be allowed to insist on the doctrine propounded by the rejected prayer. Without, however, disposing of the question on that ground, let us inquire whether this prayer is otherwise free from objection.
It is admitted that there was no evidence of the specific wages paid to Kelly at [**15]  the time of his death, although there was proof of the character of his occupation, as well as of the fact that he was in the employ of the appellant. The prayer goes on the theory, that the rate of wages, paid at the time of the death, was the true and exclusive standard of the damages sustained, and, in the absence of proof on that point, that nominal damages only could be recovered. So far as we have been able to learn, this proposition is not only unsupported by any direct authority, but too strict in its character to admit of general application. The adoption of it in this case, would have withdrawn from the consideration of the jury a mass of evidence that tended to show the nature and extent of the damages actually sustained. Suppose, for instance, that Kelly was out of employment at the time he was killed, or that he was then 

 [*281]  pursuing some occupation affording a livelihood for himself and family, yet of a character not to show the specific amount derived from it, could it be pretended, that being out of employment, or that the want of proof of the amount derived from the occupation pursued, would have the effect of limiting the right of recovery to nominal damages [**16]  only? We do not understand that to be the rule. In Franklin vs. South Eastern Railway Co., 3 Hurls. & Nor. 211, the action was brought to recover damages under the Act from which our Act of 1852 was derived, and POLLOCK, C. B., in delivering the opinion of the Court, said that "it was clear that damage must be shown, for the jury are to give such damages as they may think proportioned to the injury. It has been held, that these damages are not to be given as a solatium, but are to be given in reference to a pecuniary loss. It is also clear, that the damages are not to be given merely in reference to the loss of a legal right, for they are to be distributed among relations only, and not to all individuals sustaining such a loss. If then the damages are not to be calculated on either of these principles, nothing remains, except that they should be calculated in reference to a reasonable expectation of a pecuniary benefit, as of right or otherwise, from the continuance of the life." In Dalton against the same defendant, 93 Eng. C. L. Rep. 296, it was said "that the reasonable expectation of pecuniary advantage by the relation remaining alive, may be taken [**17]  into account by the jury, and damages may be given in respect of that expectation being disappointed, and the probable pecuniary loss thereby occasioned." In Duckworth vs. Johnson, 4 Hurls. & Nor. 652, the action was brought by a father for damages resulting from the killing of his son, and there the question was whether the plaintiff had sustained damage that entitled him to recover. There was proof that the son had previously earned four shillings a week, but that he was out 

 [*282]  of employment at the time of his death. POLLOCK, C. B., again said, "It is true no distinct evidence was given of the value of the boy's services, and the cost of boarding and clothing him; but as to that, the jury were better able to judge than we are. It having been decided that a reasonable prospect of pecuniary benefit may be taken into consideration, it is impossible for us to say, that the jury were not warranted in finding the verdict which they have done." The general doctrine of these cases is applicable here, and they clearly show that there was no error in rejecting this prayer. They also support the proposition of the 7th prayer as the true law of the case.
Judgment affirmed.  [**18]   

100 of 120 DOCUMENTS 

CHARLOTTE LEVY AND SAMUEL LEVY vs. WILLIAM W. TAYLOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 282; 1866 Md. LEXIS 18 

March 22, 1866, Decided 

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

This is an action upon the injunction bond filed in the case of Rich et al. vs. Levy, reported in 16 Md. Rep., 74, the record of which case is by agreement to be treated as if set out in the several bills of exceptions. The plaintiffs, now appellants, were the defendants in that case, and the appellee, who in this action was sued, together with Rich, who was not found, became a party complainant in that case in the progress of the proceedings. The material facts of the case are stated in the opinion of this Court.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

INJUNCTION BOND, ACTION ON: DISCHARGE OF SURETY. -- The obligation of a defendant, surety in an injunction bond upon which suit is brought, is not discharged by the admission of other parties, as complainants, to prosecute the cause in which the injunction was issued -- the bill for injunction being at the same time a creditor's bill.

INJUNCTION BOND, ACTION ON: DISCHARGE OF SURETY: INJUNCTION BOND, CONSTRUCTION OF. -- In construing such bond with reference to the question of the discharge of the obligation of the surety, the Court will be guided by the intention of the parties when the bond was executed, taking into consideration that the bill was filed by creditors in behalf of themselves and others who might come in, and that the bond was given in a judicial proceeding, as a necessary step to obtain the writ of injunction, and to indemnify the adverse party against its effects and operations.

The condition of the bond was co-extensive with the objects and purposes of the bill, and the admission of new parties did not enlarge the responsibility of the obligors. The risk incurred by the surety when there was but one party complainant, was as great as when the number was increased.

MEASURE OF DAMAGES IN ACTION ON INJUUCTION BOND. -- Where the injunction prayed by the bill was to prevent the defendants from selling, disposing of, or intermeddling with certain goods, and to obtain a decree applying the same to the payment of the debt of the complainants and others, the amount properly recoverable in an action on the injunction bond, is the loss in value of the goods during the operation of the injunction, -- not exceeding the penalty of the bond with interest thereon from the time of the institution of the suit.

PRACTICE: EVIDENCE, ADMISSIBILITY OF IN PART WHEN OFFERED IN MASS. -- When an offer is made of a mass of evidence complex in its character, and the whole of it is objected to, in such case if any part of it be admissible it is error to exclude the whole. The onus lies upon the objector to point out the inadmissible portions of the proof offered, and to take the instruction of the Court as to them.

EVIDENCE, ADMISSIBILITY OF. -- The introduction of an entire record as evidence of an adjudication between the same parties of the validity of a mortgage, with reference to the question of damages, is inadmissible, the validity, &c., of the mortgage not being involved in the issue in the cause.

PRACTICE IN COURT OF APPEALS: ORIGINAL JURISDICTION. -- The Court of Appeals can only act upon exceptions to proof taken below, and it is not its province to decide upon the admissibility of evidence submitted to it primarily by agreement of counsel to be read subject to exceptions. Such action pertains to the Court of original jurisdiction, and the appellate Court can only review that action on appeal.  

COUNSEL:
R. Gilmor, Jr., and A. W. Machen for the appellants.

The three rulings of the Court below upon the evidence, as appears from the 1st, 2nd and 3rd exceptions, were all of them erroneous. 1 Stark. Ev. by Shars., 258, 392, Marg. Com. Dig. Ev. (A. 4.) Layborn vs. Crisp, 4 M. & W., 320. 3 Inst., 173. Bull. N. P., 227, 228. 1 Greenlf. Ev. §  511. Leake vs. Marquis of Westmeath, 2 Mood. & Rob., 394. Pegg vs. Warford, 7 Md. Rep., 582. Taney vs. Bachtell, 9 Gill, 209. Marshall vs. Haney, 4 Md. Rep., 498. Budd vs. Brooke, 3 Gill, 198. At all events, the defendant could not be [**2]  prejudiced by the evidence in the mode in which it was offered, and had no right to object. Hardey vs. Coe, 5 Gill, 189.

The fourth and last bill of exceptions brings up the prayers and instructions. The plaintiff's 2nd, 3rd and 4th prayers, which were refused, present questions of the measure of damages recoverable upon a bond such as is here sued on, and under the circumstances of this case. The defendant's 2nd prayer which was granted, went to annul the bond itself, and preclude all recovery.

II. 1. The loss of value sustained by the goods during the operation of the injunction and while they were in the custody of the Court under it, as prayed in the bill, was clearly recoverable; and the plaintiff's second prayer ought to have been granted. Wallis vs. Dilley, 7 Md. Rep., 237. Rubon vs. Stephan, 25 Miss., 253.

2. The action being necessarily joint, and made so by the form of the bond, any damages sustained by either of the plaintiffs were recoverable. Wallis vs. Dilley, 7 Md. Rep., 237. Pugh vs. Stringfield, 93 Eng. C. L. Rep., 364. (4 C. B. N. S.) Bird vs. Washburn, 10 Pick., 223. Loss of debt, or interest, sustained by Samson Levy, (except in so far as covered [**3]  by the plaintiff's 2nd prayer,) was therefore a proper element of damage, and the plaintiff's 3rd prayer was also free from objection in other respects. Wood vs. Fulton, 2 H. & G., 71, 78. Ives vs. Merchants' Bank, 12 How., 165. Hughes vs. Wickliffe, 11 B. Mon. 209. Carter vs. Thorn, 18 B. Mon. 613. Tryon vs. Robinson, 10 Rich., S. Car., 160. Aldrich vs. Reynolds, 1 Barb. ch. 613.

3. The plaintiff's 4th prayer ought not to have been rejected. Willson vs. Lancashire R. R. Co. 9 C. B. N. S. 632, 99 Eng. C. L. Rep. Ward vs. Smith, 11 Price, 19. Wallis vs. Dilley, 7 Md. Rep., 237, 250, 251.

III. 1. The admission of new parties was provided for by the bill, and the bond is framed with reference to the bill; and what took place therefore was clearly within the contemplation of the contract. Strawbridge vs. Balt. & Ohio R. R. Co., 14 Md. Rep., 360. Oswald vs. Mayor of Berwick, 3 Ell. & Bl., 653, (77 Eng. C. L. Rep.,) affmd. 5 Ho. Ld. Ca., 856. Mayor of Dartmouth vs. Silly, 7 Ell. & Bl. 97, (90 Eng. C. L. Rep., 1.) 2 Wms. Saund. 414, a 145 Vesey vs. Mantell, 9 M. & W., 323. Benjamin vs. Hilliard, 28 How., 149.

The structure of the bill, as a creditor's bill, indeed made all [**4]  the creditors parties, in a certain sense, from the beginning. Adair vs. The New River Co., 11 Ves., 444. And the actual intervention of other creditors effected no substantial change--certainly none which the character of the proceedings does not show was originally contemplated. The bond must be construed as one given in such a suit. Shepherd vs. Togwood, Turn. & Russ., 391. Doogan vs. Tyson, 6 G. & J., 458.

An injunction has the same scope and operation whether granted at the instance of one or of several complainants.

If the view taken on behalf of the appellee be correct, the law provides no compensation for the damages occasioned antecedently to the admission of the new plaintiffs; a new bond would not cover them.

3. The burden of the obligors was in no manner increased by the admission of co-complainants. With them in, Rich had the same power to prosecute the injunction as before. If they had not come in, and he had died, the injunction would still have remained to require prosecution in order to save the bond. Hawley vs. Bennett, 4 Paige, 163.-- Carter vs. Washington, 1 Hen. & Munf., 203. Fowler vs. Scott, 6 Eng., Ark., 675.

The liability of the surety is [**5]  never affected--at law, at least--unless the change in the position of the principal is in some manner the act of the obligee. U. S. vs. Howell, 4 Wash. C. C., 620. Davey vs. Pendergrass, 5 Barn. & Ald., 187. Reese vs. Berrington, 2 Ves. Jun, 542. 2 Wh. & Tud. Le. Ca. Eq., 817.

But it is a conclusive objection to the instruction given below that it omits to take into view the essential element in the rule of equity in question, that the change in the contract of the principal has been effected without the consent of the surety. It has been uniformly held both at law and in equity, that if the variance be with his consent he cannot object. 2 Wh. & Tud., Le. Ca. Eq., 824, 828, Marg. Bank of Steubenville vs. Leavitt, 5 Hamm., 214. Baldwin vs. Western Reserve Bank, 5 Hamm., 274. Hunter's Adm. vs. Jett, 4 Rand., 107. 2 Amer. Le. Ca. 4th Ed., 413, 414. Sprigg vs. Bank of Mount Pleasant, 14 Pet., 201. Woodcock vs. Oxford & Worcester R. R. Co., 21 Eng. L. & E. Rep., 285; 1 Drewry 521. Even the subsequent assent by the surety, has been held to preclude him from objecting. Smith vs. Winter, 4 M. & W., 466. Hargraves vs. Parsons, 13 Id., 561. Impossibility of performance will not discharge [**6]  the surety if it arise from his own act. Hurlstone on Bonds, 9 Law Lib., 49 Marg. The fact, therefore, that the admission of the other creditors was made by the Court upon the application of the appellee himself, and that he is one of them, effectually precludes him from asserting that the obligation of the bond is impaired.

Thos. S. Alexander and Wm. Schley for the appellees.

The only question supposed to be open on this appeal, presented by the instruction given by the Superior Court to the jury, as stated on page nineteen of the printed record, admits that the obligation of the defendant, as surety to the bond on which this action is brought, was discharged by the order of the Circuit Court for Baltimore City, passed on the 14th of April, 1857, and admitting certain other parties as complainants, with the said Rich, to prosecute the aforesaid equity cause, and that as the said writ of injunction was prosecuted with effect from the time of the issuing thereof continually until the passing of the aforesaid order, then verdict ought to be for the defendant.

In support of this instruction the appellee insists:

1st. That the appellee, as surety for Rich, undertook [**7]  that Rich, so long as he remained sole complainant, and could control the proceedings in the cause, should prosecute the injunction with effect. That the obligation of his bond was discharged by the act of the Court in admitting others as complainants without his consent, and with the acquiescence of the defendants to unite with and control Rich in the prosecution of the cause, and as the supposed breach took place after the admission of those other parties, there can be no recovery therefor against the appellee.

That the obligation of a surety is defined by the letter of his bond and is not to be extended by equitable construction, was settled in Lord Arlington vs. Merrick, 3 Saund, 411. As illustrative of the same rule, the appellee will rely on the cases referred to in the notes to that case, and also on Union Bank vs. Ridgely, 1 H. & G., 327. State vs. Wayman, 2 G. & J., 254. Leggett vs. Humphreys, 21 How., 76--where it is strictly declared that the obligation of a surety is stictissimi juris, and therefore that a surety for A, as clerk to B, is not bound for the fidelity of A, as clerk to B and C. United States vs. White, 4 Wash. C. C., 414. Miller vs. Stewart, 9 Wheat, 680.  [**8]  Bonar vs. McDonald, 1 Law & Eq., 1. N. W. R. Co. vs. Whinray, 26 Law & Eq., 488. Kitson vs. Julian, 30 Law & Eq., 326.

To show that an abatement of suit determines the obligation of the bond. Ormond vs. Birely, 12 Mod., 380. Morris vs. Matthews, 2 Adol. & Ell., N. S., 293.

2. That the liability of the appellee, as surety, is not affected by the circumstances that he was one of the new parties coming in under the order of the Court.

The appellee's counsel cited also the following authorities in support of the above propositions: Rich vs. Stewart, 1 Beav., 512. Reese vs. Berrington, 2 Wh. & Tud. Le. Ca., Pt. II., 707. 17 Eng. Cond. Ch. Rep., 16. Arlington vs. Merrick, 3 Saund., Rep., 414, n. 5, and 415, a. n. and g. Leighborn vs. Crisp, 4 Mees. & Wels., 320. Planters' Bk. vs Sellman, 2 G. & J., 230.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*288]  WEISEL, J., delivered the opinion of this Court.
The suit in this case being upon an injunction bond, and the defendant (the appellee) being the surety in the bond, he, after oyer, pleaded general performance and for a further plea, that whilst the writ of injunction was [**9]  in full force and effect, a certain William W. Taylor and others named, filed their petition in the cause in which 

 [*289]  the injunction was prayed and granted, praying for leave to become parties complainants with Thomas R. Rich, the original complainant therein, which said leave was granted by order of the Court of April 14, 1857, admitting the petitioners as co-plaintiffs, who, with the said Rich, did thereafter rightfully prosecute and control said suit. These pleas were accompanied with an agreement of the parties that on the trial of the issue joined on the replication to the plea of general performance, the defendant should be at liberty to rely on the matters averred in the second of the pleas, so far as they were legally admissible as a defence. It was also agreed that the said William W. Taylor, mentioned in the second plea as one of the petitioners, to be made co-plaintiffs in the proceedings for the injunction, was the same William W. Taylor who is the defendant in this action, both parties to have the benefit of the record and proceedings of the case of Rich against these appellants in the Circuit Court for Baltimore City, and in the Court of Appeals of Maryland,  [**10]  (so far as the same might be legally admissible for the purpose,) and of any facts provable thereby. The record of the proceedings here referred to is the record of the cause in which the injunction was granted upon the bond sued on in this case. That cause resulted in a decree of the Circuit Court for Baltimore City dismissing the bill and dissolving the injunction, which, upon an appeal to the Court of Appeals, was affirmed with costs.
In the progress of the trial three exceptions were taken by the plaintiffs to the ruling of the Court below, upon offers made by them of the record of said chancery proceedings, as evidence before the jury, which will be noticed and disposed of hereafter.
The evidence in the cause being closed, the plaintiffs submitted four prayers for instructions, all of which were 

 [*290]  refused except the first. The defendant also offered one prayer, which was granted; and the verdict being for the defendant, the plaintiffs, having excepted to the granting of the defendant's prayer, and the refusal to grant their 2nd, 3d and 4th prayers, as well as to the rulings of the Court upon the offers of evidence above referred to, appealed to this Court.
The defendant's [**11]  prayer will be first disposed of. By granting it the Court instructed the jury that the obligation of the defendant, as surety in the bond sued on, was discharged by the order of the Circuit Court for Baltimore City, passed on the 14th of April, 1857, admitting other parties, as complainants with the said Rich, to prosecute said equity cause, and that as the writ of injunction was prosecuted with effect from the time of the issuing thereof continually until the passing of said order, the verdict ought to be for the defendant.
In support of this instruction it was contended by the counsel of the appellee that he undertook only in a case in which Rich was sole complainant, who alone could control the proceedings in the cause, and who, whilst he remained sole complainant, did prosecute with effect, and thus performed the condition of the bond; that the omission of other parties to prosecute deprived Rich of his power to control the cause, and placed a restraint upon his disposition or capacity to compromise or dismiss the suit. In this way the defendant's responsibility was affected to his prejudice, and the nature of the suit, so far as he was concerned, materially changed.
In this [**12]  view we do not concur, and think the Court below erred in the instruction given. The authorities relied on by the appellee on this point are only examples of the well-settled doctrine that the liability of a surety is not to be extended by implication beyond the terms of the contract, and that any dealings by a creditor with his 

 [*291]  principal debtor, which amount to a departure from the contract by which the liability of the surety is enlarged without his consent, will discharge the surety. Whilst this is well established law, it is equally settled that the intention of the parties when the bond was executed is to guide in its construction, and to arrive at this, the nature of the contract, the purposes to be accomplished by it, and the character of the proceedings, of which it forms a part, will be regarded. Strawbridge vs. Balto. & Ohio R. R. Co., 14 Md. 360, 367. In this case the bond was given in a judicial proceeding as a necessary step to obtain the writ of injunction, and to indemnify the adverse party against its effects and operation. The bill in equity was a creditor's bill filed by the complainant, Rich, in express terms "on behalf of himself [**13]  and all other creditors of Charlotte Levy, who should come in and contribute to the expenses of the suit." It thus provides expressly for the admission of the parties. Apart from this, the proceeding was subject to the rules of chancery practice, in such cases for the making of other and proper parties. The condition of the bond, in its recital, referred to the bill of complaint, and stated its object to be to obtain the writ of injunction to restrain the obligees from doing certain things particularly mentioned in it. These were to prevent the parties, defendants to the bill, from selling or disposing of, or intermeddling with certain goods in a store, and that the Court might by its decree apply these effects to the payment of the debts of the complainant and the other creditors of Charlotte Levy. The condition of the bond was co-extensive with the objects and purposes of the bill, and the admission of new parties did not enlarge the responsibility of the obligors. The risk incurred by the surety when there was but one party complainant to the bill was as great as when the number was increased. 

 [*292]  The possibility that Rich, as sole complainant, might have made better [**14]  terms is mere conjecture. To meet this it might be said that the new parties might control him in procuring a more favorable result. Such speculations lead to no certain or definite conclusion. 77 Eng. C. L. Rep. 664. And this case is the more strong against the surety, inasmuch as he himself applied to be made a party complainant in conjunction with the other petitioners, and thereby assented to the act which he complains of as enlarging his responsibility.
We think the second prayer of the plaintiffs presented the proper rule of damages, and ought to have been granted.
The third was properly rejected. Whatever damages were sustained arose from the loss or the deterioration in the value of the property that was tied up by the injunction. Samson Levy's interest in that was as mortgagee. If the loss of his security was the loss of his debt, he would obtain all he would be entitled to in the difference of value in the property itself. The suit being joint, the damages must be joint, and any special loss that he, as mortgagee, could sustain, ought not to be included in the general estimate or sum of damages.
The fourth prayer presents the general rule correctly, but [**15]  it should have limited the jury to a sum within the penalty, and in this is defective and was rightly refused.
We recur now to the offers of testimony by the plaintiffs, as embraced in the three first exceptions. These had reference to the introduction and use of the record and proceedings of the chancery suit between Rich and the Levys, of which the injunction bond in this suit formed a part. Their applicability for some purposes of the trial is obvious enough. The difficulty arose in the manner of getting what was proper and applicable before 

 [*293]  the jury. The parties by agreement had provided for their introduction into the cause, and their use, so far as the same might be legally admissible for the purpose, and the benefit of any facts provable thereby. In such a case, what is the proper mode of bringing before the jury the portions of the record which either party may claim as evidence in support of the issue on his part? We think that this Court has laid down the rule very explicitly in the cases of Budd vs. Brooke, 3 Gill 198, 220, and Carroll's lessee vs. The Granite Manf. Co., 11 Md. 399, 408. The fact that the subject matter [**16]  in this case was a judicial record makes no difference, in our judgment, in the application of the rule. In the former of the cases referred to a variety of proof was offered, and the defendant objected to all for the purpose offered, and prayed the Court to reject it, but the objection was overruled and the evidence allowed to go in as offered. And in this, this Court on appeal pronounced the ruling of the Court below correct. "Instead of its specifying the parts of the testimony (said the Court) to which the objection was intended to apply, the Court was called upon to reject it in mass. If any part of it, therefore, was admissible for the purpose for which it was offered, the Court in overruling the prayer (to reject it) committed no error. Where an entire prayer, made to the Court, is good in part, and bad in part, that is, which the Court ought to grant in part and in like manner refuse, had the subject matter been properly divided, and a distinct prayer made on each subdivision, the Court is not bound to assume, what appropriately belongs to the counsel, the duty of analyzing the subject matter of the prayer, and admitting that which ought to be granted, and rejecting that which [**17]  ought not; but the Court may content itself in granting or rejecting the prayer, according to its merits, as presented in its entirety. There was no error, therefore, in the Court's opinion complained of, some of the 

 [*294]  evidence objected to being undeniably admissible." And for this were cited 1 Pet. 338, and 13 Pet. 310. And in the case of Carroll's lessee, 11 Md. 399, 408, this Court used this language: "After evidence has been admitted, and an application is made to the Court to exclude it, then the onus rests upon the party making the application, to confine his objection to that portion of the evidence which is illegal. And the same rule applies when an offer is made of a mass of evidence complex in its character and the whole of it is objected to. In such case, if part of it be admissible, it is error to exclude the other." See also Pegg vs. Warford, 7 Md. 582, 604, for a re-assertion of the same rule.
Applying this rule, therefore, to the first exception in this case, we think the Court erred in refusing the evidence generally offered to be read. The onus lay upon the objector to [**18]  point out the inadmissible portions of the proof offered, and to take the instruction of the Court upon such, and declining or failing to do so, the plaintiffs were entitled to the proof as offered.
We do not perceive how the validity, fairness and consideration of the mortgage from Charlotte to Samson Levy was involved in the issue in this case, and the rejection by the Court of the plaintiffs' offer in the second bill of exceptions was therefore correct.
Regarding the offer in the third exception as generally and substantially the same as that in the first bill of exceptions, it is to be governed by the same rules and share the same fate with it. The subsequent propositions of the counsel, as detailed in it, do not change the character of the offer. The defendant by them endeavored to shift the onus of designating the portions of the proof to be read upon the plaintiffs, whereas it was his duty to point out what was inadmissible. The Court therefore erred in excluding the proof as offered by the plaintiffs.

 [*295]  Some agreement seems to have been entered into for the submission to this Court of certain portions of the record which were read, subject to exceptions, for [**19]  our opinion as to their admissibility or not. This Court can only act in such cases upon exceptions to the proof taken below, and it is not our province to scan evidence thus presented and pass upon its applicability. That pertains to the Court of original jurisdiction, and we can only review its action in the premises.
We think the Superior Court of Baltimore City erred in its rulings in the first and third exceptions of the plaintiffs, and in refusing the plaintiff's first prayer and granting the defendant's prayer in the fourth bill of exceptions. The judgment below must therefore be reversed and a procedendo awarded.
Judgment reversed and procedendo awarded. 

101 of 120 DOCUMENTS 

FAUST FREIDENRICH AND OTHERS, GARNISHEES OF SPRINGER & FRIES, vs. ROBERT MOORE AND CHARLES MOORE, USE OF ROSS CAMPBELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 295; 1866 Md. LEXIS 19 

March 22, 1866, Decided 

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

Attachment on warrant, issued on the 22nd of February, 1859, and laid in the hands of the appellants, as garnishees, trading in the city of Baltimore under the partnership name of Springer, Friedenrich & Co.

The facts of the case are fully stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

ATTACHMENT ON WARRANT: MOTIONS TO STRIKE OUT JUDGMENT NISI AND TO QUASH ATTACHMENT: IGNORANCE OF GARNISHEES: FRAUD, DECEIT AND IRREGULARITY: ACCOUNT, WHEN TO BE FILED: RETURN OF SHERIFF AS TO AMOUNT LAID: INQUISITION UNNECESSARY. -- In a case of attachment on warrant laid in the hands of S., F. & Co., the defendants being returned non est, and the garnishees having failed to appear, a judgment of condemnation nisi was entered against the latter. After judgment the garnishees appeared and moved that the same be stricken out and set aside "for fraud, deceit and surprise and irregularity in obtaining the same," and subsequently moved, "to quash the attachment because the accounts on which the defendants are alleged to be indebted to the plaintiffs, were not produced and filed with the affidavits made by the plaintiffs before the Justice who issued the warrant of attachment," HELD:

1st. That ignorance on the part of the garnishees of the necessity of appearing in Court and contesting the attachment affords no sufficient ground for striking out the judgment.

2nd. That to justify the striking out of the judgment it would be necessary that clear and convincing proof should be given that the garnishees were prevented from making their defence by deceit practiced upon them by the plaintiffs, lulling them into the belief that the attachment had been or would be abandoned.

3rd. That it is immaterial whether the account which was produced was obnoxious to the objection urged against it by the garnishees or not, as the objection was not made in time.

4th. That the return of the Sheriff that he had laid the attachment in the hands of the garnishees, &c., without stating to what amount, is sufficient, the garnishees having been informed by the service of the writ what was the amount of the plaintiffs' account.

5th. That it is not usual or necessary for the Sheriff to state in his return for what amount he has laid the attachment in the garnishees' hands, although that form has sometimes been observed.

6th. That a failure of the garnishees to appear entitled the plaintiffs to the judgment nisi, which in such a case is a motion of course, and no inquisition is necessary.  

COUNSEL:
J. Mason Campbell and Daniel M. Thomas, for the appellants, argued.

1st. That the attachment ought to be quashed for irregularity, because the indebtedness of the defendants upon which the attachment is based is not properly established.

2d. That the judgment of condemnation against the garnishees is irregular, as there is nothing in the cause upon which such judgment can be founded.

3d. That the judgment was obtained by fraud, deceit and surprise practiced upon the said garnishees by the plaintiffs, and ought therefore to be set aside.

1st. In support of the first proposition upon which the motion to quash is based, they referred to the Act of 1795, ch. 56, sec. 1, which requires the creditor applying for an attachment to produce before the officer before whom he makes his affidavit of indebtedness, "the bond [**2]  or bonds, bill or bills, protested bill or bills of exchange, promissory note or notes, or other instrument or instruments of writing, account or accounts, by which the said debtor is so indebted," &c.

In this case the plaintiffs do not produce the accounts themselves, but simply refer to them, as follows, viz:

________________________________________________________________________________

1858, June 10th, To am't as per act. stated	$ 1,503 35	
 "     "   16th,     "      "       "	823 83	
 "    Aug. 21st,     "      "       "	812 85	
 "    Sept. 23d,     "      "       "	812 91	
 "    Oct. 5th,      "      "       "	593 60	
	$ 4,546 54	
________________________________________________________________________________

And it is contended that this does not gratify the requirements of the law.

The plaintiffs admit by the statement that accounts had been stated between them and the defendants, and yet do not produce them. Wood vs. Gault & Emory, 2 Md. Ch. Dec., 441. Burke vs. Brown, 2 Atk., 399. Story's Eq. Pl., sec. 798. Barger vs. Collins, 7 H. & J., 218. Turner vs. Jenkins, 1 H. & J., 163, 164. This defect renders the attachment a nullity, and it ought to be quashed. Dawson vs. Brown, 12 G. &. J., 53. Garnees.  [**3]  of Wolf vs. Tinges, 7 Md. Rep., 215. Lamden vs. Bowie, 2 Md. Rep., 334. And the garnishees could make the motion to quash at the time they did. 3 Gill, 320. A defect in the short note may be taken advantage of. 10 G. & J., 386. 6 G. & J., 348. 14 Md. Rep., 565. Graff vs. Gamble, 18 Md. Rep., 364. Palmer & Hamilton vs. Oliver, 11 G. & J., 139, 140, 143.

2nd. They contend that the irregularity in the proceedings is fatal to the judgment sought to be enforced. The basis of the judgment against the garnishees is, first, the fact of a debt due by the defendants to the plaintiffs; and second, the fact of the garnishees having goods or credits in hand liable for that debt. These two facts must co-exist in reality or by construction of law to warrant a judgment against them. To establish the first of these essentials the original accounts, proved according to law, ought to be produced; and the non-production of them renders it impossible to extend any judgment against the defendants. And until a judgment is entered up against the defendants no proper judgment can be extended against the garnishees. The other essential to a proper judgment against the garnishees is proof of their having [**4]  in hand funds or property of the defendants.

The only effect of a default is to warrant the Court to treat the plaintiffs' allegations as true, and to give judgment accordingly. But the proceedings nowhere show any allegation or averment against the garnishees, which by reason of their default may be taken pro confesso.

It is nowhere averred that they have sufficient funds in hand to pay the defendants' alleged indebtedness to the plaintiffs, nor is this want of averment anywhere supplied by proof.

The right of the Court to adjudge the garnishees to have property in their hands only exists after interrogatories have been propounded to the garnishees, and they have failed to answer them. And as no interrogatories were put to the garnishees, the action of the Court is not in pursuance of the Act of Assembly to which the record refers, and is therefore erroneous.

The attachment law being in derogation of the common law, is to be construed strictly. And the Courts will not, by construction, add new provisions to it. Brown vs. Somerville, 8 Md. Rep., 444. Fitzhugh vs. Hellen, 3 H. & J., 206.

In support of what has been stated above in regard to the irregularity [**5]  in the proceedings, and the defective form of the Sheriff's return, reference is made to the following authorities: 7 Viner. Ab., 461, Tit. Default, P. 3. 3 Bla. Com., 274. Locke on Attachment, (79 Law Lib., p. 60, 58.) 2 Harr. Ent., 79, 80, 164, 215. Boyd vs. Ches. and O. Canal Co., 17 Md. Rep., 196. Drake on Atta., sec. 461. Act of 1715, ch. 40, sec. 4. Turbill's Case, 1 Wms. Saund., 67, n. 1.

3d. But treating the judgment as final against the garnishees, and in other respects regular, it will be contended that it was obtained by fraud, deceit and surprise practiced upon them by the plaintiffs, and ought to be set aside. In support of this position see depositions of the garnishees' witnesses.

Many of the facts stated in these depositions are denied in the depositions filed on the part of the plaintiffs, and their truth or falsity are matter for argument.

If it appear from the depositions in this case that the judgment against the garnishees was obtained through "fraud, deceit, surprise or irregularity," the Court's authority to set it aside is recognized by the Act of 1787, ch. 9, sec. 6.

Reverdy Johnson and P. McLaughlin for the appellees.

The first motion [**6]  of the garnishees (February 27th, 1860,) alleges no grounds for the action of the Court, and, therefore, we pass it by without further notice.

We object to the motion of the 8th of March, 1860, because it does not set forth how or in what manner the garnishees were defrauded, deceived or surprised, or of what the irregularity complained of, consisted. If the motion of the 8th of March is sufficiently expressed, the case endeavored to be made by the affidavits filed in its support, would appear to raise the question as to whether the plaintiffs in obtaining the judgment committed fraud or deceit on the garnishees, or obtained it in a manner by which they could legally say they were surprised. The motion of the defendants of the 12th of March, 1860, goes merely to irregularity in not producing the account before the magistrate at the time of the filing of the affidavit.

The whole we think may be said to resolve themselves into two propositions:

I. Is the account produced and filed such an account as is contemplated by our attachment laws? Acts of 1795, --(ch. 56, sec. 1.) Dawson vs. Brown, 12 G. & J., 53, 59. Lee & Tinges, 7 Md. Rep., 215, 229. 2 Greenleaf on Ev. §  127,  [**7]  and authorities there stated. Cowen's Treatise, 478. 1 Chit. on Pl. 358. Truman vs. Hurst, 1 Term., 40. Highmore vs. Primrose, 5 Maule & Lebro, 65. 1 Saunders, Pl. & Ev. 31, 32.

The judgment was entered regularly and in accordance with the practice of the Court. Act of 1715.--ch. 40, sec. 3, Evans, Pr. 99. Sherwood vs. Mohler, 14 Md. Rep., 564. Boyd vs. The Ches. & Ohio Canal Co., 17 Md. Rep., 195, 211. Walters & Harvey vs. Munroe, 17 Md. Rep., 501, 505.

Then as to the question of fraud and deceit. Is the evidence on this point sufficient to authorize the Court to disturb the judgment? The garnishees pretend that on three several occasions they have been deceived by the plaintiffs.

1st. On the day the attachment was laid.

2nd. In April, 1859, when Faust Freidenrich, as he says, called on Robert Moore to ascertain whether he would consent that the garnishee might be interrogated before a Justice of the Peace.

3rd. When in August, 1859, as Springer says, Robert Moore promised to abandon the suit if Moses H. Springer would testify in the case of Moore et al. vs. Stadler et al.

The counsel for the appellees referred to and commented upon the testimony on the [**8]  part of the garnishees, and argued that there were no grounds upon which the judgment could be disturbed.

In Maryland it is laid down as a settled principle of law, that every person is bound to take care of, and protect and vindicate himself in due season and in proper place. Gott vs. Carr, 6 G. & J., 309--312.

It is also a well settled general rule, that a recovery at law, will not be disturbed in Chancery, unless its justice can be impeached by facts, or on grounds, of which the party seeking the aid of Chancery could not have availed himself at law, or was prevented from doing it, by fraud, or accident, or the act of the opposite party, unmixed with any negligence, or fault of his own. Gott vs. Carr, 6 G. & J., 309--312. Creisch vs. McCauley, 7 Gill, 189. Wendwart vs. Allen, 13 Md. Rep., 196--200. 5 How. 141--142. Kent vs. Richards, 3 Md. Ch. Dec., 392--307. Keighler vs. Savage Man. Co., 12 Md. Rep., 383--415. Gardner vs. Jenkins, 14 Md. Rep., 58. Fowler vs. Fowler, 10 G. & J., 358--362--364. 1 Story's Eq., sec. 105. 2 Story's Eq., sec. 887. Marine In. Co. vs. Hogsdon, 7 Cranch. 332.

A judgment it is said, is the highest exercise of judicial power, and as such, to [**9]  be interfered with, or questioned only with great delicacy and circumspection, and were this not so, our judicature instead of being a guarantee of stability and certainty would be worse than a farce, would be a snare and a trap to the confiding. Keighler vs. Savage Man. Co., 12 Md. Rep., 383--415.

We submit that the evidence not only shows that the garnishees have the money of the defendants in their hands, but that they have it in such a way as would justify a Court of Equity in charging them, as trustees for the creditors, with the value of the coal oil factory.

1st. The garnishees are related by blood or by marriage. The garnishees Faust Freidenrich and Abraham Freidenrich are brothers, and are both brothers-in-law of Springer, the garnishee. Faust Freidenrich is father-in-law of the defendant, Fries, and Springer the defendant, is a brother of Springer, the garnishee. Evidence of relationship in such cases as this is greater evidence of confederation than of affection. Sands et al. vs. Codwise, 4 Johns., 384. Robinson vs. Moore, 25 Maine, 192--198.

2nd. In 1857 the defendants were represented by the garnishees to be worth from $ 50,000 to $ 60,000 over their liabilities.  [**10]  

3rd. In a few months afterwards, the defendants declare themselves insolvent, owing $ 26,000; and the proceeds of the sales and collections, under the deed of trust, did not amount to $ 1,000.

4th. Faust Freidenrich, one of the garnishees, goes to see the defendants, promises to secure the debts of the plaintiffs, and on his return reports that he has secured the garnishees, but in reference to the plaintiffs, he said he could not attend to other persons' business.

We allege that the garnishees have aided the defendants to hinder, delay, or defraud their creditors; and in doing so, have obtained possession or title to a large portion of the property of the defendants; and in support thereof, refer your Honors to the testimony.

Upon a full view of the whole case, we submit that there is no ground, legal or equitable, which will authorize the Court to disturb the judgment, but on the contrary, when we consider all the equities which the plaintiffs have shown not only as against the defendants, but also as against the garnishees, we presume it would require much more than the conflicting evidence of the garnishees, to bring the Court to such a conclusion.

But [**11]  we suppose the evidence sufficient to authorize the Court on a bill filed on the equity side of the Court by the creditors of the defendants, to decree that the garnishees should stand as trustees for the benefit of creditors of the defendants, as to the value of the coal oil factory.

Fraud will not be presumed, and though it may not be necessary to prove it by direct and positive testimony, yet the circumstances upon which the presumption of its existence is to be founded, should lead plainly and directly, and by strong implication, to that conclusion. Duvall vs. Coale, 1 Md. Ch. Dec., 168-169. In questions of fraud, any fact, however slight, if at all relevant to the issue, will be admitted as evidence, though the circumstances when combined, must be so strong as to satisfy the jury of the fact to be established. Waters vs. Dashiel, 1 Md. Rep., 474.

There is no ascertained rule of law which fixes and determines what acts or declarations of a party shall, in all cases, be required to establish fraud; but, on the contrary, the badges of fraud may and do vary according to the intellectual capacity and moral depravity of the perpetrator, the end designed to be obtained and [**12]  the means by which it is to be accomplished. Richards vs. Grome, 7 Gill, 366-377. Rollins vs. Moore, 25 Maine, 192--198--200. Parkham vs. Welsh, 19 Pick., 231--234.

In answer to the argument on the part of the appellants that the actual accounts required by the Act of 1795, ch. 56, to be produced before the officer, before whom the affidavit of indebtedness is made, were not produced but referred to only, and that the requirement of the law were not thereby gratified,--they argued: That an account stated may be proved by parol without written evidence of any kind; and that a balance agreed upon and reduced to writing by the plaintiff, is sufficient to maintain an action in an account stated and cited. 1 Ch. Pl. 358. 2 Greenlf. on Ev. §  127. Ev. Md. Pr., 87. Dawson vs. Brown, 12 G. & J., 53.

They further argued in answer to the appellants:--That the short note takes the place of a declaration. Thrasher vs. Everhart, 3 G. & J., 234. Smith vs. Gilmor, 4 H. & J., 177. And that the Act of 1795, ch. 56, allows a plaintiff, where the defendant does not appear to recover the amount of his demand from the garnishees to the value of the assets in his hands.  

JUDGES:
The cause was argued [**13]  before BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*304]  BARTOL, J., delivered the opinion of this Court.
A writ of attachment or warrant was issued in this case, on the 22nd day of February, 1859, at the suit of Robert and Charles Moore, (the appellees,) for the purpose of recovering the sum of $ 4,546 54, alleged to be due them by L. H. Springer and Charles Fries, non-residents, the writ was on the same day "laid in the hands of the appellants trading in Baltimore under the name of Springer, Freidenrich & Co.," and was returnable to the ensuing May Term of the Superior Court. At that term the writ having been returned, and the garnishees not appearing, a judgment of condemnation nisi was entered against them on the 9th of May. No other proceedings were had until the 27th day of February, 1860, when Mr. Campbell appeared for the garnishees and filed a motion to strike out the judgment, but assigned no cause in support of the motion; afterwards, on the 8th day of March, 1860, the same motion was renewed on the part of the garnishees, 

 [*305]  asking that the judgment be stricken out and set aside, "for fraud and deceit, surprise and irregularity in obtaining [**14]  the same." Accompanying this motion were the affidavits of Henry Bookman, Frederick Krager, Abraham Freidenrich and Moses H. Springer.
On the 10th day of March, 1860, motions were entered, one on behalf of the garnishees and the other on behalf of the defendants, "to quash the attachment because the accounts on which the defendants are alleged to be indebted to the plaintiffs, were not produced, and filed with the affidavit made by plaintiffs before the Justice who issued the warrant of attachment." On the 13th day of March the Court passed an order suspending execution upon the judgment till the further order of the Court, provided a bond should be filed by the garnishees as prescribed. The bond was filed accordingly. Thereafter a number of affidavits were filed on behalf of the garnishees, and of the plaintiffs, touching the alleged fraud and surprise in obtaining the judgment; and on the 16th day of June, 1862, the Superior Court overruled the motions to strike out the judgment, and to quash the attachment, from which decision this appeal was taken.
It appears from the record that the objections to the judgment rest upon two grounds:
1st. Fraud, deceit and surprise alleged to [**15]  have been practiced by the appellees, in obtaining the same.
2nd. Irregularity in the judgment itself.
The first is to be determined by the testimony. This has been carefully examined, and the conclusion we have reached, on this branch of the case, is that the allegation of the appellants, in this respect, is not established by the evidence.
It conclusively appears that the attachment was served on the appellants at their store on the 22nd day of February, 1859. This fact is established by the Sheriff's return, and 

 [*306]  is corroborated by other proof. It appears that when the Sheriff went to serve the writ, the appellants, Faust Freidenrich and Moses H. Springer were at the store of the appellees, and their book-keeper, Bookman, went there to inform them of the Sheriff's visit. They were alarmed by the intelligence, and they state in their affidavits that Robert Moore informed them that it was an attachment he had laid in their hands against Springer & Fries, "but that it did not amount to anything," and Faust Freidenrich states that Moore further said to him that he (Moore) "only did it to effect a settlement." Robert Moore in his affidavit expressly contradicts this statement,  [**16]  and swears that what he said to them was "that they might not be so much alarmed about it, that there was time enough for them to attend to it, but that notwithstanding, they both left his store," and he states, "that it is not true that upon that or any other occasion he told them or either of them that the writ of attachment was of no consequence, or that he had caused the same to be issued to effect a settlement with Springer & Fires."
Faust Freidenrich further states in his affidavit that, in April, 1859, he asked Robert Moore if it was necessary to employ a lawyer, and that Moore told him that he did not want them to employ a lawyer in the case, that the attachment would not be pushed, and that all he wanted was, not to make the garnishees pay the money, but to effect a settlement through their influence with Springer & Fries." This statement stands on the testimony of Faust Freidenrich alone, and is positively contradicted by the affidavit of Robert Moore.
The witness, Frederick Krager, states that in August, 1859, Robert Moore asked Moses H. Springer to go before the Commissioner in Baltimore to testify in a suit of the appellee's against Springer & Fries, then being prosecuted [**17]  in Cincinnati, which Springer at first declined to do; but 

 [*307]  Moore told him if he would go before the Commissioner and testify, the case here (that is this attachment case,) should be settled. Moses H. Springer states the same thing. As to this evidence, it may be remarked that it is contradicted by Robert Moore's testimony, and is inconsistent with the facts established by other proof showing that Springer was a reluctant and unwilling witness, at first refusing altogether to appear before the Commissioner, and when testifying, refusing to produce the books of account between his firm and Springer & Fries, called for during the examination, and employing counsel to resist the demand for the books. Besides the statement that in August, 1859, Robert Moore proposed to settle this attachment case on condition that Springer would testify before the Commissioner is inconsistent with the other statements that in February, when the writ was served, and in April, Moore had told them the attachment amounted to nothing, and would not be pushed. In the affidavits both of Krager and Springer, they state that Springer urged as his objection to going before the Commissioner that the case [**18]  was being tried here, (in Baltimore) which shows that he knew this attachment suit had not been abandoned.
It is possible that the garnishees were ignorant of the necessity of appearing in Court and contesting the attachment. In one of the affidavits it is stated that they said, long afterwards, they thought there would be some advertisement on the subject in the newspapers, and in this way their failure to appear and defend sooner, if they intended to do so, may be susceptible of explanation. But that is not sufficient ground for striking out the judgment. To justify such a proceeding it is necessary that clear and convincing proof should be given that they were prevented from making their defense by deceit practiced upon them by the appellees; lulling them into the belief that the 

 [*308]  attachment had been or would be abandoned. The proof on this subject is not in our opinion sufficient to warrant the Court in so declaring. There is much conflict in the statements of the parties which it is impossible to reconcile; nor do we deem it necessary to discuss in this opinion all the testimony in the cause. We have stated our conclusion from the whole evidence.
It must not be lost [**19]  sight of that the process was regularly served upon the garnishees by the Sheriff; at the return of the writ, the judgment complained of was entered in open Court, and stood upon the public records as notice to them that unless they appeared and made defence during the term, the judgment would become absolute. If they were ignorant of the law and for that reason failed to appear, it is their misfortune, from the consequences of which this Court cannot relieve them. To strike out a solemn judgment on such grounds would be establishing a principle most dangerous in its consequences and having no precedent to support it. See Peters vs. League, 13 Md. 58, and Windwart vs. Allen, Ibid, 196.
The other ground for the motion is the alleged irregularity in entering the judgment of condemnation. This is supposed to consist in the failure to produce before the Justice, who issued the warrant, such an account as was required by the Act of 1795, ch. 56, and its supplements.
An account was produced, which if it were material to pass upon the question, we are inclined to think would be held to be a sufficient account under the Act of Assembly even if the objection had been [**20]  made in time. See Dawson vs. Brown, 12 G. & J. 53, 59. Lee & Brewster vs. Tinges, 7 Md. 215, 229. Upon that question, however, it is not material for us to express any conclusive opinion, because even if the account produced were obnoxious to the objection urged by the appellants, the objection was not 

 [*309]  made in time.  Sherwood vs. Mohler, 14 Md. 564. See, also, 13 Md. Rep., 196. 17 Md. Rep., 195. Id., 501. This would not be such an irregularity as existed in Graff vs. Gambrill, 18 Md. 364, where the judgment of condemnation was entered before the return of the writ.
Other supposed irregularities in the judgment were suggested by the appellants in their argument in this Court. These it was contended consisted in the defective service and return of the writ by the Sheriff; and in the entry of the judgment against the garnishees without any judicial ascertainment of the fact that they had in their hands goods, chattels and credits of the defendants to the amount of the plaintiffs' claim or to any amount. The return of the Sheriff was that he had laid the [**21]  attachment in the hands of the garnishees, &c., without stating to what amount. But such a return is sufficient; the garnishees were informed by the service of the writ, what was the amount of the plaintiffs' demand, and it is not usual or necessary for the Sheriff to state in his return for what amount he has laid the attachment in the garnishees' hands, although that form has sometimes been observed.
A failure of the garnishees to appear entitled the plaintiffs to the judgment nisi, which in such case is a motion of course, and no inquisition is necessary. Evans' Practice, 87, 99.  13 Md. 58, Id., 196.  14 Md. 564. 17 Md. Rep., 195, Id., 501.
A reference to these authorities will show that the judgment was entered regularly in accordance with the practice. The judgment of the Superior Court on the motions will therefore be affirmed.
Judgment affirmed. 

102 of 120 DOCUMENTS 

STATE OF MARYLAND, USE OF MARGARET ANN MURRAY, FOR HERSELF, AND AS GUARDIAN OF WILLIAM AND ALICE ANNE MURRAY, vs. RICHARD BISHOP AND RICHARD C. MURRAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 310; 1866 Md. LEXIS 20 

March 22, 1866, Decided 

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

This case was argued in the Superior Court of Baltimore City upon the following agreed statement of facts:

"It is admitted in this case that the said Richard C. Murray was duly appointed by the Orphans' Court for Baltimore City the guardian of his infant children, Margaret A. Murray, William E. Murray and Alice Anne Murray, and that after his appointment he gave bond for the faithful performance of his duties as guardian, which was duly approved by the said Court, a copy whereof is herewith filed, marked No. 1, as part of this statement.

"That the sureties in the said bond, who duly executed the same, were Edward Dowling and Edward Boyle, (both of whom died insolvent before the institution of this action,) and Richard Bishop, one of the defendants in the present case.

"That subsequently to the appointment of the said Rich'd C. Murray, as guardian, there stood upon the books of the President and Managers of the Baltimore and Fredericktown Turnpike Road Company one hundred and eighty-three shares of the capital stock of said company, the property of said infants, of which sixty-one shares stood in the name of the said [**2]  Margaret A. Murray, sixty-one in the name of the said William E. Murray, and the remaining sixty-one in the name of the said Alice Anne Murray, all of which stock was transferred to the said infants (upon the books of the said company) by a certain Charles Feinour, on the eighteenth day of October, 1855. That the said infants had in like manner standing in their names upon the books of the Union Manufacturing Company twelve shares of its capital stock, which belonged to them in equal several parts or number of shares. That the said Richard C. Murray, guardian as aforesaid, did, on the eleventh day of December, 1857, sell all of the said one hundred and eighty-three shares of the capital stock of the said Turnpike Road Company, and did afterwards cause the same to be transferred upon the books for said company to the purchasers or purchaser thereof, and that at the time of the consummation of the sale as above mentioned, he did receive, as the purchase money for the said stock, the sum of five hundred and fourteen dollars and sixty-eight cents. That the said Murray also sold and caused to be transferred upon the books of the corporation, the twelve shares of the capital stock of the [**3]  aforesaid Union Manufacturing Company, being the property, as before stated, of the said infants, and did receive therefor, upon the twenty-eighth day of December, 1857, the sum of one hundred and fifty-six dollars. All the aforementioned sales were effected by the said Murray without any order of the Orphans' Court authorizing the same, nor did he render any account whatever as guardian to said Court, although frequently cited so to do, but converted and applied the same to his own use.

"That on proper application being made to the Orphans' Court the letters of guardianship, which had been granted to the said Richard C. Murray, were revoked on the twenty-fifth day of January, 1859, and Margaret A. Murray, originally one of his wards, but having subsequently arrived at the age of twenty-one years, was appointed by the said Court guardian of her infant brother and sister, the said William E. and Alice Anne Murray, in the place of her father, the said Richard C. Murray; upon the same date the usual bond was duly executed and delivered by the new guardian, and approved by the Court. That after the appointment of the said Margaret as guardian, the said Richard C. Murray was cited [**4]  before the Orphans' Court to account for his management of his wards' estate, but that he never rendered any account of any kind or description whatsoever, nor did he, while guardian, pay over any part of the money received by him for the stocks sold as aforesaid to either of said wards, or on their or either of their accounts, nor has he done so since his removal. That the said Margaret A. Murray, for herself, and as guardian of her sister and brother, applied to the said Turnpike and Manufacturing Companies, respectively, for the value of the stock which had been transferred upon their books to the purchasers to whom they were sold by the said Richard C. Murray, together with the interest thereupon up to the date of the demand; but that the said companies refused to pay the money thus demanded of them, except upon the condition that the said Margaret should first cause suit to be instituted upon the guardian's bond of the said Richard C. Murray in the ordinary manner, and assign the claim in the said suit to them respectively, according to the value of the shares of their respective stocks sold as aforesaid by the said Murray. That these terms were agreed to by the said guardian,  [**5]  and this suit was accordingly instituted, and the said claims against the guardian's bond transferred to the said Baltimore and Fredericktown Turnpike Road Company, and a certain Daniel B. Banks, President of the said Union Manufacturing Company, (he having been the purchaser of the twelve shares of manufacturing stock sold as above mentioned by said Murray, and having individually paid the amount mentioned in the assignment to him,) by assignments of the ninth and eighteenth of May, 1860, which said assignments are to be taken as a part of this statement, and are herewith filed, marked Nos. 2 and 3.

"Whereupon the said companies respectively paid to the said Margaret the value of the said shares, (as mentioned in the said assignments,) which had stood upon their books in the names of the said Margaret and the said infants, respectively.

"That the bringing of said suit and the assignments of the claims as above stated, and the authority to enter said uses to the said Turnpike Company and Daniel B. Banks, were all confirmed by and derived from the said Orphans' Court by an order of the twenty-seventh of June, 1860, and will more fully appear by the petition of the said Margaret [**6]  Murray and the said order of the Court thereupon passed; herewith filed, marked respectively Nos. 4 and 5, and which are to be taken as part of this statement, subject to their legal operation in the judgment of this Court, and to all questions as to the jurisdiction of the Orphans' Court in the premises.

"It is further agreed that if, in the opinion of the Court, the plaintiff shall be entitled to recover upon the foregoing statement of facts other than nominal damages, then judgment in proper form shall be given for the sum of five hundred and fourteen dollars and sixty-eight cents, with interest from the eleventh day of September, 1857, and for the further sum of one hundred and fifty-six dollars, with interest from the twenty-eight day of December, 1857, with costs, otherwise judgment shall be rendered for the defendants with costs.

"It is also agreed that an appeal may be taken by either party from the judgment of said Court to the Court of Appeals of Maryland, which shall have power to hear and determine the same, and further that inferences of fact may be drawn by either Court from the facts stated."

Exhibits Nos. 1, 2, 3, 4 and 5, forming part of the said argument,  [**7]  were as follows:

(No. 1.)

This exhibit was a duly certified copy of the guardian's bonds.

(No. 2.)

"BALTIMORE, 9th May, 1860.

"Received from the President, Managers and Company of the Baltimore and Fredericktown Turnpike Road, the sum of five hundred and eighty-nine dollars and nine cents, ($ 589.09,) and in consideration whereof, the undersigned do hereby transfer their claim against Richard C. Murray and his surety, Richard Bishop, to the said Company, and for which said claim suit has been brought against said Richard C. Murray and Bishop, in the Superior Court of Baltimore City, and an order given to have the same entered to the use of said Company; this transfer being limited to the sale of the stock of said Company improperly made.

Signed, MARGARET MURRAY, for herself, and Guardian of W. E. and Alice Anne

Murray, by T. Parkin Scott, Att'y."

(No. 3.)

"For value received, I assign unto Daniel B. Banks the claim of myself and my two wards, Alice and William Murray, against Richard C. Murray and his securities, for the value of twelve shares of the capital stock of the Union Manufacturing Company of Maryland, illegally sold and transferred [**8]  by said R. C. Murray, viz:

________________________________________________________________________________

12 shares sold, a $ 13	$ 156 00	
Interest 2 yrs. 4 mos. 18 days	22 31	
	$ 178 31	
________________________________________________________________________________

Baltimore, 18th May, 1860.

T. PARKIN SCOTT, Att'y for Margaret A.

Murray, in her own right, and as guardian of Alice and William E. Murray."

(No. 4.)

"To the Honorable the Judges of the Orphans' Court of Baltimore City:

"The petition of Margaret A. Murray, guardian of Wm. Murray and Alice Murray, her minor brother and sister, respectfully states to your Honors, that the former guardian of your petitioner and of said minors, Richard C. Murray caused to be sold and transferred one hundred and eighty-three shares of the capital stock of the President and Managers and Company of the Baltimore and Fredericktown Turnpike Road, on the 11th day of December, A. D. 1857, being the property of his said wards, and received therefor, on the day and year last aforesaid, the sum of five hundred and fourteen dollars and sixty-eight cents. And the said Richard C. Murray did also, on the 24th day of December, A. D. 1857, sell and cause to be transferred twelve shares of the capital stock of the Union Manufacturing Company of Maryland, and being the [**9]  property of his said wards, for the sum of one hundred and fifty-six dollars; that the said Richard C. Murray, former guardian, received the aforesaid sums of money, which he has not paid, nor any part thereof, to your petitioner or either of said wards, nor rendered any account to your petitioner or to this honorable Court.

"Wherefore your petitioner caused suit to be instituted upon the bond of the said former guardian against him and his security, Richard Bishop, the other securities on said bond, Edw'd Boyle and Edw'd Dowling, having departed this life, to recover the proceeds of the sales of said stocks. That since the institution of said suit, your petitioner has assigned a part of her claim therein, to the amount of five hundred and fourteen dollars and sixty-eight cents, to the said Turnpike Company, and has given an order to have the same to said amount entered to the use of said Company.

"That your petitioner has also assigned the other part of her claim in said suit, to the amount of one hundred and fifty-six dollars, to a certain Daniel B. Banks, of the city of Baltimore, and has also given an order to have the said suit, to the amount last aforesaid, entered [**10]  to the use of the said Banks. That your petitioner received full value for both said claims.

"Wherefore your petitioner prays that the institution of said suit, and the assignment of said claims and entries to the several uses as hereinbefore stated, may be sanctioned and ratified by the order of this honorable Court.

T. PARKIN SCOTT, Sol. and Att'y for Petitioner and the Wards."

(No. 5.)

"In Baltimore City Orphans' Court, June 27, 1860. On application by the petition of Margaret A. Murray, guardian of William Murray and Alice Murray, her minor brother and sister, filed the 23d day of June, 1860, it is ordered by the Court that the institution of the suit mentioned in the said petition, and other assignments of the claims therein stated to a certain Turnpike Company and Daniel B. Banks, and the order to enter said suit to the several uses to the amounts respectively mentioned to the said company and Daniel B. Banks, be and the same are hereby approved, ratified and confirmed.

J. SPEAR SMITH,

JOS. H. AUDOUN,

FRANKLIN SUPPLEE."

These exhibits were all duly certified.

The case being submitted upon the aforegoing agreement and exhibits, the [**11]  Court below (MARTIN, J.) entered a judgment of non pros. with costs, &c., to the defendants, as per the said agreement. The plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

GUARDIAN AND WARD: GUARDIAN'S BOND, ACTION ON. -- Where a guardian illegally sells and transfers the property of the ward contrary to the Act of Assembly, without a previous order of the Orphans' Court, and converts the proceeds to his own use, it is no answer to an action on the bond by the ward, that under the Act of Assembly the sale itself is void and passed no title to the purchasers.

GUARDIAN AND WARD: GUARDIAN'S BOND, ACTION ON: DAMAGES, MEASURE OF. -- In such case it is clear that the action could not be maintained, and if nothing else appeared the measure of damages would be the value of the property illegally converted.

GUARDIAN AND WARD: GUARDIAN'S BOND, ACTION ON: CUMULATIVE REMEDY. -- Where the property thus sold and transferred was the stock of an incorporated company, the ward is not confined to his action on the bond, but has the cumulative remedy against the corporation, may repudiate the sale as void and recover the stock thus illegally transferred.

GUARDIAN AND WARD: GUARDIAN'S BOND, ACTION ON: DAMAGES, MEASURE OF. -- But where the ward has recovered from such incorporated company the value of the shares of stock illegally transferred by the guardian, in the action upon the guardian's bond, the measure of the damages is the loss actually suffered from the breach of the condition of the bond.

And where the sale of the stock was held void under the Act of 1843, and it or its value has been actually restored by the corporation, though this fact does not defeat the action on the bond, it reduces the right of the plaintiff to the recovery of nominal damages only.

THE ENTRY OF THE SUIT FOR THE USE OF THE CORPORATION, GIVES IT NO RIGHT OF ACTION ON THE GUARDIAN'S BOND. -- Where, under the facts above stated, the suit is entered to the use of the corporation, and actually prosecuted for its benefit, after the restoration of the stock or its value, though entitled its action against the guardian to recover back the price paid him for the stock, it has no right of action on the guardian's bond.  

COUNSEL:
H. R. Dulany for the appellants.

The appellants, who were the plaintiffs below, contend:

1st. That although the nature and extent of the obligations of the sureties to a bond depend altogether upon the terms of the instrument itself, and their liability cannot be increased nor in any way affected by resort to implication, yet that they are responsible to the full extent which the terms of the instrument, or the character of the act for which they have obliged themselves, will warrant. Strawbridge et al. vs. The Balto. and Ohio R. R. Co., 14 Md. Rep., 360, 366, 367. Conant vs. Kendall, 21 Pick., 36. Cole vs. Eaton, 8 Cushing, 587.

2d. That the sale of the stocks, without an order of the Orphans' Court authorizing the same, and the conversion of the proceeds thereof to his own use by Richard C. Murray, constituted two distinct breaches of the condition of his guardian's bond, and rendered it obnoxious to the present action. Act 1843, ch. 304, sec. 1.

3d. The fact that the new guardian had power to [**12]  sue the Turnpike and Manufacturing Companies, for permitting the transfer of the stock upon their books to the purchasers, without an order of the Orphans' Court, as required by law, (Act 1843, ch. 306, sec. 1, The Mayor and City Council of Balto. vs. Wm. B. Norman, 4 Md. Rep., 352,) or that it was made her duty, by the second section of the above mentioned act, to pursue the stock when sold, and recover possession thereof, does not in any degree impair the common law remedy against the bond. All the remedies are cumulative and coexist; the object of the legislature being to guard in every possible way the property of infants from injury or destruction, by the unauthorized acts of their guardians. The Mayor and City Council of Balto. vs. Howard, 6 H. & J., 383. Farmers' Turnpike Road vs. Coventry, 10 John., 388. Chilton vs. Parks et al., 15 Ala., 674. Withers vs. Hickman, 6 B. Monroe, 292.

4th. Assuming, then, that the action against the sureties was warranted by the breaches of the condition of the bond before noticed, the appellants will next contend that the assignments, by Margaret Murray, the new guardian, to the Company of the Baltimore and Fredericktown Turnpike Road, and [**13]  Daniel B. Banks, made, respectively, upon the ninth and eighteenth days of May, 1860, and ratified and approved by an order of the Orphans' Court for Baltimore City, of the 27th June, 1860, were valid and effective instruments, and that they operated to transfer to the assignees all the rights possessed by the assignor, or her wards, against the bond of Richard C. Murray, the old guardian. Commonwealth vs. Barstow et al., 3. B. Monroe, 290, p. 293. Kiersted vs. The State use of Costello, 1 G. & J., p. 231. 1 Code, Art. 9, sec. 1.

5th. It cannot be argued that the assignees are not entitled to the benefit of the action instituted against the bond, on the ground that, by transferring the stock upon their books without an order of the Orphans' Court, they conduced in some degree to the loss, or enabled the guardian to perpetrate the wrong upon his wards; because, in the first place, it is clear that the provision violated by the companies was enacted only for the benefit and protection of the infants. Evidently, therefore, it cannot be invoked by the sureties.

But, further, it is denied that such transfer did conduce in any way to the loss. The real injury to the infants was [**14]  the misapplication, by Murray, of the proceeds of the sales of stock affected by him. But it is beyond doubt, that he could have made this misapplication whether the transfer had been in all respects legitimate or not.

Lastly, however, it will be contended that, even admitting that the sureties may take advantage of the enactment in question, and that the conduct of the companies did, in some degree, conduce to the loss, the assignees will not therefore be deprived of any rights which they would otherwise have had under the said assignments, for it has been settled that a party may, to a certain extent, be the author of a loss, and still suffer no disability thereby, provided he was not the efficient cause thereof. Deering vs. Earl of Winchelsea, 1 Cox, Chan. Cases, p. 318. Fell on Guarantees, p. 242, Ed. 1859.

The appellants rely particularly upon Whiting use of the Sun Mutual Insurance Co. vs. The Independent Mutual Insurance Co., 15 Md. Rep., 297, a case which was not cited by counsel, or referred to by the Court, in the trial below.

No counsel for the appellees appeared at the hearing.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN [**15]  and WEISEL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*320]  BARTOL, J., delivered the opinion of the Court.
We entertain no doubt whatever that the breaches alleged in the amended nar. are within the conditions of the bond sued on, and that the fourth plea of the defendants would be no defence to the action, but would be bad on demurrer. The object of the guardian bond is to secure the ward against the illegal disposition of his property by the guardian, or its maladministration; and where a guardian illegally sells and transfers the property of the ward contrary to the Act of Assembly, without a previous order of the Orphans' Court, and converts the proceeds to his own use, it is no answer to an action on the bond by the ward; that under the Act of Assembly the sale itself is void, and passed no title to the purchaser. In such case it is clear that the action could be maintained, and if nothing else appeared the measure of damages would be the value of the property illegally converted.
The case before us however is not presented in this form, it arises upon an agreed statement facts, (ante pp. 310 to 317,) and the only question presented is, what is the true measure of damages upon the [**16]  facts stated.
In the case of the Mayor and City Council of Baltimore, vs. Norman, 4 Md. 352, it was decided that a transfer of stock standing in the name of a ward, made by a guardian without the order of the Orphans' Court, was under the Act of 1843, ch. 304, void, and the rights of the ward were not affected by it.
It thus appears that in a case like this, the ward is not confined to his action upon the bond; but has the cumulative remedy against the corporation, may repudiate the sale as void, and recover the stock thus illegally transferred. See also Chew & Goldsborough vs. The Bank of Baltimore, 14 Md. 299.
In this case it appears from the facts stated that the 

 [*321]  cestuis que use have recovered from the Fredericktown Turnpike Road Company, and the Union Manufacturing Company, the value of the shares of stock in those companies respectively, which had been illegally transferred by their guardian, and the question is whether that fact reduces the measure of damages in this action, or whether they are entitled to recover in this suit the same amount as if the stock had been lost to them and they had received no indemnity or [**17]  compensation whatever from the companies. The mere statement of this question, it seems to us, carries with it its own solution. No authority need be cited to establish the familiar proposition, that where a party has cumulative remedies against one person or several persons to recover compensation for a tort, he cannot after he has recovered compensation in one form of action recover from the same person indemnity for the same wrong in another form of action; nor, if the remedy be against several, and compensation be recovered from one, can damages for the same cause of action be afterwards recovered against the others. The measure of damages in this suit is the loss actually suffered by the cestuis que use, from the breach of the condition of the bond committed by the guardian, and if the sale of their stock was void under the Act of 1843, and they have in fact had it or its value restored to them, by the companies, then, though this fact does not defeat this action, it reduces the right of the plaintiff to recover nominal damages only, and according to the agreement in the case, a judgment for the defendants was properly entered.
It appears from the statement of facts, that [**18]  the two companies made it a condition precedent to their restoring the stock or its value, that this suit on the bond should be instituted, and in conformity with that requirement this suit was brought, and is entered for their use and really prosecuted for their benefit. The appellants have relied 

 [*322]  upon this fact as material in the decision of the case, and have argued that it falls within the principle decided in Merryman vs. State, at the instance of Harris, use of Murray, 5 H. & J. 423, and Whiting, use of Sun Mutual Ins. Co. vs. Independent Mutual Ins. Co., 15 Md. 297.
But the distinction between those cases and this is very obvious; in them it was held that a defendant could not claim exemption from liability for his own debt or on his own contract, or reduce the amount of the plaintiff's recovery, on the ground that some other person who was a stranger to him and not liable to the plaintiff for the same debt, or in respect of the same cause of action, had under a mistake of facts or of law, paid and indemnified the plaintiff. In such case the payment does not inure to the benefit of the defendant, and this for obvious reasons. If the [**19]  payment were made under a mistake of fact, the plaintiff would be liable in an action by the party from whom he had received, and if paid under a mistake of law, although he could not be compelled by an action to pay it back, yet in good conscience he ought to do so, and in neither case could the defendant, who is a stranger to the transaction, claim that the plaintiff should retain the sum so received by him from others, so that he (the defendant) may be exempt from liability upon his own contract to which they are strangers.
Here the companies were not strangers to the transaction upon which the plaintiff's right of action arose, the illegal transfer of their stock; on the contrary they were in contemplation of law, tort fesors, equally with Richard C. Murray, the guardian, and were alike responsible to the wards for the stock or its value. They might be entitled to their action against Richard C. Murray, to recover back the price paid him for the stock, but they have no right of action on the guardians' bond, and cannot therefore legally 

 [*323]  claim that in this suit a larger sum should be recovered than if the case had not been entered for their use.
This Court being [**20]  of opinion that upon the facts stated, the original cestuis que use are entitled to recover no more than nominal damages, the judgment appealed from will be affirmed.
Judgment affirmed. 

103 of 120 DOCUMENTS 

CHARLES W. FRANZ vs. THE TEUTONIA BUILDING ASSOCIATION, No. 2.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 259; 1866 Md. LEXIS 16 

March 20, 1866, Decided 

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

This is an appeal from a decree of the Circuit Court of Baltimore City, passed in pursuance of the provisions of the Act of 1833, ch. 181, and its supplements.

A bill or petition was filed in the Court below on the 20th of September, 1862, by the appellee, in these words:

"The bill of complaint of the Teutonia Building Association, No. 2, humbly shows that a certain Chas. Franz, by his indenture of mortgage which is herewith filed, marked exhibit A, to be taken as part of this bill, assigned the property therein particularly described to the said Association, for the purpose of securing the payments and the prompt performance of the covenants and obligations in the said mortgage mentioned. Your orator further shows that the said Charles Franz is greatly in arrear, having failed to make the said payments and to perform the covenants in the said mortgage mentioned for more than three months. Your orator says the said mortgage contains the assent of the said Charles Franz, for the passage of a decree for the sale of the said mortgaged premises. And your orator prays that your Honor will pass a decree for a sale of the said [**2]  mortgaged premises, to the end that the claim of your orator, which is herewith filed, marked exhibit B, and prayed to be taken as part of this bill under said mortgage, may be paid out of the proceeds of such sale, with costs and proper expenses; and that your orator may have such further relief as the nature of its case may require."

The mortgage filed with the bill is dated the 8th of June, 1857, and witnesseth that in consideration of the sum of $ 936, paid by the said Association to Franz, he conveys a leasehold interest in a lot in Baltimore city, particularly described, to the said Teutonia Building Association, No. 2, with the proviso that it is the intent of these presents that the mortgage shall be void if Franz shall well and truly pay and perform the payments and obligations hereinafter recited to be paid and performed by him; and Franz then covenants with the Association: 1st. To pay to it, and its successors and assigns, six dollars per week, for each and every week succeeding the date of these presents, and in addition thereto the interest on the sum of $ 2,400, to be received monthly in equal instalments for each and every month succeeding the 8th day of August,  [**3]  1867, until such time when it shall appear by the books of the said Association that there is sufficient money in hand, and in actual possession of the same, to pay each unredeemed share of its stock to the holders thereof, $ 200 clear of all losses and liabilities of said Association. 2nd. To keep the property insured, pay all the ground rents and taxes thereon, and also all fines imposed on him by the Association. It then provides that each and all of these obligations shall continue until the time when the aforesaid stock shall be worth $ 200 for each unredeemed share; but on his failing to make said weekly payments and the monthly interest as before stated, "and any such default continuing for three months from the time of default," then the mortgaged property "shall be sold by a trustee to be duly appointed, and the proceeds of sale shall be applied" to pay: 1st, the costs and expenses of the sale, and all arrears of ground rent, taxes, &c.; 2d, to the Association all arrears of weekly payments and monthly interest due and unpaid, according to the stipulations of the mortgage; and 3rd, the balance of the proceeds shall be deposited in some bank, and applied from time to time the [**4]  said weekly sums and monthly interest as they become due in manner as they are required by the mortgage to be paid by said Franz, and the balance, if any, to him, his executors, administrators and assigns. "And the said Charles Franz, his executors, administrators or assigns, to secure and enforce the payments and conditions hereinbefore, and as hereinbefore on the part of himself, his executors, administrators or assigns to be paid and performed, hereby declares his assent for the passing of a decree for the sale of the hereby mortgaged property and premises under and conformable to the Act" of 1833, ch. 181, "or in case of default made by him in any of the conditions of this mortgage, does hereby empower the said Building Association, or its attorney, to sell the property and premises hereby mortgaged in the manner prescribed in the Act of 1836, ch. 249, or any other Act or Acts supplementary of either of the Acts herein referred to."

The Court, (KREBS, J.,) on the same day the petition was filed, (20th September, 1862,) passed a decree directing the mortgaged property to "be sold," appointing a trustee to make the sale in the usual form, prescribing the terms of sale at one-half [**5]  cash and the balance in four months, directing the proceeds to be brought into Court, and providing that before a sale shall be made, a statement of the mortgage claim, duly verified by affidavit as required by law, be filed in said cause, and any stay created by the stay-laws shall have ceased to operate. From the decree this appeal was taken by Franz.  

DISPOSITION:
Decree affirmed, and cause remanded.  

HEADNOTES:

ACT OF 1833, CH. 181: RELATING TO MORTGAGES IN BALTIMORE CITY: DECREE. OBJECTIONS TO. -- The objection to a decree passed in pursuance of the Act of 1833, ch. 181, and its supplements, that it was passed after default, and therefore improperly, was overruled in the preceding case, Black vs. Carroll, ante p. 251.

ACT OF 1833, CH. 181: RELATING TO MORTGAGES IN BALTIMORE CITY: ACT OF 1852, CH. 148: INCORPORATION OF HOMESTEAD OR BUILDING ASSOCIATIONS: ESTOPPELS. -- The objection to such decree that it does not appear by averment or proof that the plaintiff was incorporated pursuant to the provisions of the Act of 1852, ch. 148, cannot be taken advantage of by a defendant who has recognized its existence and right to sue in accordance with the Act of 1852, by executing to it a mortgage.

ACT OF 1833, CH. 181: RELATING TO MORTGAGES IN BALTIMORE CITY: ACT OF 1825, CH. 50: CERTAIN MORTGAGES EXCEPTED FROM ITS OPERATION. -- The objection to said decree, that the mortgage upon which it was passed was void by the Act of 1825, ch. 50, because of the uncertainty as to the time for which it may exist, and of the amount to be paid under it, does not apply, it appearing to the satisfaction of the Court, from the mortgage itself, that the mortgagor was a member of the Association, and within the exception of the 7th sec. of the Act of 1852.  

COUNSEL:
O. Miller for the appellant.

This decree having been affirmed nisi under the rules of this Court, the appellant, by his counsel, for cause against an absolute affirmance, shows and insists:

1st. That the decree is not warranted by the terms of the mortgage. It was passed after default, and therefore to be sustained there must be on the face of the mortgage an assent to its passage, under the Act of 1839, ch. 9, the 3rd section of which authorizes the passage of the decree after as well as before default. The original Act of 1833, ch. 181, sec. 2, contemplates only a decree before default, and hence the necessity of the passage of the supplemental Act of 1839. Now the assent given in this mortgage is only for a decree under the original Act of 1833. It was clearly competent for the [**6]  parties so to contract, and that such was their intention is evident from the fact, that provision is made for proceeding under the Act of 1836, ch. 249, in case of default made. There is no assent to the passage of a decree under the supplemental Act of 1839. The plain reading of the instrument, and the obvious intention of the parties to it, is this: the mortgagee should have power, in order to secure and enforce the mortgage, to obtain a decree at once, as soon as the mortgage was executed and recorded, before default made, under the Act of 1833, but if the mortgagee did not choose to take this course, but waited until after default made, he should then proceed under the Act of 1836. The mortgage does not say he shall have the choice of either remedy, but carefully excludes such a conclusion. The mortgagee has the absolute power to obtain a decree under the Act of 1833, which must under that Act be obtained before default, but the mortgage does not say he may proceed under that Act or its supplement of 1839, after default; the words are, "or in case of default" made by the mortgagor he empowers the mortgagee, "or its attorney," to sell the property "in the manner prescribed in the [**7]  Act of 1836, ch. 249, or any other Act or Acts supplementary to either of the Acts herein referred to." The only reference to any supplement to the Act of 1833 is in these latter words, but there is no supplement to that Act which authorizes or prescribes a mode by which the mortgagee or its attorney can sell mortgaged property. The Act of 1833 and its supplements, provide only for a sale by a trustee appointed by a decree of the Court. The Act of 1836, and its supplements, provide for a sale after default by the mortgagee or some person authorized by him, without the aid of a decree, and without any application to any Court. It is therefore submitted that the appellee was bound by the terms of this mortgage to proceed under the Act of 1836, having waited until default was made before obtaining a decree under the Act of 1833, and the Court below had not, at the time this decree was passed, jurisdiction or authority to pass the same.

On this point as to the construction of the Acts of 1833, ch. 181, and its supplement of 1839, ch. 9, see the case of Kenley vs. Wierman's Excrs., 18 Md. Rep., 302.

2nd. But another objection is this: There is no special Act incorporating this [**8]  Association, and authorizing it to sue by the corporate name of "The Teutonia Building Association, No. 2," and it therefore has only a right to come into Court under the Act of 1852, ch. 148. Now, the first section of that Act grants authority to individuals under any name by them assumed, to associate for the purpose of organizing or establishing Homesteads or Building Associations, and being so associated shall, on complying with the provisions of this Act, be considered a body politic and corporate, and as such shall be capable in law to hold and dispose of property, &c., have and use a common seal, &c., choose officers and enact by-laws, &c., may sue and be sued, plead and be impleaded, answer and be answered in any Court of Law and Equity, and do all other acts, &c., provided, however, that before any such corporation shall be entitled to the privileges of this Act, they shall lodge with the Clerk of the Circuit Court, &c., a copy of the articles of association of such corporation, signed by at least seven members, and certified by the Secretary thereof, to be recorded in the office of such Clerk. In other words, it is expressly enacted that no such Association shall have the [**9]  privilege of suing in any Court of Law or Equity, unless it has complied with this condition. No such Association can cross the threshold of any Court of Law or Equity in this State without taking its credentials along with it. It must show itself entitled to sue either by proof or averment. But here there is neither in the petition nor bill, nor in the mortgage nor anywhere else in the record, an averment even that this Association had complied with the provisions of the Act of 1852; there is not even an averment or any recital in the mortgage, that it was duly incorporated. In the total absence of any proof, or any averment, or any recital in the mortgage to this effect, the Court below had no jurisdiction to pass this decree. The proceedings being ex parte, and the decree being passed the same day the petition was filed, and without notice, there was no other mode of taking advantage of this objection except by an appeal.

In the case of Robertson vs. The American Homestead Association, 10 Md. Rep., 397, the mortgage recited that the Association was "duly incorporated," so that the mortgagor was estopped from setting up this objection in that case.

3rd. Again, it is submitted [**10]  that this mortgage would be void under the Act of 1825, ch. 50, on account of the uncertainty of the time for which it may exist, and the amount that may be paid under it, and can only be saved by being brought within the terms of the 7th section of the Act of 1852, ch. 148. But that section only authorizes such mortgages to be made by members of the Association. Now neither the mortgage, nor the bill nor petition in this case, recite or aver that the appellant was a member of this Association. Such an averment or recital to that effect in the mortgage was necessary, in order to render it a valid mortgage upon which a decree could be passed under the Act of 1833, or its supplements. In Robertson's case, 10 Md. Rep., 397, the mortgage recited that Robertson was a member of the Association. The recital in that mortgage, is "whereas the said Jesse Robertson is a member of the said Association, the same being a body corporate duly incorporated."

Alexander Wolff for the appellee.

1. The mortgage is properly executed, and contains the appellant's assent to a sale in the following words:

And the said Charles Franz to secure and enforce the payment and conditions hereinbefore [**11]  mentioned, and as hereinbefore recited, on the part of himself, his executors, administrators or assigns, to be paid and performed, hereby declares his assent for the passing of a decree for the sale of the hereby mortgaged property and premises, under and conformable to the Act of the General Assembly of Maryland, passed at December session of the year 1833, chap. 181, &c., entitled an Act relating to mortgages, or in case of default made by him in any of the conditions of this mortgage, does hereby empower the said Teutonia Building Association, No. 2, or its attorney, to sell the property and premises hereby mortgaged, in the manner prescribed in an Act of the General Assembly aforesaid, passed at December session in the year 1836, ch. 249, &c.

2. The appellant was in arrear for over three months, as proven by the account.

3. The appellant empowered the appellee to foreclose the mortgage at any time after a default in making the payments secured by the mortgage, in the following words:

And the said Charles Franz failing to make the said payments of weekly sums of money, and the monthly interest on the entire amount received, as hereinbefore recited to be paid, or [**12]  failing to perform any of the said obligations as hereinbefore stipulated to be performed, and any such default continuing for three months from the time of the default, then the hereinbefore described property shall be sold, &c.

James Revell also for the appellee, in reply to the appellant's first point, argued as follows:

1st. The 3rd section of the Act of 1839, ch. 9, enacts, "That the decree authorized by the second section of the Act to which this is a supplement, may be passed as well after as before the period limited in the mortgage for payment of the debt, or for the foreclosure of the mortgage." Now, if the appellant gave his assent to a sale under the supplement to the Act of 1833, to wit: the Act of 1839, I would ask how (ignoring for the present the Act of 1836) could a sale be effected without a decree? He clearly gave his assent to a sale under any Act supplementary to the Act of 1833, and a sale under this last mentioned Act could not be obtained except by a decree under said Act of 1833. Can a proposition be clearer?

But, again, the Act of 1839, ch. 9, being in pari materia with the Act of 1833, ch. 181, must be construed with that Act, or, in the language [**13]  of the books, "as if they were one law;"--"the latter Act may be considered as incorporated with the former." Earl of Ailesbury vs. Patterson, Dougl., 30. Dwarris on Statutes, (side paging,) 699 and 700, and authorities in note. Mayor of Balto. vs. Howard, 6 H. & J., 383. The Canal Company vs. The Rail Road Company, 4 G. & J., 1. Dugan vs. Gittings, 3 Gill, 138. Ranoul vs. Griffie, 3 Md. Rep., 60.

The case of Kenley vs. Wierman's Executors, 18 Md. Rep., 302, cited by the appellant's counsel, is not in point, as will appear by an examination of the record and report of the cases;--there the terms of the mortgage were very dissimilar to the present case, and it is respectfully submitted, an argument is not required to show the dissimilarity. If any inference is to be drawn from the case cited applicable to this case, it is to the effect that the Acts of 1833 and 1839 are to be construed as one.

2nd. In reply to the appellant's 2nd point. The Act of 1833 and its supplements, contemplated a summary proceeding; the mortgage and covenants were the solemn act, under seal, of the appellant;--the right to obtain a decree for sale of the mortgaged premises was distinctly and unequivocally [**14]  accorded to the appellees;--the power to sue is expressly recognized, and yet, in the face of all this, the appellant, instead of resorting to his remedy by injunction, in case of fraud or other improper act upon the part of the association, or by bill of review, gravely asks an appellate Court to perpetrate nothing short of a fraud upon the rights of this association, by permitting him to deny his own solemn act and deed. By this act of his, he is estopped from setting up such a plea; has waived, by his solemn acknowledgment, all objections to the capacity of the association to covenant with him. Wesley vs. Thomas, 6 H. & J., 29. Congregational Society vs. Perry, 6 N. H., 165. Den vs. Van Houten, 5 Halstead, 274. Dutchess' Cotton Man. Co. vs. Davis, 14 Johnson, N. Y., page 243. Hennings vs. Dutch West India Co., 2 Ld. Raym., 1535. John vs. Farmers & Mechanics' Bank, 2 Blackf. (Ind.) 367. Hughes vs. Bk. of Somerset, 5 Little, (Ky.,) 47. Tar River Naw. Co., vs. Neal, 3 N. C., 526.

The true principle of estoppel, as applicable to deeds, is to prevent circuity of action, and to compel parties to fulfill their contracts. Casey's Lessee vs. Inloes, et al., 1 Gill, 430. Bonner vs. Wilkinson's [**15]  Executor, 5 Barn. & Ald., 682.

The Act of 1852, ch. 148, authorizes the formation of "Homestead or Building Associations," by complying with certain provisions, one of which is, that the articles of association shall be recorded. The object of this is to give notice to the world; and this record, for the purposes of the association, is as much a matter of public notoriety as an Act of Assembly. The appellant has admitted by his deed, that the "Teutonia Building Association," No. 2, has an existence. The presumption of law is, therefore, that it is duly incorporated, and being duly incorporated, has the right to hold and dispose of property both real and personal, to sue and be sued, &c. Hagerstown T. R. Co. vs. Creeger, 5 H. & J., 122. Commonwealth vs. Woelper, and others, 3 Sergt. & Rawle, 29.

3rd. In reply to the appellant's third point.

Although the mortgage does not recite or aver in direct language that Franz was a member of the association, yet its terms, conditions and covenants, plainly indicate the fact. But the averment or recital was unnecessary, for the following reasons:

1st. There is nothing in the Act of 1852, which prevents an association organized [**16]  under its provisions, to take a mortgage from a non-member; as one of the rights, incident to its incorporation, is under the very terms of the first section of said Act, to hold and dispose of property both real and personal. Plank Road Co. vs. Young, 12 Md. Rep., 476, &c.

2nd. The mortgage in question contains on its face the amount, and fixes the time and mode of payment.

3rd. For the reasons assigned in reply to second point of appellant.

4th. Because the Court of Appeals in the case of Robertson vs. The American Homestead Association, 10 Md. Rep., 408, cited by the appellant's counsel, say "that the mortgage in this case, (somewhat similar to this,) is not within the provisions of the Act of 1825, ch. 148, or if it be, that Act is repealed, pro tanto, by the Act of 1852, ch. 148." 

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*269]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The appeal in this case is taken by the appellant from a decree of the Circuit Court of Baltimore City, passed on the 20th day of September, 1862, pursuant to the Act of 1833, ch. 181, and its supplements.  [**17]  
The objections urged by the appellant to this decree are 1st, that the decree was passed after default.
2nd. That it does not appear by any averment in the appellee's petition or by proof, that the appellee was incorporated pursuant to the provisions of the Act of 1852, ch. 148.
3d. That the mortgage on which the decree was passed would be void under the Act of 1825, ch. 50, on account of the uncertainty of the time for which it may exist, and the amount that may be paid under it, unless saved by the 7th section of the Act of 1852, ch. 148, and that section only authorizes such mortgages to be made by members of the association. The 1st objection is removed by the decision 

 [*270]  of this Court pronounced at the present term in the case of Samuel Black vs. David Carroll, p. 251. As to the second objection, we think the appellant is precluded from making it by his own act. By his mortgage he recognizes the right of the appellee to sue in accordance with the Act of 1852. In 6 N.H. 164, the Court say "the giving of the note is an admission by the defendant of the existence of the corporation, and he cannot now be permitted to deny that there [**18]  is a duly organized corporation." See also 5th Halstead N. J. Rep., 274. This was a case of a mortgage, and it is said, "the mortgage under his hand and seal is as against him, sufficient evidence of the existence of the corporation." In 14th John's Rep., 243, where the decision turned on the law of New York, similar to the Act of 1852, it is said by the Court "this is a public law and the certificate becomes a matter of record. The defendant having undertaken to enter into a contract with the plaintiffs in their corporate name, he thereby admits them to be duly constituted a body politic and corporate under such name."
The 3rd objection is covered by the case of Robertson vs. The American Homestead Association, 10th Md. Rep., 397, as to the question of uncertainty of time for which it exists, and the amount that may be paid under the mortgage.
As to the question whether the 7th section of the Act of 1852, authorizes such mortgages as the one under which the decree in this case was passed by members only, we do not deem it material to determine whether the appellee was authorized to take mortgages from others not members. In our opinion, the terms of this mortgage [**19]  clearly import that the appellant was a member of the association.
Finding no error in the decree of the Circuit Court, we will sign a decree affirming it with costs to the appellee and remand the cause for further proceedings.
Decree affirmed, and cause remanded. 

104 of 120 DOCUMENTS 

SAMUEL BLACK vs. DAVID CARROLL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 251; 1866 Md. LEXIS 15 

March 17, 1866, Decided 

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

The appeal in this case is from an order of the Superior Court of Baltimore city, overruling objections to a sale made in pursuance of a decree passed under the provisions of the Act of 1833, ch. 181, embodied in the Code, vol. 2, Art. 1, sec. 782, relating to mortgages in the city of Baltimore.

The facts of the case are stated in the opinion of this Court.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

CODE., VOL. 2., ART. 4, SEC. 782, RELATING TO MORTGAGE SALES IN BALTIMORE CITY: PROPRIETY OF DECREE AND VALIDITY OF SALE, WHEN TO BE CONTESTED: PRACTICE IN EQUITY. -- The propriety of a decree and the validity of a sale made in pursuance thereof, in a proceeding under the Act of 1833, ch. 181, codified in vol. 2, Art. 4 and sec. 782 of the Code, may be inquired into and contested after the passage of the order of ratification nisi, and before the final order of confirmation is passed.

The objection that under the article and section of the Code referred to, a decree may not be entered as well after as before default is not supported, either by the words of the Code or by any decided case.

The plain meaning of these provisions of the Code is, that where the decree is entered before default, no sale shall be made till something is due upon the mortgage; but they do not limit the remedy of the mortgagee to the period before the forfeiture.

CODE., VOL. 2., ART. 4, SEC. 782, RELATING TO MORTGAGE SALES IN BALTIMORE CITY: PROPRIETY OF DECREE AND VALIDITY OF SALE, WHEN TO BE CONTESTED: PRACTICE IN EQUITY: THE ACT OF 1839, CH. 58, SEC. 3, conferred no new and enlarged power on the Court, nor gave any right to the mortgagee which was not given by the original Act of 1833, ch. 181, but must be taken as merely declaratory of the pre-existing law.

CODE., VOL. 2., ART. 4, SEC. 782, RELATING TO MORTGAGE SALES IN BALTIMORE CITY: PROPRIETY OF DECREE AND VALIDITY OF SALE, WHEN TO BE CONTESTED: PRACTICE IN EQUITY: ACT OF 1861, CH. 17. -- The decree under which the sale in this case was made, was not suspended by the Act of 1861, ch. 17, but came within the exceptions of the 3d sec. of that Act, which expressly excepts from the operation of the Act "decrees or judgments for the payment of interest or tax as between parties to mortgages, judgments or other contracts, upon which said interest or taxes are payable at a specified time or times." 

COUNSEL:
Benjamin C. Barroll for the appellant.

1. The first objection which appears against the validity of the decree is, that it is not in conformity with the law authorizing an ex parte decree to be passed. The Code expressly limits the jurisdiction; the language is, (sec. 782,) "the said Court may thereupon forthwith decree that the mortgaged premises shall be sold at any one of the periods limited in said conveyances for the forfeiture of said mortgages, or limited for a default of the mortgagors."

The jurisdiction conferred (special) is to pass a decree, before default, for a sale to take place at a period specified in the mortgage. The decree is to be "forthwith," and it is impossible to conform to the express requirements [**2]  of the law unless the decree precedes the default and the period limited in the mortgage for the forfeiture and consequent right to sell.

Such was the scope of the Act of 1833. And it was only the superadded jurisdiction conferred by the Act of 1839 which enabled the Courts to pass similar decrees after default. This Court so decided in the case of Kenly vs. Wierman, 18 Md. Rep., 303. (The Act of 1839 was not re-enacted by the Code.)

2. The second objection to the decree in this case arises out of the restrictions imposed by the Act of 1861, ch. 17, at the special session, which declares that "on all decrees for sale of mortgaged property there shall be a stay of execution and sale for twelve months from the passage of this Act." And upon all powers to sell contained in any mortgage, the stay is declared to operate--the remedial operation of the law being made as broad as language can express it. It is prohibitory--clearly and emphatically so.

The complainant seeks to shelter himself under the proviso in relation to "personal property," but the meaning is manifestly "chattels," and not property, which is immovable and not liable to waste or destruction by removal or [**3]  inattention; in other words, the term was meant to apply to perishable property, as that word is commonly understood, and did not embrace interests in real estate.

The complainant further suggests (in the record) that he is within the terms of the third section, i. e., that the decree in question is a decree "for the payment of interest." But the petition, claim, and all the proceedings expressly negative such proposition.

In order to avail of the third section, the decree on its face must show it to be for interest due, especially when a Court is exercising a special, carefully defined jurisdiction. The law in question is remedial in the highest sense and every intendment is to be made to promote its humane purpose.

The appellant suggests that you cannot avail of this third section with regard to interest without proof of the fact in advance of the decree. The law requires not mere allegations, but evidence legally introduced in order to entitle the Court to pass the decree for sale; prima facie the jurisdiction to pass such decree does not exist, and the evidence therefore must precede the exercise of the power by the Court. If the jurisdiction of the Court is not [**4]  perfect at the time when the decree is signed, no subsequent act or evidence can give it efficacy.

It is also not unworthy of note that the proviso with regard to interest is confined by the express language of the law to the parties to the mortgage. Assignees of such parties are not included in the designation, and it does not necessarily follow, that they can avail of the exception. The proper construction of the language used seems to imply that all others were excluded, and specially intended so to be.

The appellant respectfully insists that the harsh and anomalous process allowed under these special mortgage Acts justifies the strictest scrutiny into the exercise of the power and jurisdiction of the Court ordering the sale. If rightful in all respects, the jurisdiction and sale will be sustained by the Appellate Court, but in these cases there are no equitable intendments, the right of the mortgagee is "strictissimi juris," and he is held to the very letter of the law.

Leven Gale for the appellee contended,

1. That the provisions of the Code do authorize a decree to be passed as well after as before default. 2 Code, 307, &c. Act 1833, ch. 181. Act 1839, ch.  [**5]  9. 3 Dorsey's Laws, 2322. Williams vs. Williams, 7 Gill, 302. McDowell vs. Goldsmith, 6 Md. Rep., 319. S. C., 2 Md. Ch. Dec., 370. Ing vs. Cromwell, 4 Md. Rep., 31. Hays vs. Dorsey, 5 Md. Rep., 99.

2. That the appeal should have been taken from the original decree so far as the first objection is concerned. 7 Gill, 302. 5 Md. Rep., 99. 6 Md. Rep., 319. 2 Md. Ch. Dec., 370.

3. That in this case, interest notes being due and unpaid, the right to sell was given by the 3d sec. of the Act of 1861.

4. That the Act of 1861, ch. 17, was unconstitutional as invalidating contracts. 1 How., 319. 2 do., 612.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*254]  BARTOL, J., delivered the opinion of this Court.
The appeal in this case is from an order of the Superior Court of Baltimore city, ratifying a sale made in pursuance of a decree passed under the provisions of the Code, volume 2, Art. 4, section 782; embodying the provisions of the Act of 1833, ch., 181, relating to mortgages in the city of Baltimore.

 [*255]  Two exceptions to the ratification of the sale were filed by the appellant.
1st. That the decree was not passed [**6]  in accordance with the provisions of the Code.
2nd. That the execution of the decree was suspended by the Act of 1861, ch. 17.
The appellee contends that this not being an appeal from the decree, the appellant is not entitled to be heard upon the first exception. We do not concur in this view. It has been repeatedly decided by this Court that in such cases an appeal may be taken from the decree; but it has never been held that the validity and regularity of the decree may not be inquired into upon exceptions to the sale. In Eichelberger vs. Harrison, 3 Md. Ch. 39, the late Chancellor held that the proceeding under the Act of 1833 "was contemplated to be ex parte, until after the decree and the sale under the decree, and that the propriety of the decree, and the validity of the sale made thereunder, were to be inquired into and contested after the passage of the order of ratification nisi, and before the final order of confirmation should be passed."
In this opinion of the Chancellor we entirely concur. We refer also to Hays vs. Dorsey, 5 Md. 99, in support of this opinion.
The only objection to the decree relied upon in this case,  [**7]  under the first exception, is that it was entered after default, and for that reason, it is alleged to be contrary to the provisions of the Code, which the appellant contends authorize a decree only before default. This objection is not supported either by the words of the Code or by any decided case. By the Code it is provided that the proceeding may be taken at any time after the filing of the mortgage to be recorded, and the Court is authorized "thereupon forthwith to decree that the mortgaged premises shall be sold at any of the periods limited in the conveyance for the forfeiture 

 [*256]  of the mortgage, or limited for a default of the mortgagors." The plain meaning of this provision is that where the decree is entered before default, no sale shall be made till something is due upon the mortgage. But there is nothing in the language that limits the remedy of the mortgagee within the period before the forfeiture; on the contrary, the proceeding is authorized to be taken "at any time" after the recording of the mortgage, without regard to the time limited therein for a default of the mortgagor. He is protected against a sale until he makes default; but there is nothing in the [**8]  words of the Code that denies to the mortgagee the benefit of the remedy after the default has occurred. This in our opinion is the plain meaning of the law, and if the question were now presented for the first time, we should have no difficulty in adopting this construction. But it is supported by several decisions of this Court in cases arising under the Act of 1833, ch. 181, which in this respect was identical with the provisions of the Code.
In Ing vs. Cromwell, the proceeding was instituted after default, and the decree was affirmed. 4 Md. 31, 36.
In Hays vs. Dorsey, 5 Md. 99, which was also a proceeding under the Act of 1833, a decree passed after default was affirmed. It is supposed by the appellant's counsel that no power to pass a decree after default was conferred by the Act of 1833, because, by the 3rd section of the Act of 1839 ch. 58, it was enacted "that the decree authorized by the second section of the Act of 1833 may be passed as well after as before the period limited in the mortgage for the payment of the debt, or for the foreclosure of the mortgage." Looking at the words of the Act of 1833, it is not easy to discover why [**9]  the third section of the Act of 1839 should have been passed; as it is apparent that the latter does not confer any new or enlarged power on the Court, or give any right on the mortgagee which was not given by the 

 [*257]  original Act. The Legislature may have had some doubt as to the construction of the Act of 1833, but as there was no good ground for that doubt, the third section of the Act of 1839 must be taken as merely declaratory of the preexisting law, and therefore the appellant's objection derives no force from the fact that the third section of the Act of 1839 has not been embodied in the Code.
The case of Kenly vs. Wierman's Ex'r., 18 Md. 302, has been cited and relied on by the appellant's counsel, as one express decision that under the Act of 1833 no power was given to enter a decree after default; a brief examination of that case will show that the opinion of the Court has been misconstrued.
The only question there involved was whether the mortgage upon which the decree had been passed contained the assent of the mortgagor to the passage of a decree according to the provisions of the Act of 1833 and its supplements; and this Court being of opinion [**10]  that the terms of the mortgage did not authorize the summary proceedings under the Act, the decree was reversed. The case turned altogether upon the construction of the mortgage in this particular. What was said in the opinion of the Court with regard to the Acts of 1833 and 1839, must be understood as referring to the question involved, and was designed to express the idea that by both Acts, the assent of the mortgagor was required. It may be proper to add in explanation of that part of the opinion, that the particular question now under consideration did not arise in the case, and there was no intention on the part of the Court to declare that a decree might not be passed under the Act of 1833, after default as well as before, provided the mortgage contained the assent of the mortgagor, in such terms as the Act prescribed.
In the opinion of this Court, the objection of the appellant to the decree in this case was properly overruled by 

 [*258]  the Superior Court. We are also of opinion that the exception to the sale, based on the Act of 1861, ch. 17, was properly overruled.
The appellant in the argument of the cause, has made the point, that the Act of 1861 was a law impairing [**11]  the obligation of contracts, and therefore unconstitutional and void, and in support of this view has cited the cases of Bronson vs. Kinsey, 42 U.S. 311, 11 L. Ed. 143, 1 How. 311, and McCracken vs. Hayward, 43 U.S. 608, 11 L. Ed. 397, 2 How. 608. Upon this question we express no opinion. It is one of great delicacy and importance, and ought not to be passed upon, unless absolutely necessary for the determination of the case. Here there is no such necessity, because this case clearly falls within the saving provisions of the third section; and assuming the Act to be free from objection on constitutional grounds, the sale may be supported under the third section, which expressly excepts from the operation of the Act, "decrees or judgments for the payment of interest or tax as between parties to mortgages, judgments or other contracts, upon which said interest or taxes are payable at a specified time or times."
The record before us shows that the decree was rendered in part for interest and taxes due under the mortgage, upon which there was no stay of execution under the act of 1861, and for which the property was liable to be sold. The property [**12]  mortgaged was in one parcel, indivisible, and could therefore be sold only in its entirety. No valid objection therefore can be made to the sale under the decree.
An order will be signed affirming the order appealed from with costs to the appellee and remanding the cause.
Order affirmed, and cause remanded. 

105 of 120 DOCUMENTS 

JAMES W. W. TAYLOR vs. WILLIAM H. HEBDEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 202; 1866 Md. LEXIS 11 

March 14, 1866, Decided 

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

The facts of this case are stated in the opinion of the Court.  

DISPOSITION:
Order affirmed with costs to the appellee, and cause remanded.  

HEADNOTES:

APPOINTMENT AND REMOVAL OF OFFICERS: CONSTITUTIONAL LAW: JUSTICES OF THE PEACE. -- By the Constitution of 1864, Art. 2, Sec. 16, it is provided that "All civil officers appointed by the Governor and Senate shall be nominated to the Senate within fifty days from the commencement of each regular session of the General Assembly; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless sooner removed from office) and until their successors respectively qualify according to law." By Art. 12, Sec. 6, it is provided that "All officers, civil and military, now holding office, whether by election or appointment, under the State, shall continue to hold and exercise their offices according to their present tenure unless otherwise provided in this Constitution, until they shall be superseded according to its provisions, and until their successors be duly qualified." By Art. 6, Sec. 47, the term of office of Justice of the Peace was changed from an election by the people, to appointment by the Governor, by and with the advice and consent of the Senate. HELD:

That Justices of the Peace who were elected in November, 1863, and in office when the Constitution of 1864 was adopted, continue to hold their offices until there shall be regular appointments by the Governor and Senate superseding them; and that the concurrent act of the Senate could only be had at a regular and not a special session of the Legislature.  

COUNSEL:
A. Randall, Attorney General, for the appellant.

The appellant, Taylor, insists, that he was legally appointed to and held the office of Justice of the Peace, and that this decree ought, therefore, to be reversed, and the petition dismissed with costs, for the following reasons:

1st. Because Hebden being elected under the 19th section of the 4th Article of the late (1851) Constitution for two years from his election in November, 1863, his term of office would have expired on the second Wednesday of November, 1865, and the present Constitution, (which went into operation afterwards in November, 1864,) declaring by its 6th sec. of the 12th Article, that all officers then holding office shall continue to hold according to their present tenure, unless otherwise provided in this Constitution, &c., merely confirming this term of office to him till this second Wednesday of November last, and until his successor be duly qualified, his (Hebden's) office expired on that day by its own limitation.

2nd.  [**2]  That Hebden's term of office thus expiring on the second Wednesday of November, 1865, created a vacancy in the office of Justice of the Peace during the recess of the Senate, to which the Governor, who has the power to fill the same, did accordingly appoint Taylor, a suitable person, whose commission was to continue in force till the end of the next session of the General Assembly, &c., and whose nomination was made to the Senate within thirty days after the next meeting of the General Assembly, under the 14th section of the second Article of the present Constitution. See latter part of the 19th sec. of the 4th Art. of the late Constitution (1851,) and 47th and 48th sections of the 4th Art. of the present Constitution, and the Acts of 1862, ch. 68, and 1865, ch. 41.

3rd. The 16th section of the 2nd Article of the present Constitution does not apply to Hebden, nor prolong his term of office to the first Monday in May, as he contends, because he is not, in the language of this section, "an officer appointed by the Governor and Senate," but an officer elected by the people. This section applies exclusively to officers thereafter to be appointed, and not to such as, like Hebden, the [**3]  Constitution finds in office, and to future appointments, to be nominated to the Senate within fifty days from the commencement of each regular session of the General Assembly.

4th. If there be not a vacancy in this office which the Governor had authority to fill under the 14th section of the 2nd Article of the present Constitution, then this appointment of a successor to Hebden is a case not otherwise provided for in the Constitution, and to which, under the 13th section of the 2nd Article of the Constitution, the Governor has the power to make a nomination, and by and with the advice and consent of the Senate appoint.

Wm. Price, for the appellee.

Wm. H. Hebden was elected twice a Justice of the Peace for the second ward of the city of Baltimore; once in November, 1861, and again in November, 1863. There is no question about his election, and it is only necessary to say, that he was in office when the new Constitution went into effect on the 1st day of November, 1864. The term for which he was elected, being for two years, from the second Wednesday of November, 1863, would expire on the second Wednesday of November, 1865.

The adoption of the new Constitution on [**4]  the 1st of November, 1864, superseded the old on that day; and the appellee after that day held his office, and exercised its duties under the new Constitution; we must look to the new Constitution, to see what disposition is made of him and his office.

We turn then to the 6th section of the 12th Article of the new Constitution, where it is plainly declared, that "All officers, civil and military, now holding office, whether by election or appointment under the State, shall continue to hold and exercise their offices, according to their present tenure, unless otherwise provided in this Constitution, until they shall be superseded pursuant to its provisions, and until their successors be duly qualified." Under this section Hebden was entitled to hold and exercise his office, until the 2nd Wednesday of November, 1865; unless his case was otherwise provided for under the new Constitution, and until his successor was duly qualified.

We are now to ascertain how Justices of the Peace are appointed, and at what time they take possession of their offices under the new Constitution; for, until his successor is so appointed, Hebden holds his office.

The appointment of Justice [**5]  of the Peace is provided for by the 47th section of the 4th Article of the new Constitution. Which declares, that they shall be appointed for the whole State by the Governor, by and with the advice and consent of the Senate. The terms and manner of the appointment are settled by the 16th section of Article 2, which provides, that "All civil officers appointed by the Governor and Senate, shall be nominated to the Senate within fifty days after the commencement of each regular session of the General Assembly, and their term of office shall commence on the first Monday of May following."

This review of the Constitution settles the right in favor of Hebden, unless his case is otherwise provided for, as declared by the 6th section of the 12th Article already referred to. Now to show that it is otherwise provided for, we are referred to the 14th section of Article 2, which provides, that in case of a vacancy, during the recess of the Senate, in any office which the Governor has power to fill, he shall appoint some suitable person to said office, whose commission shall continue in force until the end of the next session of the General Assembly, or until some other person is appointed [**6]  to said office, which ever shall first occur; and the nomination of the person thus appointed during the recess, or of some other person in his place, shall be made to the Senate within thirty days after the next meeting of the General Assembly.

The whole question then resolves itself into this: was there a vacancy in the office of Hebden, when Taylor was appointed to his office?

It is impossible, as it appears to me, to look at the 14th section of Article 2, and say, that it can bear such a construction. The vacancy there spoken of, is one occurring in the recess of the Senate, by death, resignation, removal from office, change of residence, or the like. It provides for the accident of a vacancy. But there was no such accident in the case of Hebden.

He was in office under all the sanctions of the Constitution; was entitled to hold and exercise his office up to the day when his successor was appointed and qualified.

His case is strictly within the terms of the 16th section of Article 2. His successor could only be appointed at a regular session of the General Assembly, and, as such successor could only take possession of his office on the first Monday of May succeeding,  [**7]  it follows, that Hebden's successor can be appointed at the regular session of the General Assembly, commencing in January, 1867, and can then only enter upon the duties of his office on the first Monday of May, 1867. Hebden will therefore continue in office until that time.  

JUDGES:
This cause was argued before BARTOL, GOLDSBOROUGH, and WEISEL, J.  

OPINIONBY:
WEISEL 

OPINION:

 [*207]  WEISEL, J., delivered the opinion of this Court.
This cause has been heard in obedience to a resolution of the General Assembly, passed at its recent special session. Doubts having been seriously entertained as to the legality of the appointments of Justices of the Peace in November last, by the late Governor, his Excellency, Governor Swann was requested and authorized to have a cause instituted and tried, and brought on appeal to this Court for an early determination.
The record shows that the appellant in this case received the appointment of Justice of the Peace for the second ward of Baltimore City, from Governor Bradford, in December last; that he took the oath of office soon after, and entered upon the discharge of its duties and superseded the appellee in said office; that the appellee was elected to said [**8]  office in November, 1863, by the voters of said ward, under the Constitution of 1851, and was in office when the present Constitution went into effect, and continued therein until that appointment, when, supposing that his term of office had expired, and that he was validly superseded in it, he retired from it and permitted the appellant to occupy it. Being afterwards advised that Taylor's appointment was not authorized by the Constitution, he applied to the Superior Court of Baltimore City for, and obtained the writ of mandamus to be restored to the office. The answer of the appellant admitted the election of the appellee as stated 

 [*208]  and his own appointment to said office, and his occupancy of it, and insisted upon its constitutional validity. A pro forma order was passed by his Honor, JUDGE MARTIN, granting the writ requiring the appellant, Taylor, to vacate the office, and restoring Hebden, the appellee, to it. From this order the present appeal was taken.
By the Constitution of 1851, Justices of the Peace were elected by the qualified voters of the State, and held their offices for two years from the time of their election, and until their successors in office [**9]  were elected and qualified. Art. 4, sec. 19. The appellee in this case was elected a Justice of the Peace, in the second ward of Baltimore City, in November, 1863, and for the term above specified.
Whilst thus in office, the people of the State in Convention assembled, framed and adopted a new Constitution, which went into effect on the first day of November, 1864. By it the tenure of office of Justices of the Peace was changed from an election by the people, to appointment by the Governor, by and with the advice and consent of the Senate, the term of office to be two years. Art. 6, sec. 47. And by Art. 2, sec. 16, it is provided that "all civil officers appointed by the Governor and Senate, shall be nominated to the Senate within fifty days from the commencement of each regular session of the General Assembly; and their term of office, except in cases otherwise provided for in this Constitution, shall commence on the first Monday of May next ensuing their appointment, and continue for two years (unless sooner removed from office,) and until their successors respectively qualify according to law."
These provisions regulate the original appointment of Justices of the Peace, (as [**10]  distinguished from the filling of vacancies), and fix the time of the commencement and termination of their office. The regular sessions of the General Assembly are biennial; the appointments of Justices 

 [*209]  of the Peace are to be made at each regular session; and their term of office shall commence on the first Monday of May next ensuing their appointment. No other time is fixed for this purpose in the Constitution. This mode allows a full session for the appointments to be made, and reasonable time for issuing their commissions and for their qualification for office. By it order and regularity are observed, and after the first appointments under the Constitution shall have been made, the machinery of government in this branch of the public service will move on without interruption. Such is the obvious design of the Constitution in this respect.
But at the time the Constitution of 1864 was adopted and went into effect, all the public offices of the State were filled. Justices of the Peace held office throughout the State by elections of the preceding year, when, they had been chosen for two years from that time, and until their successors in office were elected and [**11]  qualified. What provision did the Constitution make as to them? It was competent for the Convention to terminate their office with the old Constitution which it superseded, or to have diminished or extended their existing term according to the public requirements or necessities. With regard to the Judges then in office, for example, the Constitution provided that they should continue to act as Judges of their respective Courts, until the expiration of the term for which they were respectively elected, and until their successors should be elected and qualified. (Art. 4, sec. 27.) But with regard to Justices of the Peace then in office, no such special provision was made, but a general section was inserted, which embraced them, and provided for the continuance and termination of their existing offices. This is sec. 6 of Art. 12, which is in these words: "All officers, civil and military, now holding office, whether by election or appointment under the State, shall continue to hold and exercise their 

 [*210]  offices, according to their present tenure, unless otherwise provided in this Constitution, until they shall be superseded pursuant to its provisions, and [**12]  until their successors be duly qualified."
In virtue of this section Justices of the Peace then in office by election, continue to hold their offices according to their then tenure, until superseded pursuant to the provisions of the Constitution. In what mode are they to be superseded? Plainly by the concurrent action of the Governor and Senate, according to the 47th sec. of Art. 4, and the 16th sec. of Art. 2. Whether that could have been done at the first regular session of the Legislature which immediately succeeded the adoption of the Constitution, to wit, in January, 1865, it is needless now to inquire. No nominations for appointments of this class were made at that time, and of course the concurrent action required did not take place, nor has any since taken place in conformity with the requirement of the Constitution, as no regular session of the General Assembly has since been held, nor can any constitutionally be held before January, 1867. The Justices of the Peace, therefore, who were elected in November, 1863, and in office when the present Constitution was adopted, continue to hold their offices until there shall be regular appointments by the Governor and Senate,  [**13]  superseding them, which cannot be before the next regular meeting of the Legislature, in January, 1867, and to the first Monday of May thereafter.
Such would be our interpretation of the Constitution, in relation to these officers, if we had nothing but the language of that instrument to guide us. But we have an express adjudication by this Court upon the meaning and effect of the clause "until superseded pursuant to the Constitution," in the case of Watkins vs. Watkins, in 2d Md. Rep., 355. In the Constitution of 1851, there was a similar provision with regard to all officers, civil and military, 

 [*211]  holding commissions under the State, when it went into operation. (Art. 10, sec. 8.) The Adjutant General of the State, under the Constitution which existed prior to that of 1851, held his office during good behavior. The Constitution of 1851 changed the term of office to six years, and gave the power of appointment to the Governor and Senate, as before. The Governor did nominate a successor to the Senate, but that body declined either to confirm or reject, on the ground that the incumbent held by his former tenure, and the Constitution made no provision for fixing the [**14]  time of the appointment of his successor, and that this was not in the discretion of the Executive. After the adjournment of the Legislature the Governor appointed a successor, regarding the office as vacant, and that he had the power to fill it. The incumbent refused to surrender the papers, &c., of his office, upon which the appointee filed his petition for a mandamus, requiring him to make the delivery. In that case on appeal, LE GRAND, Chief Justice, pronouncing the opinion, decided that the incumbent under the old Constitution held under his commission until he was superseded by the concurrent action of the Governor and Senate, and inasmuch as that had not taken place the office was not vacant, and the new appointment was unauthorized and void. The following extract from the opinion in that case will apply to this, and sustain our construction of the clause we have referred to.
"The appellee," (said the Court, after reciting the sections of the Constitution relating to the appointment in that case,) "at the adoption of the Constitution, held a military commission under the State, and by force of the section last quoted, he was to continue to hold it until he should be superseded, [**15]  pursuant to the provisions of the Constitution, and his successor should be duly qualified. The question then is, how could the appellee be superseded pursuant to the provisions of the Constitution? The question 

 [*212]  is answered by the second section of the 9th article, which provides, that the Adjutant General shall be appointed by the Governor, by and with the advice and consent of the Senate. It requires a concurrence of action on the part of the executive and Senate, and in our judgment, until this takes place the incumbent under the old Constitution holds under his commission. It is clear to our minds that it was the intention of the framer of the Constitution, to abolish the life tenure * * and in the case of the Adjutant General, to limit his term of service to the period of six years. But it is equally plain to our minds, that the person who held the office when the new Constitution went into operation continues to hold it until such time as he be superseded by the concurrent action of the Governor and Senate, or shall resign, or shall be removed by death, or in pursuance of a court martial, as is provided in the 15th section of the 2nd article of the Constitution.  [**16]  * * Our opinion is, that until the Governor and Senate concurred in the appointment of an Adjutant General, the appellee held under his commission, and as no such concurrence has been had, he still continues to do so."
The appellant in his answer to the petition for the writ, alleged that the office of the appellee had become vacant, and that he was appointed to it by the Executive rightfully. The same ground was taken and endeavored to be maintained by the learned Attorney General of the State, who supported his claim to the office, in his brief and in his argument before this Court, and section 48 of Article 4, and section 14 of Article 2, which regulate the filling of vacancies were relied upon. But we can only say, as this Court said in the case of Watkins vs. Watkins, that those sections only authorize the Governor to fill vacancies, and if no vacancy occurred in the office held by the appellee, those sections do not apply to it. No vacancy took place by death, resignation or removal of the incumbent, or any 

 [*213]  other cause which would constitutionally vacate the office, and until such occurred, the appellee continued in office under his former tenure and until [**17]  superseded in the way mentioned, at a regular session of the Legislature, and by the concurrent act of the Governor and Senate.
The Governor alone has the power of filling a vacancy in the office of a Justice of the Peace under section 48, Article 4, as decided by this Court in the case of Cantwell vs. Owens, 14 Md. 215, (the provisions in the two Constitutions of 1851 and 1864, being the same on this subject,) but that would be for the residue of the term. In this case the incumbent was still the occupant of a term, subsisting by virtue of the 6th section of Article 12.
A special or extraordinary session of the Legislature has recently been held, but the record does not show what took place at it in relation to this appointment. In the brief of the Attorney General it is stated that his nomination was made to the Senate within thirty days after the meeting of the body. But we think that even if the nomination of the appellee had been submitted to and confirmed by the Senate at this extra session, this action, though concurrent, would not have rendered the appointment valid, as an original appointment, inasmuch as that session was not a regular [**18]  session of the General Assembly, and the incumbent could not be superseded in his office at that time. We have already said there was no vacancy in the office. In either aspect then, a nominatien to and confirmation by the Senate, at the extra session, of the appellee would have been nugatory acts.
We are therefore of the opinion that the appointment of the appellant to the office of Justice of the Peace for the second ward of Baltimore City by the late Governor, at the time and under the circumstances mentioned in this record, was not authorized by the Constitution, and that the appellee, William H. Hebden, was, and is the rightful 

 [*214]  incumbent of said office, and that the order or decree of the learned Judge below, restoring him to it, should be affirmed.
Order affirmed with costs to the appellee, and cause remanded.
NOTE.--The reporter is requested to say, that Judges BARTOL and COCHRAN who did not sit at the hearing of this case, have examined the questions involved, and entirely concur in the foregoing opinion of the Court.  

106 of 120 DOCUMENTS 

GEO. MCDOWELL AND OTHERS vs. SAMUEL H. GOLDSMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 214; 1866 Md. LEXIS 12 

March 14, 1866, Decided 

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

This appeal is taken from an order of the Circuit Court for Baltimore City, passed 31st May, 1861, whereby the auditor's accounts A and B are finally ratified, and the exceptions to his account C are sustained, and that account is rejected. The original bill was filed by McDowell and others claiming to be creditors of one Elizabeth Osborne, deceased, for the purpose of avoiding certain conveyances made by her to Goldsmith in fraud, as it was alleged, of her creditors. In the progress of the cause, others claiming likewise to be creditors intervened, and on the hearing of the cause the late Court of Chancery, on the 21st October, 1851, passed a decree, whereby one of said conveyances was vacated and declared null and void as against the complainant, Sarah Ann Truitt, claiming as the holder of the promissory note of the deceased for $ 1,100, and dated 6th November, 1843, "and such other creditors of the deceased as shall hereafter come in under this decree and establish their claims to the satisfaction of this Court," and for the payment of said claims the property assigned by said deed is decreed to be sold, &c. The decree further [**2]  provides that all questions in regard to the claim of the said Sarah Ann Truitt, on the promissory note of the deceased, for the sum of $ 2,800, and dated the 21st October, 1844, be "reserved for further directions," and that the bill of complaint be absolutely dismissed as against George McDowell and John Gable, Charles Z. Lucas and Wiley Lankford, complainants named in the original bill of complaint; and as against Walter Crook, Junior, David Arden, Ann Maria Vickery, Benjamin Harrison, William H. Harrison, John Easter of John, Hamilton Easter and William J. Hyde, Hamilton Easter, John B. Charron, William Pierson, Ira B. Canfield and William H. Canfield, petitioners named in said petition and thereby claiming to be creditors of the deceased.

All parties appealed from this decree; but on hearing, the same was affirmed at December Term, 1854, and the cause was remanded to the Circuit Court for further proceedings. See 2 Md. Ch. Dec., 370, and 6 Md. Rep., 319.

The trustees immediately after this affirmance proceeded to advertise the property for sale, and at the same time, in accordance with the terms of the decree, gave notice to the creditors of Osborne to file their claims [**3]  properly authenticated in the office of the clerk of the Circuit Court for Baltimore city, within two months from the day of sale.

Goldsmith then filed a petition stating that he was ready, and had offered to pay the allowed claim of Truitt, and that he believes no other claim can be established under the decree, unless it be the suspended claim of said Truitt, which he is prepared to litigate, and will pay if it shall be established, and praying that the sale may be suspended. The trustees answered this petition, asserting it to be their duty to sell under the decree, denying that no other claims but Truitt's can be established, and on the contrary averring that claims to the amount of several thousand dollars can and will, as they believe, be established under the decree; that they have already notice of several such claims admitted to be just and true by the administrator of said Osborne, and have reason to believe there are many more which will in due time be proven and established. The Court passed an order directing the defendant to bring in the amount of Truitt's allowed claim, and ordering the trustees to desist from making the sale, but directing the advertisement and [**4]  notice to creditors to be continued to the day of sale, to the end that creditors may have notice to bring in their claims as provided by the decree. The trustees entered an appeal from this order, which was not prosecuted, because by agreement a sale of the property for $ 10,000 was subsequently effected to Stewart, the trustee of the defendant's wife, upon certain terms and conditions which need not be particularly stated. This sale was reported and finally ratified on the 10th of October, 1857.

Claims properly authenticated of many creditors were then filed under this decree and notice, and prior to the statement of the accounts by the auditor, which may be classified thus:

I. Claims of creditors who were not parties to the original or amended bills, and who then filed their claims for the first time.

II. Claims of creditors, who, though parties to the original or amended bills, never filed any claims or offered any proof of their being creditors prior to the decree, and then filed their claims for the first time.

III. Claims of creditors who were parties to the original or amended bills, and filed claims before the decree, upon which they have since recovered [**5]  judgments against the administrator of the deceased debtor, and then presented their claims in the shape of judgments.

IV. The suspended claim of Sarah Ann Truitt: On this claim, also, there was a judgment by confession in the Superior Court of Baltimore City, March 1st, 1855, for $ 4,368, with interest from the 1st of March, 1855, and costs. This judgment was filed on the 23d of June, 1858. In other respects this claim stands upon the proofs taken before the decree.

On the 5th of November, 1858, an order was passed by agreement referring the papers in the cause to the auditor, to state the accounts between the parties from the proceedings and proofs in the cause, with power to take such other proofs as may be adduced before him. Most of the above claims, with the proof supporting them, had been filed previous to the passage of this order. The only claims and proofs subsequently filed are the affidavit and judgment in support of the claim of Vickery, the judgment in favor of Needles, and the claim of Golder. Such was the position of the case when the special auditor stated the accounts and made his report on the 25th of May, 1859.

Account A merely ascertains the amount [**6]  for distribution, deducting from the proceeds of sale the commissions, costs and expenses; account B applies this balance to the payment of Truitt's allowed claim on the $ 1,100 note, and the entire residue is allotted to the defendant, Goldsmith. Account C stated under instructions, distributes the balance ascertained by account A, in part payment of the claims of the several creditors above referred to. In his report the auditor recommends the ratification of accounts A and B, and the rejection of account C. He rejects Truitt's suspended claim on the $ 2,800 note, because, he says, since the decree evidence has been furnished that letters of administration on Osborne's estate were granted before this note matured, and, therefore, limitations bars the claim. The auditor further says, that so far as the original complainants are concerned, the judgments only present in another form the claims already adjudicated, when the judgments were obtained; and that the dismissal of the bill absolutely as to these creditors is a sufficient reason for rejecting their claims; and further, that all the judgment claims, whether of creditors named in the decree or of those who have come in since the [**7]  notice, are barred by limitations, if that defence can prevail against a judgment confessed by the administrator of Osborne.

The creditors, to whom the fund was distributed by account C, filed exceptions to the auditor's report and account B, because not in conformity to account C, which, they say, is the proper statement of the account, and on the 6th of February, 1861, an order was passed setting the cause down for hearing on the 18th of that month. On the 20th of March, 1861, the defendant filed exceptions to account C for the several reasons stated in the auditor's report, and more especially to the claim of Truitt on the $ 2,800 note, "for that the same is now shown to be barred by limitations;" and to the claims of McDowell & Gable and others, named, and to each of them, "for that the same have been already adjudicated upon and disallowed, and the claimants dismissed from the cause by the decrees of the Court of Chancery and the Court of Appeals; and, moreover, if proper to be litigated, are, and each of them is not proved, and if proved are and each of them is barred by limitations;" and to the claims of Needles and others, and to each of them, "for that they are not, nor [**8]  is either of them, proved, and if proved are and each of them is barred by limitations." And on the 21st of March, 1861, he also filed an exception to the proofs offered in support of Truitt's claim on the $ 2,800 note, "because the same is not relevant to the averments in the original or supplemental bill, and because the same does not tend to establish any debt due by said Osborne at the date of the last of the series of conveyances from her to the defendant, or at the time of filing the original bill in this cause."

The Court, KREBS, J., adopted the views of the auditor, and on the 31st of May, 1861, passed an order overruling the exceptions to account B, and sustaining these to account C, and finally ratifying accounts A and B. From this order, the creditors whose claims were filed and thus rejected, appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

LIMITATIONS: JUDGMENT, -- CONFESSION OF BY ADMINISTRATOR CANNOT DEPRIVE THE GRANTEE OF HIS INTESTATE OF THE DEFENCE OF LIMITATIONS. -- In August, 1845, the creditors of O, grantor in a conveyance of real estate, filed a bill to set aside said deed as fraudulent. G, the defendant and grantee in said deed, pleaded the state of limitations, and the cause being heard on bill and exhibits, answer and testimony taken, a final decree was passed dismissing the bill as to certain of the complainants and other creditors who had come in by petition, which decree upon their appeal was affirmed and the cause remanded. The final decree having directed the sale of the real estate for the payment of other claims thereby allowed, upon its affirmance, the trustees therein named proceeded to advertise the property for sale, giving the usual notice to creditors, under which certain of said complainants and creditors having obtained judgments by confession against the administrator of O, again filed their claims. New claims were also filed under said notice, to all of which the defence of limitations was taken by G, by way of exceptions to the auditor's reports and accounts. HELD:

That the defendant having been held by the Chancellor and Court of Appeals entitled to the defence of limitations to the claims of the creditors assailing the deed, the administrator of O could not deprive him of that defence by any admissions or acts whatever.

LIMITATIONS: JUDGMENT, -- CONFESSION OF BY ADMINISTRATOR CANNOT DEPRIVE THE GRANTEE OF HIS INTESTATE OF THE DEFENCE OF LIMITATIONS: PRACTICE IN EQUITY. -- The final decree of the Chancellor "reserved for further directions," all questions in regard to the claim of one of the complainant, T, on a note made in 1844 for $ 2,800. It subsequently appeared that said note was for a debt contracted after the execution of the deed and did not mature until October, 1845, after letters were granted, (August 27th, 1845,) and two months after the said bill was filed, and was not filed as a claim in the cause until December, 1850. The administrator of O had also confessed a judgment in favor of this claimant. HELD:

That the claim of T was barred by the defence of limitations, relied on in the answer of G to the bill of complaint, it appearing that limitations began to run in 1845, a period of more than three years before the claim was presented or asserted by any proceeding in the cause.

That T had the right at the maturity of the note, if not before, to become a party to the said suit with respect to it; but to bring it within the equity of the bill already filed, it was necessary to present the note and assert it as a claim in the cause.

That the confession of the judgment by the administrator does not affect the nature of the claim.

LIMITATIONS: PRACTICE IN EQUITY: EXCEPTION PRESENTING SUBSTANTIALLY THE DEFENCE OF LIMITATIONS SUFFICIENT. -- Where an exception to claims filed under a notice to creditors presents in substance the defence of limitations, it will be held sufficient: the substance of the objection or defence must govern in determining its sufficiency rather than the form in which the objection or defence is presented.  

COUNSEL:
S. Teackle Wallis and O. Miller for the appellants.

As to Truitt's claim on the $ 2,800 note. In reference to this it will be contended:

1st. That being the payee and holder of this note at the time the original bill was filed, she was a creditor by reason thereof, and competent to file a bill thereon to vacate the deed of February, 1844,  [**9]  for fraud, even though the note had not then matured, and consequently the filing of such bills by her prevented the running of the statute of limitations against this claim. A subsequent creditor may file a bill to vacate a deed for actual fraud in fact, and Truitt became a creditor for this purpose, and Osborne a debtor from the date of the execution of the note. It is clear that if a conveyance be not made bona fide, but colorably, with actual intent to defraud any existing creditor or creditors, it may be avoided by subsequent creditors; in other words, evidence of collusion as against existing creditors is sufficient evidence of fraud against subsequent creditors. Brinton vs. Hook, 3 Md. Ch. Dec., 477. Sexton vs. Wheaton, 8 Wheat., 229. 1 Story's Eq., sec. 356. 1 Amer. Lead. Cases, 40, (Ed. of 1857,) and cases cited in notes 1, 3, especially 3 Wend., 411, and 19 Pick., 231. 1 Amer. Lead. Cases, 42, (Ed. of 1857.) Waters vs. Dashiell, 1 Md. Rep., 470. Williams vs. Banks, 11 Md. Rep., 198. Brown et al. vs. Bank of Miss., 31 Miss. Rep., 454.

2nd. But assuming that a subsequent creditor had no right to file a bill, and can only come in after the deed is vacated at the suit of [**10]  antecedent creditors, still, limitations it is submitted does not bar this claim. It was filed December 30th, 1850. Osborne, the debtor, left the State, and died out of the State before the maturity of the note, and before the bill was filed. She could not therefore have been sued in Maryland on this claim, and there is no proof in the record that letters of administration were ever taken out upon her estate here prior to December 30th, 1850. Under such circumstances limitations never commenced to run against this claim before it was filed. Act of 1715, ch. 23, sec. 4. Act of 1765, ch. 12, secs. 2, 3. Code, Art. 57, sec. 4. Fishwick vs. Sewell, 4 H. & J., 393. Haslett vs. Glenn, 7 H. & J., 17. Hysinger vs. Baltzells, 3 G. & J., 158.

3rd. Again, if no bill could have been filed on this claim, and it could only have been presented after the decree had vacated the deed, at the suit of antecedent creditors, then it is clear that the plea of limitations set up in the answer had no reference or applicability to this claim. This being so, limitations has never been pleaded to it by any one. The mere assertion in the exceptions to account C, that the claim "is now shown to be barred by [**11]  limitations," is not a plea of the statute, such as is required even by the loosest rules of chancery pleading. Limitations must always be pleaded, both at law and in equity, and a defendant cannot avail himself of this defence, because the proceedings of the plaintiff show a case to which limitations might be applied. Chambers vs. Chalmers, 4 G. & J., 420. Strike's case, 1 Bland, 57. Hepburn's case, 3 Bland, 95. Dorsey vs. Dorsey, 6 G. & J., 12. Lansdale vs. Ghequire, 4 H. & J., 259.

II. As to the claims of creditors not parties to the original or amended bills, and who filed their claims under the decree and notice to creditors.

It will be insisted on behalf of these claimants, and all others who have recovered similar judgments against the administrator, that the plea of limitations filed by the fraudulent grantee in this case is no bar to such claims, for--

1st. The fraudulent deed passed no title as against the defrauded creditors. The title and property still remained in the grantor for the benefit of her creditors. Such deeds are void ab initio, not to be recognized for any lawful purpose, not even as security for advances and improvements made on the property [**12]  by the grantee. As the title still remains in the grantor for the benefit of his creditors, notwithstanding the deed, he can convey it by another deed, or make any other disposition of it for their benefit he may see fit. Waters vs. Dashiell, 1 Md. Rep., 470. Strike vs. McDonald, 2 H. & G., 261. Bridges and Woods vs. Hindes, 16 Md. Rep., 101.

The title to this property, this equity of redemption, remained in Osborne during her life, and upon her death so much of it as was real estate devolved upon her heirs, and so much of it as was personalty upon her personal representative. A large portion of the property was personal estate, and vested in her administrator whenever letters were granted, by relation, from the time of her death. Winchester vs. Union Bank, 2 G. & J., 79.

Now to claims against the personal estate of an intestate, the administrator alone can plead limitations; it cannot be done by legatees or devisees. The administration of the estate in this respect is referred entirely to his honesty and discretion, which is absolute and uncontrolable in the matter. Spencer vs. Spencer, 4 Md. Ch. Dec., 465. Owens vs. Collinson, 6 G. & J., 4.

An acknowledgment by an [**13]  administrator is sufficient to remove the bar of the statute as to a claim on a simple contract debt against his intestate. Forbes vs. Perine's Adm'r., 1 H. & J., 109. Chapman vs. Dixon, 4 H. & J., 527. Kent's Adm'r vs. Wilkinson, 5 G. & J., 497.

The statute does not extinguish the debt, but only bars the remedy. Vesey vs. Bassett, 7 H. & J., 461. And the administrator in whom alone rests the discretion to plead the statute or not, having waived the plea, and confessed judgments on these claims, such judgments bind all assets which may or ought to have come into his hands. So far, therefore, as the fund in question is the proceeds of personal property, it is confidently submitted, that it is liable for the payment of all judgments so confessed and filed in the case.

2nd. The decision of this Court on the former appeal does not go to the extent claimed, and has not the effect sought to be given to it by the appellee. The great question argued on the former appeal was, whether, under any circumstances or for any purpose, a fraudulent grantee could avail himself of this defence as against defrauded creditors? The Court decided that he could do so in reference to the claims as [**14]  then presented.

III. As to the claims of creditors who, though parties to the original or amended bills, never filed any claims or offered any proof of their being creditors prior to the decree, but came in and filed their claims under the decree and notice.

As to these it is insisted:

1st. That the fact that the decree dismissed the bills as to these parties can have no effect upon their claims thus presented. The bill simply alleges that Osborne was indebted to these parties. It does not set forth how she was so indebted, whether upon bill, bond, note or open account, nor were any claims or accounts showing such indebtedness filed with the bills, or any proof of any claim whatever, or of their being creditors in any shape, offered prior to the decree. The dismissal of the bill as to them was simply equivalent to a judgment of non pros. at law.

A decree dismissing a bill is a bar even to a new bill only where the Court has determined that the plaintiff had no title to the relief sought by his bill, and, therefore, an order dismissing a bill for want of prosecution is not a bar to another bill.

It is not an absolute dismission so as to bar a new suit, unless [**15]  it be an absolute decision on the same point or matter; where the point or matter decided is not the same, or where new rights are acquired after the decree, a party may file a new bill even though his former bill has been dismissed on the merits. So a fortiori could these parties file claims such as these under this decree. Story's Eq. Pl., sec. 793. Sawyer vs. Bletsoe, 2 Vernon, 328. Same case, 1 Vernon, 244. Neafie vs. Neafie, et al. 7 Johns. Ch. Rep., 1. Perine vs. Dunn, 4 Johns. Ch. Rep., 142. Mitford's Ch. Pl., 279, 280. Pickford vs. Hunter, 5 Simons, 122. Bridges vs. Summer, 1 Pick., 371. Estil vs. Taul, 2 Yerger, 470. Dixon vs. Sinclear, 4 Vt. Rep., 361. New Eng. Bank vs. Lewis, 8 Pick., 117. Barr vs. Jackson, 20 Eng. Ch. Rep., 585, (1 Y. & Col.) Scudemore vs. White, 1 Vern. 456.

The judgments claim therefore of McDowell and Gable, Hamilton Easter and Company, and Canfield and Brother, stand on the same footing with regard to the plea of limitations as the other judgment claims.

3rd. The claim of Lankford is different. It is a judgment against Osborne in her life time, recovered on the 17th of February, 1845, in the State of New York, in the Court of Common Pleas [**16]  for the city and county of New York, and was filed in this case on the 22nd of March, 1845. Now to this claim limitations of three years is not applicable, and twelve years had not elapsed when the claim was filed. A judgment rendered in another State is not subject to plea of limitations except twelve years. Bank of U. S. vs. Merchants' Bank, 7 Gill, 426. Mills vs. Duryee, 7 Cranch, 481. Hampton vs. McConnell, 3 Wheat., 234. Andrews vs. Montgomery, 19 Johns., 162. Hughes vs. Davis, 8 Md. Rep., 271. Act of 1715, ch. 23. Code, Art. 57, secs. 1, 3. Duvall vs. Fearson, 18 Md. Rep., 502.

IV. As to the claims of creditors who were parties to the original or amended bills, and filed claims before the decree, upon which they have since recovered judgments against the administrator, which judgments they have filed under the decree and notice to creditors.

It is submitted that the authorities already cited, as to the effect of a decree dismissing a bill, and of judgments against the administrator, apply also to these claims, and exempt them from the operation of the plea set up by the defendant.

The counsel for the appellants then further argued as an independent proposition,  [**17]  to affect as far as may be, all the defences of limitations taken, that it is not competent for the appellee, a fraudulent grantee, to plead limitations, after decree, to claims filed under the decree, notwithstanding that he may so plead in advance of, and to prevent a decree. The deed being avoided, for fraud found, the grantee has no standing in Court for any such purpose, the fund being then, like any other trust fund appropriated to creditors, with which the fraudulent grantee has no connection, so far as they are concerned, except as a trustee ex maleficio, and without any equities of his own. Bridges vs. Hindes, 16 Md. Rep., 101. Waters vs. Dashiell, 1 Md. Rep., 470. Strike vs. McDonald, 2 H. & G., 261. Englehart vs. Blanjot, 2 Wharton, 245.

Thomas S. Alexander and George H. Williams for the appellee.

I. The claim of Sarah Ann Truitt on the note for $ 2,800, dated 21st of October, 1844, at twelve months, was expressly reserved by the original decree for further directions, and so far as adjudication goes, stands unaffected by the decree. But the Chancellor in his opinion says: "The evidence shows that Elizabeth Osborne removed to New York in November, 1844, before [**18]  that note matured, and there are no facts in the cause from which it can be fairly inferred that she could ever have been sued in Maryland on that note. Indeed, if it be true that she died in April, 1845, and there has been no administration on her estate, limitations could never have commenced to run against the claim." It is now shown--and the auditor so reports-- that letters of administration on the estate of Elizabeth Osborne were granted to T. Parkin Scott before the note in question had matured, that is, before the 24th of October, 1845. The claim was filed as of the 1st of April, 1851; it is therefore clear that the claim is barred by limitations, to the benefit of which opinion the appellee has been declared to be entitled. But again, it will be found by reference to the testimony of William H. Collins, that Elizabeth Osborne was in the city of Baltimore in the month of March, 1845, so that limitations had commenced in her favor in her life time.

II. The claim of John Needles, next in order in account, rests: 1st. On an open account, which is not proved, and if proved would clearly be barred by limitations. 2nd. On a judgment confessed by Mr. Scott, as administrator,  [**19]  to bind assets. The auditor has very correctly said that a judgment, as against an administrator, is not evidence against the heir, either to establish the original indebtedness or to remove the bar of limitations. Duvall vs. Green, 4 H. & J., 270. Byerly vs. Stayley, 5 G. & J., 452. Collins vs. Owens, 6 G. & J., 4. And a fortiori such judgment cannot be evidence against the grantee of the supposed debtor. It will be observed that the judgment relied on was confessed pendente lite and nearly ten years after the commencement of this suit, (vide Act 1835, ch. 38, sec. 2.)

But again, the fact of the supposed recovery is not proved, a short copy being insufficient for that purpose.

Those obligations would be equally applicable against the claim of Archibald Golder, but that claim appears to have been excluded by the auditor.

III. T. B. Sexton & Co., R. McEldowney & Co., and S. Cariss, come in under the decree, and, as evidence of their claims, rest on short copies of judgments confessed by Mr. Scott, as administrator. Those claims are therefore liable to the objections already taken to the claim of John Needles.

IV. McDowell & Gable were parties complainants to the [**20]  original bill, and against them the bill was dismissed absolutely, as well by the decree of the Chancellor as by the decree of affirmance.

There is, therefore, res adjudicata as against them, and they cannot reopen the obligation by coming in under the decree. Lent vs. O'Hara, 7 G. & J., 212. Dorsey vs. Hammond, 1 Bl., 463. U. S. Ins. Co. vs. Ellicott, 7 Gill, 307. Albert & Wife vs. Winn & Ross, 5 Md. Rep., 66. Clabaugh vs. Byerly, 7 Gill, 354. Act of 1835, ch. 380, sec. 2. Jones vs. Nixon, 1 Younge & Collier, 359, cited in 2 Dl. Ch. Pr., m. p. 176. Piggott vs. Horton, 14 Ves., 232. Ellicott vs. Nicholls, 7 Gill, 85.

2. There is no proof of the claim other than the short copy of a judgment confessed in favor of the claimants by Mr. Scott, as administrator, as before stated. This short copy is not evidence of the recovery, and the judgment, if proved, would not establish the claim as against the appellee. Hammond vs. Hammond, 2 Bland., 362. Boyd & Hance vs. Harris, 1 Md. Ch. Dec., 469. Brooks vs. Dent, 4 Md. Ch. Dec., 473. Stewart vs. Warfield, 7 G. & J., 190. Dorsey vs. Smithson, 6 H. & J., 61. Putnam vs. Bates, 3 Eng. Cond. Ch. Rep., 355. Shewen vs. Vanderhorst, 4 Id., 460.

3.  [**21]  The claimants are supposed to reappear under the decree: the limitations would run up to the filing of the short copy.

V. The objections stated to the claim of McDowell & Gable are equally applicable to the claims of Walter Crook, Jr., Canfield Bros., B. & W. H. Harrison, H. Easter & Co., W. J. Hyde et al., and Anna Maria Vickery.

VI. The claim of Wiley Langford is liable to the objection that he was a party to the original bill, and that the bill was absolutely dismissed as against him. The evidence of his claim now relied on is a transcript of a recovery had against Elizabeth Osborne in her life time, in the State of New York, as far back as 17th of February, 1845. This judgment cannot be read as evidence against the appellee, who claims under a prior conveyance, and if admissible against him at this time, it was equally available against him at the date of the original decree.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*228]  COCHRAN, J., delivered the opinion of this Court.
These appellants, with the exception of Needles, Cariss, S. B. Sexton & Co., and R. Mc. Eldowney, were all parties to the original and amended [**22]  bill, and as to them, with the exception of Truitt, the bill was absolutely dismissed by the final decree. The appellee insisted that this dismissal 

 [*229]  bars their right to participate in this distribution, and in reviewing their exceptions to the accounts, finally ratified by the Court below, it will be necessary to ascertain how far the decree dismissing the bill affected their standing as creditors, entitled to payment out of this fund.
It will be seen by referring to the record that these exceptants filed the original and amended bill for relief as creditors of Osborne; that in the course of the proceedings a large mass of testimony was taken for the purpose of sustaining the allegations of the bill and establishing their claims as creditors; that the case was heard upon the bill, exhibits, answer and testimony, and a final decree passed by the Chancellor dismissing the bill, as to them, absolutely, which decree, on their appeal, was affirmed by the Court of Appeals. This brief review of the original proceedings is sufficient to show that the case was submitted to the Chancellor on its merits, and that the rights and claims of these appellants were finally adjudicated [**23]  by his decree. The opinion filed by him, in conformity with which the decree was drawn, shows, beyond question, that these claims were considered and held to be barred by the appellee's defence on the statute of limitations. Nor is the decree itself less conclusive on this point, for it vacates the deed of 1844 from Osborne to the appellee, not for the benefit of all the parties then before the Court, and dealt with by the decree, but only in favor of Truitt and such other of the creditors of Osborne as should thereafter come in under the decree and establish their claims. These exceptants, therefore, cannot be heard to say that the bill was dismissed as to them for want of prosecution; they were before the Court, and heard upon proof offered to sustain the allegations of their bill, and they took and prosecuted an appeal from the decree passed thereupon. If the Chancellor intended to leave their rights and claims unaffected by his decree, he should have dismissed the bill 

 [*230]  without prejudice; and if the case was such as to authorize such a dismissal it was error to dismiss the bill absolutely. Griffith vs. Fred. Co. Bank, 6 G. & J. 424. STORY, in his [**24]  Equity Pleadings, section 793, says, that "a decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing, and was not in terms directed to be without prejudice." The condition of these claims is not changed for any of the purposes of this case by the administrator's confessions of judgments. He had no power to waive the appellee's defence of limitations, nor could he by any such waiver establish the claims of these exceptants against this fund. This is not a case of assets that may be administered by an administrator, but of a fund in chancery, to be disposed of under a decree that the administrator must respect, and to which, so far as these exceptants are concerned, the appellee is entitled. He, as grantee in the deed from Osborne, was held by the Chancellor and the Court of Appeals entitled to the defence of limitations to the claims of the creditors assailing the deed, and it is not to be supposed that the administrator could deprive him of that defence by any admission or act whatever. Duvall vs. Green, 4 H. & J. 270. Birely vs. Staley, 5 G. & J. 432. Collinson vs. Owens, 6 G. & J. 4. [**25]  Warfield vs. Welch, 3 G. & J. 259.
The claim of Truitt on the note for $ 2,800 stands on a different, though not more substantial footing. The deed vacated by the decree was executed in February, 1844; the original bill, in which the complainants allege the grantor's indebtedness to them when she executed the deed, as their cause of action and ground of their rights to relief, was filed in Agust, 1845, and this note, made in October, 1844, did not mature until October, 1845. It thus appears that the note was given for a debt, not within the description of the bill, but for one contracted after the deed was 

 [*231]  executed, and upon which the right of action did not accrue for some two months after the bill was filed. The claims were, therefore, not within the class of credits alleged, and Truitt, as a complainant, for that reason, had no standing upon it at the time the bill was filed. She undoubtedly had, in such a case as this, the right, at the maturity of the note, if not before, to make herself a party with respect to it; but to bring it within the equity of the bill, already filed, it was necessary to present the note and assert it as a claim in the [**26]  cause. That, however, appears not to have been done until December, 1850, when the note was first filed with the Commissioner, and subsequently returned by him, with the testimony taken. The defence of limitations was made and relied on in the answer to the original and amended bill, and this claim, in our opinion, was barred by that defence, as it now clearly appears that limitations began to run in 1845, a period of more than three years before the claim was presented or asserted by any proceeding in the case. The claim was reserved by the decree for further "directions," and we find, by referring to the opinion of the Chancellor, a statement of the reasons why it was suspended for further consideration; he says "The evidence shows that Osborne removed to New York in November, 1844, before this note matured, and there are no facts in the cause from which it can be fairly inferred that she could ever have been sued in Maryland upon it. Indeed, if it be true that she died in April, 1845, and there had been no administration on her estate, limitations could never have commenced to run against this claim." He had before decided upon the authority of Hall vs. Creswell, 12 G. & J. 36, [**27]  that, while other parties might come into the cause as co-complainants with those named in the original bill, yet limitations would run against their claims until they did so come in and file them. Truitt was a complainant 

 [*232]  in the original bill, but not so in regard to this claim; she had no standing upon it at the time that bill was filed, and, as we have said, it was necessary to assert it by some affirmative proceeding in the case to bring it within the equities of the bill. This appears to have been the Chancellor's view of her standing in regard to it, and in that view we concur. The questions whether limitations began to run, so as to constitute a defence to the claim when it was first asserted in the case, must, therefore, be determined by the proof now appearing in the record. It is now presented in the form of a judgment, confessed by T. P. Scott, as administrator of Osborne, and we find, by a duly authenticated certificate of the Register of Wills for Baltimore city, filed after the hearing before the Chancellor, that letters of administration on Osborne's estate were granted to him on the 27th of August, 1845. It thus appears from the present state of the proof [**28]  that limitations began to run from the day the note matured, and that the claims upon it were barred at the time of filing the note with the Commissioner. The confession of the judgment by the administrator does not affect the nature of the claim, and for reasons already stated does not remove the bar of the statute. The same may be said of the remaining claims of Needles, Cariss, S. B. Sexton & Co., and R. McEldowney & Co. These were filed in the case under the notice required by the decree, and all of them rest on judgments confessed by the administrator more than ten years after the death of Osborne, the debtor. The appellee excepted to them on the ground that they were not proved, and if proved, that they are barred by limitations. As against the appellee, these judgments are not to be taken as evidence establishing these claims; like those obtained or confessed in favor of the appellants, they are wholly inadmissible for that purpose. Without, however, noticing the questions whether 

 [*233]  they are otherwise proved, it will be sufficient for present purposes to determine whether the appellee's exception to them on the ground of limitations is sufficient to entitle him to [**29]  the benefit of that defence. It was settled in Banks vs. Williams, 11 Md. 198, that limitations is a defence that may be taken by way of exception in such cases as this. The only question here is in regard to the sufficiency of the exception. In substance it presents limitations as an objection to these claims, and we think it must be regarded as stating a defence upon which the appellee relies. The substance of the objection or defence must govern in determining its sufficiency rather than the form in which the objection or defence is presented. In our opinion the exception to these claims on the ground of limitations was sufficient, and we shall, for the reasons herein stated, affirm the order of the Court below, finally ratifying accounts of A and B, and sustaining the exceptions taken to account C, with costs to the appellee, and remand the cause.
Order affirmed. 

107 of 120 DOCUMENTS 

JAMES M. LESTER vs. G. W. HOWARD AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 233; 1866 Md. LEXIS 13 

March 14, 1866, Decided 

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

Motion to dismiss an appeal.--The facts material to the decision upon this motion are stated in the opinion of this Court.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

APPEALS: MOTION TO DISMISS: PRACTICE IN COURT OF APPEALS. -- Where an agreement to abandon an appeal for a legal and valuable consideration, executed on the part of the appellees, is fully proved to the satisfaction of the appellate Court and not denied by the appellant under oath or attempted to be disproved, there is no alternative but to dismiss the appeal.

The appellate Court alone has power to decide when an appeal will lie in any particular case. 

COUNSEL:
Henry D. Loney and R. Stockett Matthews for, and Benj. C. Barroll against the motion.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*234]  BOWIE, C. J., delivered the opinion of this Court.
An appeal was entered in this case by the defendant in proper person, on the 22nd September, 1863, and bond executed and approved.
The appellee moves to dismiss the appeal, and files an affidavit, in which he alleges, "That judgment was obtained therein in favor of the plaintiffs, as well as in another suit in which he was also a plaintiff with different parties, in the Court of Common Pleas of Baltimore City, at May term, 1863. That subsequently the said Lester appealed to the plaintiffs to release the lien of said judgments on certain property belonging to him, which he was endeavoring to sell, and in consideration of the granting of said release by the plaintiff, of the lien of the judgment, the said Lester agreed to pay the full amount [**2]  of the judgment in the Court of Common Pleas, with costs, and to dismiss the appeal therein, and to pay the amount of interest accrued on the judgment in the Superior Court, and to abandon the appeal thereupon and to pay, within thirty or sixty days, at the farthest, the full amount of said judgment; that this agreement was made on the 4th of January, 1864; that the liens aforesaid were released, and the orders of plaintiffs and their 

 [*235]  attorneys, Messrs. Matthews & Loney, were filed to that effect; that the said Lester thereupon did pay the full amount of the judgment and costs in the Court of Common Pleas, and did also pay the interest accrued to that date upon the judgment in the Superior Court, but failed to pay the full amount of said judgment within the stipulated time, although repeatedly afterwards promising so to do, and has failed to abandon the appeal in this case in accordance with the stipulation for which he received a valuable consideration," etc.
In addition to the affidavit of the appellee, the affidavit of R. Stockett Matthews, an attorney of this Court, is filed, in which he deposes that he was counsel for the appellee in the above case of Howard  [**3]   and others vs. Lester; that he was present and privy to the arrangements made by George W. Howard, one of the appellees, with the defendant (the appellant) as set forth in the affidavit of said Howard, and that the matters and things set forth in said affidavit are true; and further says that repeatedly, after the release of the lien as described in the said affidavit, the said Lester promised to fulfill his full undertakings and agreement, and stated that the appeal in this case was taken for delay solely.
Short copies of the docket entries in the case of George W. Howard et al. vs. James M. Lester, in the Superior Court of Baltimore City, were also filed, "Showing that on the 4th January, 1864, property on Hamburg street, and also on Franklin street near Pine street, was released from plaintiff's claim by notice of the judgment in this case by order of plaintiffs and plaintiffs' attorneys filed;" also short copies of the docket entries, in the Court of Common Pleas, May term, 1863, in the case of Daniel Shipley, Henry W. Roane, George W. Howard vs. James M. Lester, 22nd September, 1863, viz. "Stayed by appeal 5th January, 1864. Satisfied order of attorney filed." Service [**4]  of the notice to 

 [*236]  dismiss is admitted by the appellant's counsel, but no other response made, than that the appellant denies the agreement, and this denial is not supported by affidavit.
The appellant's counsel insists that assuming such an agreement to be made, as is set forth in the affidavits, the appellees' remedy is by application to a Court of Equity, to enjoin the appellant from prosecuting the appeal, and is not a subject of cognizance for the appellate Court.
In Ward et al. vs. Hollins et al., 14 Md. 158, 166, the whole Court conceded, that "if for a legal and valid consideration, the appellant agreed to withdraw his appeal and not thereafter to appeal, such an agreement would be enforced" by the Appellate Court's dismissing the appeal; but the majority of the Court thought that in the case before them there was no legal and valid consideration, one of the parties thereto having no legal power to bind the persons whom he undertook to represent. The Chief Justice thought the motion to dismiss the appeal ought to be sustained.
This Court alone has power to decide when an appeal will lie in any particular case. 6 H. & J., 143. 1 Md. Ch. 328, 330. [**5]  When the appeal has been taken, all agreements by the parties or their counsel are properly within its control. It being a question of jurisdiction, this Court could not recognize the power of other tribunals to determine whether it should be exercised or not, without surrendering its authority as a Court of final resort.
The agreement to abandon the appeal in this case, being for a legal and valuable consideration, executed on the part of the appellees, fully proved to the satisfaction of this Court, and not denied by the appellant under oath or attempted to be disproved, there is no alternative, but to dismiss the appeal.
Appeal dismissed. 

108 of 120 DOCUMENTS 

JOHN M. WALKER vs. ELEANOR A. ROGERS, EXECUTRIX OF LLOYD N. ROGERS, DECEASED.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 237; 1866 Md. LEXIS 14 

March 14, 1866, Decided 

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

This is an appeal from a decision of the Superior Court of Baltimore city. The suit was instituted by the appellant to recover for services rendered by him to Lloyd N. Rogers, in and about the sale of the Druid Hill estate to the Park Commissioners of Baltimore City.

1st Exception.--At the trial of the cause the appellant to maintain the issue upon his part joined, offered evidence to prove, that he was a property broker in the city of Baltimore; that he was employed by Lloyd N. Rogers to aid him, and to act as his agent, in effecting a sale of the said Rogers' property, called "Druid Hill," to the Park Commissioners of Baltimore city; that the property was offered to the Commissioners by Mr. Rogers himself; that the appellant, during the pendency of the negotiations for the sale of the property, had frequent interviews with Mr. Rogers, and was active, zealous, and even pertinacious in commending said property to the Commissioners, in urging upon them its purchase, and in endeavoring to remove or answer objections made to its fitness and eligibility as a site for the proposed park; that a sale of the property was made to the

 [*2]  Commissioners, and that the usual and customary rate of compensation for services, such as were rendered by the appellant in making said sale, was a commission of 2 1/2 per cent. on amount of sales.

There was no evidence that the appellant failed to render faithfully any of the services for which he was employed, but there was proof from two of the Park Commissioners that they purchased "Druid Hill" on their own judgment, and were not induced to make the purchase by the representations or exertions of the appellant.

2nd Exception.--In the progress of the trial, the counsel for the appellant asked of a witness, who was a property broker in the city of Baltimore, the following question: "What, in your opinion as an expert, would be the value of such services as proved by the evidence the plaintiff had rendered to the defendant's testator in the city of Baltimore?" The Court (MARTIN, J.,) refused to permit this question to be put, and to this refusal the appellant excepted.

The following prayer was then offered on the part of the appellant:

"If the jury find from the evidence, that the plaintiff was engaged in the business of a property broker in the city of Baltimore, 

 [*3]  and that Mr. Rogers, the testator of the defendant, offered certain property for sale to the Park Commissioners of said city, and that he employed the plaintiff to aid and assist him in effecting said sale, either by previous employment, or the acceptance of the plaintiff's agency and the adoption of his acts, and that the plaintiff did diligently and faithfully occupy his time and render services in so aiding him (Rogers) to effect said sale, and a sale of said property to said Commissioners was in a short time made and effected, then the plaintiff is entitled to recover; and if the jury shall find the preceding facts, then, in ascertaining what amount the plaintiff shall recover, the jury ought to consider the rate of compensation which they may find from the evidence was usually paid in said city for services of a like kind, and if they shall not find that there is any particular rate of compensation shown by the evidence to have been usually paid for such services, then the plaintiff is entitled to recover such sum as the jury may find from the evidence is a reasonable remuneration for his said services."

Several prayers were offered on the part of the appellee, which, as

 [*4]  they were rejected by the Court below, and no appeal was taken by her, it is not necessary to notice further. The Court below rejected the prayer of the appellant, as well as those of the appellee, and gave the following instruction to the jury:

"I instruct the jury, that if they find from the evidence that the plaintiff was engaged in the business of a property broker in the city of Baltimore, and that the testator of the defendant offered certain property for sale to the Park Commissioners of said city, and that he employed the plaintiff to aid and assist him in effecting said sale, either by previous authority or the acceptance of plaintiff's agency, and the adoption of his acts, and that the plaintiff did diligently and faithfully occupy his time and render services in so aiding him to effect said sale, and a sale of said property to said Commissioners was in a short time made and effected, and that said services were of advantage and value to the defendant's testator in effecting the said sale, then the plaintiff is entitled to recover such sum as the jury may find from the evidence to be a reasonable remuneration to the plaintiff for said services; and in ascertaining what

 [*5]  is a reasonable remuneration, the jury may consider the rate of compensation, which they may find from the evidence was usual and customary in the said city for services of a like kind."

The appellant excepted to the rejection of his prayer, and to the instruction given by the Court, and this constitutes the second exception.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

PRAYERS, &C.: A REVERSAL OF JUDGMENT NOT ALWAYS CONSEQUENT UPON THE REJECTION OF A CORRECT INSTRUCTION. -- It has been repeatedly decided by this Court that a judgment will not be reversed on appeal, if it appears that the law of the case has been correctly laid down for the direction of the jury, or the appellant has not been prejudiced by the instruction actually given, notwithstanding the prayers rejected may have been correct in themselves.

PRAYERS, &c.: COMPENSATION OF AGENT FOR SERVICES RENDERED, RULE AS TO. -- In an action to recover the value of services rendered, and the general issue pleaded, where no express contract is proved, and the nature of the employment is to be inferred from the acts of the parties, as -- where one is employed by and undertakes to aid and assist another in effecting a sale of property, an instruction offered by the defendant that the plaintiff could not recover unless the jury found that he did "diligently and faithfully occupy his time and render services in aiding R. to effect the sale" is sufficient.

Anaddition, however, to such prayer by the Court, requiring as essential to the recovery of the plaintiff that the jury should also find "that such services were of advantage and value to the employer in effecting said sale," does not vitiate the prayer, the propositions contained in the prayer and the addition thereto being correlative, and in effect substantially the same.

PRAYERS, &c.: COMPENSATION OF AGENT FOR SERVICES RENDERED, RULE AS TO: MEASURE OF DAMAGES. -- On the question of measure of damages for the services rendered, evidence having been given as to the rate of compensation usually paid in the City of Baltimore for such services, an instruction that the jury "may consider" such evidence in making up their verdict, is in proper form: an instruction that the jury "ought to consider" such evidence, &c., is too peremptory in its terms.

PRACTICE: WITNESS, EXAMINATION OF: EXPERTS, EVIDENCE OF. -- Upon the same question, a witness, a property-broker in the City of Baltimore, having been asked the question: -- "What, in your opinion, as an expert, would be the value of such services, as proved by the evidence, the plaintiff has rendered the defendant's testator in the City of Baltimore in the year 1860?" -- upon objection the question was held inadmissible.  

COUNSEL:
I. Nevett Steele and Ferdinand C. Latrobe for the appellant.

1st. It is contended for the appellant that the Court below erred in its rejection of his prayer and in its instruction to the jury,

Because, if a person is employed by another to render certain services or do certain acts, with a view to the accomplishment of a given object, and faithfully renders the services and does the acts for which he was employed, and the proposed object is accomplished, then such person is entitled to recover a reasonable remuneration for his services, and his employee cannot resist the payment of such remuneration, on the ground that the accomplishment of the proposed object was not attributable to, or the result of, said acts and services, and that the object would have been attained without them. By the instruction of the Court below, 

 [*6]  the right of the appellant to recover, was erroneously made to depend on the decision of the question, whether his acts and services had been "of advantage and value" to Mr. Rogers in effecting the sale, so that although as Mr. Rogers' agent he had rendered precisely the services which he was employed to render, yet he could not recover, because the Commissioners in making the purchase acted on their own judgments, and were not conscious of being influenced by him. Mr. Rogers did not choose to run the risk of the Commissioners relying exclusively on their own judgments in making the purchase, but thought proper to guard against and provide for the contingency of their leaning to a greater or less extent on the opinions and representations of others, and ought to pay for the services he required for that purpose. Chitty on Cont., 480, 481.-- Moneypenny vs. Hartland, 1 Carr. & P., 352, 354. Howard vs. Holliday, Id., 384. Speaks vs. Sheppard, 1 H. & J., 84, 85. Rodemer vs. Hazlehurst, 9 Gill, 296. Miles vs. Bernard, Peeke's Addl. Ca., 61. Farmworth vs. Garrard, 1 Camp., 36. Underwood vs. Lyceum, 5 B. Munroe, 129. Murray vs. Currie, 7 Carr. & P., 584. Calvert vs. Cox, 1 Gill, 95. Canby

 [*7]  vs. Frick, 8 Md. Rep., 163.

2nd. It is contended for the appellant, that he had a right to prove by an expert the market value or price in Baltimore of the services rendered by the appellant. Hays vs. Busk, 5 Taunt., 521.

J. Mason Campbell and Daniel M. Thomas for the appellee.

Upon the first bill of exceptions, the appellee's counsel contended, that the action of the Court below was right in refusing to allow the plaintiff to put the question offered to the witness Harvey. The question was put in a form decided by this Court to be inadmissible. B. & O. R. R. Co. vs. Thompson, 10 Md. Rep., 76, 84. Sills vs. Brown, 9 Carr. & P., 601. 1 Greenlf. Ev., sec. 440. The proper shape for such a question appears in Spear vs. Richardson, 37 N. H., 23.

Besides, apart from any criticism on the form of the question, this was no case for the opinion of an expert. Norman vs. Wells, 17 Wend. 136-162-163. Carter vs. Boehm, 3 Burr., 1905-1913-1918.

The witness having already stated that he knew of no usage in cases of this sort, it was only admissible for him to state facts, from which the jury might estimate the value of the services rendered. Calvert vs. Coxe, 1 Gill, 95-123-124. Murray

 [*8]  vs. Currie, 32 Eng. C. L. Rep., 584-641.

Upon the second bill of exceptions, they contended that the plaintiff's prayer was manifestly incorrect, and the Court properly refused to grant it.

1st. Because it took from the jury the question whether the services of the plaintiff were of value to the defendant's testator, in having contributed in any way to the consummation of the sale. Keener vs. Harrod & Brook, 2 Md. Rep., 63. Wilkinson vs. Martin, 34 Eng. C. L. Rep., 267. Mexican Cases, 20 Howard, 539. Hamilton vs. Holliday, 1 Carr. & P., 384. Chilton vs. Butler, 1 E. D. Smith, 150. Carroll's Admrs. vs. Quynn, 13 Md. Rep., 388.

2nd. Because it made it compulsory with the jury to consider the rate of compensation usually paid for such services, whereas the true rule was to leave it discretionary with the jury to take into consideration or not, such usual rate of compensation. Calvert vs. Coxe, 1 Gill, 95. Brown vs. Nairn, 9 Carr. & P., 204. Murray vs. Currie, 32 Eng. C. L. Rep., 267. Story on Agency, sec. 326. Canby vs. Frick, 8 Md. Rep., 163, 168.

If the above views are correct, the instruction given to the jury by the Court below must be sustained, as it is the same

 [*9]  instruction asked for the plaintiff, with the qualifications required by the principles above contended for.  

JUDGES:
BARTOL, J. WEISEL, J., dissented.  

OPINIONBY:
BARTOL 

OPINION:

 BARTOL, J., delivered the opinion of the Court.
Two exceptions were taken to the ruling of the Superior Court in this case; the first involving a question of evidence, the second arising upon the action of the Court on the prayers.
As to the first exception the opinion of this Court is, that there was no error in sustaining the objection to the question propounded to the witness Harvey. Upon this point we all agree with the views expressed by our brother WEISEL, and without adding anything further in support of a proposition that seems to us to be free from difficulty, we rest the decision of this part of the case upon the authorities cited by him in his opinion.
The second exception was taken by the plaintiff below to the rejection of his prayer, and to the instruction given by the Court to the jury.
It has been repeatedly decided by this Court that a judgment will not be reversed on appeal if it appears that the law of the case has been correctly laid down for the direction of the jury, or the appellant

 [*10]  has not been prejudiced by the instruction actually given, notwithstanding the prayers rejected may have been correct in themselves.
Here two objections are made by the appellant to the instruction given by the Court below: The first referring to the grounds of the plaintiff's action or right to recover-- the second to the measure of damages or rule by which the jury was to be governed in estimating the rate or standard of compensation. The objections will be considered in the order stated.
First, as to the ground of the action. In comparing the plaintiff's prayer with the instruction of the Court, it is not easy to discover any substantial difference between the propositions of law they respectively contain, at least so far as they affected the grounds of the action. The  theory of the plaintiff's prayer was, that in order to entitle him to recover, the jury must find. 1st. "That he was employed by Rogers to aid and assist him in effecting the sale of the property." 2nd. "That he did diligently and faithfully occupy his time and render services in so aiding him (Rogers) to effect said sale;" and 3d. "That the sale was effected." In the Court's instruction the same propositions

 [*11]  are stated in the identical words of the prayer, with the additional words, that "such services were of advantage and value to Rogers in effecting the said sale." To this part of the instruction the appellant objects on the ground that the services of the plaintiff being rendered under his employment, he is entitled to compensation whether Rogers derived any benefit from them or not.
We agree that where a party is employed to do a specified work, and there is no price agreed on, if he does the work he is employed to do, he may recover upon a quantum valebat or quantum meruit the value of his time and labor without reference to the benefit or advantage actually derived therefrom by the defendant. In such case the whole risk of the work's answering the purpose designed is taken by the defendant. But this case is one of a different sort, growing out of the very nature of the contract sued on. No express contract is proved, but the nature of the employment is to be inferred from the acts of the parties. The plaintiff was not employed as a broker to find a purchaser or to sell the property; according to the theory of the plaintiff's prayer, as well as of the Court's instruction, 

 [*12]  he undertook to aid and assist Rogers in effecting the sale. The plaintiff, by his prayer, conceded that he could not recover unless the jury found that he did "diligently and faithfully occupy his time and render services in aiding Rogers to effect the sale," that is, not merely that he should have had the intention and purpose of aiding and assisting to effect the sale, but that what he  did should be so done as to have that effect. Now, the Court's instruction, as we construe it, means substantially the same thing. It is impossible that the plaintiff could have rendered aid and assistance, and yet Rogers not have been aided and assisted by what he did. These are correlative propositions, and when the Court told the jury they must find that Rogers received benefit and advantage from the acts of the plaintiff, it stated substantially the same proposition as that contained in the plaintiff's prayer.
The result of the argument of the appellant would be, that although his undertaking was to aid and assist Rogers in effecting the sale, he is entitled to recover, notwithstanding the jury may find that he did not, in fact, aid or assist in effecting the sale.
There was

 [*13]  evidence in the cause that the plaintiff represented other property which was offered for sale as a public park, and which entered into competition with the property of Rogers. It was also proper for the jury to consider upon all the evidence whether what was done by the plaintiff in behalf of Rogers was done in such discreet and skillful manner as to promote the object designed. It would not have been proper for the Court to withdraw from the consideration of the jury the question whether the services of the plaintiff were rendered in a negligent or unskillful manner; and no better test of that could be given than whether Rogers derived any benefit or advantage from them.
In Chitty on Contracts, 481, the author says, in speaking of the question of skill and diligence of an agent: "But if the principal derive any benefit from the act of his agent, the latter is entitled to a proportionate compensation," and cites the decision of BEST, C. J., in Hammond vs. Holliday, 1 Carr. & P. 384. It would follow, of course, in such a case, if no benefit is derived by the principal the  agent would be entitled to no compensation. The same test was applied by

 [*14]  LD. ELLENBOROUGH in Farnsworth vs. Garrard, 1 Camp. 38, where the Court said: "The plaintiff is to recover what he deserves; it is, therefore, to be considered how much he deserves, or if he deserves anything. If the defendant has derived no benefit from his services, he deserves nothing, and there must be a verdict against him.
We are of opinion that the first objection to the instruction given by the Superior Court in this case is not well founded.
As to the second objection we are all of opinion that the instruction was correct, and on this point we refer to what has been said by our brother WEISEL in his opinion-- merely adding that the evidence of usage was so vague and indefinite as to make it questionable whether the defendant might not have justly complained of the action of the Court in submitting it to the jury at all. Waiving this point, however, we are clearly of opinion that the plaintiff was not entitled to ask for an instruction to the jury in the peremptory form of the prayer. But inasmuch as the jury have found that the plaintiff was not entitled to recover anything, the appellant would not be entitled to a reversal, even though there was

 [*15]  error in that part of the instruction touching only the measure of damages.
Finding no error in the Court's instruction to the jury, the judgment will be affirmed.
Judgment affirmed. 

DISSENTBY:
WEISEL (In part) 

DISSENT:

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however,  this pagination accurately reflects the pagination of the original published documents.] 
WEISEL, J., dissented in part from the decision of the majority of the Court, and delivered the following opinion:
The appellant was plaintiff below. He sued the appellee in the Superior Court of Baltimore City, in indebitatus assumpsit, and declared,
1st. For money payable by the defendant to him. 2d. For work done by the plaintiff for Lloyd N. Rogers, in his life time, at his request, laying damages at $ 16,000.
The general issue plea, that "the said Lloyd N. Rogers was never indebted as alleged," was put in.
The plaintiff in support of the issue on his part, adduced proof of his occupation as a property broker in the city of Baltimore, in the year 1860; of his employment by Mr. Rogers in relation to the selling to that city of his estate of Druid Hill

 [*16]  for a public park; of his efforts with the Park Commissioners in furtherance of the sale, and of the sale made of that estate for that purpose, and then, in proving the value of his services, propounded to one of the witnesses, Mr. Harvey, a property agent in Baltimore, this question, "What, in your opinion as an expert, would be the value of such services as proved by the evidence, the plaintiff had rendered to the defendant's testator in the city of Baltimore in the year 1860?"
To the admissibility of this question the defendant objected, and the Court sustained the objection, declaring at the same time that the evidence of said witness in reply to the question, would not be admissible. The first exception is to this ruling of the Court.
We think the Court committed no error in excluding the question, and the answer it was designed to elicit. It was not propounded to him, assuming that he was an expert, in the proper form. It asked his opinion upon the value of services as proved by the evidence. This assumed the fact that certain services had been rendered, and he was asked  his opinion as to their value, whilst they were to be found by the jury. The rule is, that where

 [*17]  facts are doubtful and remain to be found by the jury, it is improper to ask one examined as an expert who has heard the evidence, what is his opinion upon them, though he may be asked his opinion upon a similar case hypothetically stated. 1 Greenlf. Ev. sec. 440. This rule was adopted and distinctly applied by this Court in the case of the Balt. & Ohio R. R. Co. vs. Thompson, 10 Md. 76, 83, 84. See also Sills vs. Brown, 9 Carr. & P. 601, and Spear vs. Richardson, 37 N.H. 23, 34. Besides, the witness (as shown by his testimony) could not speak as to any usage in cases of the kind then before the jury, and what he knew of prices was only from his own dealings, in cases of a different sort, and that cases of this kind were generally matters of special contract.
All the proof being in, the plaintiff submitted one prayer to the Court, and the defendant four, all of which were rejected, and in lieu thereof the Court gave its own instruction to the jury. To the granting of this instruction, and the refusal to grant his prayer, the plaintiff excepted, and the verdict being against him, he has prosecuted this appeal.
The

 [*18]  instruction given by the Court varies in two particulars from that asked by the plaintiff. The principal difference consists in this, that the Court put it to the jury to find, as essential to the plaintiff's recovery, that "the services rendered by the plaintiff were of advantage and value to the defendant's testator in effecting said sale."
Construing this to mean that unless the services so rendered actually promoted or effected the sale, the plaintiff was not entitled to recover, I think the Court erred in giving such an instruction. As a general rule the plaintiff's right to recover on a quantum valebat or quantum meruit, does not depend upon the advantage or benefit  which the defendant derives from the article sold or the service rendered. The plaintiff's outlay in time, labor or money is the foundation of the right to recover, and these or any of them, being expended faithfully and diligently in his service, in pursuance of the employment, and for the purpose of accomplishing the proposed object, the defendant cannot rightfully resist a claim for the services on the ground that he received from them no beneficial result. Unless the plaintiff took the risk

 [*19]  or placed his right to recover on the contingency that his efforts should actually avail to produce the result, it is difficult to perceive why a faithful and diligent discharge of his duty should not meet with its appropriate reward. If he was not employed to find a purchaser or to effect a sale, but simply to assist in making the sale, and if he did so aid and assist, and a sale was made, he is entitled to such compensation as his services were worth. The plaintiff's prayer and the Court's instruction both go upon the ground that the services were faithfully and diligently rendered. If such had not been the case, but on the contrary one of negligence, unskillfulness and injury were presented, the defendant could rely upon this state of facts either to defeat the action altogether or to reduce the claim. This is the distinction which to my mind pervades all the cases which have been relied upon in this case. Chitty on Cont., 480, 481. Miles vs. Bernard, Peake's Addl. Cases, 61. If the agent has done all he was bound to do, he is entitled to compensation. Hammond vs. Holliday, 1 Carr. & P. 384. Murray vs. Currie, 7 Carr. & P. 584, in

 [*20]  which LORD DENMAN held that where the purchaser stated that he did not buy the estate on account of any character of the plaintiff's office, but from his own observation, yet if the plaintiff found the purchaser, he was entitled to his commission, though another agent made the sale. So in this case, if the plaintiff was engaged to assist in making the sale, and made  efforts accordingly, though the witness stated that Druid Hill, when seen, sold itself, and such was the fact, this is not to defeat the plaintiff's right to remuneration for whatever services he rendered.
A further objection to the instruction given by the Court was, that it did not sufficiently impose upon the jury the duty of considering the evidence relating to the rate of compensation usually paid in the city of Baltimore for such services, that it left it by the use of the words may consider optional with the jury to consider it or not, whereas it was their duty to consider it, not exclusively, but with the other facts upon the subject of damages, and to give to it its proper force if found to have any.
There is no force in the objection when compared with this part of the Court's instruction. The

 [*21]  latter does not conflict with it, but presents to the jury with sufficient clearness and force, their duty with regard to the evidence on this branch of the case. It was not binding upon the jury, but they would have the right to look to it in making up their judgment. Canby vs. Frick, 8 Md. 163. In this light the instruction as given in this particular, is regarded and pronounced correct. The language of the plaintiff's prayer in this respect was too strongly put, and for that cause was faulty.
In this view of the case the instruction of the Court below was erroneous, so far as it put it to the jury to find, in connection with the other hypothesis it embraced, that "the services of the plaintiff were of advantage and value to the defendant's testator in effecting said sale;" and the judgment for that cause should be reversed and a procedendo awarded.
As this opinion however is not concurred in by a majority of the Court, on the second bill of exceptions, and the judgment below will therefore be affirmed, it is not necessary for me to notice the defendant's prayers. 

109 of 120 DOCUMENTS 

T. F. TROXALL, WILLIAM KEYSER AND H. J. KEYSER vs. WILLIAM APPLEGARTH AND JOHN WHITTINGTON, GARNISHEES OF SAMUEL R. DUNNOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 163; 1866 Md. LEXIS 9 

March 13, 1866, Decided 

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

The facts of this case are stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

EVIDENCE: PRACTICE. -- Where a witness states that a party took possession of a vessel under a bill of sale, it is proper that the bill of sale should be produced.

EVIDENCE: PRACTICE: ATTACHMENT: DEBTOR AND CREDITOR: FRAUDULENT CONVEYANCE. The plaintiffs laid an attachment in the hands of a garnishee on the 21st of January, 1860. On the 20th of the same month the defendant had conveyed his interest in a vessel by bill of sale in trust for certain of his creditors, but the trustees did nothing towards the execution of the trust. On the 24th of September, 1859, the defendant had contracted to convey his interest in the vessel to the garnishee for a certain sum, and on the same day made a bill of sale to him of the vessel, under which no title passed, because it was not recorded in conformity with the Act of Congress. By the terms of sale the purchase money was to be paid, not to the defendant, but to the payment of certain debts due by him, one of which was due to the garnishee himself. And evidence was offered to show that the interest of the defendant in the vessel was to be held as collateral security for the payment of this debt, and to indemnify him for the payment of other debts due by the defendant on account of the vessel, which the garnishee assumed to pay, and did pay out of the purchase money. Upon the repayment of these sums to the garnishee by the defendant, the interest of the latter in the vessel was to be reconveyed to him by the garnishee. At the trial of the attachment case, HELD:

1st. That the effort on the part of plaintiffs to show fraud on the part of the defendant, because of the bill of sale and the deed of trust, even if sustained would not avail them, as there was no evidence to show that if the defendant meditated a fraud upon his creditors the garnishee had notice of it, without which he could not be affected by it.

2nd. That as the plaintiffs had not laid the attachment upon the vessel, but upon the proceeds of sale, they could not sustain their attachment without conceding the sale to and possession of the garnishee.

3rd. That there was evidence to go to the jury to prove that at the time the vessel was sold and delivered to the garnishee, there was a bona fide agreement between the defendant and the garnishee, that the latter should, in consideration of the price agreed on, pay certain debts due by the defendant, which were designated by him, amounting in the aggregate to the whole purchase money, and that this agreement was performed by the garnishee, and if the jury so found, this was a good defence to the attachment.

4th. That in this view of the case it was immaterial whether the bill of sale was under the Act of Congress ineffectual to pass the legal title as against the garnishee, as the agreement would be binding upon the defendant and protect the fund from attachment by his creditors.

5th. That as the attachment was laid on the fund in the hands of the garnishee, the right of the plaintiffs to recover must necessarily depend upon the state of the accounts between the defendant and the garnishee, and the effect of the agreement between them at the time the attachment was laid.  

COUNSEL:
Robert J. Brent and James L. Brent for the appellants.

The Court in granting the plaintiffs' 1st prayer had declared the unrecorded bill of sale inoperative as a conveyance against this attachment, and this point was properly ruled upon the following authorities in the State of Maryland. 1729, ch. 8, sec. 5. Dorsey vs. Smithson, 6 H. & J., 63. Clagett vs. Salmon, 5 G. & J., 346.

The Act of Congress is express, that all bills of sale passing title to vessels must be recorded in the Custom House. See Act of 1850, ch. 27. 9 Stats. at Large, 440. Brightley's Dig., p. 833, sec. 44.

This Act is constitutional, and regulates the whole subject of title to vessels under the power delegated to Congress, to "regulate commerce," as appears from the authorities hereinafter referred to.

This Act of Congress requires the title to be recorded in the Custom House, and does not regard the fact of possession by the purchaser of a vessel as any evidence whatever of title in him. Thompson vs. Van Vechten, 5 Ab. Pr. Rep., 461. Robinson vs. Rice [**2]  & Moore, 3 Mich. Rep., 240. Foster vs. Perkins, 42 Maine, 175. Reeder vs. The George's Creek, 3 Am. Law. Reg., 236.

It appears on the face of the bill of sale that this vessel had been previously registered in the Custom House, and was therefore liable to the provisions of the Act of 1850.

It will be contended by our adversaries that Congress did not intend to require a recorded bill of sale in cases where the title, as at common law, passed by a change of possession, and where, as in this case, there was notice on the files of the Custom House to creditors by the registration and oath, showing the vessel to be the property of Applegarth.

But it will be seen that this registration only took place on the 26th of September, 1859, two days after the execution of the bill of sale whereby Applegarth became supposed owner. The registration does not affect the transfer of title, but is matter "ex post facto" the acquisition of title, and presupposes that the party registering the vessel has already become owner; whereas the Act of 1850, ch. 27, passed by Congress, strikes directly at the transfer itself, unless it be by bill of sale recorded in the Custom House.

By virtue [**3]  of this last Act, Applegarth had no title to register, and his registration of the "Union State," on the 26th of September, 1859, is no more than if anybody else had registered her as his property, and all the cases which may be cited by the appellee's counsel anterior to the Act of 1850, are ignored by its clear and explicit provisions, based on a public policy requiring all transfers of title to be recorded in the Custom House.

Such registration of a ship never was considered at common law as any notice or change of possession sufficient to prejudice the claims of creditors to avoid a bill of sale for fraud. Robinson vs. McDonell, 2 Barn. & Ald., 136.

The enrollment is merely to give a national character to the vessel. 7 Johns., 308. Thompson vs. Van Vechten, 5 Ab. Pr. Rep., 460.

This third prayer of the plaintiffs could not be legally rejected, as there was evidence from which a jury might have inferred that the vessel was secretly and conclusively transferred by Dunnock to Applegarth for the purpose of covering the said interest from his creditors.

We do not see on what principle Applegarth can be protected in paying over Dunnock's money to his creditors after [**4]  we had attached it in his hands, unless he can show that he (the garnishee) had become responsible for these debts before the attachment, of which there is no proof. The attachment was necessarily a revocation of the request of Dunnock to pay certain debts of his, and all subsequent payments were "de son tort." We therefore insist that the consideration money of his supposed purchase was not paid up by the garnishee in full at the date of our attachment, and his very attempt to charge against us the two items, amounting to $ 1,265.42, is evidence of collusion between the garnishee and Dunnock.

But stronger evidence of collusion and fraud was the basis of our third prayer, erroneously rejected, and it will be found in the machinery and contrivance of the bill of sale of the 24th of September, 1859.

The third prayer of the plaintiffs should have been granted, therefore, even if it had omitted the latter part, which requires the jury to find the additional fact, that possession did not accompany the bill of sale.

If it ought to have been granted without this additional fact it was not prejudiced by requiring the jury to find an additional but immaterial fact. Windsor vs.  [**5]  McClellan, 2 Story's Rep., 497, 498.

The authorities establish that the priority of liens will be determined where the subject in controversy is incapable of delivery by superior diligence in giving notice to the party actually in possession or control of the fund. Judson vs. Corcoran, 17 How., 612. Spain vs. Hamilton, 1 Wallace's Rep., 604.

This principle seems analagous to the assignment or transfer of shares in a vessel by part owner, and is clearly signified to be the law in such cases by Judge STORY. 2 Story's Rep., 497, 498. Therefore, it results that Applegarth had not perfected his title by taking possession under his bill of sale, until at least after the vessel had made a foreign voyage.

The fourth prayer of the plaintiffs should have been granted, because it is based on the same evidence of fraud and collusion which we have discussed in reference to the third prayer. That the fraudulent grantee is chargeable to the attaching creditor, with all money received by him under the void instrument, as profits or otherwise, is established law in this State. 2 H. & G., 26.

If it be said that our prayers were properly refused, because assuming the nullity of Applegarth's [**6]  bill of sale, yet the title of Dunnock, passed prior to our attachment, to the trustees named in his deed of trust dated 12th of January, 1860, I answer that the appellant, as attaching creditor can avoid that deed because it was not recorded in the Custom House, and is therefore inoperative to convey this vessel as well as for the reasons herein stated.

We will now consider the prayers granted at the instance of the garnishee, as follows: Fourth prayer of garnishee. This prayer is obnoxious to several objections: It seeks to bolster up the secret and collusive bill of sale by asserting that although the garnishee received three-fourths of the earnings of the vessel, yet if the jury find that he took possession of said brig as owner of three-fourths at the date of said bill of sale, and received such earnings as such owner, under an agreement made bona fide, that he would pay certain debts, and that he has paid said debts, then he is entitled to recoup the debts so paid against said earnings, and the plaintiffs are not entitled to recover on account of said earnings, unless the jury find that the said earnings and the value of said three-fourths interest together exceed the amount [**7]  of debts so paid. The radical vice in this prayer is the assumption that a secret agreement between the debtor and his vendee can be set up in bar of the creditors if the jury find it to be in good faith, however secret and unknown. Being predicated on a supposed delivery of possession to the garnishee, at the date of the bill of sale, it is clearly erroneous, as there is no proof that the appellee took possession of the brig on that day.

The law is clear, that where an assignment is made for the benefit of creditors who are not parties and who have not notified the assignee that they accept the benefit of the assignment, that it is competent to the debtor to change its terms and appropriate the funds created by the assignment as he may please. 2 Story's Eq., sec. 972, n. 3, 1036, a. 1045,-6,-7. Drake on Atta., sec. 673. Wallwyn vs. Coutts, 3 Meriv., 707. Holland vs. Prior, 2 M. & K., 492. Garrard vs. Lauderdale, 3 Sim., 1. Wilson vs. Carson, 12 Md. Rep., 73, 74.

A special fund is created; either the creditors, provided for by the assignment, have a specific lien on the definite and specific fund, or the assignee is personally liable to them. But if the assignor can control [**8]  the fund and give further directions, neither the specific lien nor the personal liability could exist. The creditors provided for might have ratified the agreement, and obtained the assent of the assignee to hold the fund for them, but until they did so the fund in his hands belonged to the assignor, was subject to his further directions, and of course liable to attachment. Tiernan vs. Jackson, 5 Pet., 580. Story on Bailments, sec. 210. Kalkman vs. McEldery, 16 Md. Rep., 56. Story on Agency, sec. 456. Lane vs. Husband, 14 Simons, 656, (37 Eng. Cond. Ch. Rep.)

The 6th prayer affirms the same principle as the 4th, and completely ignores the time of payments as made by the garnishee, but in addition contains and asserts this proposition, that if the garnishee be responsible for the three-fourths value of the brig, he is not chargeable with her earnings, but only with legal interest on the value of the brig. In other words, if he be a faithless trustee, and converted the trust property to his own use, he can be only chargeable with interest on the value of the trust, and is not held accountable for profits beyond the interest, derivable from the use of the trust funds.

The garnishee [**9]  claims and asserts that he purchased the brig for $ 7,500. In that case he would simply owe the purchase money, and he could in no way be responsible either for the value of the brig or her earnings, unless he acquired the brig by way of mortgage, in which event he would be responsible for the value of the brig and for her earnings. Yet this prayer, assuming that the garnishee might be responsible for the value of the brig, which is an assumption that she was only conveyed by way of mortgage, yet instructs the jury that they can take no account of the earnings of the vessel, and that the tortious trustee is only responsible for legal interest and not for actual profits received.

This prayer erroneously assumes, also, that there was evidence of the garnishee having taken possession of the vessel at the date of his bill of sale; and then attempts to limit the liability of the garnishee to the value of said three-fourths interest, and to exempt him from all liability for the earnings received, which is not only inconsistent with the defendant's 4th prayer, as granted, but with the principle ruled by this Court in 2 H. & G., 26.

The effect of these rulings was practically to [**10]  overrule the Act of Congress requiring bills of sales to be recorded, for the Court while annulling the bill of sale as a conveyance, allowed the garnishee to evade the Act of Congress, by setting up a pretended possession under the void deed, and which was merely taken as security for claims to amount of $ 5,000.

William S. Waters & John H. Thomas for the appellee.

The refusal to grant the third prayer of the plaintiffs is the first ground of exception on the part of the appellants. That prayer is as follows: "If the jury find from the whole evidence that the said Dunnock held an interest of three-fourths in the brig "Union State," and that the same was secretly and collusively transferred to the said Applegarth by said Dunnock, for the purpose of covering the said interest from the creditors of the said Dunnock, and further, that no actual, open and visible possession of said brig accompanied and followed the alleged bill of sale offered in evidence and dated the 24th of September, 1859, that the said interest of said Dunnock in said vessel remains liable, and is chargeable under the attachment issued in this case."

This prayer was properly refused because there was [**11]  no evidence upon which to base it. The plaintiffs proved by Abbott that Applegarth went into possession. This is the plaintiffs' own theory of the case. He cannot sustain the attachment without possession. All the other witnesses proved the fact. Moreover the jury might have been deceived by the terms "actual and visible possession," used in the prayer. There is no evidence of secrecy, collusion, or intent to defraud creditors in fact. Nor does the hypothesis of the prayer rest upon the presumption that Applegarth was aware of a secret intent on the part of Dunnock, if such existed.

The second ground of exception is based upon the refusal to grant the fourth prayer of the plaintiffs. This prayer is as follows:

"If the jury find from the whole evidence that the bill of sale offered in evidence, was made with intent on the part of the said Dunnock to hinder, delay and defraud his creditors, and at the time of the execution of the said bill of sale such intent was known to the said Applegarth, then the said bill of sale is inoperative and void as against this attachment, and the said Applegarth is chargeable as garnishee in respect to all moneys had and received by him at the [**12]  service of said writ of attachment, or since, under and by virtue of said fraudulent bill of sale."

This prayer is liable to the same objection. There is no evidence of fraud in fact in the bill of exceptions. No inference of such an intent can be drawn from the facts of the case. Moreover, the prayer seeks to make Applegarth chargeable "as garnishee in respect to all money had and received by him" in respect of the brig. If he was chargeable with the earnings of the brig, it must be the nett earnings and not the gross receipts.

The next ground of exception is the granting the fourth prayer of the garnishee. The necessity for this instruction on the part of the garnishee grew out of the granting of the first prayer of the plaintiffs. The Court having instructed the jury that the bill of sale passed no title as against the attachment, because it was not recorded in the Custom House, this prayer is based upon the correctness of this instruction; and as there was no fraud in fact, but as the brig came into possession of the garnishee by a bona fide agreement, and the garnishee having in good faith complied with the agreement, and paid large sums of money on account of it, the [**13]  prayer asserts that while he should be charged with the value of the brig and her earnings, yet he should be entitled to recoup what had been so paid by him in good faith against the value of the brig and her earnings, and if there was no excess over such payments there should be no verdict against him.

It is apparent that if the bill of sale in question did pass a good title as against the attachment, and the instruction of the Court was wrong in this respect, the judgment ought not to be reversed, even if the fourth prayer upon the theory of this instruction was improperly granted.

It will be maintained that the first instruction of the plaintiffs was wrong. This instruction is based upon the Act of Congress of 1850. (Brightly's Digest, pp. 833, 834.)

1st. This instruction precludes all evidence of notice mentioned in the Act of Congress. It is in evidence by the plaintiffs that the garnishee went into possession, and his attachment concedes possession. Without possession by the garnishee he would not be chargeable in reference to the vessel. The records of the Custom House were sufficient to show title. Anything which would put the party upon inquiry is sufficient [**14]  notice. Under the Acts of 1729 and 1846, possession is regarded as sufficient evidence of notice. Ruckman vs. Mott, 6 Law Rep., 398. Bryan vs. Hawthorne, 1 Md. Rep., 519. Gill vs. Griffith, 2 Md. Ch. Dec., 270. Hudson & Warner vs. Vance, 2 H. & G., 429.

2nd. The plaintiffs are not in position to call in question the bill of sale offered in evidence under the Act of Congress. The Act names "bills of sale, hypothecations, mortgage or conveyance," as not being valid. The lien by bottomry is excepted. This is an hypothecation. There is no other exception named in the Act. It has been decided, it is true, that admiralty liens by the general maritime law need not be recorded as provided by the Act. That they are neither bills of sale, mortgage, hypothecations or conveyances within the meaning of the Act, and that although not recorded themselves they are good against recorded deeds. But the same cannot be said in regard to the lien of an attachment, a right having force only by State statute. The plaintiffs have no such rights as make their position better than the garnishee's. Whatever right they have is no more a matter of record than that of garnishee, and it is under the statute [**15]  equally as incomplete and invalid.

3rd. The lien acquired by the service of the attachment like that of a fi. fa. can work no wrong. They do not place those who obtain them in the place of bona fide purchasers for value. A mere equity, although secret and unknown to the holders of them, will be good against them. Taylor vs. Wheeler, 2 Vernon, 564. Tieman vs. Poor et. al., 1 G. & J., 216. Brundige vs. Poor, 2 G. & J., 1. Woods et. al., vs. Fulton & Stark, 4 H. & J., 329. McMechen & Sullivan vs. Maggs, 4 H. & J., 132.

4th. The attachment in this case is not a lien upon the vessel. It is served upon the garnishee, and it affects rights as between the garnishee and defendant. It is neither jus in re, nor jus ad rem.

5th. The Act of Congress only enables subsequent purchasers, mortgagees, or those who have acquired title equal in dignity to those named in the Act, and who have taken the precaution to pursue the Act. Thompson vs. Van Vechten, 5 Ab. Pr. Rep., 461. Foster vs. Perkins, 42 Maine, 175.

6th. The policy of these Acts of Congress is the same as that of the Acts of the State of Maryland of 1729 and 1846. When possession passes the Act does not apply. They are [**16]  merely designed to be a protection in favor of persons who incur responsibilities for want of knowledge of change of title. Gill vs. Griffith, 2 Md. Ch. Dec., 270. Waters vs. Dashiel, 1 Md. Rep., 455.

7th. The title to vessels can be changed without bill of sale, and in this case it must be presumed that the bill of sale was placed for record in the Custom House office. A certificate of registry was issued which can only be granted upon a bill of sale in the office. Brightly's Digest, pp. 828, 319. 1 Parsons on Mar. Law, 47, &c.

8th. If the bill of sale be void as against this attachment, then all the interest which could have been reached by the attachment passed by virtue of the deed of trust of 12th January, 1860.

9th. The bill of sale of the 24th September, 1859, was from James Hooper, A. R. Wallace, and the defendant, Samuel R. Dunnock, each of whom conveyed one-fourth, and the failure to record the bill of sale could not upon any construction of the law leave but one-fourth of the vessel exposed to attachment. The title of the other three-fourths is in other persons.

10th. The one-fourth interest of Dunnock conveyed by the bill of sale to the garnishee, of [**17]  24th September, 1859, was at the same time mortgaged to Didier by mortgage dated August 27th, 1859, and had never been released, and before it was paid off by the garnishee, his bill of sale was recorded. From which it results that the attachment affected an equitable interest only, and the garnishee having subsequently paid the mortgage, has a claim superior to any that can be acquired by the attachment.

11th. To give the Act of Congress the scope contended for would be to give the power to Congress to regulate sales and transfers of property to an extent beyond that of regulating commerce, which power was not intended to be assumed by Congress. Gibbons vs. Ogden, 9 Wh., 1. Maguire vs. Card, 21 How., 248.

12th. The plaintiffs in this case gave in evidence possession under the bill of sale, and the bill of sale itself. They cannot therefore impeach it.

13th. The next ground of appeal is the granting of the sixth prayer of the garnishee with modifications.

This instruction is obscure but its meaning is clear. It is granted, rejecting all of it after the word "but," next after the word "Applegarth," in the third line from the end of the prayer.

The same reasons [**18]  exist for granting this prayer as are given for granting the fourth prayer.

14th. The Act of Assembly of 1834, ch. 79, sec. 3rd, provides in terms that no "conveyance or transfer" of property, except by recorded deed, shall prevail as against attaching creditors. This language is at least as strong as that used in the Act of Congress of 1850. Yet even symbolical delivery was held to effect a transfer of title as against attaching creditors. Wells vs. Briscoe, 3 Gill, 406.

15th. Possession of the vessel by the garnishee and the taking out of a register in his own name, gave notice of his title to the appellant, so as to bring the case within the express terms of the exception in the Act. Baynard vs. Norris, 5 Gill, 468. Mayor & City Council of Balto. vs. Williams, 6 Md. Rep., 236, and note, 274. Williams vs. Banks, 11 Md. Rep., 198. Cook vs. Kell, 13 Md. Rep., 493 Farquharson vs. Eichelberger, 15 Md. Rep., 63-73.

16th. Even if the dry legal title to the vessel remained in the defendant, the garnishee paid the purchase money, took possession, and in every way exercised acts of ownership. These circumstances vested in him an equitable title which will prevail as against [**19]  an attaching creditor. Black vs. Zacharie, 3 How., 510 to 513. Drake on Attachments, secs. 522, 526 and 527. Houston vs. Nowland, 7 G. & J., 480, 493. Alexander vs. Ghiselin, 5 Gill, 138, 180. Price vs. McDonald, 1 Md. Rep., 402 and 414. Gibson vs. Stevens, 8 How., 384.

17th. There is no proof that the garnishee ever realized anything from the earnings of the vessel--the agreement between him and the defendant bona fide appropriating all he was to pay to certain debts of the defendant is one which the attaching creditors cannot defeat. An attaching creditor can only recover from the garnishee what the defendant could if the action had been brought by the latter. Poe vs. St. Mary's College, 4 Gill, 499. Balto. & Ohio R. R. Co. vs. Wheeler, 18 Md. Rep., 373. Peters vs. Cunningham, 10 Md. Rep., 554. Drake on Attachments, (Ed. of 1858,) pp. 382 and 420, § §  485, 517, etc.

18th. The instruction contained in the appellee's fourth prayer, which was granted, entitled the appellant to condemn three-fourths of the value of the vessel and her earnings together, over and above the debts of the appellant, which the appellee had paid in fulfillment of a bona fide agreement under which he [**20]  had received such earnings if he ever received any. This was the utmost of the appellant's rights, in any possible view of the facts, as will be seen by reference to the authorities cited under the last point.-- There being no proof that the appellee received any of her earnings, he of course could not be responsible for them; he, and not the appellant, was prejudiced by allowing the jury, as an element of his liability, to find that he had received such earnings.

19th. The appellee's fifth prayer, making the value of the vessel, when he took possession, and interest thereon the limit of his responsibility, ought to have been granted as offered. The proviso, which the Court added, allowed the jury to hold him responsible in their discretion, either for the value of the vessel, or her earnings. The appellant will hardly claim that he was entitled to her value when taken possession of, and her subsequent earnings also.

20th. The defendant had himself, before the conveyance to Applegarth, but an equitable interest in the vessel, which could not have been taken under execution, and such interest was not therefore liable to this attachment, specifically or in the hands of the [**21]  garnishee. Drake on Attachment, (Edition of 1858,) pages 192, 193, 194, § §  244 245, and page 376, § §  479, 457 and 458. Harris vs. Alcock, 10 G. & J., 251. Rose vs. Beavan, 10 Md. Rep., 467. Billman vs. Tudor, 1 Pick., 399.

21st. The Court correctly required the appellant to produce the bill of sale, of which his witness spoke, to show what amount of interest the appellee took possession of and in what capacity he so took it. If it erred, however, in this particular, and its ruling in reference thereto was intended to be the ground of the first exception, the appellant was not prejudiced thereby, inasmuch as the granting of his first and second prayers held that said bill of sale was void as to him, and interposed no obstacle to his right of recovery. Leffler vs. Allard, 18 Md. Rep., 552.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*177]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The appellants, the plaintiffs below, obtained a judgment against Samuel R. Dunnock, in 1859, for $ 1,015, and by way of execution issued an attachment out of the Superior Court of Baltimore City on the 20th of January, 1860.
This attachment [**22]  was, on the 21st of January, 1860, laid on certain alleged rights and credits of the defendant Dunnock in the hands of William Applegarth one of the appellees. He appeared as garnishee, and pleaded nulla bona. At the trial, the plaintiffs moved the Court to order a non pros. as to John Whittington; the same was ordered and 

 [*178]  the cause conducted against Applegarth as sole garnishee. At the trial it appeared by the evidence that Applegarth on the 24th of September, 1859, contracted with Dunnock to purchase his interest in the brig "Union State" for $ 7,500. This interest Dunnock designed to convey by a bill of sale executed on the day of the contract, and embracing three-fourths of said brig.
The bill of sale was signed by James Hooper, A. R. Wallace and Samuel R. Dunnock. It was however not recorded in the Custom House in conformity with the Act of Congress, until the 22d day of February, 1861, and upon the prayer of the appellants, the Court ruled that no title passed to the appellee, Applegarth, by said conveyance as against the attachment.
Besides the bill of sale which the plaintiffs produced by order of the Court, they read in evidence a deed of trust from Dunnock [**23]  to the appellees, acknowledged on the 20th day of January, 1860, by which he conveyed all his property for the benefit of his creditors according to the terms therein expressed, the plaintiffs stating that they offered it in evidence with the declaration that they would impeach it afterwards. They then proved by Mr. Abbott that the trustees had done nothing towards the execution of said deed of trust.
They further proved by Abbott, that the whole $ 7,500 stated in the bill of sale, was due to Dunnock for his interest in said vessel, which was really three-fourths thereof, none of which was to be paid by Applegarth to Dunnock, but to be applied by the garnishee to certain debts of Dunnock; that on the day of the date of the bill of sale, Dunnock owed Sterling & Ahrens $ 4,311.29 on account of said vessel, and had previously given therefor four notes endorsed by W. Applegarth & Son for different amounts at different periods of payment. And also that a note 

 [*179]  dated 14th of September, 1859, for $ 676.13, endorsed by Applegarth & Son, was given for materials supplied to said vessel, and was also paid out of said purchase money, and that the garnishee was to pay out of the $ 7,500 [**24]  any other debts due by Dunnock on account of the vessel. The plaintiffs then proved by Mr. Skinner, that about the time of said sale, Applegarth told him he had a claim against the "Union State" of from $ 4,800 to $ 5,000, and held her as collateral security for that amount, and when that was paid, Dunnock was to resume possession, and the brig was chartered at $ 600 a month, and that he had assumed Dunnock's debts to the amount of $ 4,800 or $ 5,000 at that time. The garnishee then proved by Samuel R. Dunnock, that he was the owner of three-fourths of the "Union State" previous to his sale to Applegarth. That the sale took place on the 24th of September, 1859, and on the same day he gave the bill of sale referred to, and at the same time handed over to him all the papers connected with her. That at the time of the sale the brig was in the port of Baltimore, held and navigated by Captain Foxwell, who was one-fourth owner, and master for a voyage then about to commence under the direction of Applegarth, as three-fourths owner, and after that voyage, Captain Martin was put in charge as master by Applegarth. That the consideration for the sale was $ 7,500, to be applied by Applegarth [**25]  in payment of certain debts which witness owed on account of the brig, and the balance to be applied to such debts due by Dunnock and Weatherly to Applegarth as witness had assumed; and being shown a statement of sums paid by Applegarth & Son, amounting to $ 7,451.58, he was asked "if the debts in the said paper enumerated, were those which Applegarth was to pay under the agreement aforesaid, between them?" replied that they were, and that each and all of said debts had 

 [*180]  been passed upon by him as debts to be paid by Applegarth under said agreement, and in addition thereto, the tax bill amounting to $ 352.22, chargeable to the brig, was to be paid as part of the consideration of sale. That all the bills due upon the brig so to be paid by Applegarth, were mentioned to him at the time of the sale, but the precise amount thereof not being known at that time, was only approximated; and that although the witness was owner of three-fourths of the brig, all the bills for her were charged to him, yet after the sale he was never called upon to pay them.
The witness further stated, that there was a verbal agreement between him and Applegarth, that if Mr. Campbell should return from [**26]  Venezuela and pay him what he owed him, he would be able to buy back the brig for $ 7,500, in which case he would allow Applegarth 2 1/2 per cent. That on the day of sale, witness went with Applegarth, canceled the insurance in his own name, and Applegarth took out one in his own name. This change of insurance is also proved by Montague, as taking place on the day of sale. Dunnock further testified, that at the time of the service of the attachment, Applegarth did not owe him on account of the brig, or on any account, but that he owed Applegarth. That when the sale was made he handed to Applegarth such bills of lading for the cargo as he had signed.
The garnishee further proved by Mr. Didier that he had sold to Dunnock one-fourth of the brig in September, 1859, for $ 2,250, and took a mortgage on the brig to secure the payment of $ 766.08; this claim as appears by the evidence, was paid by Applegarth.
The garnishee proved by his clerk, Mr. Mitchell, that debts of Dunnock to the full amount of the consideration named in the bill of sale, were paid by him.
He then read in evidence the permanent registration of the vessel in his name as three-fourths owner, and Foxwell 

 [*181]   [**27]  as one-fourth owner, dated the 26th of September, 1859. We now proceed to dispose of the questions arising upon the appellants' exceptions.
1st. The language in which the first exception is stated is somewhat obscure, but we suppose it was designed to raise the question whether the Court below erred in requiring the production of the bill of sale. In our opinion the action of the Court was correct. The witness having stated that the appellee, Applegarth, had taken possession under a bill of sale, it was proper that the paper should be produced, but if this were not so, the appellants were not prejudiced by the Court's action, inasmuch as by their first prayer which was granted, the jury were instructed that the bill of sale passed no title to the grantee, as against the attachment. The correctness of the first prayer depends upon the true construction of the Act of Congress of 1850, upon which able and elaborate arguments have been made, but in our opinion its determination is not material in the decision of this appeal, and therefore without meaning to express any opinion upon that question, we shall assume that the ruling on this point, which was favorable to the appellants, was [**28]  correct and shall decide the other questions in the case upon the theory that the bill of sale was inoperative to pass the title as against the appellants attachment.
The second prayer of the appellants which was granted, gave to them the full benefit of Skinner's testimony, the effect of which was by that prayer properly submitted to the jury.
The appellants' third prayer.--The effort of the appellants to show fraud in the conduct of Dunnock, because of the bill of sale and the deed of trust is not sustained. Indeed we see nothing in the evidence from which it would be competent for the jury to find any fraud in the conduct in the appellee, nor is there any evidence to show that if Dunnock meditated a fraud upon his creditors, the appellee 

 [*182]  had notice of it, without which he could not be affected. See Waters, lessee, vs. Riggin, 19 Md. 536. The third prayer of the appellants was therefore properly rejected. We have said there was no evidence of fraud to justify that portion of the prayer, and the other proposition that if "no actual, open and visible possession accompanied and followed the bill of sale, then the interest of Dunnock in said vessel [**29]  remains chargeable, and liable under this attachment," is without evidence to support it. The appellants' own witness, Abbott, testifies that Applegarth went into possession. Dunnock testifies that he delivered up the papers connected with the vessel on the day of sale; that on the same day the insurance was changed, and that the appellee had placed Captain Foxwell on board as master, for the voyage about to be commenced. In fact the appellants cannot sustain the attachment without conceding the sale to, and possession of the appellee. They have not laid the attachment upon the vessel, but on the proceeds of sale, and for the same reasons the fourth prayer of the appellants was properly rejected. In granting the fourth prayer of the appellee, and his sixth prayer with the modification, the Court below, in our opinion, correctly announced the law of the case. There was evidence to go to the jury to prove that at the time the vessel was sold and delivered to the appellee, there was a bona fide agreement between Dunnock and the appellee, that the latter should, in consideration of the price agreed on, pay certain debts due by Dunnock, which were designated by him, amounting in the [**30]  aggregate to the whole purchase money, and that this agreement was performed by the appellee, and if the jury so found, this was a good defence to the attachment.
In this view of the case, it is quite immaterial whether the bill of sale was under the Act of Congress, ineffectual to 

 [*183]  pass the legal title as against the appellants; the agreement would be binding upon Dunnock and protect the fund from attachment by his creditors. Here the attachment was laid on the fund in the hands of the appellee, and the right of the appellants to recover, must necessarily depend upon the state of accounts between Dunnock and the appellee, and the effect of the agreement between them at the time the attachment was laid. In the case of the Balt. & Ohio R. R., garn. of Cen. Ohio R. R., vs. Wheeler, 18 Md. 372, this Court said "the liability of a garnishee in respect of property of a defendant in his hands, is to be determined, ordinarily, by his accountability to the defendant on account of the property. If, by any pre-existing bona fide contract, that accountability has been removed or modified, it follows that the garnishee's liability is correspondingly affected,  [**31]  for it is well settled, that garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person."
Judgment affirmed. 

110 of 120 DOCUMENTS 

HENRY STAYLOR vs. RICHARD BALL AND WARREN WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 183; 1866 Md. LEXIS 10 

March 13, 1866, Decided 

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

The appellees, as endorsees, sued the appellant, as endorser and payee, of a promissory note. The defendant pleaded several pleas, the second of which was that he had not due notice of the dishonor of the note, and the fourth was that no legal demand of payment was made upon the makers.

Exception.--After the trial of the cause the plaintiffs to maintain the issues on their part joined, offered the note and protest in evidence, and proved by Mr. Stockbridge that some time after the maturity of the note, offered in evidence in this case, it was placed in his hands by the plaintiffs for collection, as their attorney, and that he had an interview with Staylor concerning it; that Staylor admitted the genuineness of the note and his endorsement, and said he had in his possession and would like to return to the plaintiffs in settlement the machine for which the note was given; that if they would take it at a fair price he would pay the difference between such price and the face of the note; that witness said he would communicate with the plaintiffs; that he did so communicate, and the plaintiffs assented to receive the machine [**2]  on certain prescribed conditions, which the defendant neither accepted nor declined, but did not comply with; that at the first interview spoken of Staylor recognized his liability on the note and promised to pay it, and said in substance that as times were the machine was dead stock or useless to him, and he wished the privilege of returning it in part payment of the note, and would, if permitted to do so, pay the balance in cash, and that he made no objections to the protest, and said nothing of any failure to give him notice of the protest of the note.

The plaintiffs also proved by Lewis Sutton, Notary Public, that the note was placed in his hands for protest by C. R. Coleman, Cashier of the Mechanics' Bank; that he could not find the place of business or residence of either makers or Staylor; that he made inquiry and endeavored to learn the residence or place of business of the makers and endorsers; that he consulted the Baltimore City Directory and could find neither therein; that neither Henry Staylor nor Pohl & Spreckelmeyer were in the Directory; that he afterwards inquired at the Mechanics' Bank, from which he received the note, but could get no information with reference [**3]  to them there; that he had a number of notes to protest on the day the note in question matured, and that he pursued the course mentioned in the protest. The making and endorsement by Staylor of the note were admitted.

The plaintiffs having closed their testimony, the following evidence was offered on behalf of the defendant: It was proved by several witnesses that at the time the note matured, Pohl & Spreckelmeyer, makers, carried on a large steam planing mill at the corner of Cathedral and John streets, in Baltimore city, and had been doing business there for more than a year before the maturity of the note; that they did an extensive business and were known to the business community, particularly to builders, and that Pohl & Spreckelmeyer resided in Baltimore city. That Staylor for the last eight years carried on the hardware business at store No. 95 Harrison street, near Gay, in Baltimore city; that he did an extensive business and trade in builders' hardware; that he never had a sign bearing his name, but the name over his door was "McAleer," and had always been; that he was accustomed to receive letters through the Post Office, addressed to himself in his own name as well [**4]  as in the name of "McAleer & Co.;" and that a letter addressed to him, or a notice of this protest as was said to be, would, in the regular course of business, be received by him the same day it was mailed or the following morning; that Staylor resided in Baltimore city; that his store was open for business on business days during the year; that notices had at different times been brought to him from the Post Office as well in his own name as in that of McAleer; that the custom in Baltimore city was to give personal notice of the protest if possible to endorsers, and make personal demands for payment if possible on makers where they have known places of business in the city; or if they have not such and cannot be found, to make inquiry of the bank from which the note was received, and to examine the City Directory, and if this does not disclose the residence or place of business of the parties, to make demand in some public place, usually the Post Office and Merchants' Exchange, and to address the notices for the endorsers to them, and to deposit them so addressed in the city Post Office.

Whereupon the defendant prayed the Court to instruct the jury as follows.

Defendant's [**5]  first prayer.--The defendant prays the Court to instruct the jury that if they believe from the evidence that at the time the note in question matured, the makers had a recognized and known place of business in the city of Baltimore, and were generally known as conducting an extensive business in steam planing; and shall further find that on the day of said maturity the Notary Public did not demand payment of said makers, or either of them, of said note, or call at their place of business to make such demand, they must find a verdict for the defendant, although they should believe that the Notary made a demand as stated in the protest.

Defendant's second prayer.--That if the jury believe from the evidence that on the day said note matured, Henry Staylor, first endorser, had a known and recognized place of business in the city aforesaid, and that his store was of widely extended business reputation in said city, and that the Notary Public did not call and notify him personally of the demand and non-payment of such note by the makers, or leave a notice to that effect at the defendant's place of business, and that said place of business was open for the transaction of business on [**6]  every business day during the year; and that, by the custom of Baltimore city, Notaries are expected to notify endorsers at their places of business or residences, if any they have, they must find for the defendant, although they should believe that notices were sent through the Post Office, as mentioned in the protest.

Defendant's third prayer.--That if the jury believe from the evidence that the defendant, subsequently to the maturity of the note, and when it was placed in the hands of an attorney for collection, offered to compromise or accommodate the amount claimed as due on the face of the note; and should further find that such offer to compromise or accommodate was not accepted, that such offer on the part of the defendant is no waiver of his right of defence, as endorser, unless the jury shall further find that at the time of the offer, as above, the defendant knew of his rights of defence, and expressly waived or abandoned them.

Defendant's fourth prayer.--That if the offer, as aforesaid, was made and not accepted, such offer is not evidence to go to the jury under the declaration in this case.

Defendant's fifth prayer.--That if the jury believe from the evidence [**7]  that the notice purporting to have been sent to defendant, as endorser, was not directed to the defendant at his place of residence or Post Office, and that the protest does not state such fact of direction, or state any place of direction of notice to the first endorser, they must find for the defendant.

Defendant's sixth prayer.--That if the jury should believe from the evidence that the notice purported to have been sent to the defendant did not contain a true description of the note, an assertion that it had been duly presented to the makers at maturity and dishonored, and that the plaintiff would hold and look to the defendant for reimbursement or indemnity, they must find for the defendant.

Defendant's seventh prayer.--That there is no evidence of a notice of the dishonor of the promissory note mentioned in this action, describing the note, asserting that it had been duly presented to the makers at maturity and dishonored, and that the defendant would be held or looked to for remuneration or reimbursement.

Defendant's eighth prayer.--That if the jury believe the makers and endorsers (as was offered in evidence) had known and recognized places of business in the [**8]  city of Baltimore, and that the Charles R. Coleman, one of the endorsers, lived in the same city, notice of the protest must be personal if possible.

But the Court below (KING, J.,) rejected all of said prayers, and instructed the jury as follows:

The Court instructs the jury in this case that if they shall find from the evidence that the promissory note offered in evidence was drawn by Pohl & Spreckelmeyer, co-partners, and that they were residents of the city of Baltimore at its maturity, and that the said note was endorsed by the defendant, also a resident of the city, at its maturity, and that upon the maturity of said note it was not paid, and that it was delivered by the Cashier of the Mechanics' Bank of Baltimore to Lewis Sutton, Notary Public, for protest; and that the said Notary used reasonable diligence to ascertain the residences or place of business of the drawers of said note and could not ascertain the same; and if they shall also further find from the evidence that the said Notary did also use reasonable diligence to ascertain the residence or place of business of the defendant, the endorser, and could not ascertain the same, and that on the same day he addressed [**9]  a written notice to the defendant, informing him of a demand on the said drawers and of nonpayment of said note, and that said defendant was held responsible for the payment of the same, and directed said notice to the defendant and deposited the same in the Baltimore Post Office on the same day as set out in the protest offered in evidence, that then the plaintiffs are entitled to recover.

The Court further instructs the jury that if they find from the evidence that the said Notary did not use reasonable diligence to ascertain the residences or place of business of the makers of said note, if residents of the said city at its maturity, then no legal demand in this case has been made on the makers of said note, and the plaintiffs are not entitled to recover, unless they shall further find from the evidence that subsequently to the protest of said note the defendant, the endorser, promised the plaintiffs or their attorney to pay the amount of said note, with a knowledge of the fact that no legal demand had been made on the drawers for payment.

The Court hereby further instructs the jury that if they shall find from the evidence that the said Notary did use reasonable diligence [**10]  to ascertain the residences or place of business of the makers of said note as set out in its first instruction, but did not use reasonable diligence to ascertain the dwelling or place of business of the defendant, that then the notice deposited in the Post Office as aforesaid is not sufficient to hold the defendant, and the plaintiffs are not entitled to recover, unless the jury shall further find from the evidence that the notice so deposited in the Post Office as aforesaid did actually reach the defendant on that or the succeeding day, or unless they shall find from the evidence that subsequently to the day of the protest of said note, the said defendant promised the plaintiffs or their attorney to pay the amount of said note, with a knowledge of the fact that notice of non-payment had not been regularly given to him.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

PROMISSORY NOTES: PRESENTMENT, DEMAND AND NOTICE. -- The obligation to make a presentment and demand of payment of the maker of a note extends to the case of a resident within the State (if known to the holder) as well as to a resident of a city.

A personal demand and personal notice being dependent upon the knowledge of the holder of the place of residence or business of the maker and endorser, the Court correctly refused to grant prayers which required a demand of payment of the maker at his residence or place of business, and personal notice of non-payment to the endorser, or notice at his place of business without regard to the fact whether the holder or Notary had knowledge of the residence of the maker or endorser respectively, or used due diligence to ascertain the same.

PROMISSORY NOTES: PRESENTMENT, DEMAND AND NOTICE: WAIVER OF NOTICE is often more certainly indicated by acts than by words.

EVIDENCE: NOTARY'S CERTIFICATE OF PROTEST. -- By the Code, Art. 14, sections 6 and 7, the protest itself is prima facie evidence of the facts stated therein.

EVIDENCE: PROVINCE OF COURT AND JURY. -- What constitutes due diligence upon any state of facts agreed on, or to be proved by the jury, is a question of law for the Court.

NOTICE TO ENDORSER. -- An endorser is entitled to strict notice, by which is meant that reasonable diligence shall be employed and reasonable efforts made to give it.

The Notary must resort to all proper parties to the note within his reach; he must apply to the maker of the note if he is known and within reach.

PROVINCE OF COURT AND JURY. -- The question of due diligence in this State must be determined by the Court.

APPEAL AND ERROR: PRAYERS AND INSTRUCTIONS TO THE JURY. -- This Court has repeatedly held that although there was error in the instruction of the Court below, such error will not be ground for reversal if it appear that the party appealing was not injured thereby.  

COUNSEL:
J. Randolph Quinn for the appellant.

The appellant contends that the judgment in this case should be reversed, and assigns as a reason therefor:

1st. That the Court below erred in rejecting the appellant's prayers 1, 2, 5, 6, 7 and 8, because there was no evidence such as is required by law to fix the liability of an endorser; that [**11]  in fact the evidence showed failure of diligence in that respect. Endorsers should have notice of demand and non-payment; proof of notice must be clear; endorsers in same town entitled to personal notice; the protest being only prima facie evidence, is not of itself sufficient proof. Day vs. Lyon, 6 H. & J., 140. Moore vs. Hardcastle, 11 Md. Rep., 486. Bell vs. Hagerstown Bank, 7 Gill., 229-231. Graham vs. Sangston, 1 Md. Rep., 66-67. Woodworth vs. Bank of America, 19 Johns., 391. Smedes vs. Bank of Utica, 20 Johns., 372. Story on Prom. Notes, 235, 322, 348. As to putting notices in Post Office, see Farmers' Bank vs. Bowie, 4 Md. Rep., 495. Brailsford vs. Williams, 15 Md. Rep., 150. Ransom vs. Mack, 2 Hill, 587. Halliday vs. Martinett, 20 Johns., 168.

2nd. That the Court below erred in rejecting the appellant's prayers 3 and 4. Waiver of demand and notice must be done understandingly. Failure to accept the defendant's (appellant's) offer conferred no rights on the plaintiffs, (appellees,) which they did not possess before such offer, but left the parties in their original condition. Cayuga Bank vs. Dill, 5 Hill, 303. Agan vs. McManus, 11 Johns., 180. Griffin vs. Goff, 12 Johns.  [**12]  , 423. Norris vs. Lain, 16 Johns., 151.

3rd. That the Court below erred in its first instruction. Diligence is a question of law. Sasscer vs. Farmers' Bank of Maryland, 4 Md. Rep., 409. Bell vs. Hagerstown Bank, 7 Gill., 231. Schofield et al. vs. Bayard, 3 Wendell, 488. The whole of this instruction being based on the question of diligence was improperly given to the jury.

4th. The second instruction is bad, for the reason assigned in the 3rd point; and the Court also erred in assuming there was evidence that the defendant promised to pay the plaintiffs, as in said instruction stated--the evidence being that the defendant offered to pay conditionally--not absolutely --and there was no evidence that the conditional offer was accepted by the plaintiffs. On the contrary, the plaintiffs desired to annex conditions of their own to the defendant's offer.

That Courts cannot assume facts is well settled. The appellant refers to authorities cited under his 2nd point, as elucidating this 4th point.

5th. That the 3rd instruction is bad for the reason assigned by the appellant in his 3rd and 4th points.

H. Stockbridge, for the appellees.

The appellees do not contend [**13]  that all the propositions contained in the prayers of the appellant are bad as abstract statements of law; but they submit that some of them are not sustained by any facts proven in the case, and others had a tendency to mislead the jury, and it was competent for and the duty of the Judge to lay all aside, under such circumstances, and to give the jury instructions which would not mislead, and which covered all the points in controversy. Mutual Safety Ins. Co. vs. Cohen, 3 Gill, 459. Clements vs. Smith's Admrs., 9 Gill., 160. N. Y. Life Ins. Co. vs. Flack, 3 Md. Rep., 341. Key vs. Dent, 6 Md. Rep., 142.

The defendant relied only upon his second plea, viz: that he "had not due notice of the dishonor of said promissory note as alleged;" and the only question in controversy at the time of the giving of the instructions were: 1st, the technical sufficiency of the notice of protest, and 2nd, if sufficient, the force of the subsequent promise to pay.

The plaintiff contended, and contends here, that the notice given to the endorser was sufficient to render him liable to his endorsee. It is not to be expected that in large cities Notaries Public can have a personal acquaintance with [**14]  all the merchants doing business in such cities. And if promissory notes are made without any fixed place of payment expressed upon such notes, the Notaries can only be required to use earnest diligence and conform to the "custom of merchants" for the discovery of the endorsers and the service of notice.

In this case the custom of merchants relative to protests in the city of Baltimore, was strictly complied with. And the notice sent to the appellant would, according to the appellant's testimony, reach him on the day of protest or the following morning. The appellees submit that this was due diligence and sufficient notice.

The general rule of personal demand upon the maker and personal notice of dishonor to the endorser is well established; but the exception, which, under certain circumstances, permits the sending of a notice by mail, is equally so. It was clearly declared to be the law of Maryland, in Walters & Harvey vs. Brown, 15 Md. Rep., 285; and if any doubt could have existed as to the sufficiency of the demand and notice in the present case before that decision, there certainly can be none since.

But this case is stronger than that of Walters & Harvey vs. Brown,  [**15]  in that, in this case, the proof establishes mercantile usage for the demand and sending of notices by mail, and the strict conformity of the Notary to the established usage. In Gindeat vs. Mechanics' Bank, 7 Ala., 324, Chicopee Bank vs. Eager, 9 Met., 583, and other cases, such usage, although the usage of a single bank, has been held sufficient to bind the maker of a note made payable at such banks. Much more then would a usage like this, adopted by all the banks of a great commercial city like Baltimore, bind persons doing business in such city and through those banks.

But after maturity, the endorser "recognized his liability on the note and promised to pay it." This promise was sufficient to bind him to the payment, for it was evidence of protest for non-payment, and that notice of dishonor had been given. Gibbon vs. Coggon, 2 Camp., 188. Beck vs. Thompson, 4 H. & J., 531. Shephard vs. Spates, 4 Md. Rep., 400.

This promise was made while the promisor had in his possession the merchandise for which the note was given. He was therefore in fact the debtor, and his promise could not in any event be regarded as a nudum pactum. It is a stronger case than that of an endorser [**16]  who has received from the maker of a note security for his liability; and even in that case, it is well settled that the endorser cannot avoid payment by the plea of want of notice of dishonor. And this distinction stands in sound reason as well as on authority, for the neglect to give notice cannot have operated to his injury.

From these views it follows, that it is immaterial whether the Court did or did not err in submitting the question of reasonable diligence to the jury. Proper diligence having been exercised, the Court's ruling upon that point must have been against the defendant, and if instead of ruling thus against the defendant, the Court permitted him to attempt to satisfy the jury that proper diligence had not been used, it was an error which could not prejudice the defendant, of which he cannot complain, and for which he cannot ask a reversal of the judgment. It was an error in favor of the appellant. Anderson vs. Garrett, 9 Gill., 131. Keener vs. Harrod, &c., 2 Md. Rep., 63. Pratt vs. Johnson, 6 Md. Rep., 407. Marshall vs. Harwood, 7 Md. Rep., 466. See cases collected in 2nd Md. Digest, p. 23, pl. 131.  

JUDGES:
From this action of the Court below the defendant appealed,  [**17]  and the cause was argued in this Court before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*194]  BOWIE, C. J., delivered the opinion of this Court.
The appellees as endorsees, sued the appellant as payee and endorser of a promissory note dated Baltimore Nov. 8, 1860, drawn by Pohl & Spreckelmeyer at four months for $ 367, for value received.
The defendant offered a series of eight prayers, all of which were rejected, and instructions given in lieu thereof by the Court, to the rejection and granting of which respectively, the defendant excepted, and prayed an appeal.
The first, second and eighth prayers refer to the demand 

 [*195]  on the maker, and notice of dishonor to the endorser, necessary to make the latter legally responsible.
The first and second prayers require a personal demand of the maker, and personal notice to the endorser, of demand and refusal to pay, if the jury believe the maker and endorser respectively, had a known and recognized place of business in Baltimore, and were generally known, and that by the custom of Baltimore City, Notaries are expected to notify endorsers at their places of business or residences, if any [**18]  they have, without reference to the knowledge of the holder of the note or Notary Public, of the residence or place of business of the maker or endorser, or of any want of diligence on their part, to obtain such information.
The defendant's third prayer asserts, that an offer to compromise not accepted, is no waiver of the defendants right of defence as endorser, unless the jury shall further find that at the time of the offer as above, the defendant knew of his rights of defence and expressly waived or abandoned them.
4th. That if the offer as aforesaid was made and not accepted, such offer is not evidence to go to the jury under the declaration in this case.
The 5th and 6th refer to the form and sufficiency of notice of protest. They affirm, if the notice purporting to be sent to the defendant as endorser, was not directed to him at his place of residence or Post Office, and the protest does not state such fact of direction, or any place of direction of notice to the first endorser, or if the notice did not contain a true description of the note, the jury must find for the defendant.
The 7th declares, there is no evidence of a notice of dishonor of the note mentioned [**19]  in this action, asserting it had been presented to the makers at maturity, and dishonored, and that defendant would be held responsible.
The 8th affirms that if the makers and endorsers as aforesaid 

 [*196]  had known and recognized places of business in the city, and that Charles R. Coleman, one of the endorsers, lived in the same city, notice of the protest must be personal, if possible.
As to notes payable without reference to any particular place, the general rule is, that a demand must be made of the maker of the note, or at his residence or place of business, (if he has one or it is known) within the city, or place where the note is payable, in order to bind the endorser. Story on Prom. Notes, sec. 235.
This rule necessarily implies knowledge on the part of the holder, of the place of residence or business. Accordingly, where the circumstances are such as to render it difficult to acquire this knowledge, the rule is relaxed. CHAN. KENT Com. vol. 3, sec. 41, p. 95, says, "There is a great deal of perplexity and confusion in the cases on this subject, arising from refined distinctions and discordant opinions, and it becomes very difficult to decide what [**20]  is precisely the law of the land as to the sufficiency of the demand upon the maker of the note or the acceptor of the bill."
If there be no particular and certain place identified and appointed, other than a city at large, and the party has no residence there, the bill may be protested in the city on the day, without inquiry, for that would be an idle attempt. The general principle is, that due diligence must be used to find out the party and make the demand, and the inquiry will always be whether under the circumstances of the case due diligence has been used. **** The presumption is, that the maker resides where the note is dated, and that he contemplates payment there. But it is presumption only, and if the maker resides elsewhere within the State, when the note falls due, and that be known to the holder, demand must be made at the makers place of residence. Vide Note 1, Story on Prom. Notes, 281.
"If the maker has no known residence or place where a 

 [*197]  presentment can be made, then the holder will in like manner be excused from any presentment." Story on Prom. Notes, sec. 237, note 4, and authorities there cited. These general principles were [**21]  recognized and adopted by this Court in the case of Nailor vs. Bowie, 3d Md. Rep., 256, and Sasscer vs. Whitely & Stone, 10 Md. 98, 102, 104.
The obligation to make a presentment and demand of payment of the maker of a note, extends to the case of a resident within the State, (if known to the holder) as well as to a resident of a city, but in the case in 10 Md. 98, 102, 104, the demand at the Post Office, of a note dated at Baltimore was deemed sufficient upon proof, that the Notary was unable to ascertain where the maker resided, although the defendant proved he had lived for forty years near Upper Marlborough, and had for the last thirty years extensive business transactions both with commission houses and banking institutions.
A personal demand and personal notice being dependent upon the knowledge of the holder, of the place of residence or business, of the maker and endorser, it is clear from these authorities, the Court correctly refused the 1st, 2nd and 8th prayers of the defendant, which required a demand of payment of the maker, at his residence or place of business, and personal notice of non-payment to the endorser, or notice [**22]  at his place of business, without regard to the fact, whether the holder or Notary had knowledge of the residence or place of business of the makers or endorser respectively, or used due diligence to ascertain the same.
To the third prayer of the defendant, requiring the jury shall find that at the time the offer of compromise was made, the defendant knew of his rights of defence, and expressly waived and abandoned them, or such offer, etc. was no waiver, was too broad a proposition, as waiver is often more certainly indicated by acts than by words.

 [*198]  The conduct of the defendant, which included all that transpired at his interview with the plaintiffs' counsel, was material and proper evidence to go to the jury, under the second issue in the case, the possession of the property for which the note was given was circumstantial evidence that the endorser was indemnified to some extent for his liability, and if he had been substituted for the makers, by his own act, he could not retain the thing sold, and refuse to pay the price. We do not perceive any evidence to warrant the fifth prayer of the defendant. It proceeds upon an hypothesis directly contrary to the evidence.  [**23]  It was proved the defendant resided in the City of Baltimore, and had a place of business there, where he received letters addressed to him through the Post Office, and that a letter addressed to him would, in the regular course of business be received by him the same day it was mailed, or the following morning.
The Notary testifies that on the same day of the protest, he addressed written notices to the drawers and endorser of the note, informing them it had not been paid, payment thereof having been demanded and refused, and they would be held responsible therefor, and dropped notices in the Baltimore Post Office, directed to the drawers and first endorser, after diligent search and inquiry, and failure to find them. Thus it appears the notice was directed to the defendant, and put in the Post Office of the city in which he resided and did business, and from which he usually received letters the same day or next morning.
The 6th prayer assumes a discrepancy between the description of the note sued on, and that mentioned in the protest, etc., no such variation appears in the testimony, and therefore its rejection was proper.
The 7th instruction amounts to a declaration, that there [**24]  is no evidence of notice to the defendant of demand, nonpayment, etc., in the case.

 [*199]  The protest itself was prima facie evidence of the presentment of the note for payment and its non-payment; and that notice of such presentment and non-payment were given the parties in the manner therein stated. Code, Art. 14, secs. 6 and 7. All of which was confirmed by the evidence of the Notary Public.
It appears from this summary of the several prayers of the defendant they were not supported by the law or the evidence, and therefore properly rejected.
The instructions given by the Court in lieu of those rejected are objected to, because they submitted to the jury to find among other facts "whether the Notary used reasonable diligence to ascertain the residences or places of business of the drawers of the note and endorser, and could not ascertain the same," which, it is contended, it was the province of the Court to determine.
In Whitridge vs. Rider, 22 Md. 548, it was held by the Court as follows: "What constitutes due diligence upon any state of facts, agreed or to be found by the jury, is a question of law for the Court, and it is very difficult to lay [**25]  down any general rule applicable to all cases. Each depends much on its special circumstances. This, however, can be stated generally, that if the holder does not know where the endorser or other party to be notified lives, but can inform himself by reasonable endeavor or diligent inquiry, he must do so." An endorser is entitled to strict notice, by which is meant, "that reasonable diligence shall be employed and reasonable efforts made to give it." 1 Parsons on Bills & Notes, 490, note a. 11 Md. Rep., 486. 1 H. & G., 248. 15 Md. Rep., 285. The Notary must resort to all proper parties to the note within his reach; he must apply to the maker of the note if he is known and within reach.
The evidence in this cause shows the Notary inquired of the Cashier of the Mechanics' Bank, the holder of the 

 [*200]  note, and examined the City Directory to ascertain the residence and place of business of the drawer and endorser, (the defendant) and could obtain no information of either; that after diligent search and inquiry, and failing to find them, he presented the note and demanded payment at the Baltimore Post Office and Merchant's [**26]  Exchange, and found no one to pay it; he then addressed written notices to the drawer and endorser informing them, etc., and dropped the notices in the Baltimore Post Office, directed to the drawer and first endorser, and mailed notices under covers for other endorser directed to N. F. Palmer, Esq., New York. It was further proved in the cause that the endorser did business under the name of "McAleer;" that he received letters through the Post Office addressed to himself in his own name, as well as in the name of "McAleer & Co.," and a letter addressed to him, or a notice, would, in the regular course of business, be received by him the same day it was mailed or the following morning, and that it was the usage or custom in Baltimore city if the makers and endorsers cannot be found, to make inquiry of the bank from which the note was received, and examine the City Directory, and if that does not disclose the place of business or residence of the parties, to make demand in some public place, usually the Post Office and Merchants' Exchange, and to address the notices for the endorsers to them and deposit them so addressed in the city Post Office. The Notary having complied not only with [**27]  the general requisitions of mercantile practice, but the local custom of the city, as well as the demands of the law, in exercising reasonable diligence and care to ascertain the residences and places of business of the maker and endorsers, and make presentment and demand payment, and in default thereof to give notice to the endorser, the Court, if it had been asked, must have held and instructed the jury, if they believed 

 [*201]  the evidence, that the plaintiff had used due diligence in those respects.
In this State, since Patton vs. Wilmot, 1 H. & J. 477, it has been held to be the province of the Court to determine whether or not due diligence has been used by the holder of the note or bill to recover the money from the maker or acceptor, so as to fix the liability of the endorser; yet the same case decides that in the absence of such diligence the endorser may recover if it appears that the endorser subsequently promised to pay the amount of the note. This Court has repeatedly held that although there was error in the instruction of the Court below, such error will not be ground for reversal if it appears the party appealing was not injured thereby. 3 Gill, 459. [**28]  4 Gill, 406. 8 Md. Rep., 208, 274. Hanson vs. Campbell, lessee, 20 Md. 223, 233. In the present case the instructions given by the Court submitted to the jury to find whether the plaintiff had used due diligence in making demand of the maker and giving notice to the endorser of non-payment and dishonor; and also whether the defendant, in the absence of knowledge of the omission to make such demand and give such notice, had promised to pay the debt. The jury finding for the plaintiff must have found the facts enumerated in the bill of exceptions to be true upon one hypothesis or the other; if they found upon the first hypothesis they arrived at the same conclusion of law which the Court would have reached, and should have directed the jury to be sufficient proof of due diligence if they believed the evidence on that point; if they found the promise subsequent, with knowledge, etc., they found such facts as rendered the question of diligence immaterial. So that in no aspect was the defendant injured by the instructions given.
The Court below in the instructions granted gave the defendant the benefit of all want of knowledge of non-presentment [**29]  

 [*202]  and non-payment, if such existed, by requiring the jury to find his promise to pay the amount of the note, was made with a knowledge of the fact that no legal demand had been made on the drawer for payment before it should operate as a waiver of notice.
In the absence of reasonable diligence to find the residence or place of business of the maker and endorser, then the jury were required to find actual notice or a promise to pay, with knowledge of the fact that notice of non-payment had not been regularly given. Every precaution seems to have been taken to inform the jury of the facts necessary to be found to entitle the plaintiffs to recover, except the omission to define what was due diligence in law on the part of the Notary. This, we have seen, not prejudicing the defendant, is no cause for reversal.
Judgment affirmed. 

111 of 120 DOCUMENTS 

GEORGE SMALL vs. ADOLPHUS C. SCHAEFER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 143; 1866 Md. LEXIS 8 

March 3, 1866, Decided 

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

The facts of this case are stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

AGREEMENT: CONSIDERATION: PAROL PROMISE TO PAY THE PRE-EXISTING DEBT OF ANOTHER: STAT. 29, CHARLES II, SEC. 4. -- G, a broker, received from the defendant certain moneys to invest in bonds, and being then indebted to the plaintiff gave the latter his check for the amount due him, and deposited with the cashier of his bank five State bonds, to make his checks good. Three of the bonds so deposited had been purchased upon the order and with the money of the defendant, but never delivered to him, yet marked in pencil with his initials. These bonds were transferable by delivery, and neither the bank nor the plaintiff were aware of the defendant's claim to a part of them. After the deposit the bank overpaid checks of G but did not pay the check given to the plaintiff. G failed a few days after depositing the bonds in bank. When the defendant called on him, G told him the bonds were pledged with the bank to secure its overpayment of his checks and the unpaid check to the plaintiff; upon which the plaintiff proposed, if G would give him an order for the five bonds he would make good the amount due on them to the bank, and also pay G's check to the plaintiff, to which G agreed. Upon the presentation to the bank of the orders given under this agreement for the delivery of these bonds, and upon payment of the sum due the bank, the bonds deposited were delivered up. After the bonds had been obtained, G and the plaintiff called on the defendant to inquire why the check had not been paid, and the defendant admitted his promise to pay, but said he was too smart to pay that check, and had procured the bonds without paying more than the bank's advances. On a suit brought against the defendant by the plaintiff, HELD:

1st. That it was not necessary, to create an obligation on the part of the defendant to pay the plaintiff the amount of the check, that the consideration should proceed directly from the plaintiff or the promise be made directly to him. Such a promise to one for a third party, is to be deemed made to the third party, if adopted by him, although he was not cognizant of it when it was made.

2nd. That the prejudice of the plaintiff by the delivery of the bonds was a sufficient consideration to support the defendant's promise, whether the latter was benefited by the transaction or not.

3rd. That this case was clearly within the well-known exception to the operation of the statute of frauds, that "wherever the main purpose and object of the promisor is, not to answer for another but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another."

The rule that there must be an extinguishment of the first debt as a consideration of the new promise, applies only to that class of cases where the creditor's relinquishment of the first debt is the motive of the promise. It does not apply to cases where other inducements are held out such as the assignment of property, or relinquishment of liens, in consideration of which the promisor undertakes to pay the debt of another.

WITNESS, COMPETENCY OF: RELEASE. -- The plaintiff, in order to render G a competent witness, during the trial executed a release to him, reserving the "right to proceed against any and all other parties who may in any manner be liable," HELD:

That such release rendered G competent if he was before incompetent, without prejudice to the right of action of the plaintiff.  

COUNSEL:
Andrew S. Ridgely & R. J. Brent for the appellant.

Every contract, written or verbal, not under seal, requires a consideration to support it and give it validity. Smith's Law of Cont., 3 Am. Ed., pp. 70 and 129. Story on Cont., sec. 426, &c.

Not only must there be a consideration, but a valuable consideration--emanating from some injury or inconvenience to one party or some benefit to the other party. Story on Cont., sec. 429, 3 Am. Ed. 2 Black. Com., 297. Smith on Cont., 169, 3 Am. Ed.

But the performance of an act which it was before legally incumbent on the party to perform, is in law a "worthless and insufficient consideration." For instance:--"If the master of a ship promise his crew an addition to their fixed wages in consideration of and as an incitement to their extraordinary exertions during a storm, this promise is nudum pactum--the voluntary performance of an act, which it was before legally incumbent on the party to perform, being in law a worthless and insufficient consideration.-- Chitty on Cont., 5 Am. Ed., 1842,  [**2]  p. 51. Newman vs. Waters, 3 Bos. & Pul., 615. Calligan vs. Hallett, 1 Caines., (N. Y. Rep.) 104.

Again.--A debtor being bound by law to give up the title deeds of an estate to a purchaser pursuant to a decree of sale, enters into an agreement with the purchaser to deliver them to him on payment of a sum of money, the debtor is not only without any right of action for enforcing such an agreement, but if the money is paid, he is himself subject to an action for the recovery of it back. In all such cases the parties are bound to do the acts in question without compensation or reward. See Addison on Cont., 2 Am. Ed., 13 and 14, and cases cited. See also Jones vs. Waite, 5 Bingham N. C., 191.

The Court erred in granting the plaintiff's prayer, and in rejecting the defendant's 1st, 3rd, 5th and 7th prayers.

1st. Because there was no privity of contract existing between the plaintiff and defendant.

2nd. Because of want of consideration for the alleged promise.

3rd. Because the alleged promise was to pay to the plaintiff a pre-existing debt due to him from another person, and was not in writing, but verbal, and no action can be sustained by the plaintiff on such verbal [**3]  promise.

What is the object of this action? It is to recover the amount of a check drawn in favor of the appellee on the Franklin Bank of Baltimore, by one McGinn, a stock and bill broker, for the amount of the proceeds arising from the sale of a promissory note entrusted by the appellee to the said McGinn for sale, sold by the said McGinn, but the proceeds of which sale instead of being paid over to the said appellee, were by the said McGinn dishonestly appropriated to his own use.

While, for the purposes of the present argument, it is not admitted that there were two distinct considerations which admit of severance, nor insisted on the other hand that the consideration is entire, and must be regarded as wholly good or wholly bad; yet this is a matter for the consideration of the Court. See Story on Cont., secs. 480, 481, 482.

It is at the same time most emphatically urged and contended, that be the condition severable or not, be it wholly good or wholly bad, whatever else it may be capable of, it is not capable of sustaining an action in the name of the appellee. It did not move from him, but passed directly from McGinn. The promise was not made to him, it was made [**4]  to McGinn--the appellee was in no wise privy thereto. To the signing and delivery of said orders he was a stranger. When he took the check he knew there was no money in bank, but McGinn did not pledge any particular bonds as security for its payment, he simply told the appellee that he "had some State bonds which he would deposit with the bank, or other securities, or something else, to make his check good." The check when presented was dishonored, the bank persistently refused to pay it on the security of said bonds. The delivery of the bonds, therefore, to the appellant on McGinn's order, occasioned no loss, trouble or inconvenience to, or charge upon the appellee. He neither was present at, nor assented to the agreement made between the appellant and said McGinn, and he cannot recover in this action. Story on Cont., sec. 450, &c., 3 Ed. Powel on Cont., p. 344. Owings vs. Owings, 1 H. & G., 487, 488.

Upon the question whether a person can sue upon a promise, even though it be professedly for his benefit, where he is an entire stranger to the consideration, that is, has taken nothing of trouble or charge upon himself, or occasioned any benefit to the promiser, but such trouble [**5]  has been sustained or advantage conferred by a third person, the cases seem to have been contradictory, though it is a recognized rule of law that the consideration for a promise must move from the plaintiff. The contract is in such cases binding, there being sufficient consideration, and the difficulty is, who should be made the plaintiff--the party with whom the agreement was made, and from whom the consideration moved, or the party meant by him to be benefited, and for whose advantage the act stipulated for is to be performed? It is clear that if the promisee be a mere agent for the person to be benefited, the latter may sue upon the agreement, though not known at the time to be interested therein. But if no such agency exists, there seems to be great difficulty in permitting an entire stranger to the consideration to enforce the performance of the contract by action in his own name. Chitty on Cont., 53, 54, Am. Ed., 1842. Addison on Cont., 940, 941.

From the case of Price vs. Easton, cited in illustration of the above examples, it may be seen that not only must there be a consideration moving from the plaintiff to the defendant, but there must be shown a privity between them,  [**6]  the plaintiff must have known of the arrangement, and the promise must have been made to him. Price vs. Easton, 4 Barn. & Adol., 433, (24 Eng. C. L. Rep., 96.) Addison on Cont., 940. Very slight circumstances are, however, sufficient to connect the consideration with the promise so as to enable the promisee to maintain an action thereon. If the act or service, for example, forming the consideration for the defendant's promise to the plaintiff, has been rendered to the defendant at the instance and request, and through the instrumentality or procurement of the plaintiff, it has been held that the consideration moves from the plaintiff so as to enable him to maintain an action upon the promise. Addison on Cont., 491. Eastwood vs. Kenyon, 11 Adol. & Ell., 452.

If there is a benefit to the defendant and a loss to the plaintiff consequential upon, and directly resulting from the defendant's promise in behalf of the plaintiff, there is a sufficient cause or consideration moving from the plaintiff to enable the latter to maintain an action to recover compensation. Addison on Cont., 492. Schemerhorn vs. Vanderheyden, 1 Johns., 139. Blymire vs. Boistle, 6 Watts, 182. Owings vs. Owings,  [**7]  1 H. & G., 484.

If there be a privity between the parties, either party, indifferently, may bring the action. Thus, where the plaintiffs were creditors, and the defendants were debtors of T, and by consent of all parties an arrangement was made that the defendants should pay to the plaintiffs the debts due from them to T, it was held that the agreement was for a sufficient consideration. Story on Cont., sec. 450. Wilson vs. Coupland, 5 Barn. & Ald., 228. So a privity of contract will be implied when the promise or agreement is made in the presence of the third person, with his assent. Lilly vs. Hays, 5 Adol. & Ell., 550. Story on Cont., secs. 450, 454. And while it is contended as a general rule to be unquestionably true that no person can maintain an action on an agreement to which he is not a party, it is at the same time acknowledged that there are certain exceptions to the rule. If a contract be made with an agent or attorney, or one holding towards the plaintiff a position analagous to that of agent or attorney, the principal may sue in his own name. Chitty on Cont., 54, and note T; also p. 615. If money is delivered by A to B for the purpose of being paid over to C, the [**8]  latter may maintain an action against B for the money; or, if goods are so delivered with the understanding that they are to be turned into money, and the proceeds applied in the same way, this would be an exception to the general rule. Story on Cont., secs. 451, 454. Or, if the promise is not special, but general in its character, the assent of the third party may make him constructively a party thereto. Treat vs. Stanton, 14 Conn., 445. Or, if the promisee be not beneficially interested in the performance of the promise, and the party beneficially interested therein be the party to whom it is to be performed, the last may maintain the action--or, if he be the meritorious cause of the promise. 1 Ch. Pl., 2 and 4.

These, it is apprehended, are all the material exceptions that can fairly be deduced from the adjudged cases; and the only difficulty consists in not carefully considering and fully analyzing the cases which are within the rule, and those which are within the exceptions, and comparing the one class with the other. See Lawrence vs. Fox, 20 N. Y., (6 Smith,) 268. Hind vs. Holdship, 2 Watts, 104. Hall vs. Marston, 17 Mass., 579. Carnegie vs. Morrison, 2 Met., 401. See also [**9]  Lilly vs. Hays, 5 Adol. & Ell., 550. Story on Const., 451. Dutton vs. Poole, 1 Vent., 318. Treat vs. Stanton, 14 Conn., 446. Blymire vs. Boistle, 6 Watts, 182. 2 Am. Le. Ca., 165. Owings vs. Owings, 1 H. & G., 485. Mellen vs. Whipple, 1 Gray., 317. 2 Am Le. Ca., 167.

For a full review of the authorities upon this much embarrassed question the Court is referred to the notes to Vadaken vs. Soper. Depeau vs. Waddington, 2 vol. Hare and Wallace's Am. Le. Ca., 159, 160, 161, 163, 164, 165, 166 and 167. It is insisted upon that the present case is within the rule and not within the exceptions. The promise was made not to the appellee but to McGinn; the consideration, if there was any sufficient consideration in the case, moved from the latter, and he was beneficially interested in the performance of the promise, for by that performance he would have been relieved of all liability on the check given by him to the appellee.

Lastly, it is contended that the alleged promise was to pay to the plaintiff a pre-existing debt due to him from another person, and being verbal, and not in writing, no action can be maintained by the plaintiff on such verbal promise. Stat. of Frauds, sec. 4.  [**10]  Burge on Suretyships, 20.

"This statute," says Mr. Brown, (Brown on Statute of Frauds, sec. 188,) "applies to promises to pay the debt of another, and this is construed by the Courts, both of England and this country, to mean the debt of some person other than the immediate parties to the contract of guaranty." And as authority for this statement he refers to Eastwood vs. Kenyon, 11 Adol. & Ellis, 438. Colt vs. Root, 17 Mass., 229. Mersereau vs. Lewis, 25 Wend., 243. Weld vs. Nichols, 17 Pick., 538. Barker vs. Bucklin, 2 Denio, 45, the case of Hardesty vs. Jones, decided by the Court of Appeals of this State, 10 Gill & John., 404, and other cases.

This is undoubtedly sound law and a proper construction of the statute. Where the debtor sues on a promise made by the defendant to him to pay his debt to a third party, the statute of frauds does not apply, and the promise need not be in writing, as was the case of Eastwood vs. Kenyon, 11 Adol. & Ell., 438, because the promise, as between the said plaintiff and defendant, is an original undertaking, and not a promise to answer for the "debt, default or miscarriage of another." But where the creditor, the third party to whom the [**11]  debt is due, sues, it is on an alleged promise on the part of the defendant to pay the debt of another person, that is to say, to answer for the debt due to the plaintiff from another, a third party, other than the defendant, and to this latter case the statute does apply, and the promise must be proved to be in writing. This has been expressly ruled in a recent case decided by the Supreme Court of Pennsylvania. Shoemaker vs. King, Penn. State Rep., (4 Wright,) 107. "It is an attempt," in the language of the Court of Appeals of this State, "to establish by oral proof a promise to pay the debt of another contrary to the statute of frauds. It is an effort on the part of a creditor seeking to charge a third person with a debt already due to him from another, an effort to establish orally two subsisting liabilities to the same person for the same debt, which is clearly prohibited by the statute." Jones vs. Hardesty, 10 G. & J., 417, 418. Sloan vs. Wilson, 4 H. & J., 329. Andre vs. Bodman, 13 Md. Rep., 254.

"Where the original debt is destroyed or discharged by the new parole agreement, the statute does not in general apply, otherwise it does, and the promise or agreement must be in [**12]  writing. Chitty on Cont., (Ed., 1842,) pp. 513, 515, 615, 616. Browning vs. Stallard, 5 Taunt., 450. Caperton vs. Grey, 4 Yerger, 563. Andre vs. Bodman, 13 Md. Rep., 242. Elder vs. Warfield, 7 H. & J., 396, 397.

Supplemental Points.--The release executed by Schaefer, the appellee, to McGinn, destroys his right of action against Small, the appellant, and hence there was error in refusing the first and third prayers of the appellant and in granting the appellee's prayer, ignoring the effect of the release. The only privity that existed, or could exist, between the appellant and appellee, grew out of the check and its payment, and that privity has been destroyed, to the injury of appellant, by the release of McGinn, the maker of the check.

The agreement of the appellant must be either an original undertaking to pay the appellee the debt represented by the check, in which case, as the debt evidenced, by the check, has ceased to exist, by the effect of the release, the undertaking cannot be performed; or a collateral undertaking, to pay a pre-existing debt, in which event, as the pre-existing debt has ceased to exist, the collateral undertaking must fall; and in addition, all [**13]  collateral undertakings, to pay the debts of another, are within the 4th Section of the Statute of Frauds.

The obligation of Small to pay McGinn's check cannot be greater than if he had specially endorsed it, or greater than if McGinn had drawn upon him and he had accepted it, in fact his obligations under the circumstances are much less. If he had contracted as the acceptor of a draft, or the accommodation endorser, or the joint maker, of a note, the release of McGinn would clearly discharge him; and can he be held to a stricter accountability? Story on Bills of Exchange, sec. 433. Booth vs. Campbell, 15 Md. Rep., 574.

I. Nevitt Steele, for the appellee.

The prayer of the appellee and the third, first and seventh prayers of the appellant present the following questions for the consideration of the Court.

1st. Was there any consideration for the promise of the appellant?

2nd. Was the appellee barred from a recovery by the want of privity of contract with the appellant?

3rd. Was the appellant's promise void under the statute of frauds, because it was not in writing?

1st. It is contended for the appellee that the promise of the appellant was made on [**14]  a sufficient and valuable consideration. That consideration, as shown by the evidence, was an order, divided at the request of the appellant into two orders, for the delivery of five State bonds of $ 1,000 each, and the orders were given and received, and the bonds obtained by means of them. Of these bonds, two were not even claimed to be the property of the appellant or of Jenkins whose name he caused to be inserted in one of the orders. These two bonds, of themselves, and without aid from the three others, constituted a valuable consideration. Nor was their efficacy in this respect affected by the alleged title of the appellant to the other three bonds. He probably learned on the evening of April 24th that the five bonds were deposited in the Franklin Bank; on the morning of the 25th he claimed three of them of the bank, and was informed that they could not be delivered without an order from McGinn, and he then went to Govanstown, and there with full knowledge of his own claim to the ownership of the three bonds, made the promise, on which the action is founded, in consideration of the orders for the delivery of the whole five. There was therefore no deception practiced on him in [**15]  reference to the three bonds, and he obtained precisely what he had bargained for.

But he had not the legal title to the three bonds. They were purchased by McGinn in New York on his own account, and the legal title to them was in him. They were not by any means clearly identified, as the three bonds bought by McGinn in New York, in fulfillment of his contract with the appellant, and even if they had been, they were McGinn's until delivery had been made to the appellant. Even if the appellant could have established his claim to these particular bonds as against McGinn, still as they were negotiable by delivery, they were McGinn's as to all the world who dealt with him innocently in reference to them. If he held them, merely as agent for the appellant, then the principle applies, that every agent who is entrusted with notes or other securities endorsed in blank, so that they pass by delivery, is authorized to use and transfer them as he pleases, in dealing with those who are ignorant of the agency.

Further, the bonds had been deposited in bank and advances made upon them; they had been equitably pledged to the appellee for payment of the post dated checks received by him;  [**16]  and the appellant's claim to them specifically, was at least doubtful. Under these circumstances the acquisition of an undoubted title to them, and the obtention of possession, constituted a valuable consideration. 1 Pars. on Cont., 369. Kent vs. Lyles, 7 G. & J., 73. Longridge et al., vs. Dorvil et al., 5 Barn. & Ald., 117.

2nd. It is contended for the appellee that his recovery in this case is not prevented by want of privity of contract between him and the appellant. Because the bonds having been deposited with the bank, as security for the payment of the check held by the appellee, he had a lien upon them, and therefore the consideration for the promise of the appellant in great part passed from him, the appellee, and he was not a stranger to it. Even if this be not so, he was at least so connected with the transactions out of which our action arises, that he cannot be regarded as a stranger to the consideration. If he was not a stranger to the consideration, then there was privity and our action is maintainable. 1 Pars. on Cont., 389.

Even if the appellee is to be regarded as in no sense connected with the consideration, this action is properly maintainable, because [**17]  when a promise upon valuable consideration is made to one to pay money to another, that other may sue and recover upon it. This proposition is established by the clear weight of authority in this country and in this State.

The existence of privity between two parties in reference to a particular transaction, is a question of law, and the law constantly implies privity to further the ends of right and justice. If money is paid to one who in consideration thereof agrees to pay it to a third person, it is everywhere conceded, that an action by such third person for money had and received will lie. Here the law implies or makes the privity. If the same promise is made on a transfer or delivery of stocks, goods or other property, why should not privity be equally implied to support an action on such promise? There is no rational ground for a distinction between the two cases. Clopper vs. Union Bank, 7 H. & J., 92-104. Owings vs. Owings, 1 H. & G., 384. Arnold vs. Lyman, 17 Mass., 400. Carnegie vs. Morrison, 2 Met., 381. Hind vs. Holdship, 2 Watts, 104. Brewer vs. Dyer, 7 Cush., 337. Schemerhorn vs. Vanderheyden, 1 John's. Rep., 140. Barker vs. Bucklin, 2 Denio, 45. Del. & Hudson Canal [**18]  vs. Westchester Bank, 4 Denio, 97. Lawrence vs. Fox, 20 N. Y., (6 Smith,) 268.

3rd. The promise of the appellant was not made void under the statute of frauds, by the fact that it was not in writing.

Because it was an original and not a collateral promise. 1 Parsons on Contracts, 497-498. 2 Id., 305-306. Allen vs. Thompson, 10 N. H. Rep., 32. Hilton vs. Dinsmore, 21 Maine, 410. Nelson vs. Boynton, 3 Met., 396. Elder vs. Warfield, 7 H. & J., 391. Brown on Statute of Frauds, sec. 166. Andre vs. Bodman, 13 Md. Rep., 254.

And because it was not made to the person to whom the party undertaken for was liable. Eastwood vs. Kenyon, 11 Adol. & Ell., 438. Hargreave vs. Parsons, 13 M. & W., 561.

4th. The fifth prayer of the appellant was properly rejected by the Court below.

Because there was no evidence in the case upon which the jury could find that the promise of the appellant was founded exclusively on the consideration of the order for the delivery of the two bonds to Jenkins. On the contrary the evidence is uncontradicted, that the promise was made in consideration of the order or orders for the delivery of the five bonds; and also because the obtention of the possession [**19]  of the three bonds claimed by the appellant, did, under the circumstances of the case, constitute a consideration.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*156]  BOWIE, C. J., delivered the opinion of this Court.
McGinn, a broker, being indebted to the appellant for money advanced to be invested in bonds, and to the appellee for money had and received to his use, gave the appellee his check, post dated April 22nd, 1861, for $ 1,397.50, on the Franklin Bank of Baltimore, stating at the same time he had some State bonds or other securities which he would deposit with the bank to make his check good. Subsequently, he deposited five State bonds of $ 1,000 each with the cashier of the bank. After the deposit, the bank overpaid checks of McGinn to the amount of $ 890, but refused to pay his check to the appellee.
Three of the bonds deposited had been purchased upon the order of the appellant, with funds advanced by him, but never delivered to him, yet marked in pencil, with the initials of appellant. These bonds were transferable by delivery, and from aught that appears, neither the bank, nor the appellee were aware [**20]  of the appellant's claim to a part of them. McGinn failed a few days after depositing 

 [*157]  the bonds in bank. When the appellant called on him, McGinn told the appellant, the bonds were pledged with the bank to secure the overpayment and check to the appellee; upon which the appellant proposed, if McGinn would give him an order for the five bonds, he would make good the amount due on them to the bank, and also pay McGinn's check to the appellee, to which McGinn agreed. The appellant presented two orders, one in favor of himself for three bonds; another in favor of Robert Jenkins for two, which were signed and delivered to the appellant. Upon presentation of the orders and payment of the $ 890, the bonds deposited were delivered. After the bonds had been obtained, McGinn and the appellee called on the appellant, to inquire why the check had not been paid, and the appellant admitted his promise to pay, but said he was too smart to pay that check and had procured the bonds without paying more than the bank's advances.
The appellee sued the appellant. At the trial it was agreed, "all errors in pleading are waived, and either party may offer in evidence and have the benefit of  [**21]   any special matter, in the same manner as if it had been specially pleaded."
The appellant excepted to the prayer granted by the Court, at the instance of the appellee, and the rejection of the 1st, 3rd, 5th and 7th prayers offered by himself. The verdict and judgment being against him, he prayed an appeal.
The questions raised upon these exceptions are:
1st. Was there a privity of contract sufficient to entitle the appellee to sue?
2nd. Was there a consideration for the supposed contract of the appellant?
3rd. Was the contract within the statute of frauds?
The appellant's 5th prayer raises the separate question 

 [*158]  of want of consideration, unless the appellant's undertaking was founded on the delivery of the order to him in favor of Jenkins, which may be considered a branch of the 2nd point.
The prayer of the appellee, being founded on all the facts, assuming them to be proved to the satisfaction of the jury, it became the duty of the Court, to decide whether the law, under the circumstances, would oblige the appellant, to pay to the appellee the amount of McGinn's check. It is not necessary to create such an obligation, that the consideration should proceed directly [**22]  from the plaintiff or the promise be made directly to him. The result of the more modern decisions is clearly condensed by Professor Parsons in his Law of Contracts, title "Consideration." After stating the ancient doctrine based upon English authorities, he says: "In this country, the right of the third party to bring an action on a promise made to another for his benefit, seems to be somewhat more positively asserted, and we think it would be safe to consider this the prevailing rule with us. *** Such a promise is to be deemed made to the third party, if adopted by him, although he was not cognizant of it when made. 1 Parsons on Contracts, 466, 467, 468.
SHAW, C. J., in the case of Carnegie vs. Morrison, 2 Metcalf 402, after reviewing the English and American decisions, lays it down as settled in Massachusetts, ever since reports of cases have been published, that "when one person, for a valuable consideration, engages with another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement." This position, he says, is sustained by citations [**23]  from Cornyn's Digest and Rolle's Abridgement.
BIGELOW, J., delivering the opinion in Brewer vs. Dyer, 7 Curtis 340, refers to Carnegie vs. Morrison in these 

 [*159]  terms: "In the latter case, all the authorities are fully reviewed in the opinion of the Court, and the rule of law clearly vindicated and established. It does not rest upon the ground of any actual or supposed relationship between the parties as some of the earlier cases would seem to indicate; Dutton vs. Poole, 1 Vent. 318. 2 Walford on Parties, 1144, nor upon the reason that the defendant, by entering into such an agreement, has impliedly made himself the agent of the plaintiff; by COLERIDGE, J., in Lilly vs. Hays, 5 Ad. & El. 551; but upon the broader and more satisfactory basis, that the law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation on which the action is founded. 7 Cush. 340.
In Owings vs. Owings, 1 H. & G. 484, this Court adopt the principle, "that where one person makes a promise to another for the benefit of a third [**24]  person, the third person may maintain an action on such promise," but in that case there was no new consideration for the promise, by the defendant, to pay the commissions to the children, but a mere promise to pay a pre-existing debt, due to the mother, to the children, without showing any interest on their part in the subject matter of the promise, beyond the relation of parent and child.
The case of Kent & Lyles, 7 G. & J. 73, shows that a verbal promise to pay a claim of another against the promisee, may be sustained by the substitution of a note by the promisee for his alleged acceptance to the promisor. It was held that "under all the circumstances of dispute and anticipated difficulty, in relation to the acceptance, the adjustment of them all, by giving the note for the amount claimed by the defendant, was sufficient consideration for the agreement to indemnify."
The appellant's second objection is, that there was no 

 [*160]  consideration for the promise, unless the jury find that the appellant, in consideration of receiving the order for two bonds, in favor of Jenkins, promised McGinn he would pay the appellee the amount of McGinn's check to him.  [**25]  
This point embraces the appellant's third and fifth prayers, the former being a denial of any consideration, the latter, a qualified or special denial.
The absence of all consideration is based upon the argument, that as to three of the bonds, those were purchased with appellant's funds, and had an ear mark upon them which made them the property of the appellant, and being entitled to his own, their delivery to him constituted no consideration for his promise, and as to the two other bonds these being delivered to Jenkins, did not enure to the appellant's benefit, and were alike inoperative as a consideration.
If the evidence of the agreement between the appellant and McGinn, is assumed to be true, (which for the purpose of these prayers is inevitable,) the contract was one and indivisible; one consideration and one promise. The parties contracted for the delivery of five bonds, in consideration of which, the checks for which they were pledged were to be made good. Small thus sanctioned the act of McGinn. The subsequent division of the bonds between himself and Jenkins was entirely the act of the appellant. It was improper to grant an instruction upon a hypothesis foreign to [**26]  the facts. Its tendency would have been to mislead. The entirety of the consideration made it immaterial what claims the appellant set up to a portion of the bonds. If he had claimed the whole, the adjustment of his claims upon McGinn, and avoidance of all further litigation to secure them, was a sufficient consideration to sustain his promise to pay the claim of the appellee; the latter being prejudiced, and the former benefited, in proportion to their respective claims upon the bonds.

 [*161]  If the delivery of the two bonds to Jenkins was for the exclusive benefit of the latter, that advantage was obtained to the prejudice of the appellee, in consequence of the appellant's promise, and whether he profited by the transaction or not, his obligation to perform that promise was the same in law. It results from these premises, that the prayers of the appellant denying the existence of a consideration for his promise wholly or in part, were properly rejected.
The third and last point arises on the appellant's seventh instruction, which affirms that if the jury find that the defendant, in consideration of the delivery of five bonds named in the evidence, verbally promised to [**27]  McGinn to pay his pre-existing debt to the plaintiff, then the promise is void and no action can be sustained thereon.
This prayer invokes the protection of the 4th section of the Stat. 29, Chas. II.
The facts bring the case clearly within the well known exceptions, to the operation of that statute. "Wherever the main purpose and object of the promisor, is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise, to pay the debt of another." 3 Pars. on Cont., pp. 24, 25. Nelson vs. Boynton, 3 Met. 396. Thus in Jones vs. Hardesty, 10 G. & J. 404, the main purpose of the firm being to procure the waiver of objections of a surety of a debtor, to an assignment of assets for the benefit of the firm, the verbal obligations of the firm to pay the debt due by the principal to Mr. Harwood, in consideration of that waiver, an assignment was held not within the statute. 3 Met. 396. 7 Cush., 136, 11 G. & J. 418; vide also opinion of SHAW, C. J., in Alger vs. Serville, 1 Gray, for a very lucid exposition of the words "debt of another," referring [**28]  with approbation to 11 Ad. & Ell. 446. To the same effect is the case of Andre vs. 

 [*162]  Bodman, 13 Md. 241, 254, where a number of cases from Williams vs. Lefer, 3 Burr 1886, to Elder & Warfield, 7 H. & J. 391, are cited to sustain the same principle. The observation following the enumeration of certain cases, viz: "The cases show that there must be an extinguishment of the first debt, as a consideration for the new promise," applies only to that class of cases where the creditor's relinquishment of the first debt is the motive of the promise. It does not follow of course, where other inducements are held out, such as the assignment of property or relinquishment of liens, in consideration of which the promisor undertakes to pay the debt of another. In Jones vs. Hardesty, the first debt was not relinquished, but retained and held by another up to the time of injunction. "It is not an attempt to establish orally two subsisting liabilities for the same debt, to the same person, but a new and original obligation springing out of new considerations.
The point raised in the appellant's supplemental brief [**29]  as to the effect of the release to McGinn, executed by the appellee during the trial, does not appear to have been raised below; it escaped the attention of the counsel in the preparation of their original elaborate briefs. Inasmuch as the release was not offered in evidence, or incorporated in the bill of exceptions, it is by no means clear that this Court can entertain the inquiry. Without an inspection of the paper it would be impossible to pronounce any opinion as to its legal effect. Since the argument, however, the counsel have by consent furnished a copy of the release, which on inspection appears to have been so qualified in its terms as to operate only to discharge McGinn from liability to the appellee, reserving "the right to proceed against any and all other parties, who may in any manner be liable," etc., which, in the opinion of a majority of the Court, rendered McGinn competent, if he was before incompetent, without prejudice to the right of action of the appellee.

 [*163]  Finding no error in the rulings of the Court below, the judgment will be affirmed.
Judgment affirmed. 

112 of 120 DOCUMENTS 

HENRIETTA R. GLENN, WILLIAM W. GLENN AND JOHN GLENN, EXECUTORS OF JOHN GLENN, DECEASED, vs. THOMAS Y. CANBY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 127; 1866 Md. LEXIS 6 

March 2, 1866, Decided 

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

The facts of this case are stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

REAL AND PERSONAL COVENANTS: COVENANT TO PAY MORTGAGE DEBT. -- A borrowed money of B to be expended in erecting houses upon certain land, and executed to B a mortgage of the land by which he covenanted for himself, his representatives and assigns to pay the mortgage debt; and it was expressly declared in the mortgage that this, with certain other covenants, should run with the land. In an action upon this covenant to pay the mortgage debt, brought against an assignee of the mortgagor, HELD:

That the said covenant was not a covenant running with the land, and did not bind the assignee. 

COUNSEL:
S. Teackle Wallis for the appellant argued:

1st. That the covenant to pay the money to be advanced under the mortgage, was one which, under the circumstances, and looking to the peculiar character of the transaction, bound the assignee.

The whole transaction was, in fact, a building contract, in which, although the mortgagees were not the lessors, the lease was, as the mortgage shows, procured in contemplation of the loan of the mortgage money, and under and with a view to the execution and covenants of the mortgage, and to secure the erection of the buildings provided for. The money paid was therefore not merely loaned on the land, but for a purpose connected with and attached to the land, and involved in its improvement. The covenant, as a consequence, was expressly fixed on the "assigns," as a condition of the loan, the power to sell was specifically limited, not only by being made subject to the "other terms and conditions" set forth in that instrument, but "subject to the payment of said loan and advance," in terms.

Canby,  [**2]  it is argued, took with full notice of all these terms and conditions, and subject to them. He bought before the period had expired for the completion of the houses, and while the advances were still running on the whole premises. He cannot claim the position of an ordinary assignee, taking a term of years subject to an ordinary mortgage, for the mortgage itself was notice to him that it was of an unusual character, and clogged with conditions not only restricting the assignment of the leasehold interest, as to time, but making the assignee subject to the payment of the advances provided for. He therefore assumed the interest which he acquired, with the liability annexed, as part of his contract, and took a special warranty to protect himself. Platt on Covenants, 471 to 475, 480, (3 Law Lib., 210, 214.) 1 Smith's Leading Cases, 102, 109, 157, 158, 159, 160. Cougleton vs. Pattison, 10 East., 137. 2 Sugden's Vend. & Pur., 471, 483. Harris vs. Goslin, 3 Harrington, 338. Norman vs. Wells, 17 Wend., 148, 149. Balby vs. Wells, 3 Wilson, 27. Thomas vs. Von Kapff, 6 G. & J., 372.

2nd. That under the demurrer in this case the defendant confesses the averment of the 7th count of the narr.  [**3]  , to the effect, that he "accepted" the assignment of the term, subject to the covenants of the lease. He is bound by that admission, which is conclusive.

In reply to the third point of the brief of the appellee, the following cases were cited: Tillitson vs. Boyd, 4 Sand., 517, 522. Jarel vs. Jarel, 7 Paige, 595. Stebbins vs. Hall, 29 Barb., 524. Murray vs. Smith, 1 Duer, 427.

For the proper form of declaration the appellant's counsel referred to 1 Code p. 512, form No. 21.

It was further argued in reply, that if privity between the mortgagee and assignee of the equity of redemption is necessary, the covenants for payment of rent, insurance and taxes, establish privity. In support of this proposition, see cases cited under the appellant's 1st point.

Henry G. Garey for the appellee.

1st. There is no privity between the mortgagee and the assignee of the mortgagor, by reason whereof the covenant of the mortgagor to pay the mortgage debt can run with the land, for the benefit of the mortgagee. 1 Hillyard on Real property, 429, ch. 32, sec. 1. Dougherty vs. McColgan, 6 G. & J., 285. Jameson vs. Bruce, 6 G. & J., 74. Howard vs. Ramsey, 7 H. & J., 122. Jackson vs.  [**4]  Fuller, 4 Johns, 215.

2nd. The covenant in the mortgage to pay the mortgage debt, is merely a personal covenant, and cannot bind the assignee of the equity of redemption, although expressly named. 1 Smith's Leading Cases, 75, Spencer's case, m. p. 23, 24. Canham vs. Rust, 4 Eng. C. L. Rep., 80. Burton vs. State, 3 Gill, 12. Flight vs. Gossop, 2 Bingham's New Cases, 125, (29 Eng. C. L. Rep., 279.)

3rd. The acceptance of a deed from the mortgagor, of the equity of redemption, will not bind the vendee to pay the mortgage debt, even when he takes the property "subject to the mortgage," a fortiori, when the mortgage is not mentioned in the deed, and the purchaser does not assume the payment of the incumbrance. Butler vs. Butler, 5 Vesey, 535. Cumberland vs. Codington, 3 Johnson's Ch., 262, 264, 272. Dorr vs. Peters, 3 Edward's Ch., 132. King vs. Whiteley, 1 Hoffman's Ch., 477.

4th. The absurdity and inconvenience of allowing such covenants to run with the land and bind the assignee, are fully set forth by Lord Chancellor Brougham, in Keppel vs. Bailey, 2 Mylne & Keene, 517, (8 Eng. Cond. Ch. Rep., 120.) 

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH,  [**5]  COCHRAN, and WEISEL, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*130]  COCHRAN, J., delivered the opinion of this Court.
The demurrer in this case presents the question whether a covenant of a mortgagor, for himself, his representatives, and assigns, to pay a mortgage debt, binds the assignee of the mortgaged property; or in other words, whether by force of the term assigns, such a covenant runs with the land.
The mortgage exhibited here, shows that the debt secured was a loan made to enable the mortgagor to improve the property described in the mortgage; it also contains a clause declaring that the covenant to pay the debt, with others, relating to insurance and taxes, should run with the land; and it was insisted, on these grounds, that the covenant in question, should be held to bind the appellee, to whom the property was subsequently assigned by the mortgagor. We have concluded, however, that these considerations have no immediate bearing on the point to be decided. The legal operation and effect of the covenant, in that particular, must be determined by its subject matter, and not by the terms in which it is expressed. The established doctrine is, that a covenant to run with the land must [**6]  extend to the land, so that the thing required to be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a condition annexed, or appurtenant to it; there must also be a privity of estate between the contracting parties, and the covenant must be consistent with the estate to which it adheres, and of such a character that the estate will not be defeated or changed by a performance of it. If, however, on the other hand, the covenant does not extend to, nor affect the quality, value or mode of enjoying the land conveyed, and is 

 [*131]  merely collateral to it, or is of such a character that a performance of it will defeat the estate of the party claiming the performance, then it does not run with the land, nor bind the assignee of the covenantor, though he be expressly included by the general term assigns. Spencer vs. Clark, 1 Smith's Lead. Ca. 115, 2 Sug. on Vend., 178. Platt on Cov., 3 Law Lib. 205, 215, 3 Term. R. 393, 8 East, 487, 10 East, 130.
Tested by these general principles, this is clearly a personal, and not a real covenant. It is for the payment of a debt of the mortgagor--a liability,  [**7]  personal in its nature, that neither relates to, nor affects the quality, condition or value of the land, and the performance of it would at once divest the covenantees of their interest in it. The fact that the debt was contracted for the purpose of improving the property, does not enlarge the operation, nor change the character of the covenant, and as its performance will not affect the land, we conclude that the appellee is not bound by it, and that the demurrer was properly sustained.
Judgment affirmed. 

113 of 120 DOCUMENTS 

ELISHA D. WHITNEY vs. SAMUEL G. WYMAN, GEORGE H. BYRD AND JAMES C. SMITH, GARNISHEES OF JOSEPH RIPKA ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 131; 1866 Md. LEXIS 7 

March 2, 1866, Decided 

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

This was a case of attachment on warrant issued out of the Superior Court of Baltimore City, at the instance of the appellant, to affect the goods, chattels, &c., of Joseph Ripka & Co., non-resident debtors, and laid in the hands of the appellees as garnishees.

It appeared, at the trial, that at the time of the service of this attachment, the appellees had in their hands a large amount of dry goods, which had been consigned to them for sale, as factors, by the said defendants, and on which they had, previously, made considerable advances; and that also prior thereto, to wit: on the 6th of November, 1860, they had accepted an order, drawn by the defendants, in favor of a certain D. C. W. Smith, for $ 2,000,-- provided there should be any balance in their hands.

The garnishees continued the sale of the said goods after the attachment, until June, 1862, when the last parcel was disposed of,--the case having, in the meantime, been continued from term to term. The entire proceeds of the said sales were not more than sufficient for the reimbursement of the advances made by the appellees, and the discharge of the said order in [**2]  favor of Smith, and there consequently remained no balance in their hands, applicable to the attachment of the appellant.

With a view to ascertain the state of the account between the garnishees and the defendants, the plaintiff filed interrogatories which the garnishees duly answered. So far as this appeal is concerned, the facts will be found, chiefly, in the garnishees' answer to the fifth interrogatory, and in the agreement of counsel.

The answer to the fifth interrogatory is as follows:

"The garnishees, in their answer to the first and second interrogatories, have stated that they have on hand, of the goods and merchandise belonging to the said Joseph Ripka & Co., forty-one thousand two hundred and ninety two yards, and that after said goods were consigned to the said garnishees, to wit: on or about December 10th, 1861, the said Ripka & Co. put a limit of prices at which said goods should be sold, and instructed them not to sell the same for less; that valuing the said goods according to such prices, the said 41,292 yards would realize, in gross, at credit of six months, seven thousand nine hundred and eighty-four dollars and sixty-nine cents, upon which the estimated [**3]  charges and expenses due to the said garnishees, are five hundred and fifty-eight dollars and eighty-eight cents, leaving as net value of said goods, according to above estimate and limit, the sum of seven thousand four hundred and twenty-five dollars and eighty-one cents; comparing this net value of goods with what is hereinbefore stated to be the balance due to the said garnishees, as of 6--9 March, 1862, we have as the amount due to the said Joseph Ripka & Co., by the said garnishees, (provided the said goods could be sold realizable, 6--9 March, 1862,) the difference between $ 7,425 81 and $ 3,204 23, viz: $ 4,221 58; but the said garnishees feel bound to state that the said goods could not be sold for the prices above limited, and if sold, therefore, they would not realize the aforesaid sum of $ 7,425 81.

"And the said garnishees, in conclusion, respectfully represent, that any balance which may remain in their hands after satisfying their own aforesaid claim of $ 3,204 23, and their charges and expenses on said unsold goods, is first to be applied to the payment of the aforesaid claim of D. C. Wharton Smith, of $ 2,000, and interest from November 3, 1860, till paid, accepted [**4]  as aforesaid by the said garnishees, which said claim is, as they verily believe, in all respects, for value and bona fide."

The agreement of counsel, and the letters to which it refers, are as follows:

"E. D. Whitney vs. Wyman, et al., garnishees of Ripka & Co.--Superior Court.

"It is admitted in this case that a short time prior to March 15, 1862, Bernard Carter, Esq., who was at that time acting as attorney of the garnishees, called on Mr. Dobbin, the attorney of the plaintiff, and asked the latter what the wishes of the said plaintiff were as to the course to be pursued with reference to the said attachment, and the sale of the said goods, and that Mr. Dobbin, a few days thereafter, handed to Mr. Carter the letter of the plaintiff, of March 15, 1862, and the same was sent by Mr. Carter to the garnishees, and returned to Mr. Carter by them, with the 'sketch' mentioned in said letter, accompanied by the letter of the garnishees to Mr. Carter, of March 19th, 1862, and thereupon all of said papers were handed by Mr. Carter to Mr. Dobbin. It is also admitted that prior to this, and about the time of the filing of the answers to the interrogatories, it was agreed between [**5]  Mr. Dobbin and Mr. Carter that said attachment case should be, from time to time, continued or passed, and that said garnishees should continue the sale of said goods in the usual way, till the same were disposed of. But said agreement was not meant to waive the legal rights of either party to said agreement.

"It is also admitted that the handwriting of the drawer of the check is the proper handwriting of defendants, and the endorsement is the proper handwriting of said Cudbury, and they are co-partners in trade, resident in Philadelphia.

GEORGE W. DOBBIN,
Attorney for plaintiff.

BERNARD CARTER,
Attorney for defendant."

"PHILADELPHIA, March 15, 1862.

GEORGE W. DOBBIN, Baltimore.

"Dear Sir:--Yours of the 14th is received. Messrs. Wyman, Byrd & Co. have written to Ripka & Co., under date of 13th inst., that they have no desire or intention to sell the goods below their views, and this we think is the best shape to keep the matter in, so far as I am concerned, for if they were to sell them so as to produce only about $ 2,000 more than their own claim, Mr. Smith would take that and I should get nothing, as I come in after they and Mr. Smith are paid. The [**6]  limits given by Ripka, December 10th, we think not too high for some of the goods, and some styles might have to be shaded a little to effect sales, and make them go off this spring, and this is the plan we wish Messrs. Wyman, Byrd & Co. would pursue, so as to make the goods bring enough to pay themselves, Mr. Smith, and a part if not the whole of my attachment. By this course they will get interest on the claim and a commission on the goods when they sell them. Will you be kind enough to ask Messrs. Wyman, Byrd & Co. to give you a sketch of such sales as they may have made since 1st of January, and let me have a copy for information.

"The 'blue batch cords' limited, 10th December, at 22 cents we think a low limit, as the same goods are held in this market at 26 cents, and the lowest sale of them since the 1st of January that we have heard of is 25 cents.

"I have no doubt now that Messrs. Wyman, Byrd & Co. do the best they can with these goods, and that they can sell them and realize a part, if not the whole, of my attachment.

Yours, truly,

E. D. WHITNEY."

"BALTIMORE, March 19, 1862.

BERNARD CARTER, ESQ., Baltimore.

"Dear Sir:--We have your favor [**7]  of yesterday enclosing letter from E. D. Whitney to G. W. Dobbin, which we return herewith. As requested, we wait on you with above sketch of Ripka's goods since 1st January.

Yours, most truly,

WYMAN, BYRD & Co."

Sketch of Sales by Wyman, Byrd & Co. for account of Messrs. Joseph Ripka & Co., since sales rendered.

________________________________________________________________________________

B. B. S. C. 619,	1 Case Star Checks,	20, 6 Months.	
W. C. 2120,	1  "   Union Checks,	17, "    "	
W. S. 3937,	1  "   Union Stripes,	17, "    "	
B. B. C. 2249,	1  "   Brown Ribbed Cass,	17, "    "	
	4 Cases.	
________________________________________________________________________________

It was admitted that in the sale of the said goods the garnishees acted in good faith, and obtained the best market price therefor, and that no limit was placed upon the sales of said goods prior to 10th December, 1861.

The plaintiff then prayed the Court to instruct the jury as follows:

If the jury shall find from the evidence that on the 23d of January, 1862, the garnishees had in their hands goods of the defendants, consigned by them to the said garnishees under limits of price previously given, and that the said goods, if sold at the said limits, would have produced $ 7,984.69, and if [**8]  they shall find that the only sum owing by the said defendants to the said garnishees was the sum of $ 3,204.42, due on the 9th of March, 1862, and that the said garnishees had, prior to the issuing of this attachment, to wit: on the 5th of November, 1860, accepted an order drawn in favor of one Smith by said defendants on said garnishees for $ 2,000, with interest from the 5th of November; and that on or about the 14th of March, 1862, the said garnishees applied to the plaintiff in this attachment to know what his wishes were in relation to the sale of said goods, when the said plaintiff communicated to the said garnishees his wish that the said goods should not be sold under the said limits, then the plaintiff is entitled to recover under the second issue the whole value of said goods at said limits, to wit: the sum of $ 7,984.69, or such other sum as they may think would have been produced by the sale of said goods in conformity to the wishes of the plaintiff, if they find such wishes, less the debt due by the defendants to the said garnishees, and the amount of the order and interest due to Smith, notwithstanding the jury may find that the said garnishees did, in fact, sell the [**9]  said goods for the best market price, being less than the said limits; unless they shall also find that the said garnishees gave notice to the plaintiff of their intention to sell below the said limits, and requested him if he desired to avoid said sale to provide other means for their reimbursement.

And the garnishees prayed the Court to instruct the jury as follows:

1st. If the jury find from the evidence that goods were consigned by the defendants, J. Ripka & Co., to the garnishees, Wyman, Byrd & Co., on which the said Wyman, Byrd & Co. had made advancements prior to the issuing and service of the attachment in this case, and that also prior thereto the said Wyman, Byrd & Co. had accepted an order drawn by the said J. Ripka & Co., in favor of a certain D. Wharton Smith, and shall further find that the said goods were sold by the said Wyman & Co., and there remained no balance on the sales thereof in their hands after reimbursing themselves for their advancements, and deducting proper charges and commissions for the said sales, and the discharge of the order before mentioned, then, that the plaintiff is not entitled to recover; provided the said garnishees used reasonable [**10]  skill and ordinary diligence in effecting the sales of said goods, and sold the same at the dates shown by the accounts offered in evidence by the garnishees, and for the best rates then obtainable for said goods in the market.

2nd. If the jury find from the evidence that goods were consigned by the defendants, J. Ripka & Co., to the garnishees, Wyman, Byrd & Co., on which the said Wyman, Byrd & Co. had made advancements prior to the issuing and service of the attachment in this case, and also prior thereto, the said Wyman, Byrd & Co., had accepted an order drawn by the said J. Ripka & Co., in favor of a certain D. Wharton Smith, offered in evidence by the garnishees; and shall further find that the said goods were sold by the said Wyman, Byrd & Co., and that neither at the time of serving said attachment nor since did there remain any balance in their hands upon said sales after the reimbursing of themselves for their advancements, and deducting proper charges and commissions, and the discharge of the order before mentioned, then the plaintiff is not entitled to recover.

3rd. That there is no evidence of any demand of payment of the check, which constitutes the cause of [**11]  action of the plaintiff in this case, and of due notice of non payment of the same of the drawers, nor any service of notice of said demand, and that in the absence of such evidence the plaintiff cannot recover.

4th. That there is no evidence to entitle the plaintiff to recover against the defendants for money lent by the plaintiff to the defendants, and that under the short note filed the plaintiff is not entitled to recover for any other cause of action.

The Court (MARTIN, J.) rejected the plaintiff's prayers, and the third and fourth prayers of the garnishees, and granted the garnishees first and second prayers, and from this action of the Court the present appeal is taken.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

CONSIGNOR AND CONSIGNEE. -- A factor who receives goods on consignment without any limit as to time, mode or rate of sale, and makes advances or incurs liabilities on account of the goods consigned, thereby acquires a special property in them, and a right to sell, according to the usual course of his duty, so much thereof as may be necessary to reimburse such advances or meet such liabilities. And the consignor has no right by any order given after the advances have been made or liabilities incurred, to control this right of sale, except so far as relates to the surplus of the goods not necessary for the reimbursement of such advances or liabilities, unless he stands ready and offers to reimburse the advances or liabilities.  

COUNSEL:
George W. Dobbin and George L. Dobbin, for appellant, argued:

That as the garnishees held the goods in question under limits of price they were bound to give notice to the plaintiff of their intention to sell without regard to the limits, so as to have given the plaintiff an opportunity to reimburse and discharge the advances they had made to the defendants, and the liability they had come under to Smith; and that having sold without regard to said limits, and without [**12]  notice to the plaintiff, they are responsible to the plaintiff for whatever the goods would have yielded, if sold at the limits, over and above their advances, acceptance and expenses. Brown & Co. vs. McGran, 14 Peters, 494.

Levin Gale and Bernard Carter for the appellees.

The questions raised by the prayers may be considered under the following heads:

1st. The liability of the appellees, as garnishees, to the appellant, in respect of the goods consigned to them by the defendants, must mainly depend upon their responsibility to the defendants on account of those goods. Balto. & Ohio R. R. Co. Garn. of Cent. O. R. R., vs. Wheeler, 18 Md. Rep., 379. It will hereafter be shown in what cases it is less than that which the defendants might enforce against them.

2nd. That at the time of the consignment of the goods to the appellees, and their advances thereon, there were no limits imposed, or instructions given, by the defendants, either as to the time or mode of sale. The appellees acquired, therefore, the ordinary rights of factors to sell, in the exercise of a sound discretion, at such time and in such mode, as the usage of trade, and their general duty required. Brown [**13]  and others vs. McGran, 14 Peters, 479-- 495, 496.

3rd. That contemporaneously with the said consignment and advances, there was no contract or agreement, express or implied, in relation to the time or mode of selling the said goods. Neither the defendants, nor the appellant, could, therefore, by any subsequent orders or instructions, suspend, modify, or control the right of sale thus acquired by the appellees,--such orders or instructions, if any, not having been accompanied with any offer to reimburse the appellees for their advances. See cases cited under third point.

4th. That there is no evidence to show that any limits were, at any time, imposed by parties authorized to do so; and that if any limits were so imposed, they were removed by the action of the assignee of J. Ripka & Co.

5th. That the interview between Messrs. Carter and Dobbin, and the subsequent receipt and delivery to them of the plaintiff's letter, did not create a contract or agreement, by which the appellees relinquished, or surrendered the previous legal right, thus so clearly acquired by them, of selling the said goods for the purpose of realizing their advances.

A. Because no proposition [**14]  to that effect was made, either in the said letter of the plaintiff, or by Mr. Dobbin, in the course of his interview with Mr. Carter.

B. If there was, the appellees never assented to it, either expressly, or by implication, directly or through the medium of Mr. Carter.

C. If Mr. Carter assented, expressly or impliedly, he had no authority, as an Attorney at Law to do so; nor did he possess any authority, derived by virtue of any special delegation from the appellees.

D. Because, if the element of assent were not wanting, the agreement on the part of the appellees, having neither been founded on any valid consideration, nor made under seal, can only be regarded as a nudum pactum.

6th. Factors and other bailees for hire are generally held only for a reasonable exercise of skill, and for ordinary care and diligence in their vocation. It having been admitted at the trial in the Court below, that in the sale of said goods, the appellees acted in good faith, and obtained the best market prices for them, the manner and character of the sales cannot be called in question. Story on Bailments, secs. 455, 456.

7th. But in any event, there having been no credit or balance [**15]  in the hands of the appellees, after the reimbursement of their advances, and the discharge of the order in favor of D. C. W. Smith, nothing can be recovered by the appellant, under the pleadings in this case. If a limit had been imposed, or instructions given, contemporaneously with the said consignment and advances, as to the time or mode of sale, and that limit, or those instructions had been violated; or if there had been any other breach of duty in making the sales, the appellees would have been liable to an action for the damages sustained by the defendants, J. Ripka & Co., or by the appellant, if his legal rights had been violated. But a claim resting in damages, and depending upon a possibility merely, is not attachable. The reason is, that it can only be recovered by an action ex delicto, and not by an action ex contractu. It can in no sense be regarded as a credit. 1 Bouvier's Law Dictionary, 351. Sergeant on Attachment, 76, 77. Drake on Attachment, §  527, §  525, §  526, and §  529.

8th. Admitting that we are wrong on other points, the measure of damages as laid down in the plaintiff's prayer, is not law. 3 Parsons on Cont., 190, (notes.) Frothingham vs. Everton, 12 [**16]  N. H., 239.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*141]  COCHRAN, J., delivered the opinion of this Court.
We understand it to be finally settled, that a factor, who receives goods on consignment, without any limit as to 

 [*142]  time, mode, or rate of sale, and makes advances or incurs liabilities on account of the goods consigned, thereby acquires a special property in them, and a right to sell, according to the usual course of his duty, so much thereof as may be necessary to reimburse such advances or meet such liabilities; and further, that the consignor has no right, by any order given after the advances have been made or liabilities incurred, to control this right of sale, except so far as relates to the surplus of the goods not necessary for the reimbursement of such advances or liabilities, unless he stands ready, and offers to reimburse the advances or liabilities. Brown vs. McGran. 14 Peters 479.
The consignments in this case were general; the appellees having received, and made their advances on them, without any instructions from the consignors in regard to the selling [**17]  prices, time, or mode of sale. The letter of the 10th of December 1861, fixing limits below which the goods were not to be sold, was written long after the appellees received the consignments and made the advances, and there is nothing in the record to show that the consignors offered or tendered themselves ready to reimburse the advances, either at the time or after this letter was written; nor do the appellees appear to have assented to, or agreed with them, to comply with the instructions it contained. Under these circumstances, the limit put on the goods by the consignors was not of a character to affect in any degree the then existing right of the appellees to sell according to the usual course in such cases; and, in that particular it is admitted that they acted in good faith, and obtained the best market price for the goods sold. We find nothing in the communications from the appellees to the appellant, nor in his reply to them to relieve the case from the operation of the rule stated. That of the former was a simple request for the views or wishes of the latter in 

 [*143]  regard to the unsold goods, and his reply, contained in the letter to Mr. Dobbin, instead of requiring [**18]  them to regard the limits prescribed in the December letter from Ripka & Co., clearly authorized such a variance or disregard of them as would enable the appellees to sell the goods. The clear inference from all the correspondence offered in evidence, is that the appellees were to sell the goods in the exercise of a sound discretion, and as there is no pretence that they did not make the best possible disposition of them, we think there was no error in rejecting the appellant's prayer, nor in granting the first and second of the appellees.
Judgment affirmed. 

114 of 120 DOCUMENTS 

STATE OF MARYLAND USE OF MARY COUGHLAN vs. BALTIMORE & OHIO RAIL ROAD COMPANY, AND BALTIMORE & OHIO RAIL ROAD COMPANY vs. STATE OF MARYLAND USE OF MARY COUGHLAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 84; 1866 Md. LEXIS 4 

February 28, 1866, Decided 

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

The action in this case was brought in the name of the State to the use of Mary Coughlan against the Baltimore and Ohio Rail Road Company, to the September Term, 1861, of the Superior Court of Baltimore City, to recover damages for the killing of her child, Peter Bannon.

The declaration alleges that the said Peter was wounded and injured on the 13th of October, 1860, by the wrongful act, neglect or default of the said Company's agents while engaged by the authority and direction of the said Company in the management and use of their railway, &c., in such a manner that he afterwards, on the same day, of the said wounds and injuries, died.

The bill of particulars filed in the case state, that about four and a half o'clock, P. M., on the 13th of October, 1860, while a train of cars belonging to the said Company were upon the railway at Locust Point, they were suddenly, without any brakesman or other person having previously gone back to see that the track was clear, and without sufficient warning or intimation to the people residing in the neighborhood of and along said railway, put in motion and backed around a short [**2]  curve, by which means, Peter Bannon, a child, about ten and a half years old, the son of Mary Coughlan, the party for whose use this suit was brought, was run over and killed, the wheels of the cars of said train passing over and horribly crushing and mangling his head, so that he died of the wounds so received on the said 13th of October, 1860; and that there was negligence on the part of those having the management of said train of cars from which negligence the said death resulted, and that the damages claimed are $ 10,000. The defendants pleaded "Not Guilty."

Exception.--The plaintiff to maintain the issue on its part joined, proved by Newcomer, a police officer of Baltimore city, that his beat was at Locust Point, in said city, on the 13th October, in the year 1860; that he knew the plaintiff's cestui que use and her children, the eldest of whom was named Peter, a likely lad, small, of twelve years of age apparently, and who attended to his mother's business when she was absent; that Mrs. Coughlan lived at the corner of Towson and Marriott streets, where she kept a grocery; that there was what is called a Y in the rail road track where the road comes along Nicholson street,  [**3]  and at or near Towson street it follows a semi-circle until it reaches Marriott street, up which it passes close by Mrs. Coughlan's house and store; that Marriott street is not paved or used as a carriage road, and the rail road passes through a cut between Towson street and Haubert street; that the next street to Towson street is Cooksie street; that there are houses on Towson street, and a number of them within the Y, which would prevent an engineman at the corner of Nicholson and Towson streets from seeing the end of the train if it extended past Mrs. Coughlan's up Marriott street; that the witness knew that the defendant's cars were often left standing across Towson street, and that he had notified the agents that it was improper, and that they must remove them; that there was a school house, and beyond that a spring, to reach which, from Mrs. Coughlan's, and the other houses within the Y, it was necessary to cross Marriott street; that hearing that an accident had happened on the 13th of October aforesaid, he went to the spot, which was near the intersection of Cooksie and Marriott streets, and saw where a person had been run over by the cars, and dragged apparently some thirty [**4]  or forty yards. He afterwards saw the body, which was Mrs. Coughlan's eldest son, Peter, the brother of whom had been injured at the same time.

The plaintiff further proved by Mrs. Jennings, a competent witness, that Peter, the boy that was killed, was a slight made boy, small and cunning like, and apparently between ten and twelve years of age, who rendered to his mother the services of a boy of his age, taking care of the store when she went away.

George Wright, proved that after the accident he helped to cut loose and shove the cars back, so as to extricate the body, and that it was fifteen or twenty minutes before any of the hands of the defendants came to the place.

Slothower, a competent witness, produced on the part of the plaintiff, proved as follows: He was on his way from the brick yards, and saw Mrs. Coughlan's boys playing on the track--he heard the cars. The cars first moved slowly, and then faster. One got on the car, and one boy was getting on it. The train was being backed, and the boys were in front of the last car, and about twenty yards from witness; they were hanging on behind the cars when one fell. Witness began to cry out to the engineer--one boy [**5]  was hanging on to the cars at the time. There was no agent or employee on the back of the train, or near it, that witness saw, when the accident happened.

Several other witnesses were offered by the plaintiff, who proved the character of the boy, and the circumstances of the extrication of the body, none of whom, however, saw the accident; and the plaintiff further offered evidence to show that the services of such a lad as the deceased to his mother were worth from $ 5.00 to $ 6.00 per month, and that the place where the accident occurred was the most populous portion of that part of the city.

The defendants, to support the issue on their part, offered evidence by Henry Linn, a competent witness, that he saw the accident as he was crossing the common from his work; that the children were playing on the common above the rail road track when the end of the train which was being backed came round the curve; that three or four minutes before the cars stopped, he saw the children run towards them, and the eldest, the deceased, get on the hindmost one when the train was still in motion, catching the bumper with his hands, and putting his feet on the brake-rod below; that he then [**6]  saw the big boy (Peter) fall off, with his head across the track, and he was killed. On cross-examination, this witness stated as follows: He was with two companions at the time, and when he saw the cars, he proposed to them to take a ride on them, but they objected and they did not go--witness had often done the same thing before. When witness proposed to get on the train, he was near enough for Mrs. Coughlan's sons to have heard what he said, but he cannot swear that they heard him or did not hear him. At the time of the accident, witness saw no agent or employee of the defendants at the end of the train, or near it, or in the neighborhood of it.

The defendants further proved by ----- Sticker, teamster of the defendants at Locust Point, that he knew the deceased, and had often driven him and other children from the cars, and warned them of the danger they ran of being killed or crippled, and told the mother of Peter of the conduct of her children, when she said she had tried to keep them off, but could not; and the defendants proved a like notice to the children of Mrs. Coughlan and others, at various times, by ----- Kelso, the watchman at Locust Point, in the service of the [**7]  defendants, by Jacob Parker, the brakesman on the train that caused the accident, and by Ennes Toby, the conductor of the train; also by ----- Shier, one of the defendants' employees.

The defendants further proved by Robert McManus, that he was the engineer of the engine No. 60 that was backing this particular train at the time of the accident; that it was a regulating engine, whose business was to collect together the cars from the adjacent wharves and tracks, and unite them into a train to be taken off by another engine; that on this occasion he had collected forty-four or forty-six cars, and had backed them until they lapped round the Y, and that he had still four or six cars to add to make up the desired number; that he had backed the train from time to time, and when he added the last cars, he backed it again at a very slow speed, for it was as much as the engine could do to move it, the grade on Marriott street, up which it extended, being up hill; that he blew his whistle three times before he began to back it, which is the rail road signal to its employees for backing, and he was confident he so blew it on this occasion; that he could not see the end of the train from [**8]  where he stood on his engine; and that he was not aware of the accident, and did not become aware of it for half an hour afterwards.

On the cross-examination of Jacob Parker, above named, he said that it was his business to attend to the cutting loose and attaching of the train as it was being made up, and applying the brakes; that he was so engaged on this occasion not far from the engine; that he knew the whistle was blown, having been led by circumstances to recollect it on the evening of the day of the accident, but that he did not know that the accident had happened until half an hour afterwards; that he did not go to the rear of the train before it was moved backwards, and that it was not his practice to do so. In their examination in chief, both McManus and Parker testified to the fact that the train was moving very slowly at the time.

On cross-examination of Ennes Toby, the conductor, he stated that he did not go to the rear of the train; that he could not see it from where he was at the time of the accident; that his business was to attend to making up the train and to give notice to the engineman how far to back his engine; that there was no one on the rear car [**9]  or at the rear of the train at the time; that had he been at the corner of Towson and Marriott streets he could have seen the end of the train and the engineman too; that sometimes he did go there to look out; that on this occasion the train was moving so slowly, the engine having as much as she could do to push the train at all up the grade of Marriott street, that any one who had seen it coming might have got out of the way; that in his judgment he was at the time using the greatest care, but that since he was used somewhat more care.

This witness, on his examination in chief, in speaking of the notice to the children and the mother, said that the mother had whipped her children for getting on the cars; that he had seen the children on the cars when in motion, and driven them off. It was proved by the production of the family record that the age of the deceased was ten years, eight months and three days.

The plaintiff thereupon prayed the Court to instruct the jury as follows:

1st. That if, from the evidence, the jury believe that the Baltimore and Ohio Rail Road Company are the owners of a rail road track or tracks, and of certain cars and engines used thereon, at [**10]  Locust Point, in the city of Baltimore, along which track or tracks said cars and engines were drawn or propelled for the purposes and in and about the business of said rail road company, then in the movement, use and management of said cars and engines, the said company is bound to exercise the utmost care and diligence to prevent accidents endangering the life or lives of the people or inhabitants of said city.

2nd. That if the jury shall believe from the evidence that the said rail road company were at the time of the accident complained of, the owners of a rail road track or tracks, and of certain cars and engines used thereon, at Locust Point, along which track or tracks said cars and engines were drawn or propelled for the purposes of said company, then, for the purpose of preventing accidents endangering human life, the said company were bound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ, and that if the use of a guard or lookout at the head or in the rear of said cars when the said company was engaged in making up its train or trains, if the jury shall find they were so engaged, was a [**11]  measure by which such accidents would probably be avoided, the omission to use such guards or lookouts at the head and rear of said cars or trains, if proved to the jury, was culpable negligence; and it is for the jury to say whether to this negligence the fatal accident, (if the jury shall find such fatal accident,) which has given rise to this action might not justly be imputed.

3rd. That if the jury believe from the evidence that the plaintiff is entitled to recover upon the ground set forth in the second prayer above, they will, in their estimate of damages, take into consideration the expense to which the plaintiff was subjected in consequence of the accident and the loss resulting therefrom, not only to the present time, but also the probable prospective loss and expense incurred by the plaintiff in consequence of said accident, and that in estimating the said loss and damages the jury are not limited to the actual pecuniary loss proved in the case.

And the defendants prayed the Court to instruct the jury as follows:

1st. The defendants, by their counsel, prayed the Court to instruct the jury that if they find from the evidence that the child of the plaintiff,  [**12]  cestui que use, spoken of by the witnesses, was run over and killed by the cars of the defendants, and that the place where the accident took place, although marked as a street on the plat of the city, if the jury shall find that fact, was not opened or used as such, and was not a thoroughfare used by the public or persons residing in the neighborhood, but was occupied by the track of the defendants' road only, and that the said child was not at the time of the accident using it as a thoroughfare or crossing the same, and that at the time of the accident the said cars were moving at a speed which would have permitted either an adult or a child to have avoided them, even had such person been using the said street as a thoroughfare, or crossing the same, if he had used such diligence as was reasonably to have been expected from him, then the plaintiff is not entitled to recover.

2nd. The defendants, by their counsel, prayed the Court to instruct the jury that if they shall find from the evidence that the child of the plaintiff, cestui que use, spoken of by the witnesses, was run over and killed by the cars of the defendants, and that the said child was of sufficient intelligence [**13]  to take charge of and attend to the business of said cestui que use in her absence from her store, and that he did so take charge of and attend to it, and that just before the happening of the accident he was playing outside of the road of the defendants where the accident happened, and in a place of safety, so far as the defendants' cars were concerned, and that seeing the said cars in motion he ran toward them and jumped upon the leading car, as described by the witness Linn, and was riding there when he was jolted off or fell off, and was killed as described by the witnesses, then the plaintiff is not entitled to recover, even though the jury shall believe that the defendants did not use the care and diligence that would have prevented the child from getting upon the cars as aforesaid.

3rd. The defendants, by their counsel, prayed the Court to instruct the jury that if they shall find from the evidence that the child of the plaintiff, cestui que use, spoken of by the witnesses was run over and killed by the cars of the defendants, and that the said child just before the happening of the accident was playing in a place of safety, so far as said cars were concerned, and that [**14]  seeing the said cars in motion he ran towards them and jumped upon them, as described by the witness Linn, and was riding there when he was jolted off or fell off, and was killed as described by the witnesses, and that the said child had been warned previously not to get upon the said cars as he might be crippled or killed, and had been driven from off them on previous occasions, and that he was of an age to understand such warning and the risk he run, then the plaintiff is not entitled to recover, even though the jury shall believe that the defendants did not use the care and diligence that would have prevented the said child from getting upon the cars aforesaid.

4th. The defendants, by their counsel, &c., prayed the Court to instruct the jury that even if the jury shall find from the evidence that at the time of the happening of the accident spoken of by the witnesses, the defendants were not complying with the regulations of the ordinance offered in evidence by the plaintiff in regard to the use of locomotive engines within the limits of the city of Baltimore, yet the plaintiff is not on that account entitled to recover. If the jury shall believe from the evidence that the [**15]  conduct of the child of the plaintiff, cestui que use was the immediate cause of the accident, and that his death was the result of a want on his part of that degree of care which the jury may believe was under all the circumstances naturally and reasonably to be expected in one of the said child's age and intelligence.

5th. The defendants, by their counsel, prayed the Court to instruct the jury that in assessing damages they are confined to those for which a pecuniary estimate can be made, independent of the mental pain and suffering of the cestui que use, and that they are to take into consideration the probabilities of life, as well as other circumstances. Which instructions of both plaintiff and defendants the Court (MARTIN, J.) rejected, but instructed the jury as follows:

I instruct the jury--

1st. That if the jury find from the evidence that the Baltimore and Ohio Rail Road Company are the owners of the rail road track or tracks, and of certain cars and engines used thereon, at Locust Point, in the city of Baltimore, along which track or tracks said cars and engines were drawn or propelled, for the purposes and about the business of the said rail road company,  [**16]  then in the movement, use and management of said cars and engines, the said company is bound to exercise the utmost care and diligence which it was within their means and power to employ to prevent accidents endangering the life or lives of the people and inhabitants of said city; and if the jury find that the child of the plaintiff's cestui que use was run over and killed by the defendants' cars, as described by the witnesses, and that if the defendants, in the use and management of their cars and engines had exercised the highest degree of care and diligence, which it was within their means and power to employ, the said accident could have been prevented, then the plaintiff is entitled to recover in this action; but although the jury may find that the said accident could have been prevented by the use of such care and diligence on the part of the defendants, yet the plaintiff is not entitled to recover if the jury believe the accident could have been avoided by the exercise of that degree of care by the said child, which was, under all the circumstances, to be naturally and reasonably expected from one of the said boy's age and intelligence.

2nd. That if the jury find, under [**17]  the first instruction, a verdict for the plaintiff, that in assessing the damages they are not to take into consideration the mental pain and suffering of the plaintiff's cestui que use in consequence of the death of the child, and are not to give against the defendants punitive, vindictive or exemplary damages, but in estimating the damages they are confined to the pecuniary damage sustained by the plaintiff, and are to give to her such a sum as the jury may believe, from all the evidence in the case, will be an adequate compensation for the loss of her son's services from the time of his death to the period when, if he had lived, he would have attained the age of twenty-one years.

To the action of the Court in rejecting their prayers and granting the instructions given as aforesaid, the plaintiff and defendants excepted and brought up these appeals.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

RAIL ROAD COMPANIES, LIABILITIES OF: 1 CODE, ART. 65, SECS. 1 AND 2: EVIDENCE: PLAINTIFF MUST NOT HAVE CONTRIBUTED TO THE INJURY BY HIS OWN NEGLIGENCE: PRAYERS AND INSTRUCTIONS TO THE JURY: MEASURE OF DAMAGES: PARENT AND CHILD.

The Baltimore & Ohio Rail Road Company were the owners of a track on Locust Point, Baltimore, and used a locomotive for moving and arranging trains thereon. On the occasion in question, a train consisting of many cars was being backed by a locomotive at a slow speed around a curve, near which were houses which prevented the engineman from seeing the rear-most car upon which two boys had climbed and were riding, holding by the bumper, with their feet upon the brake-bar. A sudden jolt threw them upon the road, when the cars passed over them, killing one and maiming the other. The mother of the child thus killed, brought an action for damages against the Rail Road Company under Article 65, Sections 1 and 2 of the Code. It was in evidence that both boys had been driven from similar trains on former occasions, and complaint made to their parents. It was admitted that there was no employee of the company on the rear end of the hindmost car, or walking in advance of it, while moving backwards, and that the engineman and conductor knew nothing of the accident until some time after it had happened, HELD:

1st. That the liability of the defendants in this case did not depend upon their obligations as carriers of passengers, in which character they are bound "to use the utmost care and diligence which human foresight can use," but their liability, if any, arises upon a statute which limits the action to such wrongful act, neglect or default, "as would (if death had not occurred) have entitled the party injured to maintain an action and recover damages in respect thereof."

2nd. That the party injured not being a passenger, the defendants were not required to exercise that degree of vigilance which the law requires toward those with whom there is a relation of trust and confidence, or bailment between the parties.

3rd. That if there was neglect or default on the part of the boy, or the absence of that prudence which boys of like age and capacity usually exhibit, the defendants were not liable, although by the exercise of extraordinary care on their part the accident might have been prevented.

4th. That in actions for injuries resulting in death, the plaintiff must show that neither the party injured, nor the parties for whose use the action was brought, had contributed by neglect or want of care to the calamity complained of.

5th. That where an omission in an instruction given enures to the advantage of the appellant, advantage cannot be taken of the same on his appeal.

6th. That the law entitles the mother to the services of her child during his minority only, (the father being dead,) beyond this, the chances of survivorship, his ability or willingness to support her, and the mental suffering of the mother, resulting from the death of her child, are matters too vague to enter into an estimate of damages merely compensatory.  

COUNSEL:
A. S. Ridgely and Robert J. Brent for the appellant.

I. The first instruction of the Court below precludes a recovery "if the jury believe the accident could have been avoided by the exercise of that degree of care by the child, which was under all the circumstances to be naturally and reasonably expected [**18]  from one of the said child's age and intelligence." The rule that non-suits the surviving relative, if the deceased's own negligence contributed to the injury, is admitted. Redfield on Railways, 337. Tucker vs. Chaplin, 2 Car. & K., 730.

This action is founded on statute. 1 Code, Art. 65, secs. 1 and 2.

The Code is in terms similar to the English Act known as Lord Denman's Act. Redfield on Railways, 336, 337. Pierce on Railways, 257.

By this a remedy is provided for certain relatives of the deceased, only in cases where, if the injury had not proved fatal, he would himself have had a right of action against the party inflicting the injury. Pierce on Railways, 262. 1 Md. Code, sec. 1, p. 449.

It is a cardinal rule of interpretation that statutes are to be construed in reference to the principles of the common law, for it is not presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the Act was not designed to make any alteration other than what is specified, or besides what has been plainly pronounced. Dwarris on St., 675. Keech vs. B. & O. R. R. Co., 17 Md. Rep., 45.

At [**19]  common law a plaintiff cannot recover for injuries to which his own fault or negligence directly contributed. Redfield on Railways, 337. 2 Car. & R., 730. 17 Md. Rep., 45. B. & O. R. R. Co. vs. Lamborn, 12 Md. Rep., 261. Lygo vs. Newbold, 9 Ex., 303, 306. Irving vs. Sprigg, 6 Gill, 200. Edwards vs. Balt. F. Ins. Co., 3 Gill, 176. And this negligence is understood to be a want of ordinary care, such as men of common prudence use under like circumstances. Pierce on Railways, 272, 274. Lygo vs. Newbold, 9 Ex., 306.

But this interpretation of the negligence here spoken of is received with qualification in cases of children and disabled persons. In such cases it has been considered that the want of ordinary care required of the plaintiff is only such as his capacity admits of, or such as may reasonably be expected of him. Pierce on Railways, 278. Redfield on Railways, 330. Lynch vs. Nurdin, 1 Q. B., 29, (41 E. C. L.,) 422. Lygo vs. Newbold, 2 Ex., 302. Robinson vs. Cone, 22 Ver., 213. Borge vs. Gardner, 19 Conn., 507. Beers vs. Housatonic R. R., 19 Conn., 566.

Instead, therefore, of instructing the jury that the plaintiff could not recover "if the jury believed the accident could [**20]  have been avoided by the exercise of that degree of care by the said child, which was, under all the circumstances, to be naturally and reasonably expected from one of his age and intelligence," the Court should have told the jury that the plaintiff was not entitled to recover if the jury believed that on the occasion alluded to "there was a want of that degree of care on the part of said child, which, under the circumstances, was naturally and reasonably to be expected in one of his age and intelligence." The question of a want of or absence of such care should have been left to the jury, rather than the question of the exercise of such care. The instruction as given was calculated to mislead the jury. It was further calculated to mislead them, because it enabled them, in their caprice, to suppose that a very high degree of care was required on the part of the deceased. The question of negligence, the want of ordinary care, and not the degree of care to be exercised, should have been left to the jury.

II. The second instruction was designed to guide the jury in their assessment of damages, and we maintain that it was erroneous:

1st. Because it ignores the mental sufferings [**21]  of the mother suing for the damages sustained by the loss of the child, and confines her claim to pecuniary damages. Whatever may be the English rule on this subject, we insist that according to the best considered cases in America, the mental anguish, which is the natural result of the injury, may be taken into account in estimating damages, though not of itself the fountain head of the action. Redfield on Railways, 337, note 3, 338, and cases there cited. Canning vs. Williamstown, 1 Cush., 451. Morse vs. Aub. & Syr. Railway, 10 Barb., 623. Dickens vs. N. Y. Cen. R. R., 28 Barbour, 41, 43; and see the New York statutes in connection with this case. Penn. R. R. Co. vs. McCloskey, 23 Pa. Rep., 528.

2nd. Because it limits the pecuniary loss of the mother, the cestui que use, to the minority of the child, and therefore deprives the jury of the right to award her damages for the pecuniary loss she would reasonably sustain in her advanced life for want of the labor and services of the deceased son, even after he reached his majority. The rule should have been to allow "what they considered a reasonable compensation." Redfield on Railways, 337, note, 2nd Ed. Ainsworth vs. South E. R.  [**22]  R., 11 Jurist, 758. V. & J. R. R. Co. vs. Patton, 31 Miss., (2 Geo.,) 156. Kountz vs. Brown, 16 B. Monroe, (Ken.,) 577. Penn. R. R. Co. vs. Kelly, 7 Casey, (31 Penn.,) 376. Penn. R. R. Co. vs. Zebe, 9 Casey, (33 Penn.,) 330. Blake vs. M. R. R. Co., 10 Eng. L. & E. Rep., 442.

We are not aware of any authorities which limit the mother's loss to the minority of her son, Such a principle would give no damages to an aged mother, whose only support was in the labor of an adult son, who is taken from her by the culpable negligence of a corporation.

Even the inexorable conscription Acts of Congress, under the exigent demands of war, spare such a son to his widowed mother; and unless there be some controlling adjudication, we submit that the ruling of the Court below was too narrow and limited to meet the approval of this tribunal.

John H. B. Latrobe, for the Baltimore and Ohio Rail Road Company, argued that the prayers offered on the part of the defendants below, and refused by the Court, should have been granted:

1st. As to the first prayer of the defendants:--because the rules applicable to the streets of a city are not applicable to a common, where streets exist but [**23]  in a plat of the ground.

2nd. As to the second prayer of the defendants:--because the standard of intelligence suggested by the prayer, and asked to be given to the jury, was a proper standard.

3rd. As to the third prayer of the defendants:--because the facts stated in the prayer were proper to be considered by the jury, and sufficient to guide them. That the want of intelligence on the part of the child was supplied by actual warning.

4th. As to the fourth prayer of the defendants:--because the defendants were entitled to the benefit of the law there stated, and which, even though they were in fault, relieved the defendants, if the child, having sufficient intelligence, was a contributor to its own wrong.

5th. As to the fifth prayer of the defendants:--because the true rule of damages in like cases is that there laid down.

And they contend that the instructions of the Court were erroneous for want of those qualifications in favor of the defendants, to which they were entitled.

In support of these propositions, the following authorities were cited: Ainsworth vs. Eastern R. R. Co., 11 Jurist, 758. Gilbard vs. Lancashire R. R. Co. Chitty on Carriers, 413.  [**24]  Blake vs. R. R. Co., 83 Eng. C. L. Rep., 93. New York vs. Ransom, 23 How., 487.  

JUDGES:
BOWIE, C. J.  

OPINIONBY:
BOWIE 

OPINION:

 [*99]  BOWIE, C. J., delivered the opinion of this Court.
These are cross appeals, in an action instituted under the 1st and 2nd Sections of Article 65, of the Code, by the State, for the use of a widowed mother, whose son was killed, under the circumstances detailed in the bill of exceptions.
After evidence offered by both parties, a series of prayers was submitted by each, all of which were rejected and others 

 [*100]  given by the Court instead thereof, to which rejection, and the instructions given, the plaintiff and defendants severally excepted.
The counsel of the defendants, having filed in these causes a declaration in writing, that in the event of an affirmance of the judgment as against the plaintiff on its appeal, in the first case, the defendants will abandon their exceptions, it is proper first to inquire whether the appellant has been aggrieved by the action of the Court below.
The General Assembly of this State, in the year 1852, finding the common law maxim, "Personal actions die with the person," unsuited to the circumstances and condition of [**25]  the people, enacted a law entitled "An Act to compensate the families of persons killed by the wrongful act, neglect, or default of another person." To make its design more obvious, the fourth section provides "the word person shall apply to bodies politic and corporate," and "all corporations shall be responsible under this act, for the wrongful acts, neglect or default of all agents employed by them."
The material provisions of this Act, as well as its title, are derived from the 9th and 10th Victoria, and are embodied in Art. 65, (title Negligence) of the Code.
The object of the several series of prayers was, 1st, to furnish the jury with a standard of care and diligence, required by law, of the defendants, to exempt them from liability for damages, for the injury incurred; 2nd, to prescribe the care necessary to be exercised by the deceased, to entitle his next of kin to recover; 3rd, to define the measure of damages.
The appellant's first prayer required the defendants, under the circumstances therein predicated, "to exercise the utmost care and diligence to prevent accidents endangering 

 [*101]  the life or lives of the people or inhabitants of the said city."
The [**26]  second held that the defendants were bound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ, and if the use of a guard or lookout at the head or in the rear of said cars * * was a measure by which such accidents would probably be avoided, the omission was culpable negligence.
The appellant's third prayer affirms, that the jury in the estimate of damages should take into consideration, the expense to which the plaintiff was subjected in consequence of the accident, and the loss resulting therefrom not only to the present time, but also the probable prospective loss and expense, etc., and that in estimating the said loss and damage, the jury are not limited to the actual pecuniary loss proved in said case.
The propositions laid down by the Court, in the first instruction granted, are,
That the defendants in the movement and management of their cars and engines were bound to exercise the utmost care and diligence which it was within their means and power to employ to prevent accidents and injuring or endangering the life or lives of the people. And if the jury find that the child of the plaintiff's  [**27]  cestui que use, was run over and killed by the defendants' cars as described by the witnesses; "and that if the defendant's in the use and management of their cars and engines, had exercised the highest degree of care and diligence, 'which it was within their means and power to employ,' the said accident could have been prevented, then the plaintiff is entitled to recover in this action; but although the jury may find that the said accident could have been prevented by the use of such care and diligence, on the part of the defendants, yet the 

 [*102]  plaintiff is not entitled to recover if the jury believe the accident could have been avoided by the exercise of that degree of care by the said child which was under all the circumstances to be naturally and reasonably expected from one of said boy's age and intelligence."
The degree of care and diligence, imposed by law on the defendants, in the instruction given by the Court, is as high as that required by the appellant's prayers; the degree is, the "utmost care and diligence," the "highest it was within their means and power to employ;" the only material difference is, that one of the appellant's prayers asked the Court [**28]  to instruct the jury specifically "that if the use of a guard or lookout, at the head or in the rear of said cars, was a measure by which such accidents would probably be avoided, the omission was culpable negligence." The general terms, used by the Court, embraced all the particulars specified by the prayer of the appellant, qualified by the words, "it was within their means and power to employ." The jury were at liberty to find under the instruction given, and perhaps did find that the absence of the guard constituted the want of "the highest care and diligence within the means and power of the defendants," and therefore rendered their verdict in favor of the plaintiff.
The liability of the defendants in this case, did not depend upon their obligations as carriers of passengers, in which character they are bound to use "the utmost care and diligence which human foresight can use." Stockton vs. Frey, 4 Gill. 406, 422, 423. Worthington vs. Balto. & Ohio R. R., 21 Md. 275. But their liability, if any, arises upon a statute which limits the action to such wrongful act, neglect or default, "as would (if death had not ensued) have entitled the [**29]  party injured to maintain an action and receive damages in respect thereof." Vide Code, Art. 65, Sec. 1.
The party injured not being a passenger, the defendants were not required to exercise that degree of vigilance, 

 [*103]  which the law requires towards those to whom there is a relation of trust and confidence or bailment between the parties. "Towards the one the liability of the latter springs from a contract express or implied, and upheld by an adequate consideration. Towards the other, he is under no obligation but that of justice and humanity. While engaged in their lawful business, both are bound to use a degree of caution suited to the exigencies of the case." 8 Barbour 378.
In an analagous case, this Court said, rail road companies should use "such care and diligence in using the locomotive upon the road, as would be exercised by skillful, prudent and discreet persons having the control and management of the engine, regarding their duty to the company, the demands of the public and the interests of those having property, and having a proper desire to avoid injuring property along the road." This was said in a case of injury to property, but is cited [**30]  with approbation by Redfield as applicable to persons. Redfield on Railways, 395. 4 Md. 242, 257.
The Court's instruction did not close with the definition of the degree of care and diligence on the part of defendants, but proceeded to inform the jury that although the accident could have been prevented by the exercise of such care and diligence by the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been avoided by the exercise of such care by the child as might under all the circumstances have been reasonably expected from one of his age and intelligence. In other words, if there was neglect or default on the part of the boy, or the absence of that prudence which boys of like age and capacity usually exhibit, the defendants were not liable, although by the exercise of extraordinary care on their part the accident might have been prevented.
This ruling is in conformity with all the text writers, 

 [*104]  and the great majority of adjudged cases. Redfield on Railways, 337. 2 C. & P. 730. 8 C. B., 115.
It is objected on the part of the plaintiff below, the appellant [**31]  in this case, that the Court's first instruction was erroneous, in instructing the jury the action could not be maintained, "if the jury believe the accident could have been avoided by the exercise of that degree of care by the said child which was, under all the circumstances to be naturally and reasonably expected from one of his age and intelligence;" whereas the Court should have told the jury, the plaintiff could not recover, if the jury found "there was a want of that degree of care on the part of the said child which under the circumstances, was naturally and reasonably to be expected in one of his age and intelligence." The question of the "want of," or "absence of" such care, should have been left to the jury rather than the exercise of such care. It is difficult, if not impossible, to perceive the difference between the two propositions. In the Court's instructions, the proposition is stated affirmatively; in the appellant's objection, it is negatively. The jury was to find whether there was or was not due care on the part of the deceased. They are told by the Court, if they believe the accident could have been avoided by "the exercise of that degree of care, [**32]  " etc., the plaintiff cannot recover. The appellant insists that it is not the exercise, but the want of care, (which is the non exercise of care,) that is the criterion. The principle of the common law, that a plaintiff cannot recover for injuries "to which his own negligence directly contributed," is admitted, and it seems to us, it was clearly expressed by the Court in the instruction given, as far as the conduct of the deceased child was concerned.
In the case of the B. & O. R. R. Co. vs. Lamborn, 12 Md. 257, 261, and Keech's case, 17 Md. 32, 46, the rule of the common law that the plaintiff could not recover for injuries to which his own negligence directly contributed, was held to 

 [*105]  apply to actions brought on the statutes therein referred to, and the instructions affirmed by the Court in these cases submitted to the jury, the question of negligence on the part of the plaintiff, as well as on the part of the defendants.
The same policy would require the plaintiff to show in actions for injuries resulting in death, that neither the party injured nor the parties for whose use the action was brought, had contributed by neglect [**33]  or want of care to the calamity complained of. This omission in the instruction given enured to the advantage of the appellant and cannot be taken advantage of on her appeal.
The objection raised by the plaintiff to the Court's second instruction, involves the measure of damages. In the language of the briefs, "it was erroneous, 1st. Because it ignores the mental sufferings of the mother suing for damages sustained by the loss of the child, and confines her claim to pecuniary damages. 2nd. Because it limits the pecuniary loss of the mother, the 'cestui que use' to the minority of the child, and deprives the jury of the right to award her damages for the pecuniary loss she would reasonably sustain in her advanced life for want of the labor and services of the son, even after he reached his majority. The rule should have been to allow what they considered a reasonable compensation."
In the absence of any interpretation of this act by our own Courts, we must compare and weigh the reasoning of the authorities cited, in which similar acts have been construed by other tribunals. First in order are the decisions in England upon the Act called Ld. Denman's Act, 1 Redfield 336. The [**34]  observations of COLERIDGE, J., in the case of Blake, administrator, vs. the Midland Railway, 10 Eng. L. & E. Rep. 467, cited by Redfield in his notes, are very strong in support of the instructions given by the Court below in this case, confining the jury to the pecuniary damage sustained by the plaintiff. He says, "our only safe course is 

 [*106]  to look at the language the legislature has employed. * * The title of the Act is for compensating families of persons, etc., not for solacing their wounded feelings." * * By the terms of the Act quoting the second section, "the measure of damages is not the loss or suffering of the deceased, but the injury resulting from his death, to his family." This language seems more appropriate to a loss of which some estimate may be made, than an "indefinite sum, independent of all pecuniary estimates, to soothe the feelings, and the decision of the amount strongly tends to the same conclusion." As we have before intimated, the title and language of the Act of Assembly of this State are almost literally the same with those of English statutes. The former contains also the provision for distributing the damages among the surviving members [**35]  of deceased's family, on which the learned Judge relies, for adopting the principle of compensation for damages which may be estimated in money.
The American cases, arising upon Acts varying in language, necessarily lead, as observed by Judge REDFIELD, to a diversity of decisions. We have no better guide than the construction of a statute originating in the same policy, and expressed in the same words, by enlightened jurists, distinguished for their independence and jealous regard for the rights of suitors.
It is assumed by the learned author just mentioned, as the conclusion of the best considered cases in this country, "that mental anguish which is the natural result of the injury, may be taken into the estimate of the damages to the party injured, although not of itself the foundation of the action." The connection, in which this assumption is made, might lead to the inference, that it applied to actions brought by survivors, for injuries done to their deceased ancestor, relative or next of kin; but upon reference to the authorities cited, it will be found, 

 [*107]  "that the plaintiffs in those cases were the persons sustaining the bodily harm, and in estimating their [**36]  damages, their mental suffering constituted an element of compensation." 1 Cush. 451, and 10 Barb. 623.
To have instructed the jury to allow "what they considered a reasonable compensation," would, in the language of the Supreme Court of Pennsylvania, "be giving the jury discretionary power without stint or limit, highly dangerous to the rights of the defendant, and leaving them without any rule whatever." Rose vs. Story, 1 Barr 190, 197.
In the case of The Penn. Rail Road vs. Kelly, 7 Casey 372, the same learned Court say: "Generally speaking (they add,) the influence of the Court in this class of cases, should be exerted to restrain those excesses into which juries are apt to run. *** Wild verdicts are frequently rendered. And the tendency in modern times undoubtedly is to excessive damages, especially where they are to be assessed against corporations." Ibid, 379. 33 Pa. 318, 330. The Penn. R. R. Co. vs. Zebe et ux. The last objection to the second instruction granted is, that it limits the mother to compensation for the loss of her son during his minority only.
To submit to a jury the value of a life [**37]  without limit as to years, would have been to leave them to speculate upon its duration, without any basis of calculation. The law entitles the mother to the services of her child during his minority only; (the father being dead,) beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory.
According to the appellant's theory, the mother and son are supposed to live on together to an indefinite age; the one craving sympathy and support, the other rendering reverence, obedience and protection. Such pictures of filial 

 [*108]  piety are inestimable moral examples, beautiful to contemplate, but the law has no standard by which to measure their loss.
This Court being of opinion that the several instructions granted by the Court below, were as favorable to the plaintiff (the appellant) as she was entitled to, and that she was not prejudiced by the rejection of the prayers submitted on her part, finds no error in the rulings of the Court below, in the first appeal, and will affirm the judgment.
Judgment affirmed. 

115 of 120 DOCUMENTS 

PATRICK BANNON, BY HIS NEXT FRIEND JAMES COUGHLAN, vs. THE BALTIMORE AND OHIO RAIL ROAD COMPANY; AND THE BALTIMORE AND OHIO RAIL ROAD COMPANY vs. PATRICK BANNON, BY HIS NEXT FRIEND JAMES COUGHLAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 108; 1866 Md. LEXIS 5 

February 28, 1866, Decided 

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

This suit was brought to the September term of the Superior Court of Baltimore City, 1861, by Jas. Coughlan, the next friend of Patrick Bannon, a minor, about seven years of age, to recover $ 3,000 damages for injuries sustained by the latter through the wrongful act, neglect or default of the Baltimore and Ohio Rail Road Company or its agents, on the 13th of October, 1860. The declaration contains three counts, to which the defendants pleaded "not guilty."

1st Exception.--At the trial of the cause the plaintiff to maintain issue on his part joined, proved that on the 13th of October, 1860, being then about the age of seven years, he was injured by the cars of the defendants, and his right hand permanently maimed by being crushed by the passage of the wheels of said cars over it, cutting off the forefinger, and rendering him otherwise unfit for manual or mechanical labor. The plaintiff further proved that the said injury occurred near the front of his mother's house, which is located, with a number of others, on Locust Point, within a "Y" on the Locust Point Branch of said road, and then, for the purpose of showing negligence [**2]  on the part of the company's agent, the plaintiff offered to prove that it was the daily practice of said agents, for many months before the happening of said injury, to back by the power of a locomotive large trains of iron coal cars of from forty to fifty cars, around a curve in a deep cut, by which backing a portion of the train of cars came around said curve and passed in front of the house of the plaintiff, and over the place where said injury happened; and the plaintiff accompanied said offer with further evidence to show that during the said backing of said cars as aforesaid, it was the daily practice of the employees and agents of said company, as aforesaid, to remain on or near the locomotive while it was engaged in backing the train of cars, and that said employees and agents could not from their position see the said road or any obstruction thereon, in the rear of the train, as it was so backing, and that no lookout or brakesman was ever stationed on the hindmost of said cars, as they had been daily backed around said curve to the point where said injury occurred; but the Court rejected said offered proof, being of the opinion that the evidence must be confined to the mode [**3]  in which said cars were managed at the time of the occurrence of the injury as complained of, and thereupon the plaintiff excepted.

2nd Exception.--After the evidence stated in the foregoing bill of exceptions, made a part hereof, the plaintiff, to support the issue on his part, offered in evidence by ----- Nunaven, that he was a police officer of the city of Baltimore, on duty at Locust Point on the 13th of October, in the year 1860; that he knew the plaintiff, and that his mother, Mrs. Coughlan, lived at the corner of Towson and Marriott streets, where she kept a grocery; that the Baltimore and Ohio Rail Road passed from Nicholson street by a semi-circular track into Marriott street, close by the house of Mrs. Coughlan, forming what is called a "Y;" that the track passes through a cut between Towson and Haubert streets, in Marriott street, which latter street is not paved or used as a carriage road; that the next street to Towson street is Cooksie street, and that there are houses on Towson street within the "Y" which would prevent an engineman at the corner of Towson and Nicholson streets from seeing the end of the train if it extended past Mrs. Coughlan's house and store up [**4]  Marriott street; that the cars of the defendants were at times left standing across Towson street, in the way of persons passing from Mrs. Coughlan's and other houses within the "Y" to a school house, and to a spring beyond the school house, and that he had notified the agents of the defendants to remove them; that hearing on the 13th October that an accident had happened in Marriott street he went to the spot, which was near the intersection of Cooksie and Marriott streets, and saw where a person had been dragged some distance, with marks of blood upon the ground and rails. The plaintiff further proved by Joshua Wright that he was on the spot immediately after the accident happened, and saw where the plaintiff lay, some twenty-five yards from the end of the train; that his brother had been killed and dragged that distance, and that there were no agents of the defendants about at the time. Witness aided in separating the cars so as to extricate the body of the boy that was killed.

Testimony to the same effect was given by Michael Noonan and ----- Davis.

The plaintiff further proved by Dr. Inloes that he was the physician who attended the plaintiff and removed the forefinger [**5]  of the right hand and dressed the second and third fingers, which were mashed and will remain permanently deformed; that there is no grasp in the hand, the power being lost in consequence of the accident; that the plaintiff was confined to bed three or four weeks, and there was a tendency to lockjaw, which required medical control, and that no other injury was done to the hand beyond that described; and although the remaining fingers would improve by use, they were in the opinion of witness permanently injured, and the plaintiff incapacitated from the free use of them for life.

The defendants proved by Henry Linn, a competent witness, that he saw the accident when it occurred; that the plaintiff, with his two brothers, were playing on the common near the intersection of Marriott and Cooksie streets, when the end of the train came backing round Mrs. Coughlan's corner into Marriott street; that the boys at once left their play and ran to the cars and attempted to get on them; that there were two on the track in front of the end car, who got on by holding with their hands on the bumper, with their feet on the break-bar; that the little one, the plaintiff, was trying to get off or [**6]  fell off, and knocked the other off, who was killed; that witness did not see the plaintiff after the accident, his attention being attracted to the boy that was killed. On cross-examination witness said that he was at the time he saw the little boys playing on the common some fifteen or twenty yards from them, and in company with two other boys larger than himself, to whom he said, boys let us take a ride? Whether the three little boys of Mrs. Coughlan heard him or not he could not swear. Witness saw no agents of the company about at the time of the accident. From the end of the train where it happened he could not see the engine. He did not hear a whistle blown or a bell rung. Was certain that both the boys, the one that was killed and the plaintiff, jumped on the cars.

The defendants further proved by Mr. Stickes, an employee of the defendants, that he knew the plaintiff and his two brothers; that he had often seen them getting on the cars, and had often warned them off, and told them the risk they ran; that witness had also told their mother of their conduct in this respect, and had seen her whip them for it, but she said she could not prevent it.

Parker, brakesman of [**7]  the train in question, a witness for the defendants, proved that he had driven the three children of Mrs. Coughlan from the cars, and had threatened to whip them, and had also told their grandmother of their conduct; that this was prior to the 13th October, and on frequent occasions, certainly on more than one occasion; and that at the time of the accident the speed of the train did not exceed two or two and a half miles an hour. On cross-examination, the witness described the duties of the agents connected with the train,--and stated, that there was no one at the end of the train at the time of the accident, and that it was no one's business to be there; that the signal for backing the train, three blasts of the whistle, had been given before the train was backed on this particular occasion; that there was no bell rung, and there was none on the engine to ring; and that the whistles were signals to the persons connected with the train.

Ennes Toby, a witness for the defendants, proved that he was the engineman on the occasion of the accident; that the engine was a regulating engine, employed in the making up of trains at Locust Point, for another engine to take away; that he was [**8]  making up a train at this time, and adding the last cars; that, on previous occasions, he had often seen the three boys getting on the cars when in motion, as well as in rest; and that he has driven them from one part of the train, when they would run and get on another part.

On cross-examination this witness stated, that he always watched the crossing in front of Coughlan's house, but that, after the end of the train had passed it, he knew there was no crossing until the next paved street was reached, and anticipated no accident; that from where his engine was on this occasion he could not see the end of the train, where the accident happened, nor did he know of the accident for half an hour afterwards; that the speed of the train in backing at this time was very slow, and it could not have been otherwise, as there were fifty empty coal cars to be moved, and the grade up Marriott street was an ascending one, and it was as much as the engine could do to push the train backwards; that it was going so slowly that any one, however young, could have got out of the way. The witness further proved, that the whistle was blown three times, as a signal for backing, before the accident,  [**9]  and he stated that, in his judgment, he had taken the utmost care under the circumstances; that since the accident, he had, however, been more careful than before it, to see that there was no one in front of the end of the train in backing, and that there was no one of the defendants' agents at the end of the train when the accident occurred.

The plaintiff thereupon offered two, and the defendants four prayers, which are set forth in substance, in the opinion of this Court.

Which instructions of both plaintiff and defendants the Court, MARTIN, J., refused to give, but instructed the jury as follows:

1st. That if the jury find from the evidence that the Baltimore and Ohio Rail Road Company are the owners of the railroad track or tracks, and of certain cars and engines used thereon, at Locust Point, in the City of Baltimore, along which track or tracks said cars and engines were drawn or propelled for the purposes and about the business of the said rail road company, then, in the movement, use and management of the said cars and engines, the said company is bound to exercise the utmost care and diligence which it was within their means and power to employ, to prevent accidents [**10]  endangering the life or lives of the people and inhabitants of the said city; and if the jury find that the plaintiff was run over and injured by the defendants' cars, as described by the witnesses, and that if the defendants, in the use and management of their cars and engines, had exercised the highest degree of care and diligence which it was within their means and power to employ, the said accident could have been prevented, then the plaintiff is entitled to recover in this action; but, although the jury may find that the said accident could have been prevented by the use of such care and diligence on the part of the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been avoided by the exercise of that degree of care by the said plaintiff, which was, under the circumstances, to be naturally and reasonably expected from one of the plaintiff's age and intelligence, or by due care and diligence on the part of the mother.

2nd. That if, under the first instruction, the jury shall find a verdict for the plaintiff, they are not at liberty to give, upon the evidence in this case, against the defendants, exemplary, punitive or vindictive [**11]  damages, but in estimating the damages they are to consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition in consequence of the said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those mechanical employments and pursuits for which, in the absence of the said injury, he would have been qualified; and also the physical and mental suffering to which he was subjected by reason of the said injury, and to allow such damages as, in the opinion of the jury, will be a fair and just compensation for the injury which the plaintiff had thus sustained.

To which refusal of the Court to grant the defendants' prayers, and to the granting of the Court's instructions, the defendants, by their counsel, prayed leave to except, and the plaintiff's counsel, in like manner, prayed leave to except to the Court's refusal to grant said prayer of the plaintiff, and to the instructions given by the Court. Whereupon both plaintiff and defendants appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

RAIL ROAD COMPANIES, LIABILITIES OF: EVIDENCE, ADMISSIBILITY OF. -- In an action against the Baltimore and Ohio Rail Road Company by the prohein ami of a child, run over and badly injured by the cars of the company, after evidence of the injury, and for the purpose of showing negligence on the part of the company, the plaintiff proposed to prove that it was the daily practice of the defendants to move their cars without a guard at the rear of the train over the "Y," which was so situated that the engineer at the engine could not see the rear; which evidence the Court below rejected. On appeal, HELD:

That the evidence was collateral and incapable of affording any reasonable presumption or influence as to the matters in issue, and was properly excluded.

GROSS NEGLIGENCE: PRAYERS AND INSTRUCTIONS TO THE JURY: DAMAGES, PUNITIVE AND EXEMPLARY. -- The facts enumerated on p. 84, (being substantially the same proved in this case,) are not evidence of gross negligence, such as would warrant an instruction to the jury; that if they should find such negligence on the part of the agents of the Rail Road Company, they might allow punitive or exemplary damages.

MEASURE OF DAMAGES, ELEMENTS OF. -- In estimating damages under the evidence referred to, the jury should consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition in consequence of the said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those mechanical employments and pursuits for which, in the absence of the said injury, he would have been qualified; and also the physical and mental suffering to which he was subjected by reason of said injury; and such damages should be allowed as in the opinion of the jury would be a fair and just compensation for such injury and suffering.

RAILROAD COMPANIES, LIABILITIES OF: DEGREE OF DILIGENCE ON PART OF DEFENDANT: NEGLIGENCE OF PLAINTIFF. -- Rail Road Companies are bound in the management of their engines and trains to use such diligence and care as prudent and discreet persons would use and exercise on such occasions, with such motive power and trains, having due regard to the safety of property and persons; and if owing to the absence of such diligence and care a party is injured, he is entitled to recover for the injury, unless from his own negligence or want of reasonable care he has brought the same upon himself.

RAILROAD COMPANIES, LIABILITIES OF: DEGREE OF DILIGENCE ON PART OF DEFENDANT: NEGLIGENCE OF PLAINTIFF: THE INFANCY OF THE PLAINTIFF does not change either the degree of care or diligence to be used by the defendants in the management of their cars and engines, or enhance the measure of damages to be adopted by the jury.

THE RULES REGULATING THE RIGHTS AND DUTIES OF PERSONS, NATURAL AND ARTIFICIAL, to each other must be uniform; they cannot vary according to the years or degree of intellect of natural persons without producing an uncertainty in the law destructive of all principle.  

COUNSEL:
A. S. Ridgeley and Robert J. Brent for Coughlan [**12]  and Bannon:

I. The Court below erred in refusing to admit the testimony as offered in the plaintiff's first bill of exceptions.

1st. Because it contained some evidence from which the jury might infer that the cars were backed, and the manner of such backing, on the occasion in question, inasmuch as it was the defendants' custom so to back them in making up its trains.

2nd. Because the evidence offered tended to show a general recklessness and indifference to human life, which it was proper for the jury to consider, in connection with the question of damages. Day vs. Woodworth, 13 How., 371.

II. The first instruction of the Court below was erroneous, for the reasons stated in the appellant's argument, touching the first instruction, in the case of Coughlan vs. Balto. & Ohio R. R., supra, p. 84. Redfield on Railways, 337, Pierce, 278. Lynch vs. Nurdin, 41 Eng. C. L. Rep., 422, (1 Q. B. 36.) 22 Vermont R. R. 213. 19 Ver. 407. 19 Conn. 566.

III. This action not being founded on the statute, but on common law principles for damage done to the plaintiff, an infant of seven years, we are to look, in the assessment of damages, to the rules of the common law which allow [**13]  not only actual damages and solatium for the sufferings of the plaintiff, but such exemplary damages as the jury may think commensurate to the reckless and wanton conduct of the defendants' servants, and shall also contend that the Court below erred in its second instruction to the jury, in restraining them on the evidence in the case from the infliction of exemplary damages proportioned to the degree of negligence found to exist on the part of the defendants. Farrish vs. Reigle, 11 Grattan, 697. Hopkins vs. Atl. & St. Law. R. R., 36 N. H., 16 to 19. Day vs. Woodworth, 13 How., 371. Vicksburg Rail R. Co. vs. Patton, 31 Miss., (2 Georg.) 156. Sedgwick on Measure of Damages, 36-- 477 and note.

What would be ordinary neglect on the part of the defendants, as towards an adult plaintiff, would be gross neglect as towards a child. Robinson vs. Cone, 22 Ver., 224. Beers vs. Housatonic R. R., 19 Conn., 566.

Any negligence in a case of this kind is gross negligence. Stokes vs. Saltonstall, 13 Peters, 181. Whipple vs. Walpole, 10 N. H., 130. Stockton vs. Fry, 4 Gill Sedgwick on Damages, 454. Koutz vs. Brown, 16 B. Monroe, (Ky.) 577. City of Chicago vs. Mayor, 18 Ill., 349. Johnson [**14]  vs. Hud. River R. R., 6 Duer, 638. Oldfield vs. N. Y. & Har. R. R., 4 Kernan, 317. Penn. R. R. vs. Zebe et al., 33 Penn., 330. Riely's Case, 31 Penn., 372, also 361.

In the event of an affirmance of the judgment as against the defendants on their appeal in this case, the plaintiff will abandon his exceptions. Emory & Galt vs. Owings, &c., 3 Md. Rep., 184. Boehme vs. Carr, 3 Md. Rep., 210. 9 Gill, 376. Garrett vs. Dickerson, 19 Md. Rep., 446.

J. H. B. Latrobe, for the appellee, relied on the authorities cited by him in the preceding case.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*118]  BOWIE, C. J., delivered the opinion of this Court.
These appeals are taken from the rulings of the Court below, excluding certain evidence offered on the part of the appellant, Bannon, and rejecting certain instructions offered by the plaintiff and defendants, and the granting of others in lieu thereof by the Court, from which rulings each party appealed.
The cause of action, is injury sustained by the plaintiff, through the alleged wrongful act, neglect or default of the defendants or their agents, whilst moving their [**15]  engine and cars in reversed order, over a semi-circular track called a "Y," on the Locust Point branch of the defendants' road. After evidence of the injury, for the purpose of showing negligence, the plaintiff proposed to prove it was the daily practice of the defendants to move their cars without a guard at the rear of the train over the "Y," which was so situated that the engineer at the engine could not see the rear, which evidence the Court rejected, being of opinion that the testimony must be confined to the mode in which the cars were managed at the time of the occurrence of the injury complained of; which constitutes the ground of the plaintiff's first exception.
There can scarcely be a question about the propriety of the Court's decision in this exception.
The general conduct of the defendants was not in issue. They were not required to meet such an investigation by 

 [*119]  the pleadings. The acts and omissions of their servants and agents at other times, furnished no legitimate evidence of their conduct upon the particular occasion referred to; and if they did, the safe conduct of the cars, for a long time before, without injury, would rather tend to mitigate than inflame [**16]  the injury, showing there was no danger to the community in that mode of managing the cars. The evidence was collateral, and incapable of affording any reasonable presumption or inference as to the matters in issue and properly excluded. Vide 1 Greenlf., sec. 52. The first and second prayers of the plaintiff, referring exclusively to the measure of damages, will be considered in connection with the instruction of the Court upon that subject.
The series of instructions offered by the defendants, substantially affirms:
1st. If the place where the accident happened was not a thoroughfare and used as such, or being crossed at the time by the plaintiff, and the cars were moving at a speed which would have permitted either adult or child to have avoided them, had he been using the street as a thoroughfare, or crossing the same, if he had used such diligence as was reasonably to have been expected of him, then the plaintiff is not entitled to recover.
2nd. If the plaintiff was just before the accident playing in a place of safety, and seeing the cars, ran and jumped on them, and fell off and was injured, he is not entitled to recover, although the jury believe the defendants did [**17]  not use the care and diligence that would have prevented him from getting on the cars.
3rd. If in addition to the above facts, the plaintiff had been warned, and was of an age to understand such warning, and to know he was doing wrong, he is not entitled to recover, although the defendants had not used such care and diligence as would have prevented the plaintiff from getting on the cars.

 [*120]  4th. If at the time of the accident the defendants were not complying with the ordinances offered in evidence regulating the use of locomotive engines in the City of Baltimore, yet the plaintiff is not entitled to recover, if the jury believe that his conduct was the immediate cause of the accident and his injury, the result of a want on his part of that degree of care which was under all the circumstances naturally and reasonably to be expected in one of the plaintiff's age and intelligence.
The instruction of the Court is silent as to the place being a thoroughfare, but affirms, if the defendants were owners of the track along which their cars were drawn or propelled about the business of the company, then, in the management and movement of said cars the company is bound to exercise  [**18]   the utmost care and diligence which it was within their means and power to employ to prevent accidents, endangering the lives of the people of the city; and if the jury find the plaintiff was injured by the defendants' cars, and if the defendants in the use of their cars, had exercised the highest degree of care and diligence which it was within their means and power to employ, the said accident could have been prevented, then the plaintiff is entitled to recover; but, although the jury may find that the said accident could have been prevented by the use of such care and diligence on the part of the defendants, yet the plaintiff is not entitled to recover, if the jury believe the accident could have been avoided by the exercise of the degree of care by said plaintiff, which was, under the circumstances, to be naturally and reasonably expected from one of the plaintiff's age and intelligence.
The theory of the defendants' prayers, taken collectively, is, that if the injury was owing to the want of the reasonable care and diligence on the part of plaintiff, the defendants are not liable; although they might have prevented the accident by the exercise of the utmost care and diligence. [**19]  

 [*121]  The theory of the Court's instruction is, that the defendants, in the movement and management of their engines and cars, were bound to use the utmost care and diligence, and if, by so using it, the accident might have been prevented the plaintiff is entitled to recover, unless the jury believe the accident could have been avoided by the exercise of such care as was reasonably to have been expected from the plaintiff.
The difference between the two propositions is, that under the Court's instruction the defendants were bound to use the utmost care and diligence, and if the defendants were not in default at all, and the plaintiff was, he cannot recover, under the defendants' prayer, although the defendants were in default, yet the plaintiff cannot recover if his own want of care, etc., was the cause of his injury.
In the preceding case of the State, use of Coughlan, vs. B. & O. R. R. Co., supra, p. 84, we have pointed out the different degrees of diligence required by law, of carriers of passengers, etc., towards those with whom they are in the relation of carriers by contract, or trust and confidence, and the degree of diligence required of them towards third persons, [**20]  merely in the exercise of their legal rights. In the former case, as lately decided by this Court in the case of Worthington vs. The Baltimore and Ohio Rail Road, the defendants are required to use the utmost care and diligence, but in the latter they are required only to exercise such care and skill as persons of ordinary prudence practice about their business. Vide 8 Barb. 368. Rail Road vs. Norton, 24 Pa. 465.
WILLARD, Justice, delivering the opinion of the Court, in the case of Brand vs. The Troy and Schenectady Rail Road Company, uses this emphatic language, "that a passenger on board a stage coach or rail road car, and a person walking on foot in the street, do not stand in the same relation to the carrier. Towards the one the liability 

 [*122]  of the latter springs from a contract, express or implied, and upheld by an adequate consideration. Towards the other he is under no obligation but that of justice and humanity. While engaged in their lawful business, both are bound to use a degree of caution suited to the exigencies of the case; the one to avoid the occasioning an injury, and the other to avoid receiving it. What [**21]  that degree of caution is, which they are respectively bound to exercise, may be seen by a brief consideration of the degrees of care which the law exacts from persons engaged in the various pursuits of life." After reviewing the different degrees of diligence and care required of bailees and others, he proceeds:
"In general the highest diligence is not exacted of any person except when a compensation is paid for the service, or the party injured was in the power, and under the control of the defendants as in the case of stage passengers; or the party officiously obtrudes his services upon another; or is the sole party receiving a benefit from the act, or the party occasioning the injury, was in the wrong place, or engaged in an unlawful calling." If both parties stand on an equality as to means of avoiding the accident, and both are engaged in a lawful employment, it is hard to conceive how more than ordinary diligence can be demanded. 8 Barbour Sup. Ct. Rep., 378, 380.* * In illustration of the same principle, "one who was engaged upon the track of a railway, by the direction of the superintendent of the company, and was injured by the engine of another company lawfully upon [**22]  the track, could not recover of the latter company, although their engineer was guilty of carelessness, being himself also in fault." Railroad vs. Norton, 24 Pa. 465.
This language was used in the case of an injury inflicted on a woman while walking on the track of a railway in the streets of a city.

 [*123]  The first instruction granted by the Court required the jury to find the exercise of the utmost care and diligence which it was within the means and power of the defendants to employ, to prevent accidents endangering the lives of the people, to exonerate the defendants from liability, unless they should find the accident could have been avoided by the exercise of that degree of care by the said plaintiff, which was, under the circumstances to be expected from one of the plaintiff's age. This was exacting more than the law required of the defendants, as it would seem from the authorities cited, and therefore erroneous.
The second instruction given by the Court was intended as a substitute for the first and second offered by the plaintiff, prescribing the kind and measure of damages. These, upon the assumption that the injury was caused by gross negligence [**23]  of the defendants, authorized the jury to allow "such punitive or exemplary damages, as in their discretion they might think right and proper under the circumstances." 2d. That they were not limited to the actual pecuniary injury they may believe the plaintiff has suffered, but were at liberty to award damages for all future pecuniary damages which will result from the injury, and also such damages as would be an adequate compensation for the pain and illness consequent upon the injury complained of.
The first of the plaintiff's prayers was liable to objection for the unlimited discretion it proposed to give the jury, without any guide to its exercise; the pernicious tendency of which practice has been so strongly exposed in the cases cited by this Court in the case of The State, use of Coughlan, vs. The B. & O. R. R. Co., supra, p. 84. Without adopting or denying the proposition so elaborately discussed by the learned jurists, Sedgwick and Greenleaf, that "wherever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, instead of adhering to the 

 [*124]  system or even language of compensation, the law permits the jury to give what it terms [**24]  punitive, vindictive, or exemplary damages," its application must entirely depend upon the circumstances of the case and the evidence in the cause. There is no element of fraud, malice or oppression in this case, but the inquiry is, was there gross negligence?
Gross negligence is a technical term; it is the omission of that care "which even inattentive and thoughtless men never fail to take of their own property," it is a violation of good faith. Angel on Carriers, sec. 10. It implies malice and evil intention. Hence in all questions of punitive or vindictive damages, the intention of the defendants is a material consideration.
"What is, and what is not gross negligence, is often a mixed question of law and fact." Angel on Carriers, sec. 22, 27. Pierce on Rail Roads, 282, 283. Whether malice or gross negligence existed, is a question for the jury; but what facts are sufficient to prove malice or gross negligence, is in such cases the province of the Court to determine.
"The Judge is to inform the jury as to the degree of diligence, or care or skill which the law demands of the party, and what duty it devolves on him, and the jury are to find whether that duty has been [**25]  done. Hunter vs. Caldwell, 11 Jur. 770. 10 Adol, and Ell., 69. 11 M. and W., 817, and other cases cited by Greenleaf, note 1 to sec. 49, page 70, 11th edition.
The law requiring of the defendants only ordinary care and diligence towards third persons, not passengers or connected with the defendants by contract, trust or confidence; there was no evidence of gross negligence, which would warrant the Court to instruct the jury, that if they should find such on the part of the agents of the defendants, they might allow punitive or exemplary damages. The prayer was for this additional reason properly rejected.

 [*125]  The case being divested of all aggravating circumstances, the second instruction granted by the Court enumerated all the elements of compensatory damages which properly belonged to it.
The infancy of the plaintiff does not change either the degree of care or diligence to be used by the defendants in the management of their cars and engines, or enhance the measure of damages to be adopted by the jury. The rules regulating the rights and duties of persons natural and artificial to each other, must be uniform; they [**26]  cannot vary according to the years or degree of intellect of natural persons, without producing an uncertainty in the law destructive of all principle. For this reason, and others which might be in the conflict of suggested decisions, we think those of Hartfield vs. Roper, 21 Wend. 615, and Willetts vs. Buffalo & Rochester R. R., 14 Barbour, are to be preferred to Lynch vs. Nardin, 1. Q. B., 29.
In Hartfield vs. Roper (21 Wend. 615,) the action was by an infant two years old. He was in the sleigh path alone, and was run over and injured. It was held that no action would lie if the injury was not voluntary, or from culpable negligence. The rule of negligence was applied to the case, and the want of care on the part of the parents was regarded as a want of care on his part.
Willetts' case was that of an infant lunatic left by his father in the cars, and put out by the conductor, ignorant of his lunacy, in consequence of his failing to show his ticket; afterwards he was run over by another train and killed. It was held the negligence of the parent was the negligence of the child, and his administrator could not recover. The [**27]  general principle is thus announced: "all persons incapable of diligence should, and usually have guardians to care for them; upon them the duty of care and diligence is devolved, and their negligence must in 

 [*126]  law be regarded as the negligence of the incapable infant or lunatic when they have been injured in cases arising between them and third persons acting without notice."
It results from what has been said, that the defendants were bound, in the management of their engines and trains, to use such diligence and care, as prudent and discreet persons would use and exercise on such occasions, having due regard to the safety of property and persons with such motive power and trains; and if, owing to the absence of such diligence and care the plaintiff was injured, he was entitled to recover, unless from his own negligence or want of reasonable care, he brought the injury upon himself.
The defendants' first, second, third and fourth prayers are defective, in not presenting this alternative distinctly to the jury. They enumerate certain facts, and specify a certain want of care in preventing the plaintiff from getting on the cars, but do not refer to the absence of ordinary [**28]  care and diligence in the general management of the engine and train on that occasion, as an element of the condition on which would necessarily depend the right of the plaintiff to recover.
The conclusion from the foregoing is, that the Court below was correct in rejecting the evidence set out in the plaintiff's exception, and in rejecting the plaintiff's and defendants' prayers; and also in giving its second instruction; but that there was error in the first instruction granted by the Court, hence the judgment below must be reversed and a procedendo awarded.
Judgment reversed and Procedendo awarded. 

116 of 120 DOCUMENTS 

LEWIS TURNER vs. HENRY KNELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 55; 1866 Md. LEXIS 3 

February 21, 1866, Decided 

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

The bill in this case was filed by the appellant against the appellee for an injunction to restrain the appellee from prosecuting a suit against the appellant upon a promissory note for $ 1,000, made by the appellant and passed by him to the appellee, and for a discovery as to the consideration of the note. The first and second answers were excepted to, and the appellee was required to file a third answer, in which he stated that he had the note discounted at bank, and applied $ 500 of the proceeds to reimburse himself for a note of the appellant's for $ 500 paid by him, and paid over the balance of the proceeds to the appellant. The Court below (KREBS, J.) held that this answer in so far as it stated what application was made of the proceeds of the note was responsive to the bill, and from this decision the complainant appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

PRACTICE IN EQUITY: BILL OF DISCOVERY: EVIDENCE: RESPONSIVE ALLEGATIONS OF ANSWER. -- The answer of a defendant to a bill of discovery, if responsive, is evidence for the defendant, unless overcome by the testimony of two witnesses, or one witness with corroborating circumstances.

Where the bill called for a discovery as to the consideration for a note given to the defendant by the complainant, and alleged to have been for the accommodation of the defendant, and the latter stated in his answer that the note was discounted at bank by him, and detailed circumstances showing how the proceeds enured to the benefit of the complainant, HELD:

That all the matter stated referred to one transaction -- the enuring of the proceeds of the discount to the use and benefit of the complaint, and was responsive as to the subject really in controversy between the parties.  

COUNSEL:
B. C. Barroll, for the appellant.

1. It is conceded by the record that the note in controversy passed from Turner to Knell on the day of its date, without consideration. Knell's second answer so admits unequivocally.

2. It is proved and conceded in the record,  [**2]  that Knell got it discounted for himself at the Western Bank, and received the entire proceeds from the bank.

3. It is alleged by Knell in his third answer, that he paid a note of $ 500 for Turner, and handed over to Turner the balance of the money, after he received it from the bank. Of this there is not a particle of evidence.

4. The statements of the third point are contradicted by the evidence of Raefle and Stockdale. Knell, in conversation with them, (while the matter was recent,) contended that Turner's obligation to pay the note in controversy arose from the fact that Knell had paid a note for Turner on the 13th of January, 1854, at the Farmers' and Merchants' Bank, of $ 1,000--Knell saying that he got the money to make such payment from Stockdale on the day mentioned, and that Stockdale took him down in his buggy, &c.

But Stockdale proves that Knell got no money from him on or before the 13th of January, as alleged. That the loan of the $ 1,000 took place some eleven or twelve days afterwards, which utterly refutes the statement of Knell, that he paid any note for Turner on the 13th of January.

But suppose he did--then this view of the case is subversive [**3]  and contradictory of the facts set up in all the answers, and a defendant must stand upon his allegations as contained in the pleadings.

5. If the answers are contradictory, and repugnant each to the other, are they not all to be rejected, and the case made to stand upon the allegations in the bill, as made and sworn to by the complainant?

The answers set up, by way of avoidance, other matters which subsequently occurred after Knell endorsed the note and used it. See the rule stated in Clark vs. White, 12 Peters, 189. "If the answer of the defendant admits a fact, but insists on matter of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the matter in avoidance." See also Gibson vs. McCormick, 10 G. & J., 65,--where it is said, "An answer will not support a matter set up in discharge, when the matter of avoidance is a distinct fact--in such a case the defense must be proved."

When the issue joined involves a negative averment, such as that no consideration passed for a note, and the party replies that the consideration was the payment by him of a note for $ 500, &c., in such case, the fact being peculiarly within the knowledge [**4]  of the party asserting the affirmative, the onus of proof is upon him; otherwise, you put upon the other side the proof of a negative, which is not allowed, for the reason assigned in all the text books on evidence, that a negative does not admit of the direct and simple proof of which the affirmative is capable. 1 Greenlf. Ev., secs. 74, 79.

Further to show that the matters set up in avoidance by Knell, go for nothing in the answer unless made out by proof-See Ringgold vs. Ringgold, 1 H. & G., 81.

An answer will not support a matter set up in avoidance, or discharge where the matter of avoidance is a distinct fact: in such case the defense must be proved. Pothier on Obligations, 157. Gilbert, 51. Tenn Eyck's Case, 2 John's Ch. Rep., 62, 89. Thomas vs. Lambe, 7 Ves., 587. Boardman vs. Jackson, 2 Ball & Beat., 382. Bush vs. Livingston, 2 Caine's Ca. Bartlett vs. Gale, 4 Paige, 507. Fitzhugh et al. vs. McPherson, 3 Gill, 429. Jones vs. Belt, 2 Gill, 120. Randall vs. Phillips, 3 Mason, 383.

The case now before the Court is not only within the principles set forth in these cases, but much stronger. Knell received the note on the 13th day of February, got it discounted on [**5]  the 14th--does not tell when he paid the note for $ 500, or when he paid over the balance, or when he drew it out of bank. These facts, (even if true,) make an entirely different transaction from that which occurred between Turner and himself on the 13th of February, 1854--and cannot have the force of an avoidance and discharge, unless sustained by proof. It might be conceded, however, that where an admission is qualified, the qualifications form part of the admission-- otherwise, the admission is not the admission the respondent intended to make. But the averments of the bill in this case related to a specific transaction which occurred at a specific time--to wit: the transaction of the making and delivery of the note on the 13th of February, 1854.

The clear admission (unqualified) in the answer is in relation to that transaction, that no consideration or value was given for the note--here the transaction set forth in the bill ceases. But Knell goes on and relates other transactions, which occurred afterwards: that he got the note discounted on the 14th of February: that he got the money from the bank; and that he paid some of the money to Turner and kept a part, $ 500, to reimburse [**6]  himself for a note which he paid for Turner about that time.

This is not an explanation or qualification of the admission. No consideration or value passed at the time inquired of: that is the admission,--yet, that subsequent dealings took place, he says, between them, which entitle him to recover on the note in a Court of law, because he paid the note as endorser. These may be all true, but they relate to a subsequent and different transaction. These things, (if they occurred,) took place on and after the 14th of February--and as to the note of $ 500, he does not say when he paid it. The rule is that you are not to divide a sentence so as to make a man admit something which he does not intend to admit. But a man cannot make a clear admission, which he is bound to make if he tells the truth, and then set up other facts, the legal effect of which he hopes may nullify the force of the admission. In the case at bar, the admission is in one answer, and the matters in avoidance in a subsequent answer.

Samuel Snowden, for appellee, argued:

1st. That it is not conceded by the record that the note in controversy passed from Turner to Knell without consideration, nor does his [**7]  answer so admit.

2nd. That it is proved and shown by the record that Knell got it discounted at the Western Bank for Turner and paid Turner, or for or on his account the entire proceeds.

3rd. That the answer of the appellee is consistent throughout its amendments and responsive to the bill and exceptions, and the plaintiff has utterly failed to disprove it.

4th. That the plaintiff was not entitled to a discovery in the Circuit Court for Baltimore City, and that the bill was properly dismissed.

5th. That the answer of the defendant is evidence and establishes his claim.

6th. That the averment of payment over of the proceeds is not new matter that requires to be proved, but is a part of the original transaction.

In support of the above points, he cited the following authorities:

Lady Ormond vs. Hutchinson, 13 Ves. Jr., 53. Hart vs. Ten Eyck, 2 Johns. Ch. Rep., 86. Green vs. Vardinian, 4 Blackf., 330. Cooper vs. Tappan, 9 Wis., 267. Glenn vs. Grover & McColm, 3 Md. Rep., 226.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*60]  WEISEL, J., delivered the opinion of this Court.
We [**8]  concur with the learned Judge of the Circuit Court for Baltimore City, from whose decree this appeal has been taken, in his conclusions as to the law and the facts in this case. The answer of a defendant to a bill of discovery, if responsive, is evidence for the defendant, unless overcome by the testimony of two witnesses, or one witness with corroborating circumstances. The answers in this case are responsive, and there is no sufficient countervailing proof. The evidence has been well scanned and analyzed by the Court below in its opinion, and we do not dissent from the views therein taken of it.
The appellant relied much upon the ground that the circumstances stated by the appellee in his third amended answer as to the mode or manner in which the complainant 

 [*61]  received the benefit of the discount in the Western Bank, were new matter set up in avoidance, and therefore required proof to support them from the defendant. We do not embrace this view. All the matter stated referred to one transaction--the enuring of the proceeds of the discount to the use and benefit of the appellant--and was responsive as to the subject really in controversy between the parties. The explanatory [**9]  facts, showing how he received the proceeds, were necessary parts of a full answer, and for the want of which exceptions were filed to the first answer. They are not matter in avoidance, but of explanation or detail, and necessary to the full answer sought by the exceptions. The distinction between matter of this kind, and matters strictly in avoidance, is well taken in Cooper & Haines vs. Tappan, 9 Wis. 361, 367. See also Glenn vs. Grover, 3 Md. 212.
The defendant below should have answered fully and particularly at first. The circumstance that his answers were twice ruled insufficient, with some other facts in the case of a mysterious nature, are calculated to throw doubt upon the justice of his cause; but having been made a witness by the bill of discovery, and the matter of his answers being, as has been stated, fully responsive to the bill, without being met by sufficient countervailing proof, the complainant must abide by the answer.
The decree below will, therefore, be affirmed, with costs to the appellee.
Decree affirmed with costs. 

117 of 120 DOCUMENTS 

THE MERCHANTS' BANK, OF BALTIMORE, vs. THE BANK OF COMMERCE, IN NEW YORK, USE OF HOFFMAN & COMPANY, OF NEW YORK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 12; 1866 Md. LEXIS 2 

February 19, 1866, Decided 

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

This is an action, instituted by the appellee against the appellant, to recover damages resulting from the neglect to use due and proper diligence to collect a draft for $ 3,000, drawn by Hoffman & Co., on Josiah Lee & Co., bearing date the 29th of October, 1860, which the appellant had undertaken to collect for the appellee. Errors in pleading on both sides were waived, and it was agreed that the plaintiff or defendant might respectively rely on any claim or defence to which the facts of the case might entitle them.

Exception.--At the trial of the cause, it was admitted in writing that Hoffman & Co. sold to the appellee, their sight draft on Lee & Co., being the one described in the declaration, and that the appellee remitted it for collection to the appellant, its correspondent in Baltimore; that on the 30th of October, the runner of the appellant presented the draft to Lee & Co., about one o'clock, P. M., and a check on the Mechanics' Bank, for the amount, was given by Lee & Co. to the runner, who thereupon delivered to them the draft; that although the Mechanics' Bank was in the same square with the Banking House of Josiah [**2]  Lee & Co., the runner, instead of taking the check to the Mechanics' Bank to have it cashed or endorsed "good," returned with it to the Merchants' Bank; after the draft was presented to Lee & Co., as aforesaid, and on the same day, they stopped payment; that after the check was received by the runner, and taken to his bank, the president of the appellant, hearing that Lee & Co. were about to fail, and that the appellant held their said check, directed their runner to present it to the Mechanics' Bank for payment, which was immediately done, and payment refused, whereupon application was made by the runner to Lee & Co., but they also refused, but subsequently returned the draft, and received back their check; that the draft was thereupon protested and returned to the appellee, who demanded and received payment of it from Messrs. Hoffman & Co., neither the appellee nor Hoffman & Co. knowing anything of the above-mentioned facts, except that the draft had come back protested; that Hoffman & Co. were entitled to draw said draft, and Lee & Co. were bound to pay it on presentation; that on learning the facts, Hoffman & Co. wrote to the appellee, asking permission to institute the present [**3]  action in its name, for the purpose of testing the liability of the appellant, enclosing a letter from their counsel, in which it was suggested that they might not be able to maintain a suit in their own name, because there was no privity of contract between them and the appellant; that the appellee enclosed this letter to the appellant, and asked whether the latter preferred that the liability of the latter should be tested in that way, or by a suit brought by Hoffman & Co. against the appellee in New York. The appellant, after some delay, replied that it was advised not to pay until its liability was established by our own Courts, and thereupon, the present suit was brought.

Holtzman, the appellant's witness and runner, proved, that he presented the draft to Lee & Co. shortly after one o'clock, on the 30th of October, 1860; that they gave him therefor their check on the Mechanics' Bank, and that he surrendered the draft, and after completing his rounds, took the check, without having presented it for payment or endorsement, back to his own bank; that it was entered on the books of the bank, and $ 3,000 passed to the credit of the appellee, and the book on which it was so entered [**4]  handed over to the teller; that the check reached the teller near three o'clock, and after he had had it from ten to fifteen minutes, the teller told the witness that he had just heard from Mr. Hopkins, the president of the appellant, a rumor that the house might fail, and directed the witness to present it to the Mechanics' Bank.

The witness, Holtzman, took the check to the Mechanics' Bank, where he arrived with it about three o'clock. The teller held the check in his hand for some time, to see if it would be made good by a deposit, and while doing so, was directed by the cashier not to pay it. Holtzman then applied to Lee & Co., who said they had no money to pay it, and refused at first to return the draft--their confidential clerk saying it had been cancelled and charged up: they were eventually persuaded by the assistant cashier of the appellant to surrender it, and it was protested.

Rogers, the teller of the Mechanics' Bank, and Coleman, the cashier, both prove that the check would have been paid or endorsed "good," at the pleasure of the holder, at any time before two o'clock, and as late as nearly three of that day, and Coleman proved that four checks drawn after the [**5]  one in question, amounting to $ 13,284.75, were, in fact, either paid or endorsed "good;" that this was the first of which payment was refused, and that said bank paid or endorsed "good" that day the checks of J. Lee & Co., to the amount of $ 130,000.

Coleman, also proved on cross-examination, that, on the morning of the 30th of October, 1860, the money market being stringent--people everywhere losing confidence in each other, and Josiah Lee & Co. having over-checked, and the bank holding then some $ 26,000 of their unredeemed checks, which, under the custom of the bank, as between it and those who had deposited such checks, he had a right to return before 11 o'clock, he became uneasy, and went down to their banking house to notify them that unless they made good their account by a deposit, he would return said checks; that their confidential clerk begged him not to do so, and said that "they had money in the house, and could make a deposit in a few minutes; that one of the firm had just gone out with Messrs. Johns Hopkins, (the president of the appellant,) and John Garrett, and that he thought they would get money;" the fears of the witness were then allayed; that the promised [**6]  deposits, and some six or seven others being made during the day, amounting to $ 57,214 80/100, the bank continued to pay their checks till near three o'clock; that he then became apprehensive, because the checks came in faster than in the morning, and the deposits were not so large as they should have been, and there seemed to be an uneasiness felt about the house in the community, and when the check held by the appellant was presented, he told the teller not to pay it. The witness also proved on cross-examination, that Lee & Co. were in fair credit up to the time of their failure; that some time before, having occasion to make inquiries as to their standing, he ascertained them to be in fair credit and standing, and that they were considered an exceedingly honorable house; that they did probably as large a business in their line as any house in town; that their transactions were of such magnitude as to excite the surprise of the bank, as they sometimes made deposits to the amount of $ 200,000 in one day; and that their failure excited great surprise, not only in the community, but all over the country; that they had some considerable credit with his bank on the 30th Oct., as is shown [**7]  by the transactions between them; and when they failed they were in debt to the bank in the sum of $ 48,140, for which the bank held collaterals; and that the witness would not consider a runner indiscreet who on that day would have taken their unendorsed check for $ 5,000.

The same witness also proved that he has been a bank runner and is familiar with the practice of banks with reference to sight drafts, and that his practice is always to take a check, and, unless the honor of the house is doubted, to give up the draft, but if there is any doubt about the check, to get it endorsed; that if convenient, or there is any doubt about the check, then the check is presented at once for endorsement; that if a merchant takes time to consider whether or not he will pay a draft drawn, the practice is to give him till three o'clock, or after, before protesting; and if a check were taken for a sight draft brought into the bank, and afterwards presented and dishonored, it appeared to witness (although this was the first case of the kind that he remembered,) that the natural and proper course would certainly be to return the check and get back the draft for protest.

The plaintiff then [**8]  further proved by Mr. Krebs, that he is specie clerk to the clearing house, and now acting as runner of the Union Bank, during the sickness of the regular runner; that the practice among banks is to present a sight draft to the drawer, and upon receiving a check for it, to go at once to the bank on which it is drawn and have it endorsed; that he always had Lee & Co.'s check endorsed at once,--that they were not tip-top; that he did not himself know their condition on the 30th October, 1860, but considered them weak, and heard talk in the community about their weakness about that time; and that under such circumstances, he would undoubtedly have considered it his duty, under the usage between banks in this city and their correspondents abroad, to present a check received in payment of a draft to be certified as good, at once, before returning to his bank.

On cross-examination the same witness stated that he followed, without regard to the usage the special instructions of his bank, and they were of such a character that if he had a check of any good merchant of undoubted standing, he could return to the bank before presenting it; that if he had some doubt about a check even, witness [**9]  would take his rounds, and it was within his power as runner to arrange when he would present it consistently with his duties and convenience during business hours.

The plaintiff then further proved by James W. Allnutt, the president of the Bank of Commerce, (of Baltimore) that the usage among banks in Baltimore as between them and their correspondents is, and was, on the 30th Oct., 1860, to present a sight draft as early in the day as business will permit, and if a check be given in exchange to have it immediately certified before taking it back to the bank, and if this be not done the check is under the usage a payment of the draft; that his instruction to his runner is always to have a check taken for a draft at once endorsed, before returning to his bank; that the runner has no discretion, and if he brings in an unendorsed check the responsibility is with the teller and the bank, and as between the latter and its correspondent the draft is considered paid; that the house of Lee & Co. was in bad credit on the 30th October, 1860, his impression for some weeks before their failure having been that they were in bad credit, and under that impression he gave positive instructions [**10]  to his teller not to receive their unendorsed checks; and that from his knowledge of their credit on the 30th October, 1860, and of their credit in the community at that time, he would not have thought it reasonably prudent to have taken their unredeemed check.

On cross-examination the same witness stated that the first business of the runner in the morning is at the clearing house, from which he returns about nine o'clock, when he enters up the drafts for presentation for payment and acceptance, whether on merchants, brokers, or banks, and gets out on his rounds by about ten or eleven o'clock; that it takes him of course some time, depending on the amount of paper and the route he takes to present his paper; that the instruction witness gave his teller was verbal and some days before the failure of Lee & Co.; that his general instruction to his runner not to take unendorsed checks, did not make his rule inflexible and he would himself take the responsibility of retaining the check of a good house if it were brought in by the runner; that the teller at the counter takes checks of good parties on deposit unendorsed because they could be returned up to eleven o'clock the next day;  [**11]  but if a check is taken for a bill of exchange or promissory note held by the bank for collection, witness thought the responsibility and risk of the collecting bank was definite at once on such exchange, and the loss would fall upon the collecting bank.

In reply to a question of the plaintiff's counsel, he further stated that in all he had said about the responsibility of collecting banks and their duty and that of their runners, witness expressed not only his individual opinion, but the result of established usage between banks in the city and their correspondents.

The plaintiff then proved by Patrick Gibson, cashier of the Bank of Baltimore, that he did not think Lee & Co. had much credit on the 30th October, 1860, and that their credit on that day was neither very good nor very bad, but sufficiently doubtful to prevent loans to them without security, or their checks being taken without endorsement; that considering their standing, it was the duty of a bank having a sight draft on them to have had the check received therefor immediately endorsed; and that the usage of banks in this city, as between them and their correspondents abroad, so required.

On cross-examination [**12]  the same witness stated that the teller had instructions with respect to taking checks of that, and other houses, to get them endorsed; that in case a check were taken for a sight draft and presented immediately, and dishonored, the course of the bank would be to get back the draft for protest, and he would not consider a bank bound having used due diligence; that the runner is bound to take the nearest road to the bank, on which the check is drawn, before his return to his own bank, and if when he received the check it was good, and in consequence of going his rounds, it was not paid, it is not due diligence; that it is the universal practice to take checks for drafts, and if a check is brought in unendorsed and is sent back by the teller during business hours, the bank would not be bound if the check is dishonored, unless it would have been paid if presented before; that checks and sight drafts must be presented before three o'clock, and may be at any time before that, if the check of any house however good; that even if of the house of Alexander Brown & Sons, had been taken for a sight draft brought in unendorsed, and the teller had sent it in between two and three o'clock, and [**13]  in the meantime that house had by some miracle failed, the loss would fall upon the bank.

The plaintiff then proved by Mr. Mickle, cashier of the Union Bank, that the credit of Lee & Co. was not very good on the 30th October, 1860; that it was not so undoubted as it had been, and he had given special instructions for some time previous to their failure not to receive their unendorsed check for any purpose; that it was the duty of a bank having a sight draft on them for collection under the usage of banks in Baltimore, as between them and their correspondents to have had their check endorsed before returning to bank.

On cross-examination he further stated, that the practice is for the runner always to take checks and give up the draft, but to get the checks endorsed, unless they were of small amount, or those of houses in undoubted credit, where checks usually were taken.

The defendant then proved by Mr. Martin, the runner of the Mechanics' Bank, that the uniform practice among banks holding sight drafts for collection is to present them at any time before three o'clock, and to surrender the draft before receiving a check; that if of a doubtful house the check is presented [**14]  before returning to bank, (and the house of Lee & Co. was such a house on the 30th October, 1860,) but checks of such houses as Johnston & Bros., McKim & Co., Carson & Co., the practice does not require to be endorsed, but they often go into the lists of the next day; that he would take a check of a doubtful party to have it endorsed in the course of his rounds, but if he had brought it into the bank and afterwards gone out with it for endorsement, and it had been dishonored, he thought the duty of the bank would be to get back the draft, and protest, and if done before three o'clock all its duty would have been performed.

On cross-examination he stated, that he believed, on 30th October, 1860, that Lee & Co. were bad, and consequently would have had their check endorsed, but if presented before three o'clock, his duty would have been performed.

The defendant then proved by Mr. James, the runner of the Bank of Baltimore, that it is the practice to take checks for sight drafts, and if of doubtful persons or of very large amount, to have them endorsed good before taking them back to bank, but if the party is supposed to be good, the check is brought in without endorsement;  [**15]  and that if the teller sent him back with a check for endorsement, and it was dishonored, the duty of the bank would be to get back the draft and protest it.

The defendant then proved by D. A. Jones, the third teller of the defendant, that the general practice with reference to sight drafts, is to take all drafts out together in the morning, and arranging the runner's route according to the number and situation of the parties to present them in time; that upon receiving checks the universal practice is to give up the draft, and if of a doubtful house, and the bank on which it is drawn is within the route, to get it endorsed, but if not within these rounds to bring it back to the bank, when if objected to, the teller sends out to have it endorsed; that the witness has himself had when runner, eighty-one drafts at one time to present, and it would be impossible to get every check endorsed; that he had no reason to doubt the credit of Lee & Co. on the 30th October, he knew they were in stocks, but not enough to affect their credit; that if a check received for a sight draft, were presented before three o'clock and dishonored, and the draft procured again and protested, the collecting [**16]  bank under the usage would have performed its duty; that witness would have delayed in such case by performing other work about the bank, and if he presented the check before three o'clock, would have thought it sufficient.

On cross-examination the same witness stated that he had as much opportunity as any person or officer of the bank to know about the solvency of houses; that the practice does not require presentation of a check, where of a doubtful house, if out of runner's route, before returning to bank. Witness would have taken a check of Lee & Co. drawn on the Mechanics' Bank, back to his own bank if he had thought them good.

The defendant then proved by Mr. Rogers, paying teller of the Mechanics' Bank, that this check was presented late in the day, but during banking hours to the best of his knowledge; that he made no objection about the time, but asked the runner to wait a few minutes for a deposit; that if the check had been good it would have been endorsed, and was in time for that purpose, if Lee & Co. had funds there; that he was acquainted with the usage in relation to sight drafts; that it is customary to receive checks, not to demand cash and to give up the [**17]  draft, sometimes these are endorsed, sometimes not, according to the standing of the house, and if of a responsible house, they are sent in the next day; that Lee & Co. were considered a responsible house up to the time of their failure. On cross-examination he also stated, that if this check had been presented before two o'clock, it would have been paid.

The defendant then proved by Mr. James Mott, cashier of the Farmers' & Mechanics' Bank, that the practice in relation to sight drafts, is to give them up on receiving a check, unless the honesty of the party is doubted, and if the person has confidence in the party paying the check, he does not get it endorsed; that a draft may be left with the party bound to pay it, if requested, the whole day; and if the check is retained, it is at the risk of the collecting bank, if the money would have been paid on it, and it is lost by not being presented promptly; that the loss would be our loss, not that of our correspondent.

The defendant then proved by Mr. Compton, that he is in the Merchants' Bank, and was formerly runner for a year and a half; that the universal practice is to take checks for drafts if the parties are known at [**18]  all, sometimes endorsed, sometimes not, according to the standing of the house, and to take checks of banking houses for almost any amount; that it is the teller's business to object to them if doubtful, and send them out for endorsement; that the average number of checks for drafts, when he was runner, was from sixty-five to seventy, and it took him all day to present these drafts; that the checks of Lee & Co. were taken without endorsement, and sent in the list of next day, and he was very much surprised, when they failed.

On cross-examination, he stated that he spoke of the practice between himself and the teller of his bank, and also thought the usage general among banks and bank runners; that he had nothing to do with the responsibility of the bank to its correspondents; if parties requested it the draft might be left till three o'clock for consideration.

The defendant then proved by Chauncy Brooks, President of the Western Bank, that the usage in reference to drafts, is to take checks for them, the runner bringing them to the teller, and if good, they are put into the list for next day; if the teller thinks them suspicious, he sends them out again for endorsement; that [**19]  his bank sent in a check of Lee & Co. for $ 5,000, of 30th Oct. on the next day, which was returned unpaid; that he always supposed that Lee & Co. were good; that they would have had credit with his bank unendorsed for $ 5,000 on that day; that a check for that amount would have been taken for a sight draft, without any collaterals; that he takes no better checks every day, and their failure surprised him and everybody else.

On cross-examination, he stated that the check he spoke of was taken on deposit; that the bank let them have money, and they deposited their check to make the account good; that the bank had collaterals, but don't know whether they were applicable to that check; that Lee & Co. would have had credit with his bank through the arrangement made between them, but independent of collaterals, the bank would have taken such a check as cash on deposit, relying on their credit, and that he never suspected their credit.

The testimony being closed, the plaintiff presented the following prayers to the Court:

Plaintiff's first Prayer.--The plaintiff by its counsel, prays the Court to instruct the jury, that if they believe the facts stated in the agreed statement,  [**20]  and also from the evidence in the cause, that the plaintiff transmitted to the defendant as its correspondent in Baltimore, for collection, the bill of exchange for $ 3,000, dated the 29th of October, 1860, which has been offered in evidence, and that the defendant as such correspondent, received and undertook and assumed to collect the same on the morning of the 30th of October, 1860, and placed it in the hands of the witness Holtzman for that purpose, and that said Holtzman was an officer or agent of the defendant, and that said Holtzman presented said bill of exchange, to the said Josiah Lee & Co., about one o'clock in the afternoon of the 30th of Oct., 1860, and that the said Josiah Lee & Co., on whom the same purports to have been drawn were then in doubtful credit, and that the said Holtzman then received from the said Josiah Lee & Co., for said bill of exchange and other claims, also in the hands of the defendant, the check on the Mechanics' Bank for $ 5,070.78, which has been offered in evidence, and gave up said bill of exchange to Josiah Lee & Co., and that the latter marked said bill as cancelled, and that the said Mechanics' Bank was at that time within the same square [**21]  with the banking house of the said Josiah Lee & Co., and that the banking house of the defendant is several squares off from the latter, and that the said check would have been paid by the Mechanics' Bank if it had been presented at any time between one and two o'clock in the said afternoon of the 30th October, 1860, and that said check was taken by the said Holtzman to the defendant, and the amount thereof placed by it to the credit of the plaintiff, and that the payment of said check was not demanded until a few minutes before or after three o'clock in the afternoon of the 30th of October, 1860, then the plaintiff is entitled to recover in this action.

Plaintiff's second Prayer.--The plaintiff by its counsel, prays the Court to instruct the Jury, that if they believe the facts stated in the agreed statement, and also from the evidence in the cause, that the plaintiff transmitted to the defendant as its correspondent in Baltimore, for collection, the bill of exchange for $ 3,000, dated the 29th of October, 1860, which has been offered in evidence, and that the defendant as such correspondent, received and undertook and assumed to collect the same on the morning of the 30th of [**22]  October, 1860, and placed it in the hands of the witness Holtzman, for that purpose, and that said Holtzman was an officer or agent of the defendant, and that the said Holtzman presented said bill of exchange, to the said Josiah Lee & Co., about one o'clock in the afternoon of the 30th of October, 1860, and that the said Josiah Lee & Co. on whom the same purports to have been drawn, were then in doubtful credit, and that said Holtzman then received from the said Josiah Lee & Co., for said bill of exchange and other claims, also in the hands of the defendant, the check on the Mechanics' Bank for $ 5,070.78, which has been offered in evidence, and gave up said bill of exchange to said Josiah Lee & Co., and that the latter marked said bill as cancelled, and that the said Mechanics' Bank was at that time within the same square with the banking house of the said Josiah Lee & Co., and that the banking house of the defendant is several squares off from the latter, and that said check would have been paid by the Mechanics' Bank, if it had been presented at any time between one and two o'clock in the said afternoon of the 30th of October, 1860, and that said check was taken by the said Holtzman [**23]  to the defendant, and the amount thereof placed by it to the credit of the plaintiff, and that the payment of said check was not demanded until a few minutes before or after three o'clock in the afternoon of the 30th of October, 1860, and that on the said 29th and 30th of October, 1860, there was a uniform usage and custom among the banks of the city of Baltimore, as between such banks and their correspondents abroad, remitting to them drafts for collection, which would make such circumstances, if found to exist as hereinbefore hypothetically stated, amount to a payment of said draft as between the plaintiff and defendant, that then the plaintiff is entitled to recover in this action.

And the defendant presented to the Court the following prayers:

Defendant's first Prayer.--The defendant prays the Court to instruct the jury, that if they find the facts contained in the statement of facts, signed by the counsel, and shall further find that it is the established practice with the banks of the city of Baltimore, and was on the 30th of October, 1860, to receive checks from drawers of sight drafts, and to leave the drafts on the receipt of such checks, then the plaintiff is not [**24]  entitled to recover in this case.

Defendant's second Prayer.--That if the jury find the facts required to be found in the preceding prayer, and further find that up to two o'clock of the day of the failure of Lee & Co., said firm was in such credit with the defendant and its officers, and prudent and careful officers of other banks in the city of Baltimore, that their checks were and had been taken without endorsement, as cash on deposit, and in exchange for sight drafts, and shall further find that the check of said Lee & Co., taken by the runner Holtzman in exchange for the sight draft of Messrs. Hoffman & Co., given in evidence, was presented to the teller of the Mechanics' Bank during the business hours of the 30th of October, 1860, and that when so presented, it was not at once refused payment, but that the runner was told to wait a few minutes, until the teller could ascertain whether the check would be made good by a deposit, and shall further find that previously on said 30th of October, the Mechanics' Bank had paid or endorsed checks of said Lee & Co., to the amount of upwards of $ 120,000, then the plaintiff is not entitled to recover.

Defendant's third Prayer.  [**25]  --The defendant prays the Court to instruct the jury that if they find the facts set forth in the admissions signed by the counsel of the plaintiff and defendant, that then the defendant was the agent of the plaintiff and not of Messrs. Hoffman & Co., to collect the draft of Messrs. Hoffman & Co., offered in evidence, and is responsible to the plaintiff alone, for due diligence in regard to the collection thereof.

Defendant's fourth Prayer.--The defendant further prays the Court to instruct the jury, that the plaintiff cannot charge the defendant for a want of due diligence in reference to the collection of the draft mentioned in the preceding prayer, without showing that the plaintiff has suffered loss from want of such diligence, and if the jury find that on the return to New York of said draft duly protested, the amount thereof was promptly and fully paid by the drawers to the plaintiff, and has never been repaid by the plaintiff to the drawers, and that the plaintiff has never set up any claim against the defendant on its own account, but has presented the claim now sued on, as that of Messrs. Hoffman & Company, as shown by the correspondence given in evidence, and that the [**26]  plaintiff has never returned said draft of Messrs. Hoffman & Company, to defendant, then the plaintiff is not entitled to recover.

Defendant's fifth Prayer.--That if the jury find the facts required to be found in the preceding prayers of the defendant, but shall also find any want of due diligence by the defendant in reference to the collection of said draft, the plaintiff cannot recover more than nominal damages.

Defendant's sixth Prayer.--That by the entry of this suit to the use of Messrs. Hoffman & Company, the plaintiff is not entitled to enlarge his damages beyond what the plaintiff would be legally entitled to, if no such entry had been made.

Defendant's seventh Prayer.--The defendant further prays the Court to instruct the jury, that if they find the facts required to be found in the preceding prayers of the defendant, and find that the runner of the defendant, at the time he received the check from Messrs. Lee & Company mentioned in the evidence, had no reason to doubt the credit of Messrs. Lee & Company, and supposed that the said Lee & Company were of good credit, and shall further find that the failure of Messrs. Lee & Company, excited great surprise with [**27]  intelligent bankers and business men in the city of Baltimore, that then the said runner was not bound to present said check to the Mechanics' Bank before returning to the banking house of the defendant; and if they shall find that as soon as practicable under all the circumstances of the case, after the defendant ascertained the doubtful solvency of Messrs. Lee & Company, the said check of the Messrs. Lee & Company was presented to the Mechanics' Bank, and duly dishonored, the plaintiff is not entitled to recover.

But the Court below, (MARTIN, J.,) rejected all of said prayers, and gave the following instruction to the jury:

I instruct the jury that if they believe the facts stated in the agreed statement, and also from the evidence in the cause that the plaintiff transmitted to the defendant, as its correspondent in Baltimore, for collection the bill of exchange for $ 3000, dated the 29th of October, 1860, which has been offered in evidence, and that the defendant as such correspondent received and undertook and assumed to collect the same on the morning of the 30th of October, 1860, and placed it in the hands of the witness Holtzman for that purpose, and that said Holtzman [**28]  was an officer or agent of the defendant, and that said Holtzman presented said bill of exchange to the said Josiah Lee & Company, about one o'clock in the afternoon of the 30th of October, 1860, and that the said Josiah Lee & Company, on whom the same purports to have been drawn, were then in doubtful credit, and that the said Holtzman then received from the said Josiah Lee & Company, for said bill of exchange and other claims also in the hands of the defendant, the check on the Mechanics' Bank for $ 5,070.78, which had been offered in evidence, and gave up said bill of exchange to Josiah Lee & Company, and that the latter marked said bills as cancelled, and that the said Mechanics' Bank was at that time within the same square with the banking house of the said Josiah Lee & Company, and that the banking house of the defendant is several squares off from the latter, and that the said check would have been paid by the Mechanics' Bank, if it had been presented any time between one and two o'clock in the said afternoon of the 30th of October, 1860, and that said check was taken by the said Holtzman to the defendant, and the amount thereof placed by it to the credit of the plaintiff, and [**29]  that the payment of said check was not demanded until a few minutes before or after three o'clock in the afternoon of the 30th of October, 1860, and if they shall also believe that at the time last mentioned there was a usage among the banks of the city of Baltimore, as between them and their correspondents abroad, to get checks received for sight bills of exchange, when said checks were drawn by houses or individuals of doubtful credit, paid or endorsed good before taking them back to the banks holding them for collection, then the plaintiff is entitled to recover in this action the amount of said bill of exchange; provided the jury find that the defendants in failing to have the said check presented for payment or to be endorsed as good by the Mechanics' Bank before three o'clock on the 30th of October, 1860, were guilty of a want of due care, skill and diligence in their employment as collectors of the said bill of exchange; and that they also find that the said check if it had been presented for payment between the hours of one and two o'clock on that day, would have been paid by the Mechanics' Bank, and the said draft collected. To the rejection of which said prayers offered by [**30]  the defendant, and each of them, and to the granting of said instruction as given, the defendant excepted, and the verdict of the jury and judgment being for the plaintiff, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

PAYMENT BY MISTAKE: NEGLIGENCE: BILLS OF EXCHANGE AND PROMISSORY NOTES. -- H. & Co., of New York, drew a draft on L. & Co., of Baltimore, and sold it to a bank in New York, which sent it to its correspondent, a bank in Baltimore, for collection. By the negligence of the bank in Baltimore, the draft was not collected, and L. & Co., having failed in business, it was protested and returned to the bank in New York, which notified the fact of the dishonor to H. & Co., who, in ignorance of the fact of negligence, paid the amount of the draft. On a suit brought by the bank in New York for the use of H. & Co., against the bank in Baltimore, HELD:

1st. That the payment by H. & Co. being made in mistake, conferred no benefit on the plaintiff, and could not operate for the advantage of the defendant, in the way of discharging or suspending its anterior liability to the plaintiff.

2nd. That as the amount of the draft was paid by H. & Co. under a mistake that entitled them to a return of the money, the plaintiff must be regarded as having received it for their use, and as holding it subject to their order. In legal contemplation the payment was a deposit, for which the plaintiff must account, and which, instead of suspending or discharging the defendant from its existing liability to the plaintiff, charges the plaintiff with one of an entirely different character to H. & Co.

3rd. Nor was it essential to the plaintiff's right to recover, that the jury should find that the draft was returned to the defendant. The claim asserted here is not upon the draft, but one sounding in damages for the loss caused by the defendant's negligence and consequent failure to collect it.

NEGLIGENCE: EVIDENCE: PROVINCE OF COURT AND JURY. -- In cases where the question of negligence is involved, a Court may, by proper legal inferences from the nature of the undertaking, determine in general the things required to be done in performing it, and the failure to do any of the things so required to be done would amount to negligence; but it has no such power when the question as to due diligence is made to depend on a state of facts and circumstances of a character so unusual that they could not have been contemplated by the parties to the undertaking, and to which no settled rule of law can be applied.

CONSTRUCTION OF THE WORDS "DOUBTFUL CREDIT": TRIAL OF FACTS. -- The words "Doubtful Credit" are very comprehensive, and when used without words of limitation or qualification, are understood to mean reputation or standing in the community, as distinguished from the estimate of particular individuals; and in that sense the doubtful credit of a party, when found, is a fact of which persons presumptively have knowledge, without other proof of knowledge.  

COUNSEL:
F. W. Brune and C. J. M. Gwynn for the appellant.

A check upon a bank, given in the ordinary course of business, is not presumed to be received as an absolute payment, even if the drawer have funds, sufficient to meet the check, in the bank on which it is drawn. It is looked upon as the means by which the holder may procure the money. Cromwell vs. Williams & Lovett, 1 Hall, 56. Olcott vs. Rathbone, 5 Wend., 491. Everett vs. Collins, 2 Camp., 515. Russell vs. Hankey, 6 T. R., 13. To constitute such a check a payment, there must be evidence in the Record that it was expressly received in substitution for, and in satisfaction of, the bill in reference to which it was given. Clopper's Admr. vs. Union Bank, 7 H. & J., 100. Glenn vs. Smith, 2 G. & J., 509. Crawford vs. Berry, 6 G. & J., 71 and 72. And the law upon which we have insisted is yet more expressly decided in the case of the Md. and N. Y. Coal and Iron Co. vs. Wingert, 8 Gill, 177.

It would be absurd to suppose that [**31]  the law would imply that a check, which is, while unpaid or unaccepted, only the evidence of the indebtedness of its drawer, was accepted as a payment of a bill, which was itself not only an evidence of the indebtedness of the drawer of the check, but also of the indebtedness of another party. See Russell vs. Hankey, 6 T. R., 13.

If a bill is surrendered and a check taken for the amount, the want of power to recover against the endorsers is the result of the fact that the original holder of the bill is no longer able to produce it at the trial of any suit brought against such endorsers.

In this case it appears that Josiah Lee & Co. marked the bill of Hoffman & Co., left with them by the runner of the Merchants' Bank, as cancelled. No circumstance, except the payment of a bill, or some fact equivalent to its payment, authorizes such cancellation. If it is cancelled, when such facts and circumstances do not actually exist, the cancellation has taken place by the act of the party responsible upon the bill, without the assent of the rightful holder, and the act of cancellation is a simple nullity. 2 Parsons on Bills, 164 and 564. Raper vs. Birkbeck, 15 East., 17. Olcott vs. Rathbone,  [**32]  5 Wend., 490. Pratt vs. Foote, 12 Barb., 209.

A bank check is itself an inland bill of exchange payable on demand, and the general law is that if such an instrument is given to a party in the morning of any day, the holder makes the presentation of it in time, if he makes it at the bank, on which it is drawn, on the following morning. Appleton vs. Sweetapple, 3 Doug., 137. 26 Eng. C. L. Rep., 59. Williams vs. Smith, 2 Barn. & Ald., 496. Robson vs. Bennett, 2 Taunt., 388. Chitty on Bills, Am. Ed. 1842, 382 and 386. 2 Parsons on Bills, 72 and 73, and notes. Byles on Bills, 14.

Therefore, under the general "law merchant," the appellant in this case, if authorized to receive a check at all for the bill, had until the next day to present such check for payment. And, unless the Record clearly shows the existence among the banks in Baltimore of a usage to the contrary, the Merchants' Bank would have been authorized in retaining the check of Josiah Lee & Co. until the morning of the next banking day after the 30th of October, 1860. 2 Parsons on Bills, 72. Moule vs. Brown, 4 Bing. N. C., 266, (33 Eng. C. L. Rep., 348.) Bayley on Bills, Eng. Ed. 1830, 242. Chitty on Bills, 382. O'Brien [**33]  vs. Smith, 1 Black, 99.

It was not material whether Holtzman, the runner, arrived at the Mechanics' Bank on the 30th of October, 1860, a little before, or a little after three o'clock, when he presented to that bank the check of Josiah Lee & Co. for payment. Nor is it material whether the outer door of the bank was closed or not when the runner arrived to make presentment of the check. For the Record shows that the teller of the Mechanics' Bank and its cashier were in the bank at the time, able to return an answer, and that they did return an answer by refusing to pay the check. The presentment for payment was therefore sufficiently made on that day. Garnett vs. Woodcock, 1 Stark, 475. 6 M. & S., 44. Chitty on Bills, 387.

Where the drawer of a check has no effects in the hands of a drawee, the giving of such a check is a fraud in itself. Bickerdike vs. Bollman, 1 T. R., 408. Eichelberger vs. Finley, 7 H. & J., 386, 387, 388. 2 Parsons on Bills, 71, note E.

It is clear, from the cases cited above, and from the case of Eichelberger vs. Finley, 7 H. & J., especially, that if the giving of the check by Lee & Co. upon the Mechanics' Bank to the Merchants' Bank was a fraud,  [**34]  the transaction did not change the right of any of the parties to demand the bill of exchange, for which the fraudulent check was professedly given. No presentment of that check within a reasonable time, or at any time, was necessary, nor when demand was made and payment refused, was the drawer of the check, so circumstanced, entitled to any notice. Eichelberger vs. Finley, 7 H. & J., 387.

The first observation to be made in regard to the Court's instruction is, that the Court below was in error in the use of the following language in the instruction: "That the defendant, as such correspondent, received, and undertook and assumed to collect the same on the morning of the 30th of October, 1860." The instruction, as thus worded, was likely to mislead the jury, because it manifestly bears the construction that there was evidence in the cause, or a legal obligation existing on the part of the Merchants' Bank, sufficient to show an assumption by the Merchants' Bank of a duty to collect the bill on the morning of the 30th of October, 1860, and that it had been placed in the hands of the runner of the bank "for that purpose." As the hour at which the amount of the bill ought to have [**35]  been actually collected by the Merchants' Bank, on the 30th of October, 1860, forms the material basis of the appellee's theory in this case, the language of the Court, so doubtfully worded as to leave the impression upon the minds of the jury that there was evidence in the cause that the Merchants' Bank had assumed to collect the bill on the morning of the 30th of October, 1860, and had placed it in the runner's hands for that purpose, is liable to grave objection.

It seems also plain that the Court below erred in permitting the jury to find the naked fact, that Josiah Lee & Co. were, about one o'clock in the afternoon of the 30th of October, 1860, "in doubtful credit," without, at the same time, requiring the jury to find that the Merchants' Bank knew that such a state of doubtful credit existed. It is submitted to the Court that although evidence of general reputation is admissible to prove matters of public and general interest, and that all persons concerned in such questions are liable to be affected by such evidence of general reputation, yet, that the particular credit of a particular man, or firm, is not the subject of such evidence of general reputation, so as to affect [**36]  the rights of a stranger. Men are not legally bound to know the commercial standing of each other.

It is further urged that the Court below gave an instruction tending to mislead the jury, when it left to the jury as a material fact, the finding that Josiah Lee & Co. had marked the bill left with them by Holtzman as cancelled. The cancellation of the bill by Josiah Lee & Co. could only have been authorized upon the theory that the bill was in law, or in fact, paid by the operation of the particular circumstances which had taken place. If they were mistaken as to the payment of the bill handed to them by Holtzman, their act of cancellation was a simple nullity. Raper vs. Birkbeck, 15 East., 17. Why then did the Court below leave the fact of the cancellation of the bill by Josiah Lee & Co. to the jury at all, without, also, requiring the jury to find that the act of cancellation was authorized by the Merchants' Bank? Or, why did the Court below submit the question of the cancellation of the bill to the jury at all? The real matter for the jury to determine, under proper instructions, was not whether Josiah Lee & Co. had cancelled the bill drawn upon them, but it was whether the [**37]  delivery of the check to the runner of the Merchants' Bank, and the leaving of the bill with Josiah Lee & Co. operated as a payment of the bill. The cancellation of the bill by Josiah Lee & Co. could avail to prove only, that Josiah Lee & Co. thought they had paid it, when they gave the check in question.

The Court below also erred when it made the near proximity of the Mechanics' Bank to the banking house of Josiah Lee & Co. one of the facts from which a conclusion of negligence on the part of the Merchants' Bank might properly be drawn. For, as the evidence in the case, to which the Court itself refers, shows that the house of Josiah Lee & Co. gave the check about one o'clock, and that the check would have been paid if it had been presented at any time before two o'clock, what reason was there for calling the attention of the jury to the relative distance between the banking house of Josiah Lee & Co. and the Mechanics' Bank, and between the banking house of Josiah Lee & Co. and the Merchants' Bank. The hour of time within which the terms of the instruction concede the check to have been absolutely good, was sufficient for a return to the Merchants' Bank and a subsequent demand [**38]  by the runner for the payment of the check at the Mechanics' Bank. This being the case it was surely no evidence of negligence that the runner of the Merchants' Bank should have gone to that bank before going to the Mechanics' Bank.

It is further urged, that the Court erred when it left to the jury to find whether the check was presented for payment to the Mechanics' Bank a few minutes before three o'clock, or a few minutes after three o'clock, as one element in the conduct of the Merchants' Bank, which was material to the case; because, for the reasons already given, we insist that due diligence was used in presenting the check, if the presentation took place before three o'clock; and that due diligence was equally used, if the presentment was made a few minutes after three o'clock, since both the cashier and the teller were at their posts in the Mechanics' Bank, ready to give an answer, and answering, when the check was actually presented.

It is further urged, that the Court also erred when it left the jury to find, as an additional fact, that there was on the 30th of October, 1860, "a usage among the banks of the city of Baltimore, as between them and their correspondents [**39]  abroad, to get checks received for sight bills of exchange, when said checks were drawn by houses or individuals of doubtful credit, paid or endorsed good before taking them back to the banks holding them for collection."

All the evidence in this cause shows very clearly that the runner of the appellant, and the appellant itself, was authorized by the unvarying usage in Baltimore in receiving the check. Now we insist that in order to charge the appellant with any other duty as to this check than that imposed by the general rule of law to which we have referred, it was essential to the appellee to have shown an established and uniform custom among the banks in Baltimore, in relation to this particular matter of the time for presenting checks received for sight drafts. If a usage makes a part of the obligation of a party, it is only "when it is so far established, and so far known to the parties, that it must be supposed that their contract was made in reference to it. For this purpose the custom must be established and not casual, uniform and not varying, general and not personal, and known to the parties." 2 Parsons on Contracts, 53. Wood vs. Wood, 1 C. & P. 59. The Paragon, Ware,  [**40]  322. Trott vs. Wood, 1 Gall. 444. Martin vs. Delaware Insurance Co. 2 Wash., C. C. R. 254. Bank of Columbia vs. Fitzhugh, 1 H. & G., 248. Foley & Woodside vs. Mason, 6 Md. Rep., 50.

Under these circumstances, since the evidence in this case was conflicting, and the practice of the appellant was shown to have been clearly different from the custom stated in the instruction of the Court, there was in reality no proper evidence of such a custom to be left to the jury. If a usage, as that term is known to the law, exists only when it is "the rule of all the banks of the place," is it not perfectly clear that there is no evidence, which ought to be left to the jury in relation to such usage, when the proof is, that such usage was not the rule of all the banks of the place, but that on the contrary no three banks were fully agreed as to what the usage was upon the subject.

The Court of Appeals will perceive that the Court below, in all that part of the instruction which we have considered, follows substantially the language of the prayers of the appellee, and that the instruction, thus far, submits to the jury the particular facts which they are to find, and concludes with the [**41]  direction that if such facts are so found, the plaintiff (now appellee) is entitled to recover.

Is it not clear that the Court up to this point in the instruction, held that diligence was a question of law for the Court, and that the province of the jury was only to pass upon the particular facts, which the Court had set forth in the instruction as constituting want of diligence? Could there exist a clearer manifestation of the opinion of the Court that if the jury found the facts submitted to them, the negligence of the appellant was a conclusion of law drawn by the Court? The question of diligence is not submitted to the jury at all by the instruction, as far as we have here considered it, but the subject is left to the jury as a mixed question of law and fact, the Court authorizing the jury to find the facts and instructing it as to the law applicable to such facts.

But what is the effect of the proviso appended to the instruction of the Court? The preceding part of the prayer recited the particular acts and omissions which the Court directed the jury would entitle the appellee to recover, if the jury found such acts and omissions to have occurred. And the Court by deciding [**42]  that such acts and omissions on the part of the appellant entitled the appellee to recover, of course decided that such acts and omissions constituted in law and as a conclusion of law, a want of due diligence. When, therefore, in the proviso, the Court say further, that the plaintiff is not entitled to recover, unless the jury shall also find that the appellant in failing to have the check presented for payment or endorsed as good by the Mechanics' Bank before three o'clock on the 30th October, 1860, was guilty of a want of due care, it abandoned all the ground of the former part of the instruction and submitted the question of diligence to the jury as a question of fact.

But the proviso is not liable to this objection only. The Court, if it intended to leave the question of diligence to the jury, ought to have left it to be found by the jury upon all the evidence in the cause, and was not authorized to submit to the jury, as a circumstance upon which their opinion might be based, the fact whether there had been a failure to present the check to the Mechanics' Bank for endorsement as good, or for payment before three o'clock. Because it is quite clear that a presentment after [**43]  three o'clock was in time if there was a person at the Mechanics' Bank when the presentment was made with sufficient authority to return an answer, and such person refused to pay the check. Garnett vs. Woodcock, 1 Stark. R., 475. 6 M. & S., 44.

Nor was the proviso consistent with itself in another particular. While the Court instructed the jury that the appellee was entitled to recover, if the jury found that the Merchants' Bank had been guilty of a want of due diligence in not presenting the check before three o'clock on the 30th of October, 1860, the Court also requires the jury to find as a fact essential to the appellee's right of recovery, that the check would have been paid if presented between one and three o'clock at the Mechanics' Bank.

Now, the only conclusion to be drawn from the first part of this proviso is, that the appellant had at least until three o'clock for the presentation of the check at the Mechanics' Bank, irrespective of the fact whether that check was good up to such hour or not. Why then was the jury also required to find that the check would have been paid by the Mechanics' Bank if it had been presented between one and two o'clock of that day? If [**44]  the jury was authorized to find the Merchants' Bank guilty of negligence in failing to have the check presented before three o'clock, the Court must of necessity be understood as deciding that a presentment before three o'clock left no case of negligence for the jury. And it then would be certainly immaterial, if there was no evidence of negligence for the jury, whether the check would have been paid between one and two o'clock or not.

It is not proposed to discuss here at any great length the vexed question whether diligence is a question of law, or a question of fact, or a mixed question of law and fact. It is at all events not a question open to dispute in this State. If the evidence in a cause is not doubtful or contradictory, due diligence is a question of law for the Court. If the evidence is doubtful or contradictory, the facts must be left to the jury and the jury be directed that such and such facts, if found by the jury, constitute in law due diligence, or constitute in law the want of due diligence. But in every case, whether the facts be disputed or undisputed, the question whether such facts when ascertained amount to due diligence, or the want of it, is a question [**45]  of law to be decided by the Court. If the facts are not disputed then the Court settles the whole question. If the facts are disputed the jury must ascertain the facts, and the Court then determines whether such facts constitute due diligence, or a want of due diligence. That this is the law in Maryland sufficiently appears from Patten & Jones vs. Wilmot, 1 H. & J., 477. Penn., Del. and Md. Steam Nav. Co. vs. Hungerford, 6 G. & J., 291. Bell vs. Hagerstown Bank, 7 Gill, 233. Sasscer vs. Farmers' Bank, 4 Md. Rep., 409. Ewalt & Myers vs. Harden & Hopkins, 16 Md. Rep., 169, 170.

The only other points which we shall discuss in this case are raised by the third, fourth, fifth and sixth prayers of the appellant, which were rejected by the Court below, and the law of which was stated directly otherwise by the practical meaning of the instruction given by the Court.

In any form which the pleadings in this case on the part of the appellee might have assumed, it is clear that the foundation of a right to sue, on the part of the appellee, ought to have been a legal ownership in the fund appropriated by the draft of Hoffman & Co. on Josiah Lee & Co., not only at the time of the supposed [**46]  damage, but also at the time of bringing the suit against the appellant. 1 Ch. P., 2, 46. Hollins vs. Barney, 3 H. & J., 437. It is not a suit brought upon the bill drawn by Hoffman & Co., and, therefore, the general rules authorizing the holder of such paper to bring suit in the name of such holder cannot be appealed to in any way to sustain the right of the Bank of Commerce to sue in this case. It is a suit brought upon the theory that because of the negligent dealing of the appellant with the bill in question, in contravention to an express or implied agreement, the fund assigned by such bill of exchange was lost. Now, if such a case of negligent dealing existed, who is the proper person to sue? There can be but one answer. It ought to be the person who was agreed with, and who has suffered damage by such negligent dealings, and to whom the fund thus negligently dealt with belonged at the time. Every other person, except such wrong-doer and such sufferer, was a stranger to the case.

If the appellant was guilty of negligence in its dealing as agent of the Bank of Commerce,--and that question was properly presented in the instruction of the Superior Court,-- had the Bank of Commerce [**47]  no right of suit whatever by reason of such negligence, even though it did experience no actual pecuniary loss? If we concede, for the sake of the argument, that it had in such case a right of suit, we are surely authorized to assert, that under such circumstances it could only recover nominal damages. Where the plaintiff gives no evidence of his loss the damage must be nominal. Mayne on Damages, 92 Law Lib., 27, m. p. 3. Sedgwick on Measure of Damages, 47. Dyer vs. Dorsey, 1 G. & J., 443. In this case no evidence of loss to the plaintiff was given or could be given.

The true law of the case, however, would seem to be that stated in the fourth prayer of the appellant, which recognizes the principle that the Bank of Commerce, by collecting its purchase money from Hoffman & Co., the drawers of the bill, condoned all its claims, and became thenceforth a stranger in interest. Mayne on Damages, 92 Law Lib., 111. It cannot be doubted that if the Bank of Commerce had appeared as plaintiff in this action, without any intermingling of Hoffman & Co. in the cause, the proof of the fact that the Bank of Commerce had been repaid its purchase money in full, and had parted with all interest [**48]  in the fund, would have left that bank with no other claim than to nominal damages, if to so much even.

The entry of the suit to the use of Hoffman & Co. cannot change the law of the case. There was never any contract or privity of contract between Hoffman & Co. and the appellant.

If they had not a right of action in themselves, the entry of the suit to their use no more enlarged the ground of claim, which the Bank of Commerce was authorized to make in this suit beyond nominal damages, than if the entry had been to the use of one who had never had lot or part in the whole transaction.

The Court of Appeals, however, cannot fail to perceive that the whole instruction of the Court below is founded upon the theory that the Bank of Commerce (although the sale under which it claimed title to the fund assigned by the bill of Hoffman & Co. had been rescinded, and the purchased money returned,) might claim damages precisely to the same extent as if the sale of such bill had never been rescinded, and the purchase money never had been repaid.

It is clear that the appellant was not the agent of Hoffman & Co., but of the Bank of Commerce, for the bill in question was sold to [**49]  the Bank of Commerce before the agency of the appellant commenced. If the bill could have been collected, except for the neglect of the appellant, the chosen agent of the Bank of Commerce, it is perfectly clear that the Bank of Commerce had no right of action whatever, and no claim whatever against Hoffman & Co. for recovery of the purchase money paid for the bill, or against Hoffman & Co., as drawers of the bill in question. 1 Parsons on Bills, 355.

If Hoffman & Co. could have proved any such negligence as is asserted to be the foundation of the claims of the appellee in this case, they could, after repayment of the money to the Bank of Commerce, have recovered it back from that bank as money paid under a mistake of facts. 1 Parsons on Bills, 246. And the Bank of Commerce would then, after such money had been received from it, for the first time, have been authorized to sue the appellant, if it had neglected its duty. It was essential to Hoffman & Co. (having refunded the purchase money of the draft) that this course should have been taken, even if negligence had been proved against the appellant. The mere neglect of Hoffman & Co. to inform themselves as to their liability to [**50]  the Bank of Commerce, before payment of the protested bill, cannot change the legal course of procedure, which ought to have been resorted to. They cannot, to avoid circuity of action, practically sue parties with whom they had no privity whatever.

The 4th prayer of the appellant was based upon the following propositions, which it was error in the Superior Court to have denied.

1. That the appellant could not be charged with want of due diligence without showing actual loss to the appellee, and that the facts in the case showed that no such loss had occurred.

2. That when the bill was returned to the Bank of Commerce and paid by the drawers it ceased to have any legal existence, unless the payment was actually annulled and the parties reinstated in the position which they occupied before such payment. Byles on Bills, Am. Ed., 1853, 132, N. 1. Ballard vs. Greenbush, 24 Me., 336. Callow vs. Lawrence, 3 M. & S., 95. Bartrum vs. Caddy, 36 Eng. C. L. Rep., 138. Martin vs. Mechanics' Bank, 6 H. & J., 244. 2 Parsons on Bills, 216. Burr vs. Smith, 21 Barb., 262.

3. That the appellee could have no right of action against the appellant before returning the draft to the appellant.  [**51]  

The first of these points has been sufficiently discussed in connection with other parts of the case, and the second is maintained by the authorities cited.

As to the third point, the theory of the appellee is that negligence of the appellant charged the appellant in the same manner as if the draft had been actually collected by the appellant. But since the appellee demanded and received payment of the draft from Hoffman & Co., which it was only authorized to do upon the theory that the appellant had used due diligence, it affirmed and ratified the action of the appellant, and cannot be permitted to sue the appellant because of such action until it disaffirms it. It could only disaffirm it by returning the money to Hoffman & Co., and by returning the draft to the appellant before suit brought.

John H. Thomas, for the appellee, argued.

1st. That the instructions required the jury to find every fact necessary in law to the plaintiff's right of recovery, and the judgment ought not to be reversed, even if some of the defendant's prayers were abstractly correct. Mutual Safety Insurance Co. vs Cohen, 3 Gill, 459, 481, 482. Keener vs. Harrod, 2 Md. Rep., 74. Coates & Glenn [**52]  vs. Sangston, 5 Md. Rep., 133. Key vs. Dent, 6 Md. Rep., 142, 150, 151. Canby vs. Frick, 8 Md. Rep., 163 and 168. Edelin vs. Sanders, 8 Md. Rep., 118, 132. New York Life Insurance Co. vs. Flack, 3 Md. Rep., 341, 356. Keech vs. Balto. & Wash. R. R. Co., 17 Md. Rep., 47.

2nd. That if the instructions required the jury to find more facts than were necessary, the appellee on whom the burden was improperly imposed might have complained, but not the appellant who was benefited, not prejudiced thereby; and that the latter cannot urge as a ground for reversal any error by which it was not prejudiced. Trieber vs. Knabe, 12 Md. Rep., 491, 497. Mulliken vs. Boyce, 1 Gill, 61, 65. Chew vs. Beall, 13 Md. Rep., 349, 371. Edelin vs. Sanders, 8 Md. Rep., 118, 132.

3rd. That although the presentation of a negotiable instrument within a prescribed time is sufficient to fix the responsibility of parties to it, without reference to other circumstances, it is not always sufficient, and was not in this case, to relieve the collecting agent from responsibility. The latter is bound to use such skill and diligence as prudence requires, and if loss result to his principal from the want of them is [**53]  liable therefor, although he may have done all that was necessary to establish the legal liability of all the parties to the instrument. 3 Kent's Com., 82. Allen vs. Suydam, 17 Wend., 370, 372. The Mechanics' Bank, vs. Merchants' Bank, 6 Metcalf, 20, 21, 26, 30. 2 Parsons on Notes and Bills, 85. Byles on Bills, 14. Boddington vs. Schlencker, 4 Barn. & Adol., 752, 756, 757, 758 and 759.

4th. That the question whether due diligence has been used or not is one for the Court, where some definite thing alone is required to be done, as in an action against a party to a negotiable instrument, the presentation of which at a given time does or does not, as an absolute matter of law, amount to proper diligence; but where dependent on circumstances, as in this case, it is one for the jury, and was properly and fairly submitted to them. Ewalt vs. Harding, 16 Md. Rep., 160, 170. Patton vs. Wilmot, 1 H. & J., 477. Edwards vs. Balt. Fire Insurance Co., 3 Gill, 189. Keech vs. Balto. & Wash. R. R. Co., 17 Md. Rep., 47.

5th. That whether that question belonged properly to the Court or the jury there was no error of which the appellant can complain; if to the Court the facts in the agreed statement,  [**54]  together with the facts proven, which were left to the jury, viz:--that Lee & Co. were in doubtful credit when the check was given, that it would have been paid on presentation at any time (as the proof shows) within two hours thereafter, or as the instruction puts it, more unfavorably for the appellee, to two o'clock, that the runner of the appellant, although within the same square as the bank on which it was drawn when he received it, kept it from one till a few minutes before or after three o'clock, when it had become worthless--would have compelled the Court to conclude that proper diligence had not been used, and the appellant was benefited by the Court's leaving that question to the jury and requiring them to find any additional fact, instead of itself determining the whole question in favor of the appellee; if within the province of the jury, the proviso submitted it to them, and the above mentioned facts, which they were required to find as essential to the plaintiff's right of recovery, were abundantly sufficient. The appellant's chances were improved by requiring them to find other facts, whether there was proof of them or not, and such other facts being immaterial, the [**55]  appellant cannot complain, even if they were assumed by the Court or submitted to the jury without proof, which, however, the appellee will contend was not done. Mulliken vs. Boyce, 1 Gill, 60 and 65. Mayor and City Council of Balto. vs. Norman, 4 Md. Rep., 352, 360, Edelin vs. Sanders, 8 Md. Rep., 118, 132.

6th. The check being equivalent to money when received, the appellant having so treated it and credited the appellee with the draft as if actually paid in cash, the latter was entitled to recover, as for money had and received; every other fact was unimportant, and it is immaterial whether it was assumed by the Court or submitted to the jury without proof or not. See agreement as to the right to rely on any claim the facts may justify. Balt. & Susq. R. R. Co. vs. Founce, 6 Gill, 81. Shanks vs. Dent, 8 Gill, 120, 123. 12 Barb., N. Y., 212.

7th. No fact was, however, assumed by the Court or submitted to the jury without proof. The witnesses, almost without exception, prove an uniform usage, requiring collecting banks to have checks drawn by persons of doubtful credit presented by the runner at once for payment or endorsement before returning to his own bank. The proof is [**56]  equally full that Lee & Co. were in bad credit when the check was drawn. Hopkins, the President of the appellant, as early as ten o'clock that morning, knew the condition of the house and was endeavoring to raise money to prevent them from failing. The runner did not ordinarily start on his rounds before twelve o'clock, and had almost every day drafts on that house amounting to four or five thousand dollars. Mr. Hopkins had ample time to warn the runner. There is no hardship in charging the bank under such circumstances with the obligation to know what was known to so many, including its own chief officer. Most of the witnesses proved that the usage required all checks, whether drawn by persons in good or bad credit, to be presented by the runner at once before returning to his own bank, and that a runner who failed to comply with such usage did so at the risk of his own bank, and that as between the latter and its correspondent the check was under such circumstances by the usage a payment of the draft. The appellant was bound to conform to the usage of other banks, and did in fact do so by crediting the appellee with the amount of the draft. In requiring the jury to find that Lee [**57]  & Co. were in doubtful credit, and ignoring the proof which rendered the appellant responsible for the retention of the check, without reference to their credit or sufficiency, the question was submitted in the way most onerous to the appellee, and most favorable to the appellant. Bell vs. Hagerstown Bank, 7 Gill, 227. Chapman vs. Walton, 10 Bing., 57. Story on Agency, §  199. Grant on Banking, 93 Law Lib., 70.

8th. It makes no difference whether the bill was a sight draft or not. It did not differ from one in any respect affecting this case. If it were otherwise the parties have called it a sight draft in their agreement. The appellant has referred to it as such in all its prayers. It cannot now deny, as matter of fact, that it was one, nor question the correctness of the designation so agreed to any more than it could the propriety of an instruction granted by consent. The agreed statement calls it a sight draft, but admits that Lee & Co. were bound to pay it on presentation. Baugher vs. Wilkins, 16 Md. Rep., 35 and 46. Swatara R. R. Co. vs. Brune, 6 Gill, 48. McColgan vs. Hopkins, 17 Md. Rep., 402.

9th. Technical objections that the Court assumed facts or submitted them [**58]  to the jury without proof are no longer grounds for reversal. 1862, ch. 154, p. 176. Calvert vs. Williams, 10 Md. Rep., 478, 486, 495. Prout vs. Berry, 2 Gill, 147 and 150. Baugher vs. Nelson, 9 Gill, 302, Gover vs. Hall, 3 H. & J., 50.

10th. Hoffman & Co. might have recovered from the appellee the amount paid by them on the bill of exchange without knowledge of the facts, and would have instituted a suit for that purpose but for this mode of testing the liability of the appellant in the Courts of its own State, which was preferred by the latter. Such liability of the appellee was sufficient ground for action. 1 Parsons on Bills, 286. Chew vs. Taylor, 4 H. & J., 54, 61. Capron vs. Adams, 21 Md. Rep., 186.

11th. Courts will not inquire whether the legal plaintiff sues for himself or as trustee for another. The fact that his claim has been paid by the party to whose use the suit is entered does not affect his right to recover from the defendant. Whiteford vs. Burkmeyer, 1 Gill, 145. Merryman vs. State, 5 H. & J., 423, 426 and 427. Ellicott vs. Martin, 6 Md. Rep., 509, 516. Whiting vs. Independent Mutual Insurance Company, 15 Md. Rep., 298, 313, 314, 315 and 316.

12th.  [**59]  Even if some of the appellant's prayers were abstractly right, if calculated to mislead the jury in their application to the case, they were properly rejected. Clement vs. Small, 9 Gill, 160.

13th. The appellant's prayers were all properly rejected because, as heretofore shown, the whole law was covered by the Court's instructions, and even such prayers as may have been abstractly right were only calculated to mislead and embarrass the jury. They were, besides, all liable to special objections.

The first, second and seventh leave out of view the question at whose risk checks for sight drafts were, under the practice, taken; the evidence that it was the duty of the runner to present the check at once before returning to his own bank for payment or endorsement; that as between the appellant and appellee, the receipt and retention of it were a payment of the draft; and all the facts going to show that the appellant had not used the diligence and skill required of it by law as a collecting agent, and that it had actually treated the check as payment of the draft by passing $ 3,000 on its books to the credit of the appellee. The third and sixth are merely abstract. There was no [**60]  attempt to charge the appellant as agent of any one else than the appellee or hold it responsible to any one else, nor to enlarge the measure of damages against it by entering the suit to anybody else's use, and the granting of these prayers would have only embarrassed and misled the jury, and they were properly refused for the reasons assigned under the 1st and 12th points.

The fourth asserts an erroneous principle. In an action against an agent for not collecting a negotiable instrument, it is not necessary to show that the principal has suffered actual damage. Failure to collect the money, and proof that it might have been collected, will entitle the principal to recover the amount of the instrument from his agent. Sedgwick on Measure of Damages, 339. Decker vs. Matthews, 5 Sand., 439. Same case, 2 Kernan, (N. Y. Sup. Ct. Rep.,) 313.

That prayer and the fifty were also properly rejected, for the additional reasons assigned under the 1st, 10th and 11th points.

The seventh is liable to the objections already assigned, and to the further one that it refers only to the reason the runner may have had to doubt the credit of Josiah Lee & Co., and the fact that their failure [**61]  created surprise with intelligent bankers and business men. The proof is that although some business men were surprised at the failure of that house, the community generally knew that they were in very bad credit, and it will be contended that a bank, undertaking to discharge a duty which requires a knowledge of people's credit, is bound to employ an agent possessed of necessary information so easily acquired.

14th. The instructions required the jury to find that the check was received before ten o'clock; that if it had been presented before two it would have been paid, but that it was not presented until a few minutes before or after three. This and the other facts left to the jury, were sufficient to entitle the plaintiff to recover, and the Court ought so to have instructed. Even if the proviso be considered as assuming that it was presented a few minutes after three, instead of a few minutes before, it was an immaterial fact. The proviso required the plaintiff to satisfy the jury of more than was necessary. The appellee might have complained of that, but not the appellant, as the latter was benefited by it. Edelen vs. Sanders, 8 Md. Rep., 32. Trieber vs. Knabe, 12 Md. Rep.  [**62]  , 496, 497. Mulliken vs. Boyce, 1 Gill, 65. Preston vs. Lightly, 6 Md. Rep., 98. Coates & Glenn vs. Sangston, 5 Md. Rep., 121. Canby vs. Frick, 8 Md. Rep., 168.

15th. No exception was taken to the proof of usage. The fact of the testimony having been taken subject to exceptions, does not entitle the appellant to object to it, without a prayer asking it to be excluded. Coates & Glenn vs. Sangston, 5 Md. Rep., 127.

16th. The practice of other banks, even if not uniform, and not binding as usage, was proper to show how other agents in similar business discharged such duties, and thus to show what would have been proper diligence on the part of the appellant. Story on Agency, sec. 186. Canby vs. Flack, 8 Md. Rep., 168.

17th. The instruction given means that the assumption and undertaking to collect the draft were on the morning of the 30th; not that the thing was to be done on that day. Even if susceptible of a different interpretation, the proof as to the practice of other banks shows that such was the appellant's duty; and what the appellant did is certainly evidence of what it assumed and undertook to do.

18th. The appellant's undertaking was to collect the draft;  [**63]  not merely to preserve the liability of the parties to it. The appellant does not show a discharge of this duty by showing that his negligence did not release any of the parties to the draft; as between them and the holders, the draft might and ought to have been collected, and the liability of Lee & Co., even if preserved, became worthless while the check, which the appellant ought to have collected, was in its hands.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*51]  COCHRAN, J., delivered the opinion of this Court.
The question as to the right of action, raised by the appellant's 3d, 4th, 5th and 6th prayers, is the first to be considered.
The substantial proposition of these prayers is, that the appellant was relieved from liability for negligence in failing to collect the draft on Lee & Co., by the subsequent payment of it by Hoffman & Co., notwithstanding their liability upon it as drawers was extinguished by that negligence, and their payment made under a mistake of fact that legally entitles them to a return of the money. The 

 [*52]  effect of this payment on the appellee's right of action is, therefore,  [**64]  the real matter to be considered. The theory of the appellant in regard to it appears to us to be founded, in some measure, upon a misapprehension of the principles applicable to that state of case. Treating the payment, according to the hypothesis of these prayers, as one made by mistake, it certainly was one that conferred no benefit on the appellee, and we think it equally clear that it could not operate for the advantage of the appellant in the way of discharging, or suspending its antecedent liability to the appellee. As the amount of the draft was paid by Hoffman & Co., under a mistake that entitles them to a return of the money, the appellee must be regarded as having received it for their use, and as holding it subject to their order. In legal contemplation the payment was a deposit, for which the appellee must account, and which, instead of suspending or discharging the appellants from their existing liability to the appellee, charges the appellee with one of an entirely different character to Hoffman & Co. This in our opinion was the only legal effect of that transaction, and there is no reason for supposing that it changed or affected, in the slightest degree, any right [**65]  or liability growing out of, or founded upon the previous relations of the parties here. The cases of Merryman vs. State, 5 H. & J. 423, and Whitney vs. Ind. Mut. Ins. Co., 15 Md. 297, bear upon this question and tend to support the conclusion we have reached.
Nor was it essential to the appellee's right of action, that the jury should find that the draft was returned to the appellant. The claim asserted here, is not upon the draft, but one sounding in damages for the loss caused by the appellant's negligence and consequent failure to collect it; the appellant did not undertake for the payment of the draft, but to exercise due care and diligence in collecting it, an undertaking wholly different in its nature from that 

 [*53]  of any insurer, surety or party to the draft, and one that renders the production and return of the draft unnecessary to the appellee's right to recover.
But this is not all; the case proceeded on the theory that the draft was rendered valueless by the appellant's misconduct in regard to it, and if there was evidence from which that fact could be, or was found, there is no reason for supposing that the appellant was prejudiced [**66]  by the appellee's failure to surrender it. We think these prayers were properly rejected.
A review of the objections, made to the instructions given by the Court in lieu of all the prayers offered on both sides, will dispose of the remaining questions presented by the bill of exceptions. These objections are founded mainly on two grounds, 1st, that the instruction treats the question of diligence as one of fact for determination by the jury; and 2d, that it submits that question to the jury on a hypothesis of fact, in some particulars calculated to mislead them, and in others not authorized by the evidence.
A careful examination of the case made by the proof has satisfied us that these objections cannot prevail. It is true beyond doubt that in cases of this character, a Court may, by proper legal inferences from the nature of the undertaking, determine in general the things required to be done in performing it, and that the failure to do any of the things, so required to be done, would amount to negligence; but it has no such power when the question as to due diligence is made to depend on a state of facts and circumstances of a character so unusual that they could not have been [**67]  contemplated by the parties to the undertaking, and to which no settled rule of law can be applied. The principle for testing the force of this objection, is, we think, correctly stated in the case of Balt. & Ohio R. R. Co. vs. Worthington, 21 Md. 275. It was there said, a majority of the Court concurring, "that negligence in 

 [*54]  the ordinary legal sense imports an absence or want of such care as the law requires in the performance of any given undertaking, and generally speaking is a fact, the finding of which is for the jury, although the Court may declare the legal nature and extent of the duties incident to the undertaking, as well as those facts which by inference of law are essential to its performance;" and again that the Court may determine the question in cases "where the negligence alleged may be deduced from the absence of any fact which the law of the contract presupposes, and requires should be shown." The question here did not depend on evidence of any omission on the part of the appellant to do those things which, by the settled rules of law, applicable to the undertaking, were necessary to its performance, but upon the proof of facts and [**68]  circumstances that might have added to or changed the conditions of the duty to be performed, but in that respect of a character too uncertain to authorize a judicial determination of their effect. We think the question was properly submitted as one within the province of the jury.
The material point of the remaining objection is that the instruction submitted the question as to the "doubtful credit" of Lee & Co., to the jury as a fact bearing on the question of due care and diligence, without requiring them to find that the appellant had knowledge of it at the time of presenting the draft and receiving the check. We do not understand the words "doubtful credit" in the restricted sense contended for by the appellant. These terms are very comprehensive, and when used, as here, without words of limitation or qualification, are understood to mean reputation or standing in the community, as distinguished from the estimate of particular individuals. In that sense, the "doubtful credit" of Lee & Co., when found, was a fact of which the appellant presumptively had knowledge, and for that reason it was not necessary that such 

 [*55]  knowledge should be otherwise ascertained. The other [**69]  facts submitted to the jury, were all of them such as they could properly consider in passing on the question of negligence. There was evidence from which all of them could be found, and so far as we can discover, none of them were calculated to mislead the jury in finding their verdict. The ambiguity complained of by the appellant appears, upon reading the whole instruction, to be entirely removed, and we think, upon a full consideration of the whole case, that the judgment should be affirmed.
Judgment affirmed. 

118 of 120 DOCUMENTS 

EDWARD J. HENRY, ROBERT MILLS, JOHN MURRAY, OF PETER, AND OTHERS vs. HIRAM KAUFMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 1; 1866 Md. LEXIS 1 

February 14, 1866, Decided 

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

This is an appeal from an order of the Circuit Court of Baltimore City, passed on the 4th of September, 1860, in a cause therein pending, requiring the appellant, Barroll, to bring into Court certain funds in his hands as receiver in said cause. The receiver who was also the trustee in insolvency of the appellant, Henry, afterwards appointed by the Court of Common Pleas of Baltimore City, in proceedings pending in said Court, claimed to retain the possession of said funds as trustee aforesaid, and appealed from the order of the Circuit Court. The facts of the case are fully stated in the opinion of this Court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

EQUITY JURISDICTION: RECEIVER: INSOLVENT LAWS. -- A receiver in equity sold property of the defendant, by order of the Court, and while the proceeds of sale were in his hands, the defendant obtained the benefit of the Insolvent Laws, and the receiver was appointed his trustee in Insolvency. On appeal by the receiver and the defendant from the order of the Court of Equity, requiring him to bring the fund into Court, HELD:

1st. That the policy of the Insolvent Laws does not debar the Court in which the fund is found at the moment of Insolvency, from taking all steps necessary to its preservation.

2nd. That the order requiring the money to be brought into Court does not conflict with the power of the Insolvent Court, but is ancillary to it. Being brought in and the amount ascertained, an order to pay over to the insolvent trustee would follow as a matter of course.

3rd. That until the amount of his liability was determined, the receiver was not functus officio, and his appointment by the Insolvent Court did not discharge him from responsibility to the Court of Equity for the faithful discharge of his trust as receiver.

4th. That the power of the Court of Equity in this instance, was ancillary to the jurisdiction of the Insolvent Court, and invoked for the protection of the fund which may be properly within the jurisdiction of the latter for distribution.

APPEALS. It is well settled that ordinarily no appeal will lie from an order requiring a trustee or receiver to bring money into Court. Such orders rest in the discretion of the Court, and where they determine no right, are not the subject of review on appeal.  

COUNSEL:
Thos. S. Alexander and Benjamin C. Barroll, for the appellants.

The question arising upon this record is, how did the application of Edward J. Henry for the benefit of the Insolvent Laws affect the pending suit?

1st. It is contended that the suit abated, and that all orders passed thereafter are illegal and void. Hall vs. McPherson, 3 Bland, 538. Pl. in Ch. by Cooper, 62. Sto. Eq. Pl. See 350, in the notes.

2nd. That the Court had no authority to proceed in the cause,  [**2]  or to pass any order affecting the rights of parties until the permanent trustee was made a party by supplemental proceedings. Glenn vs. Clapp, 11 G. & J., 1. Zeigler vs. King, 9 Md. Rep. Powles vs. Dilley, 9 Gill, 229.

3rd. That the appointment of receiver, and a sale by him, did not in any respect alter the rights or interests of Edward J. Henry; that the property in question was expressly sold as his property, and the fund in Court was prima facie his fund, (subject to such liens, if any, as might be established against it.) He never consented to the sale; on the contrary, he resisted it, and prayed that the order appointing the receiver might be rescinded, the injunction dissolved, and for further relief.

4th. That the view set forth in the Court's opinion, that the rights of the trustee of Henry do not extend to the fund in question, is respectfully denied as being manifestly contrary to law. How does that Court know that liens exist against it, and, if any, to what extent? How are the creditors of Henry to contest the validity of the mortgages, &c? It is a well settled principle that the appointment of a receiver, or a sale made by a receiver, decides nothing as between [**3]  contesting parties: the fund stands in the place of the property sold. But the Court below has adjudged, in advance of any hearing whatever, that the man whose property it ordered to be sold has no interest in the proceeds of sale! In the list of creditors furnished by Henry, under oath, he does not name these mortgagees as creditors. Potter vs. Carr, 7 Gill, 319. Ellicott vs. Warford, 4 Md. Rep., 80; and same case, in 3 Md. Ch. Dec., 296.

5th. It is contended that the application for the benefit of the Insolvent Laws of Maryland works a statutory assignment of all property, rights and credits of the insolvent to his trustee; and that the Court authorized to receive the application and grant the insolvent discharge, is the only Court having jurisdiction to adjudicate upon lien or other claims against the insolvent or his estate. See Glenn vs. Karthous, 4 G. & J., 385. Alexander vs. Gheselin, 5 Gill, 138. Glenn, Garn. vs. Boston, &c., 7 Md. Rep., 287. Zeigler vs. King, 9 Md. Rep., 336. State vs. Williams, 3 Md. Rep., 163. Glasgow vs. Sands, 3 G. & J., 96. Segar vs. The State, 6 H. & J., 162. Powles vs. Dilley, 9 Gill, 240. Waters vs. Dashiell, 1 Md. Rep., 471. Glenn vs. Gill, 2 [**4]  Md. Rep., 1. Purviance vs. Glenn's Exe'rs, 8 Md. Rep., 206. Act of 1854, ch. 193, sec. 2.

6th. If it be said that bringing the fund into Court decides nothing, the answer is, that the Court had no jurisdiction over the fund, because the fund was in the hands of the permanent trustee, by virtue of the force of the Insolvent Laws. A receiver having a fund, may pay it over to a party rightfully entitled to receive it, without any order of the Court. He might obtain an order for his own protection, but it would be only a matter of prudence, and not a matter of legal obligation. In the case at bar, the receiver and permanent trustee are the same person; and if he is entitled to the fund as trustee under the insolvent application, for the benefit of the creditors, the law considers it as in his hands in the capacity in which he is entitled to hold it. If he is entitled to it as trustee, he is not bound to take it into Court with one hand and take it again with the other. Segar vs. The State, 6 H. & J., 164. State vs. Jordan, 3 H. & McH., 179. Conner vs. Ogle, 4 Md. Ch. Dec., 448. Watkins' Adm'rs vs. State, 2 G. & J., 220.

But the fund has been attached in his hands under the Act [**5]  of 1854, ch. 193, and legal responsibility had been laid upon the trustee, which the Court below wholly ignored. What the extent of that responsibility may be is yet to be determined. Is a party (receiver or not) bound to part with a fund during a pending attachment? Had the receiver in this case undertaken to deal with the attachment, and been unsuccessful, he would have laid himself open to the suspicion at least of collusion, as he makes no secret of the fact that he is contesting this case with the view of benefitting his client, Kaufman.

7th. Kaufman, and not the contesting mortgagees, is equitably entitled to this fund. Kaufman was the owner of the property sold under these proceedings, and sold it to Henry to be secured by mortgage, which was duly prepared, and as Kaufman supposed, executed and recorded. When the first mortgage note became due, Kaufman discovered that Henry had not executed the mortgage, and he thereupon demanded its execution in accordance with the agreement of purchase. Henry refused, and proceeded to give the various mortgages in this case, for the purpose of defrauding Kaufman. And Kaufman alleges (under oath) that all these mortgagees had knowledge [**6]  of his prior lien, and took their mortgages in fraud of his rights, at a time when Henry was utterly insolvent. If these allegations are sustained by evidence, the equities are clearly with Kaufman, and he is entitled to the benefit of them.

8th. Edw'd J. Henry has appealed from the Court's order. How does he stand on the record? A bill was filed, a receiver appointed, and his property sold against his consent. While the fund is in the hands of the receiver, he applied for the benefit of the Insolvent Laws. Which Court shall adjudicate and distribute the fund? The Court of Common Pleas alone (in Baltimore city) has jurisdiction over the estates of insolvent debtors, and is alone entitled to make distribution thereof. Purviance vs. Glenn's Exe'rs, 8 Md. Reps., 206. Is not the permanent trustee entitled to the fund, just as he would be to the property if it remained in specie? If the Chancery Court can take it out of his possession, the statutory assignment is pro tanto defeated. If it is the intention of the Chancery Court to order it, when in Court, to be paid back to the permanent trustee, then the order is vain and useless. If such is not the intention, (and it is not in this [**7]  case,) then the object is to deprive the permanent trustee of his legal rights, and to defeat the policy of the Insolvent Laws. If the Court had jurisdiction over the fund or property belonging to an insolvent debtor, it could order its officer (the receiver) in relation to it; but the proposition contended for, is, that the fund being beyond the Court's jurisdiction, it cannot rightfully order the receiver to bring it into Court, or do any thing else with it. Technically, it is not in the custody of the receiver, and he is discharged from responsibility as such, by showing that he has paid it over to the permanent trustee, who is legally entitled to the custody of it, subject to the orders and control of the Court which appointed him permanent trustee.

It is clear that a party cannot be deprived of the right of appeal by the mere form of the order. The Act of 1830, ch. 185, prohibiting appeals from orders for the payment of money, was repealed by the Act of 1841, ch. 11, expressly granting an appeal from such orders. The order in this case, however, is in effect a final decree. This is exactly the case of McKim vs. Thompson, 6 H. & J., 302. See also, Hatton vs. Weems, 10 G. &  [**8]  J., 377. Lee vs. Pindle, 11 G. & J., 362. Glenn vs. Gill, 2 Md. Rep., 1. White vs. Malcolm, 15 Md. Rep., 540.

If the fund is once (improperly) paid over and leaves the custody of the appellant, no final decree, which could be passed in the cause, could redress the grievance; and even a reversal of the illegal order after final decree, would be vain and useless to the appellant, because, as soon as he pays over, he becomes as receiver, "functus officio," and not being a party to the cause, he could not appeal from the final decree. As against him, therefore, this decretal order operates, and is a final decree.

Furthermore, as against the authority of the Court to pass this order, the appellant takes the ground that the suit had "abated," or at all events, stood in such a condition for want of proper parties, that no order or decree, interlocutory or final, could be passed in it. And the Court had no power to compel the proper party to become a party to the cause. See Ringgold's case, 1 Bland, 12, 13. 1 Sto. Eq. Pl. Glenn vs. Clapp, 11 G. & J., 1.

This order decides that the receiver still held the fund, a fact which he expressly denied, and that the fund did not pass [**9]  to the trustee in insolvency. If the order stands, and had been obeyed, and the view of the appellant be sustained, that it did pass under the statutory assignment, then the order required and compelled him to pay out his own money--and it is not less an infringement of his personal right, because he is called receiver, and the payment is into Court. Hall vs. McPherson, 3 Bland, 528. Glenn vs. Clapp, 11 G. & J., 1. Pl. in Ch. by Cooper, 62.

To show that the receiver held the fund as permanent trustee of Henry, by the statutory assignment, the Court is referred to its decision in Ellicott vs. U. S. Ins. Co., 7 Gill, 320, wherein the Court decided, quoting from 1 Bland, 431, that "the holding of the receiver, is the holding of the Court for him from whom the possession is taken." Again--"the effect of the appointment, however, is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it, and when the party entitled to the estate has been ascertained, the receiver will be considered as his receiver." See also, Alexander vs. Gheselin, 5 Gill, 179. Duvall vs. Speed, 1 Md.  [**10]  Ch. Dec., 236. Somerville vs. Brown, 5 Gill, 425. Manahan, et al., vs. Sammon, et al., 3 Md. Rep., 470. Zeigler vs. King, 9 Md. Rep., 335.

It is the settled law in Maryland, that the appointment of the receiver, determined no right between the parties; --it was Henry's money in the hands of the receiver, being the proceeds of his property sold;--the holding of the receiver is for Henry, subject to such liens as may be established against it.

Apply then the Court's decision in 1 Md. 471, which declares that the permanent trustee is to take "all the effects of the applicant which are liable for his debts." And again, "He (the permanent trustee) takes all that remained in the petitioner, (the insolvent,) which the creditors themselves could claim in any form of proceeding for the payment of their demands. This is the design of the law--it is the effect of the proceeding in insolvency." 1 Md., Rep., 471. Do not the mortgagees in the case at bar appear as creditors, and in no other character? Same case, 472. "All his property passes to the trustee by operation of law." The insolvent trustee takes exclusive possession from the Sheriff, mortgagees or others having prior liens. The [**11]  administration of the insolvent's assets is confined exclusively to the Courts of law, and a Court of Equity cannot interfere. Powles vs. Dilley, 9 Gill, 240. Segar vs. State, 6 H. & J., 164. Watkins' Administrators vs. State, 2 G. & J., 220. Rachel Colvin's case, 3 Md. Ch. Dec., 296. Shipley & Wife, &c., 4 Md. Rep., 493. Falconer vs. Regelier, 6 Md. Rep., 552. Chesapeake Bank vs. McClellan, 1 Md. Ch. Dec., 330. McKim vs. Thompson, 1 Bland, 156.

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

1st. That the appeal of the receiver, in this case, should be dismissed; because the order, from which the appeal was taken, was one resting in the sound discretion of the Court below, and from an order of that character an appeal will not lie. Wheeler vs. Stone, 4 Gill, 38. Ellicott vs. Warfield, 4 Md. Rep., 80. Porter, Exc'x, vs. Timanus, 12 Md. Rep., 283. Sanderson vs. Alcock, 9 G. & J., 164.

2nd. But if the appeal were properly taken, then the order of the Court below should be affirmed, because it was just and proper in the premises, and warranted by the proceedings in the cause. Story's Eq. Pl., sec. 229. Sasscer vs. Walker's administrators, 5 G. & J., 103. Campbell [**12]  vs. Booth, 8 Md. Rep., 107. Ellicott vs. Ellicott, 6 G. & J., 35, 40.

3rd. The trustee of a party who has applied for the benefit of the Insolvent Laws, is not entitled to a fund arising from property sold under an order of a Court of Equity, which, at the time of the insolvent's application, was in the hands of a receiver of said Court, awaiting distribution among the claimants of the fund according to their respective equities; but said fund will be distributed in the Court in which jurisdiction had vested; especially is this the case where it is conceded that the fund is inadequate to pay the liens upon it. White & Elder vs. Malcolm, 15 Md. Rep., 529. McColgan vs. Hopkins, 17 Md. Rep., 395.

As to the objection that the money in the receiver's hands had been attached by Kaufman--we reply, that where a fund is in charge of a Court of competent jurisdiction it cannot be attached. Walter, et al., vs. McConnell, 13 Pet., 151.  

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

OPINIONBY:
BOWIE 

OPINION:

 [*9]  BOWIE, C. J., delivered the opinion of this Court.
The receiver in this case, as the agent of the Court, sold the property in dispute, before [**13]  final decree, to prevent waste and loss, the proceeds being subject to the claims of the parties thereafter to be adjudged. Subsequently, the defendant, Henry, became an insolvent petitioner, and Barroll, the receiver, was appointed his permanent trustee. The order of the Court of Equity requiring him, as receiver, to bring the fund into Court, is now appealed from by him, on the ground that the case abated by the insolvency of Henry, and after the appointment of a permanent trustee, the fund passed ipso facto into the hands of Barroll, as trustee, and the jurisdiction of the Court of Equity ceased eo instanti.
In our opinion, the policy of the insolvent system does not debar the Court in which the fund is found at the moment of insolvency from taking all steps necessary to its preservation. It would make the law an instrument of fraud, if a receiver, by becoming trustee of an insolvent, could defy the authority of the Court from which he received his appointment, and refuse to account for the funds committed to him as receiver. The order requiring the 

 [*10]  money to be brought into Court does not conflict with the power of the Insolvent Court, but is ancillary to it.  [**14]  Being brought in, and the amount ascertained, an order to pay over to the insolvent trustee would follow as a matter of course. Many of the cases cited show that the insolvent trustee asserted his claim to the fund by petition in the Court of Equity, to enjoin or prohibit the action of the trustee or officer of the latter Court, to the prejudice of the former.
In the case of Glenn vs. Gill, the insolvent trustee filed his petition in the Court of Equity, in the cause in which the receiver was appointed, praying an order directing him to pay over and deliver to the trustee all the money and effects in his hands as receiver, which was directed to be done. The trustee did not attempt to recover the proceeds at law, or appropriate them without the order of the Court of Equity. When, in the subsequent case of Glenn, garnishee, vs. the Boston and Sandwich Glass Company, it was held that these funds were liable to attachment at the suit of a foreign creditor, although they had not actually come to the hands of the trustee at the time of the attachment laid; it was because the Court of Appeals had, in two previous cases, (6 Gill 404, and 2 Md. 1,) [**15]  declared there was no ground for the appointment of a receiver, and the funds were improperly in his hands. Hence the possession of the receiver was held to be the possession of the trustee-- 2 Md. 19. 7 Md. Rep., 294, 296; such a petition not giving jurisdiction to the Court of Equity, but recognizing its authority to pass orders necessary for the transfer of the fund from one jurisdiction to another. If the Court of Equity has power to that extent, it must have the power to require the money to be brought in, otherwise their proper officer could not be discharged, or fixed in his liability.
Suppose the receiver and trustee were different persons, 

 [*11]  and not one and the same, as in the present case. The former, as such, would not be authorized to pay over the funds to the latter without the order of the Court by which he was appointed. If he refused, the Court of Equity only would have such summary control over him as could compel him to obey. Otherwise, the insolvent trustee must proceed by action at law on the receiver's bond, the breach of which could not be alleged without a previous order of the Court of Equity to pay over, and his refusal.  [**16]  
This fund was in the custody of the Court of Equity, by which the receiver was appointed; its aggregate was undetermined. The order appealed from reserves the question of the liability of the receiver for interest, which had or might have accrued on the funds in his hands. Until this liability was determined the receiver was not functus officio, and his appointment by the Insolvent Court did not release him from responsibility to the Court of Equity for the faithful discharge of his trust as receiver. We think, therefore, without disturbing any of the preceding decisions of this Court, that the power of the Court of Equity in this instance is ancillary to the jurisdiction of the Insolvent Court, and invoked for the protection of the fund which may be properly within the jurisdiction of the latter, for distribution.
The conclusion arrived at above, makes it unnecessary to dispose of the motion to dismiss the appeal. It is well settled that ordinarily no appeal will lie from an order requiring a trustee or receiver to bring money into Court; such orders rest in the discretion of the Court, and where they determine no right are not the subject of review on appeal.  Wheeler vs. Stone, 4 Gill 38. [**17]  Ellicott vs. Warford, 4 Md. 80. And without recognizing the right of appeal in such cases, we will affirm the order below and remand the cause, for such further proceedings as the case may require.
Order affirmed and cause remanded. 

119 of 120 DOCUMENTS 

ANTONIA M. L. WATERS, EXCTX. OF ANDREW G. WATERS, vs. JAMES S. WATERS, TRUSTEE, AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 430; 1866 Md. LEXIS 26 

January 27, 1866, Decided 

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

This is an appeal from a pro forma order of the Circuit Court of Baltimore City refusing an injunction. The only question in the case is as to the construction of a devise in the will of Freeborn G. Waters. The allegations of the bill and the portion of the will in controversy are set forth in the opinion of this Court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

WILLS, CONSTRUCTION OF: LEGACIES AND BEQUESTS, CONTINGENT AND VESTED. -- A testator provided by means of a trust for the annual support of his widow during her life, and also during the life of his said widow for the support of his daughter M., and the support, maintenance and education of his minor children, out of the rents, dividends, income and profits of his estate, real and personal, which he devised to two of his sons and their heirs, &c., upon the trusts and for the uses and purposes limited in the will; and the surplus of said rents, &c., he devised "in trust that the whole of said surplus be divided annually amongst all my children who may be of the age of twenty-one years, or who may be married," &c. The will was made in 1857; the testator died in 1858, leaving a widow and eight children, of whom two were under the age of twenty-one years when the will was executed; one of these became of age before the death of the testator, the other some time after. Four were married when the will was executed. In 1859 one of the sons died, leaving a widow and children; another, one of the trustees, A. G. W., died in 1863, leaving also a widow and children. The said widow of the deceased trustee, having been appointed his executrix, and having qualified as such, filed a bill for an injunction to prevent such a distribution of the surplus rents, &c., in the hands of the surviving trustee as would exclude the estate of her husband from a participation therein, HELD:

That the children of the testator who were of the age of twenty-one years, or married, at the time of his death, took vested interests in their shares of the surplus income from his estates from that time; and that the shares of those who attained twenty-one years, or married after his death, became vested at the happening of either of those events, and that the share of A. G. W. survived to his personal representatives.  

COUNSEL:
A. W. Machen and R. J. Gittings for the appellant.

1. The law favors the vesting of estates, for so to hold generally better accomplishes the purpose of the testator in the case of the death, before the time of actual enjoyment, of any object of his bounty for whose death, under such circumstances, he has not made express provision. 1 Jarm. on Wills, 726 a. Barker vs. Barker, 13 Eng. L. & E. Rep., 173. Ridgway vs. Ridgway, 4 Eng. L. & E. Rep., 108. If such were not the rule of construction, the hardship, as a learned Judge has said, would often be enormous. King vs. Isaacson, 17 Eng. L. & E., Rep., 455, 457. At any rate, no rule is more firmly established, and contingency will not be imported into such gifts without a manifest necessity. No such necessity exists here.  [**2]  On the contrary, the just and equitable construction for which we contend is the obvious and rational interpretation, and the only one which is in perfect harmony with the other provisions of the will.

The gift in question is in the nature of an annuity. Subject to certain charges or deductions of a definite character, though variable in amount, the entire rents and profits for the term of the life of Mrs. Matilda Waters are given to the children who are twenty-one or married. The circumstance that, so long as some of the children are minors or unmarried, others may from time to time be let in, is immaterial, and cannot at all effect the quality of the gift as vested or otherwise. The gift is defeasible to the extent of the diminution of the dividend to be occasioned by the deduction of the share of the new member, and that is all. See Blease vs. Burgh, 2 Beav., 227, and see Ellis vs. Maxwell, 12 Beav., 104. Oppenheimer vs. Henry, 10 Hare, 441. Equally immaterial is it that the whole rents and profits are not given, but the rents and profits, less the payments requisite for certain other objects. A residuary devise, although the amount of it be uncertain until the prior payments [**3]  are made, is never for this reason considered as contingent. It may turn out, and often does, that nothing is left for the gift to operate on, and yet it will remain all the while a vested interest. Bolger vs. Mackell, 5 Ves., 509, 513. 1 Jarm. on Wills, 768. Just as certain as that the $ 800 a year and $ 500 a year are annuities, is it that the gift of the surplus of annual income resulting after the deduction of these or other charges, as the case may be, is an annuity. Stripped therefore of circumstances which are immaterial with respect to the question in hand, the case is that of an annuity, or what is exactly equivalent to an annuity, to each of the testator's children who shall be twenty-one years of age or married--an annuity, the term of which is the duration of the life of the widow.

Now, it is clear that where there is an annuity to A during the life of B, or a bequest of the interest of a bond or of a sum of money to A during the life of B, A has an interest which is not at all dependent on his own life, but is transmissible to his executor in the event of his dying before B. This was held by Lord HARDWICKE in Savery vs. Dyer, Amb., 139, and had been previously decided [**4]  in Gifford vs. Goldsey, 2 Vern., 35, upon the authority of 1 Rolle Ab., 831, pl. 5. See also Eales vs. Cardigan, 9 Sim., 384. Webb vs. Kelly, Id., 469. Jones vs. Randall, 1 Jac. & Walk., 99. 1 Code, Art. 93, sec., 220.

II. a. It will be contended on the other hand, however, that this bequest should be construed, not as one entire gift, but as a succession of distincts gifts--each act of division marking a separate limitation dependent upon the particular state of things existing at the time of making it. But, in the first place, the gift is one, and not several. Just as the annuities of $ 800 and $ 500 are in the same clause treated in the aggregate, and directed to be deducted, so the whole income to accrue throughout the life of Mrs. Matilda Waters, out of which they are to be taken, is dealt with in its entirety. The annual division proceeds merely from the nature of the subject matter, in like manner as the two annuities would be discharged in annual payments. The provision for distributing the income annually, is not at the most so strong a circumstance, as a direction that the whole should accumulate and be payable at the death of the widow would be. And it is certain that [**5]  such a modification of the existing clause would not prevent the gift from vesting in each child, from the time he should be found to be of the age of twenty-one, nor would it raise any question of a right of survivorship, without the addition of express words, such as "then living." Blease vs. Burgh., 2 Beav., 226. 1 Jarm. on Wills, 767. Stretch vs. Watkins, 1 Madd., 253, (143.)

b. And secondly, if the construction sought to be put on the devise by the appellees were admissible, and the gift were thus broken up into so many separate legacies as years may chance to elapse before the death of Mrs. Matilda Waters, it could not avail to defeat the rights of the personal representatives of Andrew G. Waters. For wherever the postponement of the payment of any legacy, or of any instalment of any legacy, is referable to the circumstances of the estate, and not to circumstances personal to the legatee, the gift is vested. O'Byrne vs. O'Byrne's Admr., 9 Md. Rep., 512. Snively vs. Beavans, 1 Md. Rep., 208, 222. Spence vs. Robins, 6 G. & J., 507. 1 Jarm. on Wills, 756, 757. 2 Wms. Excr., 1102. Parkham vs. Gregory, 4 Hare, 396. Parker vs. Sowerby, 21 Eng. L. & E. Rep., 39.

The rule is [**6]  that if the legatee be capable of taking, no postponement of the time of the payment will prevent his having a vested and transmissible interest. Cousins vs. Shroder, 4 Sim., 23. Thomson's Trust., 15 Eng., L. & E. Rep., 498. Hammond vs. Maule, 1 Colly, 281.

Such force is given to the rule in favor of vesting, that even where there is an express gift over--as to the children of the legatee in case he die leaving issue--such words are not allowed to make the gift itself contingent, but only to divest it in the case expressly mentioned, viz: the leaving of issue; in any other event the executor will succeed. Parker vs. Golding, 13 Sim., 418. Masters vs. Scales, 13 Beav., 60. Ridgway vs. Ridgway, 4 Eng. L. & E. Rep., 108.

It is noticeable that the testator, in distinguishing amongst his children, makes the attainment of a certain age the sole criterion; they are to fall into one class or the other according as they shall have attained twenty-one or not; and he evidently has not at all in his contemplation, in respect of the income, the death of any of them as an event on which anything is to turn. Even where the gift in terms imports survivorship, Courts have not scrupled--the [**7]  context permitting it--to construe survivors into others. But here no words of survivorship are employed, and there is no necessity for any such latitude of construction in order to give the same equitable effect to the devise. In the simple case like the present, of a gift restricted to persons who shall have reached a certain age, although the time of payment is postponed, it is always sufficient, for the vesting of the bequest, that such age had once been attained. Clutterbuck vs. Edwards, 2 R. & My., 577. See also, Leeming vs. Sherratt, 2 Hare, 23. Boulton vs. Beard, 3 De G. M. & G., 612. 27 Eng. L. & E. Rep., 423, 424.

III. Our construction is greatly confirmed by the context.

1. Supposing the condition upon which Martha's enjoyment of her annuity of $ 500 depends to be fulfilled, by her ceasing to live with her mother, it cannot be doubted that her interest in this annuity would be vested. Yet the testator blends with the clause in question, the declaration that "in dividing said surplus, the allowance of five hundred dollars per annum to my said daughter, Martha K. Waters, shall be taken and computed as a part of her portion thereof." Now, if part is vested, it reasonably [**8]  follows that the whole is vested; and if Martha's share be vested, the share of the other children limited in one and the same clause must be vested. Kidd vs. North, 27 Eng. L. & Eq. Rep., 3 De G., M. & G., 954.

2. Upon what ground could it then be pretended that the several interests of the children in the income were not vested? But what essential element was wanting when Andrew died? All the children were married--all of age. The widow's allowance was not limited to any precise amount, yet the means of determining it was defined in the will. What conceivable object could there be in affecting the interests of the several children with contingency?

3. In dealing with the advances made, the testator thus makes them vested portions of the shares which the sons are to take in the final division, and indeed seems to imply that their whole shares in the corpus are vested, although he had previously directed that the division of the corpus should be made amongst the children living at the time of making it and the descendants of deceased children. Andrew's issue cannot, under the will, take that part of what would have been their father's whole distributive share, which has been [**9]  already advanced and paid to him in his lifetime. Except as to any excess over his proportion of the estate, no part of these advances is ever to be returned. They have vested absolutely and forever--as well in enjoyment as in interest.

4. This kind and wise-judging parent, who sought to give these children, whom he desired should immediately establish themselves in life, the means of so doing, never could have intended that his bounty should be snatched away from the wife whose marriage to his son he made a sufficient ground for letting him in to share in his estate, at the instant that she was made a widow, or that his son's tender and helpless orphan children, whose participation in the capital of his estate, when the division of it shall be made, he has carefully provided for, shall until then be kept destitute of all means of support.

5. As to the income there was no occasion for special limitations. The gift is simple and direct to a class of persons who are exactly defined--one of whom the complainant's intestate was. The law and the common rules of construction do the rest, and accomplish with exactness sufficient for the case the general intent which speaks out of [**10]  the whole will, to provide equally for all his children and their families. That provision in the will which requires the shares of "the rest of the children" to make good any deficiency of Martha's share in the final division, tends to strengthen the view that the devise of the corpus gave vested interests to the children, respectively.

Finally, if the children who are over twenty-one have not vested interests in the income, then, in case of the decease of all the children before the widow--an event the possibility of which the testator himself recognized in his dispositions in regard to the capital, a complete intestacy would result as to all of the income not appropriated to the widow's own use. If all should die save one--for example, the trustee, Mr. James S. Waters--this one son would enjoy the whole residuary income of this large estate during the lifetime of the widow. A construction capable of working such consequences cannot be in accordance with the testator's intention.

Thomas S. Alexander for the appellees.

In support of the order of the Court below, from which this appeal is taken, the appellee, James S. Waters, will insist:

1. That the question at [**11]  issue is simply whether the appellant, as executrix of a deceased child of the testator, Freeborn G. Waters, is entitled to share in the distribution of the surplus income, which is directed to be made annually during the life of the widow, amongst the "children" of the testator? Now "children," in the absence of any thing indicative of a contrary intention, includes the descendants in the first degree, and will not embrace grandchildren or others in a remote degree. Radcliffe vs. Buckley, 10 Ves., 195. Ld. Oxford vs. Churchill, 3 V. & B., 69. And a fortiori children will not include the executor of a deceased child, unless it can be shown that the child in his life time had a vested interest in the subject, which devolved as property or assets on his personal representative. The ground work of the argument on the other side must therefore be that the children of the testator in being at the time of his death acquired vested interests in the surplusses of income to accrue during the life time of the widow.

2. There is, and can be no evidence in regard to the value of the testator's estate, or of the pecuniary circumstances of the children deceased, at the times of their respective [**12]  deaths. In reference to the question of interpretation, it is immaterial whether the testator's estate was or is large or small? Whether the families of deceased children are in affluent or straightened circumstances? Or whether the child deceased has left any estate or family behind him? The appellant does not claim as widow or as guardian by nurture for her children; she claims as executrix; and any portion of the fund which may be allotted to her will become assets for the payment of her late husband's debts. And treating the question as one of intent, it is simply this: Did the testator, in the distribution of any portion of his estate, intend to prefer the creditors of a deceased child, to his surviving children?

3. The question is one of pure intent. And the burden is on the appellant, like all other actors, to show that the testator intended she should share in the distribution. It is insisted that no such intent is evidenced.

1st. There is no gift independent of the direction to distribute.

2nd. The distribution is to be made by the widow, and not by the executors or trustees. They are required to pay over the entire income as it accrues to the widow; and by [**13]  such payment over, they acquit themselves of all further responsibility in respect of the fund.

3rd. The distribution is to be made of any surplus of income which may remain at the end of any year, after providing thereout, at the discretion of the widow, for her own comfortable support, and for the maintenance, support and education of the minor children.

Cases are to be found in which equity has intimated its power to enforce on the widow the duty of providing for her infant children; yet it seems to be conceded that the latter have no vested interest in the fund which can be ascertained and separated by the Court to be administered under its direction. And it is believed no case can be found in which parties circumstanced as the adult and married children are, have been supposed to be entitled to the aid of equity, to prevent waste or injudicious expenditure of the income, or to compel the widow to render an account of the manner of her disposition thereof. She may consume the whole if she pleases to do so. The existence of a surplus at any moment is accidental.

It depends on her pleasure whether there shall be less or more. It is submitted that it cannot be safely [**14]  affirmed that there is a right to participate in any surplus thus contingent, which vests at any moment prior to the period fixed for distribution thereof.

4th. The distribution is to be annually made amongst the children who may be of twenty-one years, or who may be married; that is, amongst children who, at the moment of distribution, are in existence and clothed with the prescribed attributes. It is conceded by the appellant, that the vesting does not take place until the period appointed for the first distribution.

But the true alternative is between the vesting of the right to share in the distribution of any year's surplus, at the end of the year; or the vesting of the same right immediately after the testator's death. And if the latter epoch is adopted then these results will follow: a child dies after the death of the testator, in its infancy and unmarried, its representative must share in the distribution, at the least from the period at which, if living, it would have attained the full age; and next, if a child had died in the testator's life time, leaving issue, such issue would be excluded altogether from distribution. These consequences are suggested as showing [**15]  that upon the hypothesis contended for by the other side, the disappointment of the testator's supposed intent will be just as probable as if the opposite hypothesis should be adopted.

5. The income is to arise from real as well as personal estate, and if the interest of the children, on any supposed surpluses, are to be deemed to be vested and capable of devolution on the proper representative of any deceased child, then the right to so much of the surplus, as was derived from real estate, would descend on the heir-at-law, whilst the right of the personal representative would be limited to so much of the surplus as was derived from personal estate. Now, it is submitted, that the discrimination could hardly be made by the trustees;--it could not be made by the widow who is charged with the duty of distribution. Barham vs. Mee., 1 R. & My., 631. Crockett vs. Crockett, 2 Phill., 553. Tawney vs. Ward, 1 Beav., 563. Gibbs vs. Tart., 8 Sim., 132.

No aid can be derived by the appellant from the subsequent clauses of the will. On the contrary, the dispositions of the principal estate are altogether contingent. The children have no power of disposition over their parts of the principal [**16]  estate at any time before the period of distribution thereof. And in the event of the death of a child leaving issue, such issue is to take in the place of its parent. Is it probable, then, that the testator intended to give to his children an interest in the accidental surplusses of income in a form which would render it liable to execution, or in the hands of executors would become assets for the payment of debts?

A. W. Machen, for the appellant, in reply.

1. The trust to distribute is to be performed by the trustees, and not by the widow. This is shown by the original declaration accompanying the devise to the trustees that they are to hold the whole estate upon the trusts thereafter to be limited, of which this is one; by the clause providing for the annuity of $ 500, to Martha K. Waters, which the trustees are directed to pay out of the income, which would be impossible upon the hypothesis set up by the appellee's counsel, according to which, the whole income would be in the hands of the widow; by the structure of the clause in question itself, which exactly follows the form used in other parts of the will in defining the duties of the trustees in the several cases provided [**17]  for; by the fact that in case of the second marriage of the widow, and consequent payment of $ 800 a year to her, (one of the cases covered by the clause,) the trust must be performed by the trustees; by the absence of any declaration that the widow is to perform it, the nature of the duty, and in short, the whole plan of the will and the necessity of the case.

2. The surplus or residue of income is a thing as certain in its nature or as capable of being made so, as any other subject of disposition in the will. The testator has himself defined it, and given it both certainty and importance by expressly providing for its division and payment.  

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

OPINIONBY:
WEISEL 

OPINION:

 [*442]  WEISEL, J., delivered the opinion of this Court.
The question in this case arises upon the will of Freeborn G. Waters, and on that clause which disposes of the surplus income of his estates, during the life of his widow, viz: whether the share of an adult child in this surplus income, continues and is transmissible after his death, during the widow's lifetime, or whether it ceases at such death.
The testator provided,  [**18]  by means of a trust, for the annual support of his widow during life, and also during the life of his widow, for the support of his daughter Martha and the support, maintenance and education of his minor children, out of the rents, dividends, income and profits of his estate, real and personal, which he devised to two of his sons, their heirs, &c., upon the trusts and for the uses and purposes limited in the will. As to any surplus of said income, rents and profits that might remain after the application of the necessary portion to the support of his wife, his daughter Martha and minor children, as he had provided, he devised as follows:
"In trust that the whole of said surplus be equally divided annually amongst all my children who may be of the age of twenty-one years, or who may be married," with a further direction in regard to an annuity to his daughter Martha in a certain event, as set out in the will.

 [*443]  The will was made in June, 1857, and the testator died in July, 1858, leaving eight children; all over twenty-one years of age at the time of the execution of the will, except two. One of these became of age before the death of the testator, the other afterwards.  [**19]  Four were married when the will was made.
In the summer of 1859, one of the sons, John Summerfield Waters, died, leaving a widow and several children.
In August, 1863, Andrew G. Waters, another son, and one of the trustees and executors, died, leaving a widow and four children; the widow having been appointed his executrix by his will, and having qualified as such.
A considerable surplus income arose every year since the death of the testator, Freeborn G. Waters, for distribution. And a large surplus was in the hands of the surviving trustee for the year preceding the filing of the bill in this case in September, 1865.
These are the material allegations of the bill of complaint.
The suit is by the executrix of Andrew G. Waters, to prevent by injunction such a distribution of the surplus income in the hands of the trustee, as would exclude the estate of her husband from a participation in the fund.
It will be observed that the distribution by the will is an annual one; words of futurity are used; and the objects to take are children of the testator, of full age or married; without any words limiting a share to the representatives or descendants of any child who might die during [**20]  this course of annual distribution. It is this feature that produces the difficulty in the case. On the one hand it is contended that only those of the children take every year, who are at the time of the distribution in existence and answer the description in the will; whilst on the other it is insisted, as the true construction, that 

 [*444]  the interests in this portion of the income vested in the persons described, and were transmissible in the case of any one who might die during the lifetime of the widow.
The intention of the testator is of course the matter to be inquired into, and, as in all cases of doubt or difficulty, we must avail ourselves of settled rules of construction that are applicable and will aid in the examination.
The first and main inquiry is, whether the shares of the surplus income became vested in the children described at the time of the testator's death, or when they fell within the class indicated in the will. The subject of the bequests, it is true, is not a part of the integral estate-- not the residue of an estate, after other bequests made. It is the surplus or residue of an annually accruing fund from rents and profits of the entire estate,  [**21]  in the hands of trustees collected by them, and held annually for distribution, after providing for the support of the widow and minor children and his daughter Martha, during the widow's life. There can be no doubt that in the case of a residue of personalty, or in the case of an annuity during the life of another, the legacy would vest and survive to the personal representative in the event of the death of the legatee before the time of payment, unless a different intention was expressed or conveyed by the will. So if the fund were directed to accumulate and to be distributed and paid at a future day or upon a certain event, and the legatee should die before that time. The rules of construction favoring the vesting of estates, and to prevent intestacy in the case of residuary bequests, would apply in those cases according to all the authorities. And the Court cannot perceive why the same rules should not govern the construction in this case. The same reasons apply; the same motive to do equal justice to all the objects of the testator's bounty; and no intention of the 

 [*445]  testator to the contrary is contravened by the application of the rules. The rule for favoring the vesting [**22]  of estates is laid down by Mr. Jarman in his excellent treatise on wills, in language so precise and yet so full, as clearly to embrace the bequests under consideration. It is this: "The law is said to favor the vesting of estates, the effect of which principle seems to be, that property which is the subject of any disposition, whether testamentary or otherwise, will belong to the object of the gift, immediately on the instrument taking effect, or so soon afterwards as such object comes into existence or the terms thereof will permit." As, therefore, a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse simply, (i. e. without any intimation of desire to suspend or postpone its operation,) confers an immediate vested interest.
If words of futurity are introduced into the gift, the question arises, whether the expressions are inserted for the purpose of protracting the period of vesting, or point merely to the deferred possession or enjoyment. 1 Jarm. on Wills, 726. See also, Gifford vs. Goldsey, 2 Vern. 35. Eales vs. Earl of Cardigan, 9 Sim. 384. Webb vs. Kelly, same,  [**23]   469. Leeming vs. Sherratt, 2 Hare. 23.
This construction is in harmony with the other provisions of the will and the general intent of the testator as shown on its face. His declared purpose was that his estate, as it existed at the time of his decease should remain unimpaired during the life of his wife. This he devised in trust, directing the annual income, rents and profits from it should be first applied every year to the support of his wife and minor children, and his daughter Martha, during the life of his widow, with a provision for an equal annual distribution of the surplus among his adult or married children. The alternate provision for his daughter Martha of five hundred dollars per annum out of 

 [*446]  said rents and profits, in case she ceased to live with her mother, and the direction that in the division of the surplus this allowance or annuity should be taken and computed as part of her portion of said surplus, manifest a clear intention that these bequests to the adult children should vest. She was one of that class, and the legacy of five hundred dollars per annum to her is clearly a vested legacy, and yet it constitutes a part of the surplus [**24]  income to which she as one of the children of full age is entitled. If a part be vested, the whole is in that condition; and if one takes a vested interest out of the surplus, the others of the same class taking equal shares out of the same fund and in the same clause, take vested interests likewise. At the death of the wife the estate, real and personal, is to be equally divided among all his children then living, and the children and descendants of any deceased child, they taking the share of the deceased parent. These and all the other provisions in the will, together with his knowledge of the condition and wants of his family, the near approach to full age of his only two minor children, the marriage of four of his children, the vicissitudes of life exposing their offspring to orphanage and dependence, if not to want, lead to the conclusion that the testator did not intend that these bequests of the surplus income should be contingent, and dependent, as to any of the described legatees, upon his continuance in being during the life of the widow.
We are therefore of opinion that the children of Freeborn G. Waters, who were twenty-one years of age or married at the time of his death,  [**25]  took vested interests in their shares of the surplus income from his estates from that time; and that the shares of those who attained twenty-one years or married after his death, became vested at the happening of either of those events; and that the share of 

 [*447]  Andrew G. Waters who has died, survives to his personal representatives.
The order of the Court below refusing the injunction prayed for will be reversed, and the cause and original papers remanded with instructions to the Circuit Court of Baltimore City to grant an injunction in conformity with this opinion and decision.
Order reversed and cause remanded. 

120 of 120 DOCUMENTS 

ALFRED GALLAGHER ET AL. vs. CHARLES SHIPLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

24 Md. 418; 1866 Md. LEXIS 25 

January 25, 1866, Decided 

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

The bill in this case was filed by the appellee, and alleged that he leased, on the 2d January, A. D. 1861, a parcel of land, consisting of seven separate fields, in Baltimore county, to W. S. Mabbett and J. McCullum, for eight years and eleven months, at an annual rent of $ 650, and filed the lease as an exhibit with the bill; that afterwards the lessees sub-leased the greater part of it to one J. D. Ulery; that by some means unknown, the possession of the part so sub-leased was acquired by Lewis Myers and others; that at the time of the lease it was the understanding of the complainant that the land should only be used for pasturing the usual number of cattle placed upon a like quantity of land, but that a greater number had been placed and fed there; that for the last five months, the fields have been in the possession of Myers and others, and used as pens for immense herds of cattle, brought there to be slaughtered for the United States army and the city of Baltimore; that large quantities of manure have been dropped upon the soil, and that by reason of the moisture of the soil, and the trampling of the cattle, the manure has [**2]  been so mixed with the soil, that it is impossible to remove the one without taking away the other; that Mabbett and McCullum had top-dressed the land with manure, to remain there permanently, and by the trampling of the cattle it had become mixed with the soil and the manure dropped by the cattle.

The bill further charges, that Gallagher, claiming under an alleged purchase from Myers and others, all the manure dropped by the cattle, had been for several days engaged with a large and sharp iron scoop, about five or six feet square, drawn by one horse, in subverting and digging up the soil and subsoil, and the manure mixed with it, to the depth of several inches, collecting it in piles, and was about to remove it from the land, the soil of which was thin, and its chief present value being its eligibility for pasturage lots; that such subversion and removal will result in irreparable injury to the fields, for which no recovery in damages would be an adequate compensation, and in their destruction for their use for the purposes they had been theretofore enjoyed, and that his remonstrances against it had been disregarded. That by the terms of the lease the land was to be left in as [**3]  good condition as it was at the date of the lease, and that will not be possible so to leave it unless Gallagher be restrained. The bill then prays for an injunction against Gallagher and the other defendants named, restraining them from any "further digging up, piling and hauling off, of the soil and manure upon the fields."

The Court granted the injunction as prayed. The answer of Gallagher states that he supposes it to be true that the land was leased as stated, but that he hath no knowledge of any sub-leasing, and admits nothing about it; that he knows nothing of any understanding as to how the land was to be used, and submits that the whole contract is set forth in the lease, and that the complainant as against him can add nothing thereto; that the land by assignments or sub-leases to him unknown, was, on the 1st July last, lawfully in the possession of the United States Government, whose proper officer, one Captain Murphy, entered into an agreement with him to remove the manure and clean the land, so that the Government cattle there kept for the use of the army, could be safely kept and advantageously provided for, and that in pursuance of such agreement he was engaged in [**4]  removing from the superficies of the soil the manure, which if not done would prevent its use for the purposes of the Government; that he removed it with a scoop four feet broad, made of wood, with an iron rim drawn by one horse, which did not and could not penetrate the soil; that he neither subverted or removed the soil, and that he did not the smallest, much less an irreparable injury to the land; that the allegations of the bill in regard thereto were an idle pretence, without any foundation save the grasping desire of complainant to have that to which by law he was not entitled; that for agricultural purposes, despite of all scraping, the land will be left greatly richer than it was before; and he files as exhibits two military orders, directing him to proceed with its removal, but which out of respect to the injunction he has not obeyed; that if he does not do it the military authority will have it done by some one else, and that the design of the complainant is by an injunction to operate in restraint of that authority; that the complainant has a complete remedy at law, and this Court no jurisdiction; that the remaining defendants named in the bill had no interest, nor agency [**5]  in regard thereto, and were improperly made parties, and that the said Captain Murphy should have been made a party as the person by whose orders the supposed grievances had been committed. The answer was duly sworn to. A motion was made to dissolve the injunction, and evidence taken by both parties as provided by the Act of Assembly. The motion was not granted, but the Court by order passed September 23rd, 1865, continued the injunction until final hearing. The testimony taken was quite voluminous, much of that taken on the part of the complainant being excepted to by the defendants. The general effect of so much of the evidence as was admissible is sufficiently set forth in the opinion of this Court.

From the order passed on the 23rd of September, 1865, the defendant, Gallagher, appealed.  

DISPOSITION:
Order reversed, injunction dissolved, and cause remanded.  

HEADNOTES:

LANDLORD AND TENANT; FARMING LEASE AND LEASE IN GENERAL TERMS: RIGHTS AND POWERS OF LESSEE: REMOVAL OF MANURE FROM PREMISES: IRREPARABLE DAMAGE. -- It is settled by the general current of American as well as English authorities, that a tenant under a farming lease or contract has no right to remove from the premises so occupied, without an express stipulation to that effect, any manure made in whole or in part from the produce of the land.

But where a lease is general in its terms and provisions, and says nothing as to the purposes for which the demised premises are to be used, or how they are to be used and occupied, the lessee is clothed with full power and right to occupy and use them for any lawful purpose not injurious to the reversion.

Under such a lease there is no substantial ground for disputing the right of the lessee to the manure, accumulated by feeding cattle upon the land from provender brought upon the premises from other sources; nor of contesting, as likely to result in irreparable injury to the land, his right of removing the same so far as it is not commingled with the soil, provided that in removing the same he uses such diligence and skill as will prevent injury to the land.

VERBAL AGREEMENT BETWEEN PARTIES TO LEASE, ITS EFFECT UPON THE RIGHTS OF SUB-TENANT WITHOUT NOTICE. -- Whatever may be the case as between the immediate parties to a lease, no mere verbal understanding between them can affect the rights of persons holding under the lessee without notice of it.  

COUNSEL:
George H. Williams and Robert C. Barry for the appellants, argued,

1st. That to sustain the injunction, the burden of proof is on the complainant to show irreparable injury and destruction of the inheritance, and that unless he shows this, the remedy if there be damage is at law, and there is no case for an injunction; that [**6]  the answer denied all the equity, and was evidence on the motion to dissolve. Hamilton vs. Ely, 4 Gill, 34. White vs. Flannigan, 1 Md. Rep., 543, 548. Green vs. Keen, 4 Md. Rep., 98. Cherry vs. Stein, 11 Md. Rep., 1. Shipley vs. Ritter, 7 Md. Rep., 408. Dorsey et al. vs. Hagerstown Bk. et al., 17 Md. Rep., 412.

2nd. That the overwhelming proof in the cause is, that the small wood scraper actually used on these premises, weighed only some sixty-five or seventy pounds; that it could not be held at an angle with the surface of the soil while in use; that it did not and could not penetrate the soil, nor be made to penetrate it, and that either for farming purposes, or for feeding cattle it was necessary to remove the manure.

3rd. That on examination of the piles of manure for the purpose of ascertaining the fact, no soil was found therein.

4th. That the bill alleged no usage or custom as to the removal of manure, or the right to do so, and therefore the issues do not involve it.

5th. That a usage not to remove manure from a farm dropped thereon by cattle fed on what is grown on a farm, even if proved, has no application to lots on the edge of a large city used as cattle [**7]  pens, for cattle fed with food brought from elsewhere. Plumer vs. Plumer, 10 Foster's N. H. Rep., 558. Fay vs. Muzzey, 13 Gray, 53.

6th. That the proof in this cause fails to establish proof of general custom as required by law. Foley vs. Woodside, 6 Md. Rep., 37.

7th. That the proof of what was done elsewhere by a different kind of scraper, and in other ways was irrelevant to this cause, and the exceptions thereto well taken, and so as to the attempted proof of a custom not alleged in the bill.

8th. That all the proof pertinent to complainant's case was brought out by interrogatories grossly leading, and should be ruled out, and the exception thereto deemed well taken. Ridgaway vs. Toram, 2 Md. Ch. Dec., 314.

A. W. Machen and William A. Fisher for the appellee.

I. The acts in question are acts of waste, and whenever there is privity between the parties, waste will be enjoined in equity without inquiring whether in the particular case the apprehended injury could be compensated in damages or not; where no privity exists, a case of irreparable injury must be shown. 2 Story Eq. Jur., §  917, 919. Duvall vs. Waters, 1 Bland, 576, 577. Steward vs. Winters, 4 Sandf.  [**8]  Ch., 590. Every person who enters under the tenant, or with his consent, stands as he does, is affected by the same privity, and is equally subject to be restrained by injunction from committing waste. Howard vs. Ellis, 4 Sandf. Sup. Ct., 369. Courthope vs. Mapplesden, 10 Ves., 290. Norway vs. Rowe, 19 Ves., 154. Maddox vs. White, 4 Md. Rep., 72. In this case, Gallagher's answer distinctly admits that he came in under the lease. The defendant was committing waste in two ways: viz. by the removal of soil, and by the removal of manure.

1. Any removal of soil goes to the disherison of the landlord, and is waste, and equity will enjoin it, no matter how small the apparent injury. Livingston vs. Reynolds, 26 Wend., 122. Sarles vs. Sarles, 3 Sandf. Chan., 601, 603. And a threat to commit waste is sufficient justification for the bill. Duvall vs. Waters, 1 Bland, 576. Gibson vs. Smith, 2 Atk., 182.

2. In the absence of a special custom authorizing a tenant to remove manure made upon land which has been leased for agricultural purposes, or an express agreement to that effect in the lease itself, such removal is unlawful, and will be restrained by injunction. Pulteney vs. Shelton,  [**9]  5 Ves., 147. Onslow's Case, 16 Ves., 173. That manure is not removable by the tenant, is well established in this country. Fay, Judge of Probate vs. Muzzey, 13 Gray, 55. Lassell vs. Reed, 6 Greenlf., 222. Stone vs. Proctor, 2 Chipm. Vt., 108, 114, and 115. Goodrich vs. Jones, 2 Hill, N. Y., 142.

3. In this case not only is no custom authorizing a removal of manure set up, or proved, but the evidence negatives the existence of any such custom, and shows that the custom in Baltimore county, where the land in question lies, is all the other way, and in favor of the landlord. Therefore, even if the general rule of law had been different from what it is, the custom of the country denying the tenant the right to remove manure, would be considered as incorporated in the lease, and equivalent to an express stipulation. Dale vs. Humfrey, Ell. Bl. & Ell., 1004. Field vs. Lelean, 6 Hurls & Nor., 525. Hutton vs. Warren, Mees. & Wels., 473. The land in question was leased for the ordinary purposes of husbandry, and if the lessees or those claiming under them, instead of pasturing a reasonable number of cattle upon it, choose to herd and feed upon it a much larger number, they cannot relieve [**10]  themselves of the obligations of the tenancy, nor justify a breach in one respect by the pretence that upon the whole their use of the land will be an improvement of it, even if the facts bore out such an averment. For no tenant is permitted to excuse an act of waste by showing that he has in other respects benefitted the land to a larger extent. Bullitt vs. Musgrave, 3 Gill, 31. French vs. Macale, 2 Dru. & War., 269.

II. A case of threatened irreparable damage is, however, abundantly made out by the proof. No one can doubt, upon reading through the evidence, that Gallagher, but for the restraint of the injunction, would speedily have reduced Mr. Shipley's fields to the same condition as he had reduced the Alms House land. An alteration of the character of the ground much short of this, and a far less considerable abstraction of the vegetable mould from the surface, would have constituted that kind of injury which, in the consideration of a Court of Equity, is classed as irremediable.

III. 1. As to exceptions founded on a supposed non-joinder or mis-joinder of defendants, it is well settled that on a motion to dissolve, the Court will not listen to an objection of mis-joinder [**11]  of parties, where the party making the objection is himself without merits. Lucas vs. McBlair, 12 G. & J., 16. Campbell vs. Poultney, 6 G. & J., 94. Tradesman's Bank vs. Merritt, 1 Paige, 303. There is no evidence, however, that the suit is not properly instituted as to parties.

2. The appellant's exceptions to evidence, if sustained, could not affect the result. But there is nothing in them: Firstly, because the interrogatories in question are not in fact obnoxious to the censure; and secondly, because it is too late to start such an exception after the interrogatory has been suffered to be propounded without objection, and the evidence closed and returned. The objection--but formal at best--is waived, when the party having an opportunity to make it before the witness has answered, says nothing at the time when the fault could have been remedied, but allows the question to be put and the answer elicited. He cannot lie by, take the chance of a response favorable to himself, and then, when it is ascertained that it is against him, make the point that the question ought not to have been asked. The objection, in short, is properly an objection to the interrogatory, and not to the [**12]  testimony under it, and should be taken at the proper period as an objection to the interrogatory. Mechanics' Bank vs. Seton, 1 Pet., 307. Sheeler vs. Speer, 3 Binn, 130. Strickler vs. Todd, 10 Serg. & Rawl., 63. Woodman vs. Coolbroth, 7 Green, 18. Whipple vs. Stevens, 2 Frost, N. H., 224. Wicher vs. Wicher, 11 N. H. Rep., 356. Willey vs. Portsmouth, 35 N. H. Rep., 303. Townsend et al. vs. Jeffrey's, 24 Ala. Rep., 335, 336. Humphreys vs. Bradford, 32 Ala. Rep., 500. Crowell vs. Western Reserve Bank, 3 Ohio N. S., 406. Barrow vs. Rhinelander, 1 Johns. Ch. Rep., 559. Williams et al. vs. Banks, 5 Md. Rep., 198. Byrely vs. Staley, 5 G. & J., 432. Nichols vs. Downing, 1 Stark., 81.

The practice in the English Chancery, of suppressing the answers on motion, is consistent with this principle, for there, the examinations being private, the opposite party until the publication of the evidence, has had no opportunity of seeing the interrogatories, and of course could not before object to the form of them. But in England the objection must be taken before hearing, and even if it prevail, an opportunity is given to the party to take the evidence over again. Gresley Eq. Ev., 75, 197, 213,  [**13]  and note.  

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

OPINIONBY:
COCHRAN 

OPINION:

 [*427]  COCHRAN, J., delivered the opinion of this Court.
The professed object of the appellee in filing this bill was to stay irreparable injury and waste, which he alleges was being committed by removing manure from land of which he was the lessor; but we have been satisfied, by an examination of the record, that his real purpose was to secure the manure as an accretion or appurtenance to the soil of the leased premises. It is immaterial, however, on which theory the bill goes, for both present the question as to the right of property in the manure; and as the case must ultimately turn upon the decision of that question, we think it should be dealt with at once, without regard to any of the subordinate points considered in course of the argument.
It is settled by the general current of American as well as English authorities, that a tenant, under a farming lease or contract, has no right to remove from the premises so occupied, without an express stipulation to that effect, any manure made in whole or in part from the produce of the land. 5 Ves., 147, 260, 261. [**14]  16 Ves., 173. 13 Gray, 55. 6 Greenlf., 222. 2 Hill, 142. 15 Wend., 169. 19 Ver. 379. 10 Fost, 558. In such a case, the manure is not regarded as a product of the land to which the tenant is exclusively entitled, but as ordure or compost resulting from the consumption or decay of those products, required by the land to repair the waste to which it has been subjected in producing the crops consumed; and it is for that reason that the law holds the manure in such a case to be an accretion to the land which the tenant cannot 

 [*428]  remove. This rule, it is insisted, applies to the present case, and in examining this proposition it will be necessary to refer with some care to the facts shown by the admissible evidence contained in the record.
The lease, exhibited by the appellee with his bill, is general in its provisions and terms; it says nothing of the mode in which the lessees were to use or occupy the demised premises; and they were clothed, in our opinion, with full power and right to occupy and use the land described in the lease for any lawful purpose not [**15]  injurious to the reversion. It is true that the lease contains stipulations as to the condition in which the property is to be surrendered at the expiration of the term, but these provisions have no relation to the intermediate occupation, and of course raises no presumption as to the use to which the land was to be applied. The averment in the bill, of an understanding between the appellee and lessees that the land was to be used for depasturing cattle, does not affect the appellants here, nor can such an averment limit in any degree, so far as they are concerned, the legal effect and operation of the terms of the lease. Whatever the case was as between the immediate parties to the lease, it is clear that no mere verbal understanding between them could affect the rights of persons holding under the lessees without notice of it, but the appellee does not allege, nor does he contend, that these appellants entered upon the demised premises with notice of any such understanding. We think, by the true construction of the lease, that the appellants were not bound to use the demised premises for the purposes of husbandry alone, but that they were at liberty to occupy the same for any lawful [**16]  purpose whatever.
The appellee alleges that the appellants had for some months before filing the bill, and at that time were occupying and using the land in question as a corral or pen for 

 [*429]  herding large numbers of cattle brought thither to be slaughtered for the use of the armies of the United States. This fact is admitted by the answer, and it abundantly appears from the proof, that the cattle there herded were fed with provender supplied altogether from sources foreign to the land; and that for the beneficial or economical use of it in that way, it was necessary from time to time to remove the manure deposited on the surface. It would seem impossible on this state of case to apply the rule insisted on by the appellee. The land furnished nothing for the support of the cattle, nor was it exhausted by cultivation or by the use to which it was applied; on the contrary the evidence shows conclusively, that it was constantly improving by accretions to the soil that could not be removed with the manure. The appellants were not occupying the land under a farming lease, and in using it for the purpose disclosed by the evidence, neither were injuring, nor could injure the interest [**17]  or estate of the lessor. The rule governing the case of a tenant under a farming lease is founded upon facts and considerations wholly different from those shown by the proof here; and we think, as it cannot be applied to this case for that reason, that there is no substantial ground for disputing the appellant's right of property in the manner claimed by them. The appellee, however, further insists that the manure became so commingled with the soil of the land, that it was impossible to remove it therefrom without removing the soil. This presumption seems in its nature to be speculative rather than positive, for even admitting, as probably was the fact, that much of the manure was trampled in and commingled with the soil, it by no means follows that such as was not trampled in could not be removed from the surface without removing the soil. The evidence shows beyond question, that only such manure as remained on the surface, and capable of removal 

 [*430]  without injury to the land, was removed. How the removal of such manure could injure or affect the estate of the lessor is a matter somewhat difficult to discover. We admit that, while the appellants had the right of property [**18]  in such manure as was not commingled with the soil, and the consequent right of removal, they were bound to exercise their right of removal with such diligent care and skill as would prevent injury to the land. We conclude, however, from a careful review of the testimony, that reasonable skill and care were exercised by the appellants in removing the manure claimed by them. The proof shows that the implement used for that purpose was constructed with especial reference to that end, and that it was nearly if not quite impossible, in using it, to inflict any injury whatever, in the way of removing the soil.
We are of opinion, looking to the facts and circumstances admitted and established by the evidence, that the Court below erred in refusing to dissolve the injunction, and will therefore sign a decree reversing the order appealed from, with costs to the appellants, dissolving the injunction and remanding the cause.
Order reversed, injunction dissolved, and cause remanded.