1 of 142 DOCUMENTS 

THE COMMONWEALTH OF VIRGINIA vs. THE CHESAPEAKE AND OHIO CANAL COMPANY, STATE OF MARYLAND, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

35 Md. 1; 1871 Md. LEXIS 97 

December 21, 1871, Decided 

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

After this case had been remanded for further proceedings, in conformity with the views expressed in the opinion of this Court on a former appeal, (32 Md., 527,) the appellee, the Chesapeake and Ohio Canal company, on the 19th of September, 1871, filed a petition setting forth that in accordance with the aforesaid decision, the company had paid off the whole of its repair bonds, principal and interest, with the exception of about $ 4,500, which had not then been demanded, but for which adequate provision had been made; that the said repair bonds, and interest thereon, having thus been either actually paid off or otherwise satisfactorily provided for, the net revenues of the petitioner were, according to the said decision, next to be applied to the payment of the overdue and unpaid coupons on all its preferred construction bonds in the order of seniority, including pari passu with others, the coupons paid and held by the appellant as guarantor; that the petitioner had then or expected soon to have on hand net revenues sufficient to pay and discharge two or more of the said overdue and unpaid coupons on the said preferred construction [**2]  bonds, which it was desirous to appropriate in the manner and order so directed by the Court of Appeals; but in considering how to carry into effect the said decision, it was met with a difficulty which it was advised could only be removed by an order of Court--such difficulty being occasioned by the following circumstances: The petitioner having paid all the coupons on its preferred bonds to January, 1852, inclusive, found itself unable to meet those maturing on the 1st of July, 1852, and accordingly did not pay them. It continued unable to pay those maturing January 1, 1853, and July 1, 1853, and on the 29th of July, 1853, finding that it had become very much embarrassed, and foreseeing that it would not be able to meet the coupons to mature on 1st January, 1854, its board of president and directors, in the exercise of a power which was believed to be vested in them, authorized the said coupons of 1st July, 1852, 1st January, 1853, 1st July, 1853 and 1st January, 1854, amounting to $ 203,880 in the aggregate, to be funded by the issuing to the various holders thereof, of certificates of indebtedness, bearing interest, payable semi-annually, on the 1st of April and October, in each [**3]  year. Under this resolution of the board, coupons on said bonds of said dates, amounting to $ 142,545 were funded--the holders surrendering their coupons and accepting certificates in lieu thereof. Coupons of said dates amounting to $ 61,335, were not funded under said resolution, but were retained by the respective holders thereof. Upon said certificates, interest was regularly paid up to April, 1857, but until August, 1867, none of said $ 61,335 of coupons, and no subsequently maturing coupons were paid, and from April, 1857, until August, 1867, an interval of ten years, no interest on the certificates was paid. In August, 1867, the board of president and directors, by resolution, appropriated the net revenues then on hand, to the payment of the outstanding coupons of July, 1852 and January, 1853, upon said preferred bonds, and also to the payment of the interest upon said certificates from 1857 until April 1, 1867. After this payment there remained still outstanding coupons, embraced in said funding resolution to the amount of $ 30,870, while the principal of said certificates was still also unpaid and outstanding. Under the aforesaid decision, these outstanding coupons amounting [**4]  to $ 30,870, being the oldest overdue and unpaid coupons, were, as the petitioner was advised, manifestly entitled to be amongst, if not the very first paid; but inasmuch as the Court of Appeals also decided that the coupons on said bonds, whilst bearing interest from their respective maturity as against the petitioner, did not bear interest which was to be allowed payment out of the revenues of the company, in preference to the claims of the State of Maryland, the petitioner was unable to determine whether the said certificates were to be treated as simple contract debts of the company, or as standing in the place of the coupons which they represented, and thus entitled to be paid pari passu with the said outstanding coupons unfunded, and if equally entitled to the protection of the mortgage given to secure these bonds and the coupons thereon, whether the interest paid on said certificates from 1854 to 1857, and from 1857 to 1st April, 1867, was to be charged as so much paid on account of the principal thereof, extinguished it pro tanto, or was to be held and enjoyed by the holders thereof, as the interest paid on a debt due by the petitioner, leaving the amount of said certificates,  [**5]  as the principal of their debt, still due and standing upon the same footing as the coupons which were thus funded, and so in connection with said outstanding coupons for $ 30,870, constituting, in the language of the decision, the oldest overdue and unpaid coupons.

The petition further showed that conflicting views were maintained by the said certificate holders and by the holders of said coupons not funded, and by holders of subsequently accrued coupons upon these questions, which the petitioner was advised it ought not to undertake to decide, and that before ordering any further payment, it should present the fact to the Circuit Court, to the end that its action in the premises might be in all respects in conformity with the aforesaid decision of the Court of Appeals, as properly construed and applied to the facts of the case.

The State of Maryland answered the petition, admitting the facts as therein set forth to be truly stated, but averred that in its answer to the original bill, it expressly denied the validity of the certificate for $ 35,400, issued to the Commonwealth of Virginia, as set forth in the bill, so that the question was in issue before the Court, and the [**6]  views expressed in its opinion clearly disposed of all said certificates of indebtedness, as creating only a general indebtedness of the canal company, not entitling the holders to any priority over the liens of the State of Maryland; the answer further averred that the money paid for interest on said certificates of indebtedness by the company, was paid in error and ought to be accounted for, and rightly applied in the settlement of coupons then held by the parties who received the erroneous payments.

John S. Gittings and the Chesapeake Bank, adopted the answer of the State of Maryland, and insisted upon the same defences.

The Commonwealth of Virginia likewise answered and claimed that the certificate for $ 35,400 held by it, represented the coupons for the four half years, for the funding of which it was given; that by the surrender of the coupons, which as guarantor it had redeemed, and the acceptance of said certificate, it neither waived, nor intended to waive any of the legal rights to which it would have been entitled as the holder of the coupons themselves; that the interest which from time to time was paid on the certificates, issued by the canal company was honestly [**7]  and fairly due, and the certificate holders could not now lawfully be required to account for or repay it, at the instance of subsequent coupon holders or of the State of Maryland, who stood by, and without objection permitted such payment to be made; and that accordingly, in the distribution of the net revenues of the company, said certificates stood in the place of the coupons for the four half years of July, 1852, January and July, 1853, and January, 1854, which they represented, and were entitled to be paid pari passu with them, without abatement or deduction for the amount of said interest; the respondent prayed an order accordingly.

The Court (PINKNEY, J.) passed a pro forma decree directing the Canal company to apply its net revenues to the payment of the outstanding over due coupons upon the preferred bonds, in the order of seniority, including pari passu with others, the coupons paid and held by Virginia, but to exclude and disregard altogether in such application, the certificates of indebtedness issued by the company under the resolution of July 29th, 1853; the decree also declared that the holders of said certificates were general creditors of the canal company, not [**8]  secured by the Act of 1844, ch. 281, and the mortgage to the trustees executed in pursuance of said Act.

From this decree the present appeal was taken.  

DISPOSITION:
Reversed and remanded.  

HEADNOTES:

Preferred bonds of the Chesapeake and Ohio Canal Company, issued under the Act of 1844, ch. 281 -- Surrender of Interest coupons for Certificates of indebtedness, bearing interest -- Application of Payments made on account of Interest upon the Certificates of indebtedness.

The Chesapeake and Ohio Canal Company, under authority of the Act of 1844, chapter 281, issued certain bonds, with coupons for interest attached, known as "Preferred bonds," which were declared to be preferred liens on its tolls and revenues, which were pledged for their payment -- principal and interest. The Canal Company paid all the coupons on these bonds to January, 1852, inclusive, but was unable to meet those maturing 1st of July, 1852. It continued unable to pay those maturing 1st of January and 1st of July, 1853, and foreseeing that it would not be able to meet those to mature on the 1st of January, 1854, by resolution of its Board of the 29th of July, 1853, it authorized said coupons to be funded by issuing to the various holders thereof, certificates of indebtedness, bearing interest, payable semi-annually. Under this resolution, coupons of said dates to a large amount were surrendered by the holders who accepted certificates in lieu thereof. Others were retained. Upon these certificates interest was regularly paid to April, 1857, but until August, 1867, none of the coupons retained, and no subsequently maturing coupons were paid, and from April, 1857, until August, 1867, no interest on the certificates was paid. In August, 1867, the Board of President and Directors of the Canal Company, appropriated the net revenues then on hand to the payment of the outstanding coupons of July, 1852 and January, 1853, and to the payment of the interest upon the certificates, from 1857 to April, 1867. After this payment there still remained outstanding coupons embraced in the funding resolution, while the principal of the certificates was also unpaid. Upon a petition filed by the Canal Company to obtain a decision as to the proper distribution of its net revenues then on hand, and thereafter to accrue, among the holders of these certificates, the holders of the coupons not funded, and of those subsequently accrued, it was HELD:

1st. That the holders of the certificates of indebtedness were entitled to the same liens and priorities for their payment, as they would have had for the payment of the original coupons which they represented -- the surrendering of the coupons, and the accepting in lieu thereof the certificates of indebtedness, in no way impairing the liens and priorities secured by the Act of 1844, chapter 281.

2d. That this priority, by the terms of the Act of 1844, chapter 281, extended only to the principal sum named in the certificates, and did not include the interest thereon.

3d. That the payments on account of interest upon the certificates of indebtedness, which were erroneously made, should be applied in extinguishment of the principal sums therein named; thus placing the holders of the certificates on the same footing as the holders of coupons outstanding and unfunded; but in making this application, interest should not be charged upon the moneys so paid.  

COUNSEL:
John P. Poe, for the appellant, argued,

That inasmuch as the facts demonstrate that the coupon holders did not design to surrender the protection of their lien upon the tolls and revenues, the law will not give such an unjust effect to the transaction. Md. & N. Y. Coal Co. vs. Wingert, 8 Gill, 170; 1 Hilliard on Mortgages, 535; Walker vs. Stone, 20 Md., 198; Brawner vs. Watkins, 28 Md., 226.

That assuming the coupons and the certificates representing them did not, as against subsequent lienors, bear interest, they did bear interest against the company--and that such interest having been once voluntarily paid by the company, it could not be recovered, either at the suit of the company, or of any other party. Virginia vs. The Chesa. and Ohio Canal Co., 33 Md., 548; Lester vs. The Mayor &c., 28 Md., 418.

Hence, if it could not be thus recovered, it cannot now be retained or deducted from the certificates, as a payment pro tanto, upon account of principal--and that the decision of this Court,  [**9]  even if adhered to, declaring that the coupons do not bear interest against the State, is merely a guide for the future, and cannot, as to past and closed transactions, have the effect of unsettling the above well settled rule of law, with reference to voluntary payments, and the rights of the parties thereunder.

Frederick W. Brune, for the Chesapeake and Ohio Canal Company,

Did not seek a reversal of the decree appealed from, but submitted the main questions involved therein to the decision of the Court, upon the arguments of counsel for the certificate holders on one side, and for the holders of unfunded coupons, and the State of Maryland on the other.

But in case the Court should be of opinion, that the certificate holders, by surrendering the coupons, in lieu of which they accepted certificates, did not release said coupons, and their right to claim under them, and that they are now equitably entitled to be paid pari passu with the outstanding coupons of the same date as those which they surrendered, it was contended that in that event such certificate holders thus claiming in right of these coupons--should be charged with the interest paid on such certificates from [**10]  April, 1853, to April, 1857, and from April, 1857 to April, 1867, together with interest on such payments, as so much money paid on account of said coupons.

That any other view would work great inequality and injustice among the bond holders, for according to the previous decision, this Court holds that the holders of coupons are not entitled to claim interest on their coupons, and if the Court should now allow the certificates to be paid without crediting the sums already paid on them as interest, the holders of certificates will, by surrendering their coupons, have acquired a right to receive interest, to which, if they had retained their coupons, they would not have been entitled.

The Canal company also submitted whether the certificate holders, instead of being allowed to claim any further dividend on their certificates or the coupons they represent, should not be charged with the excess, in the payments received by them, and interest thereon, beyond the principal of the coupons surrendered by them respectively--such excess to be charged against them as payments on subsequently accruing coupons.

Isaac D. Jones, for the State of Maryland, submitted

That the views [**11]  expressed in the former opinion by this Court in deciding against the Selden & Withers' claim, apply equally, in principle, to the certificates of indebtedness for coupons surrendered. That said coupons were as effectually paid by the acceptances of the certificates under the seal of the company, bearing interest semi-annually, as were those surrendered by Selden, Withers & Co., because said certificates and acceptance and surrender worked an extinguishment of the coupon debt. Moale vs. Hollins, 11 G. & J., 14.

That the State being a sovereign, the rule of laches is not applicable to it, in the consideration of its rights as a sovereign, and a creditor of the Canal company; that although as a stockholder in said company, it has only the rights and liabilities of other stockholders; yet as a creditor it has all the rights which appertain to a sovereign.

That in addition to the affirmance of the order appealed from in this case, this Court ought to direct, that in the payment of the coupons paid by Virginia as guarantor, and now held by her, (excluding those once paid by Selden, Withers & Co., and delivered up to the company, and afterwards wrongfully re-delivered to Selden,  [**12]  Withers & Co., and by them wrongfully delivered to Virginia, with the certificates or bonds for the money borrowed and applied to their payment and redemption;) the Canal company shall be credited thereon with the sum of $ 22,000, or whatever the exact sum may be shown to have been paid, in August, 1867, to Virginia; and with the further sum of $ 58,435, paid by said company to Virginia, on 10th December, 1869.

George H. Williams, for John S. Gittings, the Chesapeake Bank, and others,

Adopted the views presented in behalf of the State of Maryland.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, ALVEY and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*9]  BARTOL, C. J., delivered the opinion of the Court.
The object of the petition filed in this case by the Canal company, is to obtain the judgment of this Court upon certain questions which were not distinctly decided upon the former appeal, in order that the respective rights of the appellant and other creditors may be definitely ascertained, and the company may appropriate the funds now in its hands, and hereafter to accrue, in accordance with the just rights and priorities of its several creditors.
There are two distinct [**13]  questions presented by this appeal, which will be disposed of in their order.
1st. What are the rights of the appellant and other holders of the certificates of indebtedness issued by the Canal company under the resolution of the board, passed on the 29th day of July, 1853?
The circumstances under which they were issued are fully stated in the petition of the company and need not be here repeated, except to say that they represent the aggregate amount of coupons for interest upon preferred bonds issued 

 [*10]  under the Act of 1844, ch. 281; and which coupons fell due on the 1st of July, 1852, 1st of January, 1853, 1st of July, 1853, and 1st of January, 1854.
The appellant contends that the holders of such certificates are entitled to the same liens and priorities for their payment, as if they held the original coupons. On the other hand it is contended by the appellees that the effect of surrendering the coupons and accepting in lieu thereof the certificates of indebtedness, was to destroy the liens and priorities before held under the Act of 1844; and that the certificates are mere contracts of the company for the payment of money unsecured by any lien upon the net tolls and [**14]  revenues; and not entitled to any priority whatsoever in the distribution of the fund. In support of this position it has been argued that the question was so decided upon the former appeal, 32 Md. 501; in which it was held that the appellant, as assignee of Selden, Withers & Co., occupied the position, in respect to that claim, of a contract creditor only; and was entitled to no lien or priority whatever. But an examination of the opinion of this Court will show that the cases are not analogous, and that the question here presented was not involved in the decision of the rights of the appellant as assignee of Selden, Withers & Co. Our judgment in that case rested not upon the legal effect of the acceptance of certificates of indebtedness in lieu of the interest coupons, but upon the distinct ground that the transaction between Selden, Withers & Co. and the Canal company was a loan of money by the former to the latter, for the purpose of enabling the company to pay the interest upon its bonds, and when so applied the debt for interest was cancelled. The Court say, on page 545: "The money so applied was in fact the money of the company, borrowed for that purpose.  [**15]  " The consequence of this decision followed inevitably that Selden, Withers & Co., or their assignee, could not claim to be subrogated to the rights of the original bond holder; because the debt pro tanto had been discharged by the company; and so Selden, Withers & Co. 

 [*11]  never in fact or in law occupied the position of holders of the preferred bonds of the company secured by liens and entitled to priorities as such. Here a very different case is presented. The appellant as holder of preferred bonds was entitled to the liens and priorities for the principal and interest thereon, secured by the Act of 1844, ch. 281, and expressed in the body of the bonds. For convenience the interest payable semi-annually, was evidenced also by notes or certificates called "coupons" annexed to the bonds.
Under the resolution of the 29th day of July, 1853, the appellant surrendered certain coupons representing interest due on the bonds, and accepted in lieu thereof certificates of indebtedness from the company purporting to bear interest.
It is contended that the effect of this transaction was to destroy the lien and priority before held by the appellant, in respect to the funded interest [**16]  represented by the certificate of indebtedness; because it is alleged that the certificate being under seal is a security of a higher nature than the coupons, which were mere parol contracts, and operated as a payment or extinguishment of the latter, and thus destroyed the preexisting lien of the creditor.
A conclusive answer to this argument is found in the fact that by the terms of the bonds themselves, and by force of the Act of 1844, the lien and priority were secured to the bond holder, both for the principal sum expressed in the bond and the semi-annual interest thereon; so that by accepting the certificates of indebtedness, the bond holder in fact received a security of no higher nature than he before held; there was therefore no merger or extinguishment of the pre-existing debt for interest by operation of law. The transaction in itself could not operate as a payment of the debt, in the absence of proof of some agreement between the parties that the certificates were accepted as payment. It has been argued that the acceptance of the certificate operated as payment of the interest funded, because by its terms the coupon holder obtained the obligation of the company to pay interest [**17]  

 [*12]  upon interest, which it is alleged created a new and different contract between the parties. This argument we think, like the other, is based upon erroneous premises. There was in fact no change in the terms of the contract.
It was expressly decided on the former appeal, (32 Md. 501, 547, 548,) that as between the bond holder and the company, the former would be legally entitled to interest upon the coupons from the time of their maturity. The certificate of indebtedness merely secures the same thing in express terms: it gives no new rights to the creditor, nor does it impose upon the company any greater obligation than before existed.
It is manifest when we consider the facts and circumstances accompanying the transaction, as showing the real intention of the parties, that neither party contemplated such consequences from the transaction as have been contended for by the appellees.
It was clearly not the intention of the coupon holders to waive or surrender their lien upon the tolls and revenues; and as they have done nothing which either expressly, or by operation of law works such surrender, it follows that their lien remains to the same extent as [**18]  before.
In our opinion the holders of the certificates of indebtedness are entitled to the same lien and priorities for their payment, as they would have for the payment of the original coupons which they represent.
This priority exists however only to the extent of the principal sum named in the certificate, and does not include the interest thereon. This results from the terms of the Act of 1844, ch. 281, which was construed by this Court on the former appeal; in which it was decided that the waiver of the State's priority of lien by that Act in favor of the holders of the bonds thereby authorized, extends only to the principal sum secured by the bonds, with simple interest thereon; and does not include interest on interest. (32 Md. 501, 547 to 550.) The application of that rule to the holders of the certificates of indebtedness places them in the same position as if they 

 [*13]  continued to hold the original coupons for which the certificates were substituted.
This brings us to the consideration of the second question presented by this appeal which arises in this way. It appears that the Canal company has heretofore paid out of its net revenues certain sums [**19]  of money for and on account of interest upon the certificates of indebtedness, which accrued from April, 1853, to April, 1867; and the question arises as to the effect of such payments. Are the certificate holders entitled to retain the money so paid? or are they bound to account for it as for money erroneously received? If this question were one exclusively between them and the Canal company, there would be no doubt of the correctness of the position assumed by the appellant's counsel on this branch of the case: but the rights and priorities of other lien creditors are involved; these could not be defeated or impaired by the act of the Canal company, which occupies the position of a stakeholder, receiver or trustee holding the common fund upon which the liens exist. In such case if there has been a misapplication of the fund in favor of one creditor, which defeats or impairs the equitable rights and priorities of others, these are entitled to demand that the money be re-paid, or applied according to the equitable rights and priorities of the parties. Under the decision rendered by this Court on the former appeal, to which we have before referred, it is clear that all payments made [**20]  by the Canal company on account of interest upon the certificates of indebtedness, though made honestly and in good faith, were made erroneously, and so far as the appellees are concerned, was a misapplication of the fund: inasmuch as the holders of the certificates were not entitled to any priority of payment of interest upon them, any more than they would have been upon the coupons for which the certificates were substituted. In order therefore to protect the rights of other lien creditors, and to secure justice and equality among the bond holders, the appellees are in our opinion entitled to insist that the money received 

 [*14]  by the appellant and others, on account of interest upon the certificates of indebtedness, shall be applied in extinguishment of the principal sums therein named--thus placing the holders of the certificates on the same footing as the holders of coupons outstanding and unfunded.
In making this application of the payments we do not think that interest ought to be charged upon the moneys so erroneously paid. The holders of the certificates were entitled to a lien and priority for the payment of the principal sums named in them, and were entitled to apply [**21]  in that way any moneys received from the Canal company. By making that application now, the just rights of the appellees and other lien creditors are protected. It would be in our judgment inequitable to charge interest upon the sums so paid--and we accordingly decide that no such interest is chargeable.
We will pass a decree reversing the pro forma decree of the Circuit Court from which this appeal was taken, and remanding the cause for further proceedings in conformity with the opinion of this Court; and will direct the costs in this Court and in the Court below to be paid out of the fund.
Reversed and remanded. 

2 of 142 DOCUMENTS 

EBEN B. HUNTING vs. CONRAD WALTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 60; 1871 Md. LEXIS 1 

June 29, 1871, Decided 

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

On the 18th of February, 1869, Charles H. Wood executed to the appellant a mortgage of certain property on Pratt street, to secure the payment of $ 1,433.96 and interest. On the 30th of November, 1869, on the petition of the appellant, the Circuit Court passed a decree for the sale of the property. On the 24th of December, 1869, the trustee, after having given the usual notice by advertisement, sold the property to the appellee for $ 800. On the 3d of January, 1870, the Court ratified the sale nisi, and on the 7th of February following, the order of final ratification was passed. The purchaser having refused to comply with the terms of sale, the trustee, on the 12th of February, applied to the Court for an attachment to compel compliance. On the 21st of February, the purchaser answered the application of the trustee. In his answer, he stated that he, at the sale, bid $ 800 for the property, supposing he was buying it "subject to the incumbrance of ground rent only;" that he had previously heard there was a prior mortgage on the property, but supposed that the money for which the property was then to be sold, was to be applied in [**2]  paying off all the incumbrances on the same, except the ground rent; that after the sale, and after he had paid $ 50 to the auctioneer, the trustee told him he had bought the property subject to all incumbrances, which, if he had known before, he would not have made the bid; that $ 800 was a fair price for the property; and to hold him to the bargain would compel him to pay $ 1300 for the house, which he had not the means of doing; that extreme hardship and gross outrage would be inflicted on him by compelling him to comply with the terms of sale. The respondent prayed to be released from the sale.

The evidence showed that the appellee became the purchaser under the impression and belief that he was buying the property free from all incumbrance, except the ground rent. After hearing, the Court, on the 26th of March, passed an order rescinding the order of final ratification, and annulling and setting aside the sale. From this order the present appeal was taken.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Appeal -- Purchaser released on the ground of a Mistake.

No appeal lies from an order rescinding an order finally ratifying a trustee's sale, both orders having been passed during the same term.

A purchaser at a trustee's sale, bought under the impression and belief that he was buying the property free from all incumbrance, except a ground rent, and paid a portion of the purchase money. On application by the purchaser to have the sale set aside on the ground that there was a prior incumbrance on the property, and that he had purchased under mistake, it was HELD:

That he was entitled to be released from the purchase, and to have the sale set aside.  

COUNSEL:
Luther M. Reynolds, for the appellant.

Patrick M'Laughlin, for the appellee.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MAULSBY, ALVEY and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*61]   [**3]  BRENT, J., delivered the opinion of the Court.
The appeal in this case is from an order of the Court below, passed the 26th of March, 1870. From so much of this order as rescinded the order finally ratifying the sale made by the trustee, there is no appeal, as the order was rescinded during the same term at which it had been passed.
An appeal, however, does lie from that part of the order, which annuls and sets aside the sale, and to this extent the appeal will be entertained.

 [*62]  The testimony satisfies us that the appellee, Walter, became the purchaser of a part of the property directed to be sold by the decree in this case, under the impression and belief that he was buying it free from all incumbrance, except the ground rent mentioned in the advertisement of sale. He so declares in his affidavit, and his acts, immediately after the payment of the fifty dollars to the auctioneer, confirm us in this impression. The value of the property sold, the testimony of Wood and Ould, and the statement of the trustee, all show that he was acting under a mistake. Upon the merits of the case, we think, with the Judge below, there can be no doubt. It would be a great wrong to hold a purchaser, [**4]  who became such through a mistake, and in ignorance of the liabilities, he was incurring, to a strict compliance, unless some rule of law required it.
Until the final ratification, a sale, made by order of a Court of Equity, is an executory contract, open to objection, and will not be enforced, if it is inequitable and against good conscience to do so. As this case now stands, it is to be considered as if no order of ratification had been passed, the order of the Judge below rescinding it, being final and conclusive. The objection of the appellee to its ratification is, therefore, in time. The case of Brown vs. Gilmor's Ex'rs, 8 Md. 322, has no application to the one before us. In that case, there was an order of final ratification regularly passed, and the Court determined that the objection of the appellant having been filed after the order, even if well founded, came too late. This doctrine cannot be applied to the present case, and being satisfied that the appellee has an equitable claim to be released from the purchase in question, the order of the Court below setting aside and annulling the sale will be affirmed.
Order affirmed. 

3 of 142 DOCUMENTS 

JOS. A. CLAY, Guardian of ELIZABETH M. RUSH, in Pennsylvania, vs. WILLIAM J. BRITTINGHAM, Guardian in Maryland, and Trustee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 675; 1871 Md. LEXIS 96 

June 24, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Somerset County, in Equity.

In October, 1867, the appellee, as guardian of Elizabeth M. Rush, by appointment of the Orphans' Court of Somerset county, applied under sections 36 and 37, of Article 16, of the Code, to the Circuit Court for said county, in Equity, setting forth that his ward was seized in fee under the will of her grand-father, of certain real estate situated in said county, that the estate was unproductive, and that it would be greatly for the advantage of his ward to have the same sold, and the proceeds invested under the direction of the Court; and praying the Court to order a sale and investment accordingly. In January, 1868, the Court passed a decree for the sale of the property, and appointed the appellee, trustee, to make such sale. The sale was made, reported to the Court and finally ratified. In August, 1870, the trustee reported to the Court that he had in hand the sum of $ 3,145.89, as the cash instalments paid him on account of the purchase money, and asked that an order might be passed directing him, after deducting certain expenses therefrom, to invest the balance in some safe and profitable investment. In October following [**2]  the Court ordered the money to be invested in the registered bonds of the United States, and directed the bonds to be brought into Court, subject to its order.

On the 12th of January, 1871, the appellant, as guardian of the said Elizabeth, by appointment of the Orphans' Court for the city and county of Philadelphia, in the State of Pennsylvania, filed an interlocutory petition in the case, under section 196 and following sections, of Article 93, of the Code, praying the Court to order a transfer and delivery to him of the investments of the fund, and the securities held therefor. The appellee resisted this application no further than was necessary for his own protection, and the preservation of the fund; if the same could be lawfully transferred according to the prayer of the petition, and with safety to him, he was very willing that it should be done.

On this petition, the Circuit Court (FRANKLIN and IRVING, J.) delivered the following opinion:

"The fund sought to be reached by the interlocutory petition in this cause, was produced by the sale of certain real estate, lying in Somerset county, Maryland, belonging to Elizabeth M. Rush, the infant defendant, which sale [**3]  was made in pursuance of a decree of this Court, passed on the 15th day of January, 1868, on petition of the guardian, under and by virtue of the 36th and 37th sections of Article 16, of the Code of Public General Laws. The interlocutory petitioner asks to have the fund transferred from the trustee under said decree, to his possession, as guardian in Philadelphia, under the 196th and following sections of Article 93, of the Code. The language of this section, and those which follow, is very broad, but in its construction, it must be considered in connection with all other laws bearing on the same subject-matter, and must be interpreted, if possible, so that all may stand together. All the enactments in reference to the care and management of the property of infants, are parts of one system, and being in pari materia, must be construed as one law. Keeping these principles in view, let us examine the 36th and 37th sections of Article 16, of the Code, under which the sale in this case was made, and the 45th, 46th and 48th sections, of the same Article, relating to the management and disposition of the money arising therefrom. The two first confer the power of sale of either real or personal [**4]  property of an infant, if it shall appear to be for the "benefit and advantage of such infant," and establish the order of proceeding; then follows:

"SEC. 45. The money arising from such sale, to be invested as the Court shall direct, in the name of such infant, and the surplus interest, after deducting what may be necessary for the maintenance and education of such infant, shall also be invested as aforesaid, and such investment shall not be transferred, except by order of the Court, and any transfer without such order, shall be void."

"SEC. 46. No part of the principal arising from such sale of any real estate, shall be applied to the maintenance of any infant, unless the Court shall consider it necessary, and order the same to be done."

"SEC. 48. Upon the death of such infant under age, intestate, and without issue, the proceeds of such sale shall descend or be distributed as the property or estate would if it had not been sold."

The intent and meaning of these enactments can hardly be mistaken. The only purpose for which the sale of an infant's real estate is allowed under this section, is to better the investment, or, in the language of the law, it must be [**5]  "for the benefit and advantage of such infant." The sale does not, to all intents and purposes, work a conversion of the property from realty to personalty; its descendible qualities, at least, are still those of realty, and upon the death of the infant under age, intestate and without issue, it is still, in contemplation of law, land, and its descent must be governed by the lex rei sitoe before sale. Unlike funds belonging to an infant derived from other sources, it does not pass into the hands of the guardian, to be by him invested at his discretion, or under the order of the Orphans' Court; neither can its principal be invaded, as in ordinary cases, by such Court. Its entire management and custody is retained by the Court, under whose authority the land was sold, or at farthest, perhaps, some other tribunal having concurrent equitable jurisdiction therewith. These provisions were evidently intended to preserve the fund in order that it might be reached, so as to be subject to the operation of the 48th section of the Code above quoted, should the contingencies therein named arise. It is hardly to be presumed that the Legislature, when it provided so carefully for the investment of [**6]  the money arising from the sale of an infant's real estate, guarded so strictly against any invasion of its principal, and directed it to descend as realty to the heirs-at-law, should, at the same time, have opened a way by which all those provisions might be evaded. If the safe-guards thrown around this fund are to be of any value, the jurisdiction of our Courts over it must be retained. The enforcement of our laws cannot with safety be left to foreign tribunals, administering a different system of jurisprudence. When this money passes into the hands of the foreign guardian, as prayed for in this petition, it passes beyond the jurisdiction of this Court. It may, and probably will, in Pennsylvania, lose its character of quasi realty, and become subject to the laws of the infant's domicil. The intention of the Legislature to protect it in certain contingencies for the heirs, will be defeated, and that feature of the law become a nullity. But, says the Court of Appeals, "all statutes in pari materia are to be construed as one law;" "where terms and statutes seem contrary to each other, if by interpretation they may stand together, they shall stand." "Where it is manifestly the intention [**7]  of the Legislature that a subsequent Act shall not control the provisions of a former Act, the subsequent Act shall not have such operation, even though the words of it, taken strictly and grammatically, would repeal the former Act. See Chesapeake & Ohio Canal Co. vs. Baltimore & Ohio R. R. Co., 4 Gill & Johnson, 1, and authorities there cited. Believing it to have been the plain intent of the Legislature, that money arising from the sale of an infant's real estate under the provisions of the 36th and 37th sections, Article 16 of the Code, should be preserved as land, as near as possible, consistently with the proper maintenance of the infant, and that it should be kept within that jurisdiction, which would control its transmission as land to those entitled as heirs, under the law of the State where the land was situated, we cannot sanction such a construction of the 196th and following sections of Article 93, as would defeat that intention. It is true the language of these sections of that Article is very broad; it is, "if any non-resident infant shall be entitled to, &c., the proceeds of any sale made under a decree of any Court of Equity, &c., and such infant has a guardian regularly [**8]  appointed in the State, district or territory of the United States in which such infant resides, such foreign guardian may obtain an order from the proper Court for the payment, &c., of such proceeds, &c., upon the terms prescribed in the next succeeding section." But full effect will be given to these provisions by construing them to apply to those cases where there has been a perfect conversion of the realty into personalty, and a fund thereby created which ought to follow the domicil of its owner, and be governed in its transmission by the law of that domicil. Thus all the laws which have been passed in pari materia will stand together, and the whole intention of the Legislature be gratified, and not otherwise. This construction seems to be further sustained, and the policy of the law illustrated by the 200th and 201st sections of Article 93, by which the interest of any person who is entitled to a reversion, remainder or executory devise, in the money or property claimed, is protected. The care taken to keep such funds within the jurisdiction of the Court for the benefit of those interested, although their title fastened upon the funds wherever they might be, would forbid any construction [**9]  which would abandon money situated like that mentioned in these proceedings, to a foreign tribunal, unless the language was so express that there was no escape from it. It is more reasonable to suppose that they considered the money as land, incapable of being removed, and, therefore, did not provide for its removal in any contingency."

In accordance with the foregoing opinion, the Court dismissed the petition, and directed the costs of the proceeding to be paid out of the fund sought to be transferred. The petitioner appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Guardian and Ward -- Foreign Guardian -- Proceeds of the Sale of an Infant's real estate under sections 36 and 37, of Article 16, of the Code.

Where the real estate of a non-resident infant has been sold by a decree of a Court of Equity, under the provisions of sections 36 and 37, of Article 16, of the Code, on the application of the guardian, appointed and resident in this State, the funds arising from such sale, will not be transferred to the guardian, appointed in the State where the infant resides. 

COUNSEL:
J. U. Dennis and John Scott, for the appellant.

Having complied with all the provisions in sections 197 and 198 of Article 93, the appellant was absolutely entitled to a transfer of the funds under the express provisions of section 196, that section making no exception, and its words not admitting of any, when the conditions thereof are complied with. The construction of language so broad and unmistakable in its import cannot be controlled by implication, unless that implication be inevitable.

Even if the terms of this section are not conclusive, it is evident, from a consideration of all the provisions under this sub-division [**10]  of Article 93, from sections 195 to 203 inclusive, that the Legislature intended the real and personal estate alike, to be under the control of the foreign guardian. Section 203 gives authority to the Orphans' Court to appoint a guardian in this State to a non-resident infant "entitled to any property, real or personal," here, only when the infant has no guardian in the place of residence; thus recognizing, by implication, that where the infant has a guardian in the place of residence, he is the proper person to take charge of the property; and section 195, (which is a part of the same Act of 1853, ch. 422,) prescribes the manner and terms of the delivery to him of such property. These sections, construed together, show that the intention was, that in case there was a foreign guardian duly bonded, &c., he should, upon complying with certain prescribed terms, be absolutely entitled to the possession of the estate of his ward, both real and personal. Being entitled to the possession under section 195, section 196 confers upon him the privilege of transfer, not using the term "real estate," since land cannot be transferred in specie; but as the decree of a Court of Equity alone puts it [**11]  in a form to be moved, the very use of those words show that it was designed to cover just this case of proceeds arising from the sale of real estate.

This whole sub-division under Article 93, entitled "guardians and infants not residing in this State" is to be construed as a particular law, applicable only to the special and exceptional case of a non-resident infant and guardian, and consequently not to be controlled or limited in its application by the general provisions relating to infants' estate embraced in sections 36 and 37 of Article 16, and elsewhere; according to the well-settled rule, that where a general intention is expressed in a statute, and also a particular intention incompatible therewith, the latter is to be considered in the nature of an exception. Stockett, Admr. of Bird, vs. Bird's Admr., 18 Md., 484.

The objection urged by the Court below to the removal of the funds in this case, that they would then become subject to the laws of descent of the State of Pennsylvania, contrary to the intention of section 48, applies, with precisely the same force, to the removal of the proceeds of sale of personal property, or the proceeds of the sale of real estate [**12]  wholly converted; because, in both of these cases, the funds would be subject to the laws of distribution of the State of Pennsylvania, contrary to the intention of section 48, which prescribes the mode of distribution as well as of descent. If the provisions of section 48, of Article 16, do not exempt personal property, nor the proceeds of the sale of real estate, wholly converted, from the operation of section 195, of Article 93, as the Court in their opinion admit--neither does it exempt the proceeds of the sale of real estate still unconverted.

There are but few if any cases in which an infant can "be entitled to the proceeds of any sale made under a decree of a Court of Equity," where the sale does not take place under and by virtue of sections 36 and 37 of Article 16; and hence to hold that the proceeds of such sales cannot be transferred to the foreign guardian, is to nullify almost wholly the provision in section 196 of Article 93, relating to "sales made under a decree of the Court of Equity."

J. W. Crisfield, for the appellee.  

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

OPINION:

 [*682]  BY THE COURT: A majority of this [**13]  Court thinking the order appealed from correct, affirm such order for the reasons well assigned in the opinion of the Court below.
Order affirmed. 

DISSENTBY:
GRASON 

DISSENT:

GRASON, J., delivered the following dissenting opinion in which BARTOL, C. J., concurred.
This appeal is taken from an order or decree of the Circuit Court for Somerset county, dismissing the petition of the appellant praying the passage of an order directing the appellee to pay over to him certain funds in his hands, the proceeds of sales of real estate, sold under the decree of said Court. The question for decision arises upon the construction of section 196, of the 93d Article of the Code, which provides that, if any non-resident infant shall be entitled to any legacy, bequest or distributive share, or to the proceeds of any sale, made under a decree of a Court of Equity, or to any money or personal property in the hands of a trustee appointed by will, or shall be entitled to the proceeds of any sales of property in this State, or to any legacy, bequest or distributive share of any personal property in the hands of any administrator or guardian in this State, and such infant has a guardian regularly 

 [*683]   [**14]  appointed in the State, district or territory of the United States, in which such infant resides, such foreign guardian may obtain an order from the proper Court for the payment, transfer or delivery of such proceeds, legacy, bequest or distributive share, upon the terms prescribed in the next succeeding section. The 197th section provides that the foreign guardian shall file a petition stating that he has been duly appointed guardian to such infant by the proper authority of the State, district or territory, where the infant resides, that he hath given good and sufficient security for the faithful performance of his trust as guardian, and that as guardian he then has the custody of the person of such infant; and setting forth the entire amount of personal property, including that in this State, belonging to such infant, and also the income of the real estate, if any, of such infant, which hath come, or is likely to come, into the hands of such guardian, which petition shall be accompanied by a duly authenticated copy of the record of his appointment and qualification as such guardian, and of the bond, or other instrument or security, so given as aforesaid. Section 198 provides that [**15]  the petition shall be verified by the affidavit of such guardian, and the sufficiency of the security shall be proved by the affidavit of the chief clerk or prothonotary of the Court by whom such security was taken, or by the affidavit of some other disinterested and credible witness. The money, sought to be transferred to the foreign guardian by the petition filed in this case, is the proceeds of real estate sold under a decree of the Circuit Court of Somerset county, under sections 36 and 37, of the 16th Article of the Code. We think it perfectly clear that section 196 applies only to personal property in this State belonging to a non-resident infant. This is shown by the context, and is apparent also from the terms of section 197.
It was contended in the argument in this Court that the 196th section does not necessarily embrace the proceeds of sales of infants' real estate, but that, even if it does, that section must be construed in connection with sections 45, 46 and 

 [*684]  48, of Article 16, of the Code. The language used in section 196 is too plain and comprehensive to leave room for a doubt that the proceeds of such sales are embraced, for they are mentioned and specified [**16]  in those very words.
Assuming that the sections of Article 93, before cited, are in pari materia with the sections of Article 16, let us so construe them, and see whether they cannot all stand together. Section 45 provides that "where the real estate of an infant is sold upon the application of his guardian or prochein ami, the money arising from such sale shall be invested as the Court shall direct, in the name of such infant, and the surplus interest, after deducting what may be necessary for the maintenance and education of such infant, shall also be invested as aforesaid, and such investments shall not be transferred except by order of the Court, and any transfer without such order shall be void." It has been argued that, when the proceeds have been thus invested, they cannot be transferred to a foreign guardian; that the law does not contemplate such transfer and that the Courts will not permit its transfer to a party without their jurisdiction, when they would not deliver possession of the fund even to a guardian residing within their jurisdiction and subject to their control. It is true that a guardian, living in this State, will not be permitted to take possession [**17]  of the proceeds of the sales of his ward's real estate sold under sections 36 and 37. But, when a foreign guardian files his petition and complies with the requirements of the 196th, 197th and 198th sections of the 93d Article of the Code, the Court is then required by the express provisions of the 196th section to deliver the funds to him. Until such application is made, the proceeds of the sale will be invested under the direction of the Court, and preserved and managed in the same manner as the proceeds of sales of lands belonging to infants residing within this State. But it is argued that the sale of an infant's real estate does not wholly convert it into personalty because section 48, of Article 16, enacts that upon the death of such infant under age, intestate and without 

 [*685]  issue, the proceeds of the sales shall descend or be distributed, as the property or estate would if it had not been sold. The sale of an infant's real estate certainly changes the character of the property, and the proceeds thereof are clearly personal property, and in the event of the death of the infant such proceeds of sales would be distributed to its personal representatives, in the absence [**18]  of statutory provision to the contrary; and all that is done by the 48th section, is to invest this personalty with one of the characteristics of realty in certain contingencies, that is, to make it descend to the infant's heirs, in the event of his dying under age, intestate and without issue. As a further reason against the right of the foreign guardian to have this fund transferred to him it is urged that, when so transferred to the foreign guardian, and removed to another State, it would, in case of the infant's death, be distributed according to the laws of that State, and thus the provisions of our law be defeated, and the heirs of the infant, for whose benefit it is alleged the 48th section was intended, would be deprived of the property. It is very evident that it was intended by that section that, if the infant died under age, intestate and without issue, while his funds remained invested within this State, they would have descended as the real estate would, had it not been sold, and this was all that section 48 was intended by the Legislature to accomplish. As long as money, the proceeds of the sales of real estate, belonging to an infant living out of this State, remains [**19]  herein invested under the direction of a Court of Equity, so long is it subject to descend as provided for by section 48; but upon being transferred they at once lose that incident attached to them by section 48, and become subject to the laws of distribution of the State where the infant resides.
It is also said that a Court of Equity of this State has no jurisdiction, under section 36, to sell the real estate of an infant except the provisions of the following sections are complied with, one of which, it is contended, is the investment of the proceeds of sale under the direction of the Court, as provided 

 [*686]  by section 45, and their remaining so invested during the minority of the infant, and subject to the provisions of that section and sections 46 and 48. It is perfectly clear that the proviso in section 36 refers only to those sections following which prescribe the particular mode of proceeding to be pursued before the decree of sale, as a necessary preliminary to the exercise of the power, and that it does not refer to those sections which govern the management and disposition of the money after sale. It is conceded that all proceeds of sales of real estate belonging [**20]  to an infant residing out of the State, except such as arise from sales under section 36, can be delivered to the foreign guardian. We do not perceive the reason for this exception; these are equally within the words of the 196th section. But it is said that the provisions of section 46 would be defeated by a transfer of the said proceeds of sale to the foreign guardian; and from this it is argued, that it was not intended by the Legislature that, when once invested, they should be withdrawn.
That section enacts that "no part of the principal arising from such sale of any real estate, shall be applied to the maintenance of any infant, unless the Court shall consider it necessary and order the same to be done." This is a wise provision, intended for the preservation and safety of the fund, and the disposition of it, under proper authority, for the best interests of the infant, so long as it remains under the direction and control of the Court. But this section in no wise conflicts with the right of the foreign guardian to apply for and receive it whenever he may think proper to do so, under the provisions of sections 196 and 197 of Article 93. Even where other parties are entitled [**21]  to the property by way of revision, remainder or executory devise, after the particular previous estate of the infant terminates, the foreign guardian is entitled to receive it upon complying with the provisions of section 201 and the previous sections of Article 93 before referred to. If property or money, in which the infant has but a life estate, can be removed to another State to the possession 

 [*687]  of a foreign guardian, when parties living in this State have a vested absolute title thereto, to take effect in possession at the infant's death, we cannot see why a fund, in which the infant has an absolute estate, should be withheld from him and continued under the control of our Courts, and subject to our laws. The foreign guardian is appointed by the tribunals of the place where the infant resides, gives bond for the faithful discharge of his duty, is under the control and direction of the Court appointing him, to which he has to account for the manner in which his ward's estate is managed, and it is difficult to perceive any objection to the ward's personal property and money being delivered into his possession by the Courts of this State, upon his satisfying them, and [**22]  given bond with security, that he has been appointed guardian, and has complied with the requirements of our laws. The foreign guardian, who has the custody of the person of his ward seems to be the proper party to have the custody of the ward's funds also, in order that he may be able, with more convenience and promptness, and with less expense, to expend such part of it, under the directions and control of the tribunals of his and the infant's domicil, as may be required for the maintenance and education of his ward. The views herein taken of the sections of the 16th and 93d Articles of the Code, reconcile whatever in them may seem to be incongruous and conflicting, and give effect to all of them. A careful consideration of these sections leaves no doubt upon our minds that the appellant in this case is entitled to receive the funds in question, upon complying with the requirements of the law. These views appear to us to derive additional force from a reference to the original statutes. The Acts of Assembly in relation to foreign guardians, now embodied in the Code in Article 93, to which we have referred, were passed long after those relating to the powers of Courts of Chancery,  [**23]  now contained in the 16th Article, and if the original statutes were now before us for construction, and were found to be in conflict, those last enacted would be construed 

 [*688]  as repealing, pro tanto, the former laws, and would be operative. We think the provisions of the Code ought to receive the same construction.
Entertaining these views, we think the decree of the Court below, dismissing the petition, ought to be reversed.  

4 of 142 DOCUMENTS 

JOHN G. LYNN, and others, vs. THE MOUNT SAVAGE IRON COMPANY and THE CUMBERLAND AND PENNSYLVANIA RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 603; 1871 Md. LEXIS 89 

June 23, 1871, Decided 

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

The material allegations of the bill of complaint in this case, which was filed by the appellants against the appellees, are stated in the opinion of the Court. The object of the bill was to enforce a specific execution of certain covenants entered into by the appellee, the Mount Savage Iron Company of Allegany county, with some of the appellants and those who are represented by the others of them, dated the 8th of September, 1849, and to obtain an injunction to restrain said company, and the other appellee, the Cumberland and Pennsylvania Railroad Company, from the further alleged violation of such covenants. In the agreement of the 8th of September, 1849, it was recited that the appellants, (or more strictly speaking, the parties thereto, whose interests are represented by the appellants,) owned and possessed a certain piece of land lying between the Potomac river and Flat street, in the town of Cumberland, and upon which they were desirous to have erected wharves and other improvements, which would afford proper facilities for the accommodation of the coal and all other trade on the Chesapeake and Ohio canal. They [**2]  agreed to grant and convey to the Mount Savage Iron Company in perpetuity, the right of way for a railroad, with as many tracks as might be required, through their land lying between the points aforesaid, together with as much land for the contemplated depot on the Potomac river as might be required for the accommodation and protection of the engines and machinery, used in working said road.

The parties mutually agreed that the wharves, slips and other improvements therein contemplated, should be erected from time to time, as the demand and necessity of the trade might require. They further declared that the improvements thereby contemplated to be made, were the construction and erection of such wharves, slips and all such improvements as might be necessary to accommodate with wharfage, and facilities for transshipment of all coal, iron, lumber and all other articles, materials and things which might be brought to said wharves for shipment upon the canal, and also for wharfage and transshipment of merchandize and all other property received by the canal. The wharves were to be made at the joint expense of the parties to the agreement, and the wharfage was to be divided between [**3]  them; the railroad was to be extended, and the other improvements were to be made at the cost of the company.

The bill being laid before his honor, Judge PERRY, he passed an order requiring the defendants to show cause, by a day therein named, why an injunction should not issue as prayed.

The Cumberland and Pennsylvania Railroad Company thereupon filed a voluminous answer, in which it denied that the agreement of 1849, professed to oblige the Mount Savage Iron Company to make the wharves erected on the lands of the appellants, its depot for any other freights than coals brought over its road from the Jennings' and Braddock's Run region. It denied as fact that the respondent had delivered coals, brought from said region, elsewhere than at such wharves. As matter of law, it denied that such covenant was binding on the respondent as the assignee of the Mount Savage Iron Company. It insisted that the Chesapeake and Ohio Canal Company and Thomas J. McKaig and William Walsh were interested in the event of the suit, and as such, were necessary parties thereto; it relied on other defences, which are sufficiently disclosed by the argument of the counsel for the appellees.

On [**4]  the 27th of November, 1870, an order was passed overruling the motion for an injunction. The order recites that the motion was submitted "without argument on the merits thereof," and that the order was passed "with consent of the parties and pro forma."

From this order the complainants appealed.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

Construction of an Agreement -- Covenant not Running with the Land -- Covenant restrictive of Trade -- Action for Breach of Covenant -- When maintainable -- When the Specific execution of a Covenant will be denied -- When the Assignee of land will be restrained in its Use and occupation -- Parties to a Suit in Equity -- Equity Practice -- Practice in the Court of Appeals.

The M. S. Company possessed very extensive manufacturing and mining powers, and the franchise of making and operating a railroad or railroads, beginning the same at or near its mines or manufactories, and running to a convenient point or points at or near Cumberland, or to such other point or points as should best suit its convenience and interest. It had also the power of purchasing and holding all such property as it might require, and to make and enter into all manner of contracts in relation to the business and property aforesaid. The company purchased land in the valley of Jennings' run, and erected iron-works thereon. It built a railroad leading thence to the depot of the Baltimore and Ohio Railroad Company at Cumberland, and with a branch thereof up to certain coal mines in the valley of Braddock's run. L possessed lands fronting on the Potomac river above the dam of the Chesapeake and Ohio canal at Cumberland, on which he desired to erect wharves for the accommodation of the coal trade, and other trade of the canal. In 1849, it was agreed between L and the M. S. Co., that L should grant, and he did grant to the company the right to extend its railroad to the river front of his lands, and to erect wharves along a portion thereof, with other improvements necessary for the accommodation of all coal, iron, lumber and other articles which might be brought thither for shipment on the canal. It was further agreed, that the property reserved by L, should not be used in any manner to compete with the company in its transportation of coal from the region of Braddock's and Jennings' run. But this stipulation was not to affect his right to use this reserved property for purposes of the coal trade from the Westernport region; and the company covenanted on its part to make the terminus of its road on said land its only terminus on the canal or its basins, and not to extend the present terminus of its road at the depot of the Baltimore and Ohio Rail Road, any further than it was then. The wharf and other improvements contemplated by the agreement were made and operated. In 1854, the M. S. Co., sold its railroad, with its right acquired under the agreement, to the C. and P. R. R. Co., which extended the railroad by several stages into the valley of George's creek and down to Westernport, and was at the time of filing the bill, conveying coal from the Westernport region over its extended road, and the original road of the M. S. Co., to its terminus at the depot in Cumberland, and thence to the wharf of M. & W., on a basin of the canal, where it was delivered for further transport on the canal. HELD:

1st. That the transport over its road by the M. S. Co., and delivery at the wharf of M. & W., of coal mined in the Westernport region, would not have been a breach of its contract to make the terminus of its road on L's land, its only terminus on the canal or its basins.

2d. That this covenant did not run with the land and easement granted, into the hands of the C. and P. R. R. Co., as assignee of the M. S. Co.

3d. That the covenant being restrictive of trade and in the nature of a monopoly, would not be specifically enforced in Equity against either company. Quaere?

4th. That L would have his right of action against the M. S. Co., for a breach of covenant, if such had been committed, but he could not have the covenant specifically executed. If any attempt were made by the assignee of the M. S Co., to use and apply the wharf and other improvements on the land of L, in a manner and to a purpose different from that intended, a Court of Equity would restrain such improper use and appropriation. In such case, the question would be, not whether the covenant ran with the land, but whether the party should be allowed to use and appropriate the land in a manner wholly at variance with the contract entered into by its assignor, and with notice of which it purchased.

5th. That if the bill had stated a case for equitable relief, the canal company and M. & W., would have been necessary parties thereto.

Declared as settled practice, that on a motion for an injunction, made or submitted after filing of the answer, the answer is to be read; and that where all the circumstances forming the equity of the bill are denied by the answer, the injunction ought to be refused.

The bill asking in the alternative a rescission of the agreement, the cause was remanded for further proceedings.  

COUNSEL:
Thomas S. Alexander and William Schley, for the appellants.

The fate of this appeal must depend on the construction which is given to the last covenant in the agreement of 1849, to wit:

"And the said Mount Savage Iron Company further agrees and binds itself to make the terminus of its road on said piece or parcel of land its only terminus on the Chesapeake and Ohio Canal or its basins, and not to extend the present terminus of its road at the present depot of the Baltimore and Ohio Railroad Company in Cumberland, any further than it is now." Now, the expression "terminus," when used in reference to railroad or canal transportation, denotes that point on the line of the railroad or canal where transportation over the same habitually ceases, and where the freights carried are habitually delivered over to the owner or consignee thereof,  [**5]  or to some other carrier for further transportation. And the obvious meaning of the parties to the covenant was, that the company should not have any place for the delivery of freights brought over its railroad, for further carriage on the canal, other than the wharf about to be erected on the lands of the appellants, and, especially, should not extend its transportation in the direction of its existing railroad beyond its then terminus at the depot of the Baltimore and Ohio Railroad in Cumberland. It was not the construction of another track of railroad, or the building of another wharf, which was forbidden, but the habitual use of any other railroad track leading to any other wharf, and the use of such other wharf for the delivery of freights which would otherwise be carried to and delivered from the wharf to be so constructed on the lands of the appellants. Upon this hypothesis there can be little difficulty in concluding that the use by the company of the track of the Baltimore and Ohio Railroad Company, connecting its terminus in Cumberland with the wharf of McKaig & Walsh, for the habitual delivery on the canal of freights brought over its railroad, and which, by the agreement [**6]  between the parties, ought to be delivered on the wharf built on the land of the appellants, is an evasion of the said agreement.

But it is said that the coals delivered at the wharf of McKaig and Walsh were brought from the Westernport region, over a line of which the railroad of the Mount Savage Iron Company formed a small part, and that the covenant in question, when taken, as it should be, in connection with other stipulations in the agreement, obliges the company to deliver at the wharf, on the land of the appellants, none other than coals which should have been mined in the Braddock's and Jennings' run region and brought over the line of railroad of the Mount Savage Iron Company exclusively. Clearly, the letter of the covenant is not susceptible of such a contracted interpretation. The company is to have no other "terminus" or place for the delivery of its freights intended for transportation over the canal. The company will not deliver elsewhere any of its freights intended to be passed over the canal. The letter is as simple, general, and comprehensive as language can make it; so much so as to relieve the appellants from the necessity of invoking aid from the maxim, that [**7]  where the letter of a covenant is equivocal, it is to be taken most strongly against the covenantors.

Again--the agreement opens with the concession to the company of an easement to extend its railroad over the lands of the appellants to the water front, and there to erect wharves for the convenient delivery of "all trade seeking said wharves from time to time," for further carriage over the canal. The grant and the covenants are, therefore, mutual and dependent on each other--the one constituting the consideration for the other. And the obvious intent of the covenant was to oblige the company to exercise, in their fullest extent, the easements which were conceded to it. And the equity of this provision is the more apparent, as the wharves were to be built and maintained at the common expense of the appellants and the company, and the wharfages were to be shared between them. If we can find anything in the grant itself, or in other clauses of the agreement which affects to restrain the company in the exercise of its easements to any particular description of traffic, we agree that the general words of the covenant must be subjected to a like limitation. But we shall violate the [**8]  clearest maxims of interpretation, by so construing the grant as to confer on the company the right of exercising its easements for every description of traffic, and at the same time so restricting the letter of the covenant as to impose on the company the duty of using its easements for a particular description of traffic only. There would be no mutuality in such agreement. If, then, we recur to the grant itself, we shall find its language is as general as it could well be made. As already suggested, the wharves to be erected are such as may be necessary for "all trade seeking said wharves from time to time," for delivery on the canal. And in a further article of the agreement, as if to remove all pretexts for misconstruction, the parties declare their objects to be "the construction and erection of such wharves, slips, and all such improvements as may be necessary to accommodate with wharfage and facilities for transshipment of all coal, iron, lumber, and all other articles, materials and things which may be brought to said wharves for shipment" on the canal.

Can we collect from the context of the entire agreement, a general intent at variance with the particular intent, which [**9]  is evidenced by the letter of the grant and its dependent covenant? This question would seem to be easy of solution. Large outlays being contemplated to establish a suitable terminus on the land of the appellants, economy and convenience were to be promoted by the use of that terminus for all the purposes of the company's traffic, and the interests of the appellants in like manner were to be advanced by the most extensive use of that terminus.

It is impossible to imagine a motive inducing the appellants to insist on restricting the company in its use of the terminus, or the company to consent to any such restriction. Certainly, there is no motive so apparent as to justify us in overruling the general expressions of the grant and covenant.

But we shall be referred to another clause whereby the appellants stipulate "that the other property belonging to them, and binding on the Potomac, shall not be used *** in a manner or for a purpose to compete with the Mount Savage Iron Company in the transportation of coal from the region of Braddock's and Jennings' run, and in opposition to or in competition with or diminution of the value of the wharfage and improvements herein contemplated,  [**10]  so far as the same depend on or are connected with said transportation of coal from said region."

"This stipulation is in no way to limit or affect their right to use, sell or convey said other property for *** purposes connected with the coal trade from the Westernport region, and other trade on said canal and river, and the Baltimore and Ohio Railroad west of Cumberland and not from the Braddock's or Jennings' run region; the object of the restriction above stated being merely to prevent rivalry and competition and thereby diminished profits from the transportation and wharfage of the coal from the said Braddock's and Jennings' run region." This stipulation, it will be insisted, shows that an extension of the railroad of the company into the Westernport region was not contemplated at the date of this agreement. It professes to secure to the company a monopoly in the carriage of coals from a limited district, and the subsequent covenant is to be restricted so as to impose on the company the duty of exercising that monopoly.

Now there is no covenant on the part of the company that it will not encroach on the traffic from the Westernport region, which it is supposed was [**11]  intended to be secured to the appellants. It was a matter of no moment to the appellants whether the coals from the Westernport region were to be delivered at the wharves to be erected under this agreement, or at other wharves which should thereafter be erected on the lands reserved by the appellants. Hence there was no necessity for a covenant to prevent competition between the parties in regard to the trade from this region. And every advantage, which could be hoped for in reason, was fully provided for by the covenant that the company should have no other terminus for delivery of freights brought over its road. It may be that the casus of a future extension of the road was not present in the mind of the parties at the date of the agreement. It may be that they contemplated as more probable the delivery of coals and other freights brought down the river, at wharves to be erected on the lands reserved by the appellants. What would have been the conclusion of the parties if their attention had been addressed to the contingency of an extension of the road? Would the company have accepted an easement limited only to the carriage of coals from the Jennings' and Braddock's run region?  [**12]  Would the appellants have consented that the coals to be brought by means of such extension from the Westernport region should be landed at any other terminus than the wharves about to be erected? If the letter of the grant and of the covenant embraces, by reason of its universality, the supposed casus omissus, then we insist that this letter is not to be curtailed in its proportions to gratify the letter of another stipulation, whose special object was to secure to the company a monopoly in the transport of coals which were at that moment finding their way to another terminus. We insist that such was its only object. The appellants covenant that they will not so use its reserved lands as to draw off any part of the traffic of the company in the coals of the named district. And it declares expressly, with the view of excluding the possibility of an adverse conclusion, that it proposes to use those lands for the purposes of other traffic. But there is nothing in any part of the entire agreement from which it can be inferred that the views entertained by the parties, were adverse to the practicability or probability of an extension of the railroad into the Westernport region. As matter [**13]  of fact, it is denied that such an extension was deemed impracticable by the public generally, or by either of the parties to the agreement. And, as matter of law, it is denied that the construction of the agreement in respect to the grant of the easement or covenant for its user is to be affected by evidence of such supposed opinions, or of the supposed want of authority of the company to make such extension. In East Lancashire Railway Co. vs. Lancashire and Yorkshire Railway Co., 25 Eng. L. & Eq., 465, it appeared that the A. company had constructed a railroad from M., northward, of considerable extent. The B. company was incorporated with power to build a railroad of some ten miles, leading from M. to a neighboring village. The two companies agreed that the B. company should connect its road leading from the village with the road of the A. company at a point some five miles from M., and should use the road of the A. company between the point of junction and M., and its depot at M., for the general purposes of its business. The B. company made its road, and then, under several acts of parliament subsequently passed, made several extensions of its little road so that at length it [**14]  rivalled in extent and amount of traffic, the road of the A. company, and it then became a question whether the B. company had a right under the agreement, to use the railroad and depot of the A. company for the purposes of this increased traffic? It was agreed on the part of the A. company, that neither party had contemplated the possibility of so great an extension of the road of the B. company, and that the concession made to a neighborhood road to facilitate the transaction of its very limited business, was very different from the concession of like privileges to a company which had assumed a position amongst the great carriers of the nation. But it was answered and so adjudged on error, that the concession, in terms extended to all freight which might be carried over the original line of the B. company, and that it could make no difference to either company whether the freights delivered at the original terminus of the B. road were brought there by the ordinary trains of the country, or by railroad made by the B. company or by another company, and especially as the compensation to the A. company would be measured by the use made of its road and depot. Now this case, and especially [**15]  the reasoning of the Court, is a direct authority in favor of the right of the Mount Savage Iron Company to use its road made through the lands of the appellants, and the wharves to be erected at the terminus thereof, for the delivery of all freights which should be brought over its road, and equally so in favor of the right of the appellants to insist that all freights brought over the road of the company, should be delivered at that terminus. To the appellants, clearly, it was of no moment to inquire whether the freights so delivered were supplied by the mines opened on the line of the original railroad of the company, or were brought to that road over other roads leading from more distant points. And if the easement may be so exercised, the appellants ought to have the right to insist that it shall be thus exercised. The present case is indeed stronger than the case referred to, since, in the present, the company is availing itself of a contingency which the argument on the other side supposes was not contemplated, to deprive the appellants of the profits of a traffic which the same argument supposes would, of necessity, be landed at the reserved lands of the appellants. Thus far [**16]  we have conceded that the company, at the date of the agreement, had no power to extend its railroad into the valley of George's creek. Now, we insist that the company had the power to buy coal lands or ore deposits in that valley, and to connect them by railroad with its factories at Mount Savage. The road thus extended would be open for the public use. The company has, by the very letter of its charter, the power to extend its railroad in any and every direction as its own convenience might render expedient, and, in this respect, the present case differs from the case referred to, where the extensions were made under additional parliamentary grants. See Turner vs. Evans, 2 E. & B., 512; Brampton vs. Beddoes, 13 C. B., (N. S.,) 538; Dunlop vs. Gregory, 10 N. Y., 241; Davis vs. Barney, 2 G. & J, 382.

The covenant was and is binding on the Mount Savage Iron Company, being founded on a valuable consideration, and not inconsistent with the provisions of its charter, and not violative of any rule of public policy. Rigby vs. Great Western Railway Co., 4 Railway Cases, 175; Shrewsbury Co. vs. London Co, 2 McN. & G., 324; Earl Lindsay vs. The Great Northern Railway Co., 10 Hare, 664;  [**17]  Lancaster Co. vs. North Western Co., 2 K. & J., 293; Mayor, &c. of Balto. vs. Balto. & Ohio R. R. Co., 21 Md., 50; Eastern Co. vs. Haukes, 5 H. L. Cases, 370; Shrewsbury Co. vs. N. W. R. Co., 6 H. L. Cases, 135, 136; South Yorkshire Co. vs. Great N. R. Co., 9 Exch., 75.

The Cumberland and Pennsylvania Railroad Company claims to have acquired by assignment all the interest of the Mount Savage Iron Company in its railroad, and in the agreement between that company and the appellants. At the same time it denies its obligations to perform the covenants entered into by its assignor, and which formed the consideration for the concessions made by the appellants to the Mount Savage Iron Company.

The appellants are disposed to stand by the agreement in its entirety, they are quite content to accept any one as the representative of the Mount Savage Iron Company, who will assume the responsibilities cast by the agreement on that company. But in view of the pretences set up, they are impelled by a duty of self-preservation to question the right of the Cumberland and Pennsylvania Railroad Company to represent the Mount Savage Iron Company, as a party to the agreement between them and [**18]  that company. The agreement is made with the company only and not with or for its assigns. It contemplated the exercise by the company of franchises, which, at the date of the agreement, were incapable of assignment. The agreement is unlimited in duration by its letter. But it is quite apparent, that the burthens imposed on the lands of the appellants were to continue so long only as the Mount Savage Iron Company was in a position to discharge its reciprocal obligations; that is to say, so long as it could avail itself of the easements conceded in the manner provided for by its charter. But an easement to be exercised under the provisions of one company, is not identical with an easement to be exercised by another company under the provisions of a distinct charter. Nor was it possible for the State, by an Act passed since the date of the agreement, to empower the Mount Savage Iron Company to sell to another company an easement which was peculiar to itself, and when originally created was incapable of assignment.

The covenant in question is not a covenant in gross. An easement is an estate, and a covenant defining the manner in which an easement over land is to be enjoyed, runs [**19]  with the easement as closely as a like covenant would run with land, to the enjoyment of which it is attached. Balley vs. Wells, 3 Wils., 25; Earl of Portmore vs. Bunn, 1 B. & C., 694.

The covenant, so far as it relates to the railroad over the land of the appellants, and the erections thereon, runs with the land or easement thereon. To this extent, at least, it certainly touches or concerns the land over which the easement is granted. And therefore it may be assumed that coal which is brought by the assignee on this section of the railroad, and intended for transportation on the canal, must be discharged from the wharves at the other extremity of this section of the railroad.

The only question therefore will be whether the same covenant runs with or is appurtenant to so much of the railroad as lies beyond the lands of the appellants; and in this connection it is to be noted that the covenant is substantially this, that coals brought on the railroad at its western extremity, for transportation over the canal, shall be discharged on the canal from the wharves constructed on the lands of the appellants. Hemingway vs. Fernandes, 13 Sim., 228; Vyvyan vs. Arthur, 1 B. & C., 410;  [**20]  Bristow vs. Wood, 1 Coll., 480; Western vs. McDermott, L. R., 1 Eq., 499.

But in equity the question whether the covenant runs with the land yields to the broader question -- is its observance essential to the protection of the interests for the benefit of which it was entered into? Fulk vs. Moxhay, 2 Phill., 774; Patchen vs. Dubbins, 23 L. & Eq., 609; Whatman vs. Gibson, 9 Sim., 196; Clements vs. Wells, L. R., 1 Eq., 200; Fielden vs. Slater, S. P., L. R., 7 Eq., 523; Wilson vs. Hart, L. R., 1 Ch., 463; Catt vs. Fowle, L. R., 4 Ch., 654; Morland vs. Cook, L. R., 6 Eq., 252; Thruston vs. Minke, 32 Md., 488.

Is the covenant to be avoided as in restraint of trade, because the covenanting party has discerned that it may effect a delivery of its freight over another route at a less cost to itself, or because at this moment the proprietors of another wharf offer facilities to the coal owners, at rates somewhat less than are charged for like facilities, at the wharves on the lands of the appellants? It is not shown that the charges made by the latter are excessive, nor even that those charged by Messrs. Walsh & McKaig, are remunerative or likely to be permanent in the event of the [**21]  breaking up the wharves on the land of the appellants. This Court has held that a contract in restraint of trade would be enforced if founded on good consideration, and induced by a reasonable view of the interests of the parties. Guerand vs. Dandelet, 32 Md., 561.

William Walsh and Thomas J. McKaig, for the appellees.

The bill has not brought all the parties in interest in the decision of the case, before the Court: William Walsh and Thomas J. McKaig, whose wharf would be destroyed by granting the relief prayed, ought to have been made parties, as also the American Coal Company, the Central Coal Company, and the Chesapeake and Ohio Canal Company, which are all interested in the granting the prayer of the bill, and to grant it, would greatly injure each of them and directly violate the interest and rights of each. Gregg, et al. vs. Mayor, &c., of Balt., 14 Md., 479; Story's Eq. Pl., sec. 75; 1 Bland, 292; Shields vs. Banoll, 17 Howard, 145; Calvert on Suits in Equity, 113-116, (in 17 L. L.;) 9 Hall, 284-289; Kerr on Injunctions, 551; 16 Vesey, 324, side.

The Court should not grant the injunction for want of a full and fair disclosure in the bill by averments and exhibits.  [**22]  Nesbaum vs. Stein, 12 Md., 315; Keighler vs. Savage M. Co., 12 Md., 383; Canton Co. vs. Northern Cent. R. Co., 21 Md., 398; Hankey vs. Abrams, 28 Md., 588.

The Cumberland and Pennsylvania Railroad Company showed cause against the injunction by filing its answer under oath by the day fixed. There was no replication filed or testimony taken, and the Court in passing on the right to the injunction, must give full effect both to the denials of the answer and all matters of avoidance. Mason vs. Martin and Kemp, 4 Md., 124; Story's Eq. Pl., 871, note 1; Barroll's Ch. Pr., 144; Hall vs. McPherson, 3 Bland, 529; 2 Saundf. S. Ct. Rep., 675; Bell vs. Purvis, 15 Md., 22; 3 Minnesota, 217.

Neither injunction nor specific performance are a matter of right, but rest in the sound discretion of the Court, having full regard to all the circumstances of the case, the duties and positions of the parties, and the nature of the interests to be affected. Nesbaum vs. Stein, 12 Md., 315; Reddall vs. Ryan, et al., 14 Md., 444; State vs. Jarrett & Harwood, 17 Md., 309; Canton Co. vs. North. Cent. RR. Co., 21 Md. 398; Waters vs. Howard, 8 Gill, 261; Wadworth vs. Manning, et al., 4 Md., 59; Williams [**23]  vs. Earl of Jersey, 1 Craig & Phil., 91; 2 Story's Eq., sec., 959, a; 2 Johns Ch., 282; Kerr on Injunctions, 209, 210, 213.

Preponderance of inconvenience is sufficient to cause the refusal of an injunction, and where the right asserted is doubtful, or not very clear, the Court will not grant an injunction to disturb the enjoyment of property or franchises. Attorney General vs. The Mayor & C. of London, 1 Mylne & Craig, 171; Greenhalgh vs. Manchester and Birmingham Railway Co., 3 Mylne & Craig, 798; Bacon vs. Jones, 3 Mylne & Craig, 433; Cory vs. The Yarmouth & Norwich Railway Co., 3 Hare., 593.

Looking at the case as presented on bill and answer, and at the character of the Cumberland and Pennsylvania Railroad Company, as a railroad corporation holding public franchises, and bound to the public to use those franchises for the increase of trade and commerce, and looking to the interests of the Chesapeake and Ohio canal, and other parties that would be affected by the injunction, the complainants ought not to have the remedy they ask.

The contract on its face states that the road provided for therein to be made from the Maryland Mining Company's road, to the piece of [**24]  land for the wharf, was "to be laid out at present with one track, and to be supplied hereafter with as many other tracks as the accommodation of all trade seeking said wharves from time to time render necessary." And that the improvements to be made on the lands are wharves, slips, &c., "to accommodate with wharfage, and facilities for transshipment of all coal, iron, lumber and all other articles, materials and things which may be brought to said wharves for shipment, &c."

The contract in its terms only applies to trade seeking the wharves to be built under it, and to articles which may be brought to said wharves for transshipment. This contract surely leaves the shipper free to send his coal and other articles to any other wharf; to seek or bring his trade or articles where he pleases for transshipment. This contract surely did not bind the Mount Savage Company to compel the shipper to seek, or bring, his trade or merchandise to the wharf or wharves provided for in the agreement.

The Court will notice that no coal whatever is taken from the mines of the Mount Savage Company, or Jennings' run, and that all the coal from Braddock's run region comes to Cumberland by the Maryland [**25]  Mining Company's road; and that all the coal that goes to Walsh & McKaig's wharf comes from the George's creek region, west and south of Frostburg, or what is known as the Westernport coal, that looked for its outlet by the Baltimore and Ohio Railroad and the George's Creek Railroad.

The contract has this provision: "And the said parties of the first part do hereby further agree and bind themselves that the other property belonging to them and binding on the Potomac river shall not be used by them or by any other person or company in a manner or for a purpose to compete with the Mount Savage Company in the transportation of coal from the regions of Braddock's and Jennings' run, and in opposition to, or in competition with, or diminution of, the value of the wharfage and improvements herein contemplated, so far as the same depend on or are connected with said transportation of coal from said region."

"This stipulation is in no way to limit or affect the right of said parties of the first part to use, sell or convey said other property for wharves, warehouses, coal yards, or other purposes connected with the coal trade from the Westernport region and other trade on said canal [**26]  and river and the Baltimore and Ohio Railroad west of Cumberland, and not from the Braddock's or Jennings' run region. The object of the restriction above stated being merely to prevent rivalry and competition, and thereby diminished profits from the transportation and wharfage of the coal from said Braddock's and Jennings' run region."

This contract cannot be applied to coal coming from the George's creek or Westernport region. The complainants here expressly reserve the right to use and sell their other property on the Potomac, for wharves and warehouses, &c., connected with the coal trade from the Westernport region, and only bind themselves not to use it so as to compete with the profits and wharfage on coal transported from the Braddock's and Jennings' run region. In other words, the agreement plainly relates to and provides for the coal to come over the road from the Braddock's and Jennings' run region, and as plainly excludes the coal to come from the Westernport region, and leaves the complainants free to provide on their other land for the wharfage, &c., of that coal on its transportation thither by other means. No one then dreamed that the Mount Savage Company's road [**27]  could or would ever be extended over the Frostburg mountain to Westernport, and bring the coal from the latter region to Cumberland. The Mount Savage Company at the date of the contract had no legal power to extend its road, and both parties to the contract deemed it a physical impossibility to cross the Frostburg mountain with the road. Hence, the contract only provides for Braddock's and Jennings' run coal. Now all the coal going to Walsh & McKaig's wharf is from the Westernport or George's creek region. It is all outside of the contract. But even if the contract was general in its terms and did not expressly exclude George's creek coal, it must be construed by the subject-matter and condition of the parties when it was made. The light of future days cannot be reflected upon it. It must be limited by the state of things existing at its date and by the capacity of the corporation at that time. This rule is supported by reason and authority. 1 Wallace, 133, and cases cited; 5 Wallace, 689; Brewster vs. Kitchen, 1 Ld. Raym., 318; Penn., Del. and Md. Steam Nav. Co. vs. Dandridge, 8 G. & J., 247; 1 Md. Ch., 543; 1 Gill, 222; Law Rep., 5 Ch. Appeals, 525; 4 De Gex & Jones, 362; 1 Kay,  [**28]  274; Law Reps., 2 Eq. R., 525-527; L. R., 4 T. B., 180, 186; Munt vs. The Shrewsbury & Chester R. Co., 13 Beav., 1.

If a change of circumstances occurring after the date of a contract renders it inequitable to decree specific performance, how much more inequitable is it to apply a contract to a state of facts that did not come into existence for many years after its date, and was not then deemed possible to occur, and to enforce it according to this elastic construction against those who were not parties to it, and against interests that have since grown up from developments of trade, channels of transportation and legislative grants of power not then contemplated. Duke of Bedford vs. Trustees of British Museum, 2 Myl. & K., 552.

But if the contract covered all the ground that is claimed for it, and was made by the present owner of the road, the C. & P. R. R. Co., it ought not to be enforced, for it is void as being against the policy of the State, and affecting expensive public works and public interests, interfering with the course of trade by forcing it into inconvenient channels and preventing it from seeking newer and better devised ones, and depriving the coal trade [**29]  on the canal, of the benefit of the great principle of competition--in all which the common weal, the inspiration and life of all human law, is deeply concerned. Raphael vs. Thames Valley R. Co., Law Reps., 1866, 2 Eq. Cas., 37; Att'y General vs. E. H. & S. Railway Co., Law Reps., 1868, 6 vol., 106; Windham Cotton Manuf. Co. vs. H., Prov. & Fishk. R. R., 23 Conn., 373; Hooker vs. Woodward, 4 Denio, 349; Stanton vs. Allen, 5 Denio, 434; Doolin vs. Ward, 6 Johns. Rep., 194; Crouch vs. London & N. W. R. R. Co., 14 C. B., 258; 4 De Gex, M. & G., 115, 132, 136; 4 De Gex & Jones, 389.

The Cumberland and Pennsylvania Railroad is a public highway, and so was the Mount Savage Company as regards its road; and every railroad company is a trustee of the powers and franchises granted to it, for the benefit of the public, and cannot make a contract to associate others with its directors in managing its road, or shaping its policy, or limiting the exercise of its franchises, where the public is concerned. 1 Redfield on Railways, 54, 193-201, 230; Hartford & New Haven R. R. Co. vs. N. Y. & N. H. R. Co., 3 Robertson, N. Y. Rep., 411; Great Northern Railway Co. vs. The Eastern Railway Co., 9 Hare,  [**30]  306; Same vs. Same, 11 Com. Bench, 775; Colman vs. The Great Eastern Railroad Co., 10 Beav., 1; Bernard vs. Rufford, 1 Sim. N. S., 556; 12 Beav., 339; Ohio & Mississippi R. R. Co. vs. Indianapolis & Cincinnati R. R. Co., 5 Am. L. Reg. N. S., 735; McGregor vs. Dover & Del. R., 14 Barb., 471; Shrewsbury & Birmingham R. Co. vs. London & N. W. Co., 16 Beav., 441, and in 3 Mann. & G., 70, and on appeal in 4 De Gex, McN. & G., 115.

A railroad company is obliged to make its road according to its contract with the public, and to use it for the public when made, and cannot change it without legislative authority.

The contract here is to abandon its own road, and use a piece of road of the Cumberland Coal and Iron Company in its stead. Rex vs. The Severn & Wye R. R. Co., 2 B. & Ald., 681; People vs. Albany & Vermont R. R., 24 New York, 261; Balt. & Susq. R. R. Co. vs. Tilghman, et al., 2 Gill, 20; Rex vs. Inhabitants of Cumberworth, 3 B. & Adol., 108; Blakemore vs. Elamorganshire Canal Company, 1 M. & Keene, 162; Lee vs. Milner, 2 Mee. & W., 824; Same Case, 2 Y. & Col., 616; Queen vs. The Eastern Counties' Railway Co., 1 Eng. R. & C. Cas., 375; Queen vs. Lancashire & Yorkshire R. R.  [**31]  Co., 1 El. & B., 178; Cohen vs. Wilkinson, 1 Mac. & G., 481.

But even if the contract was valid against the Mount Savage Company, it can, upon no sound principle, be enforced against the Cumberland and Pennsylvania Railroad Company. The franchises and public obligations of the latter company cannot be restricted by the contract of another party. The Cumberland and Pennsylvania Railroad Company was chartered by the Act of 1849, ch. 469. The 3d section gave it power to purchase, hold, lease, sell and convey estates real, personal and mixed, so far as necessary for the purposes limited in the Act, and the 12th section enables it to construct a road, and lateral railroads in any direction, and the 19th section gave citizens and corporations of the State the right to connect with its main and lateral roads leading from the main route to any part or parts of the State.

The Act of 1853, ch. 96 (section 2) authorized it to "purchase" a road instead of constructing it, and (section 5) "to receive any existing railroad, or any part thereof, in payment of any subscription of stock, &c."

The Act of 1856, ch. 11, authorized it to extend the Mount Savage road which it had purchased [**32]  before that time, from Mount Savage to the George's Creek Coal and Iron Company's road; and the Act of 1860, ch. 78, approved an extension along Neff's run, and authorized an extension of its road or branches to any mines in the valley of George's creek; and the Act of 1864, ch. 53, confirmed its purchase of the George's Creek Coal and Iron Company's road, which completed its road to Piedmont.

It holds, owns and manages its road, and every part of it, as its property, under its own franchises, and subject to the obligations imposed on it as a highway and common carrier.

The contract is personal to the Mount Savage Company. It does not profess to bind "its assigns or successors." It does not even bind the Mount Savage Company not to assign or sell the road or interests acquired under the contract. If the complainants have any remedy, it is at law against the Mount Savage Company.

The contract between the complainants and the Mount Savage Iron Company, gave the former no estate or interest in the Mount Savage Company's road. The Cumberland and Pennsylvania Railroad Company is the assignee of the road. But there is no privity of estate between it and the complainants. The [**33]  owner of real property cannot bind it in the hands of his assignee, with a burden in favor of a stranger. Without contract or privity of estate, there can be no burthen imposed. Notice makes no difference. Webb vs. Russell, 3 Term Rep., 402; Collins vs. Plumb, 16 Ves., Jr., 454; Plymouth vs. Carver, 16 Pick., 183; Taylor vs. Owens, 2 Blackf., 301, adopted in 10 C. B., 164; Keppel vs. Bayley, 2 Myl. & K., 517.  

JUDGES:
The cause was agued before BARTOL, C. J., STEWART, BRENT, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*623]  ALVEY, J., delivered the opinion of the Court.
The object of the bill in this case is to enforce specific execution of certain covenants entered into by the Mount Savage Iron Company of Allegany county, with some of the complainants 

 [*624]  and those who are represented by the others of them, dated the 8th of September, 1849, and to obtain an injunction to restrain said company and the Cumberland and Pennsylvania Railroad Company, from the further alleged violation of such covenants The Mount Savage Iron Company and the Pennsylvania Railroad Company are the only defendants to the bill; and the latter company having answered, the injunction was refused,  [**34]  and it is from the order refusing the injunction that the present appeal is taken.
The answer of the one defendant, under oath, having been put in before the application for the injunction was acted on, it must appear either that merits are confessed, or that some substantial and material averments of the bill are left undenied, to entitle the complainants to the injunction as against the defendant answering. 3 Danl. Ch. Prac. 1883; Magnay vs. Mines Royal Co., 3 Drew. 130. Where the injunction has been issued upon the sworn averments of the bill alone, it is the universal practice to dissolve it upon the coming in of the answer, if all the circumstances upon which the equity of the bill is founded be denied. And it is the equally well settled practice to refuse the injunction where the application is made after the coming in of the answer denying the equity of the bill. Ad. Doct. Eq., 356, and authorities collected in note.
As the case is disclosed upon bill and answer, we think there is sufficient ground for the refusal of the injunction, apart from all other questions, in the want of proper parties. The Chesapeake and Ohio Canal Company, and Walsh and McKaig, the [**35]  owners of the new wharf on the canal basin, are shown to have such an interest in the subject-matter of the litigation, as to require that they should have been made parties defendants. No such relief as that prayed for by the bill could be given without affecting the interest of those parties, and the plainest principles of justice require that their interest should not be adversely affected in their absence, and without an opportunity to be heard. We shall not, however, dispose of the case as now presented upon this ground alone, but shall 

 [*625]  examine and decide such of the more prominent questions involved as are supposed to be material to the relief prayed by the complainants.
The Mount Savage Iron Company was originally incorporated, by the Act of 1846, ch. 297, as the Lulworth Iron Company, and by the subsequent Act of 1847, ch. 57, its name was changed to that of the Mount Savage Iron Company. This corporation was invested with all the powers, privileges and rights, proper and necessary for carrying on the manufacture of iron, and of articles of which iron is a component part, and for opening, working, transporting to market and vending the produce of its lands, mines [**36]  and manufactories, and also for the purchasing and holding all such property, real, personal or mixed, as it might require for the purposes specified; and with full power and authority "to make and enter into all manner of contracts in relation to the business and property aforesaid." And by the 6th section of the act of incorporation, "for the purpose of enabling said corporation to transport the produce of its mines and manufactories to market and elsewhere, in the cheapest and most expeditious manner," it was invested with all necessary powers and privileges for "locating, establishing and constructing a railroad or railroads, with the necessary appurtenances, beginning the same at or near the mines or manufactories of the said corporation, and running to a convenient point or points at or near the town of Cumberland, or to such other point or points as may best suit the convenience and interest of said corporation." And, by proviso to the same section, full right and privilege is reserved to the citizens of the State, or to any company incorporated by the State, to connect with such railroad or railroads, upon certain conditions; and the corporation is required to transport [**37]  on its railroad all persons and property, at the same rates of toll and prices of transportation as the Baltimore and Ohio Railroad Company are allowed to charge and receive. Power is also reserved to the legislature to regulate, modify or change the 

 [*626]  control, use and estate of the railroad authorized to be constructed, in such manner as it should deem equitable towards the corporation, and necessary to the accommodation of the public.
This company, with these corporate powers and franchises, had, prior to September, 1849, acquired and held large bodies of coal and other mineral lands in the valley of Jennings' run, in Allegany county, and had erected and in operation thereon large rolling-mills and other works for the manufacture of iron, and had constructed or purchased, and was operating a line of railroad, which extended from their works at Mount Savage to the depot of the Baltimore and Ohio Railroad Company at Cumberland, which was, at that time, the only terminus of such road at the Cumberland end thereof; and over this road the company was transporting the products of its own works and mines, and freight for other persons. Up to this time the Chesapeake and Ohio [**38]  canal had not been finished to Cumberland, but was nearly approaching completion to that point. And in view of such completion, the Mount Savage Iron Company, on the 8th of September, 1849, entered into the agreement with the complainants for the erection of wharves, and the right of way for railroad tracks thereto, on and over the lands of the latter, bordering on the river Potomac, and in near proximity to the canal, for the purpose of making convenient communication with canal transportation.
A wharf was erected, the railroad track or tracks laid, and the other improvements, contemplated by the agreement, were placed upon the land of the complainants by the Mount Savage Iron Company, and that company entered upon the use and enjoyment thereof at once, and continued to use and enjoy the same, in the mode and manner as provided for in the agreement, until the year 1854, when it assigned all its interest and estate in the wharf, and other improvements, placed upon the land of the complainants, together with all right it possessed under the agreement of whatever kind or nature, to the Cumberland and Pennsylvania Railroad Company; and 

 [*627]  since which time the latter company [**39]  has been in the use and enjoyment of the wharf and other improvements, in the same manner as formerly used and enjoyed by the Mount Savage Iron Company. The agreement of the 8th of September, 1849, contains many clauses and stipulations, but there are only two which are immediately involved in this case. By the first of these, it is expressly stipulated that certain other described property belonging to the complainants, and binding on the river Potomac, "shall not be used by them, or by any other person or company, in a manner or for a purpose to compete with the Mount Savage Iron Company, in the transportation of coal from the regions of Braddock's and Jennings' run; and in opposition to, or in competition with, or diminution of, the value of the wharfage and improvements herein contemplated, so far as the same depend on, or are connected with said transportation of coal from said regions." The agreement then proceeds to declare that "this stipulation is in no way to limit or affect the right of said parties, of the first part (the complainants) to use, sell or convey said other property for wharves, warehouses, coal yards, or other purposes connected with the coal trade, from the [**40]  Westernport region, and other trade on said canal and river, and the Baltimore and Ohio Railroad, west of Cumberlaud, and not from Braddock's or Jennings' run region. The object of the restriction above stated being merely to prevent rivalry and competition, and thereby diminished profits from the transportation and wharfage of the coal from said Braddock's and Jennings' run region." The next stipulation involved, and which is the last in the agreement, is that upon which the complainants mostly rely, and that is, that the Mount Savage Iron Company "further agrees and binds itself to make the terminus of its road on said piece or parcel of land, its only terminus on the Chesapeake and Ohio canal, or its basin, and not to extend the present terminus of its road at the present depot of the Baltimore and Ohio Railroad Company, any further than it is now."

 [*628]  And the grievance now complained of, as stated in the bill, and which is the only ground for the relief prayed, is, that the Mount Savage Iron Company and the Cumberland and Pennsylvania Railroad Company, or one of them in concert with the other, for some weeks prior to the filing of the bill in this case, "have been engaged [**41]  in carrying coal over the line of the Mount Savage Iron Company, as it existed at the date of the agreement, to the wharf, on the line of a basin, constructed by McKaig and Walsh, and forming a basin of the Chesapeake and Ohio canal, and there delivering the same into canal boats for transportation over the canal; the said companies or company using, for the purpose of said carriage, a section of the track of the railroad of the Baltimore and Ohio Railroad Company, connecting with the terminus of the railroad of the Mount Savage Iron Company at the depot of the said Baltimore and Ohio Railroad Company, at Cumberland, as it existed at the date of said agreement, and with the railroad tracks on the wharf of the said McKaig and Walsh; by which means large quantities of coal which would otherwise be carried over the line of said road, and be delivered at the wharves constructed by the Mount Savage Iron Company, on the aforesaid parcel of land, owned as aforesaid by your orators, are diverted from the said line of railroad and wharves, and thus the profits which the said parties to the said agreement of the first part anticipated, and which were intended to be assured to them by the execution [**42]  of the agreement, have been greatly lessened." The bill further charges that the conduct of the companies, or such one of them as may be actually using and operating the railroad of the Mount Savage Iron Company, is in effect the making of another terminus of such road on the Chesapeake and Ohio canal, and its basin, and is an extension of that road beyond its terminus at the depot of the Baltimore and Ohio Railroad Company, as it existed at the date of the agreement, and is, therefore, a breach of the covenant made by the Mount Savage Iron Company.

 [*629]  The prayer of the bill is, among other things, that an injunction may issue, "to prevent the defendants, and each of them, from carrying and delivering coal which shall or may be carried over the railroad owned by the Mount Savage Iron Company, as it existed on the 8th of September, 1849, or any part thereof, to any point beyond the terminus of the said railroad in the depot of the Baltimore and Ohio Railroad Company, as it existed on the day aforesaid, or in any wise aiding or assisting by the use of their motive power or rolling stock, or otherwise, in the carrying and delivery of such coal beyond the said terminus." [**43]  
Now, treating the case as between the complainants and the Mount Savage Iron Company, upon the undisputed facts as disclosed by the bill and answer, have the former a right to the relief sought as against the latter, under the contract? And to determine this question we must first ascertain to what subject-matter the contract relates, and what conduct on the part of the Mount Savage Iron Company was intended to be prohibited by it.
At the date of the contract the railroad of the Mount Savage Iron Company extended no farther westward than the location of its main works at Mount Savage; nor had that company any power to construct a railroad beyond that point. By its charter the railroad was to begin at or near its mines or factories, and run to some convenient point or points at or near the town of Cumberland. It was not authorized to extend the road into the George's creek valley, and its operation was confined to the transportation of the coal and other mineral products of the Braddock's and Jennings' run regions. It is to those regions that the contract refers, as the locations from which the coal was to be transported to the wharves erected on the land of the complainants. And [**44]  understanding such to be the field of the road's operation, while providing against competition in the trade from those regions, the parties expressly declare that no stipulation contained in the contract should in any way limit or affect the right of the 

 [*630]  complainants to use, sell or convey their adjoining property, fronting on the river, for wharfs, warehouses, coal yards, or other purposes connected with the coal trade from the Westernport region, and not from the Braddock's or Jennings' run region. Thus plainly showing that it was only the trade from this latter region that was in the contemplation of the parties at the time, and so far as the trade from other regions or sections was concerned, and particularly the Westernport region, the parties were left entirely unrestrained by the contract. That being so, if it be true, as stated in the answer, that all the coal that has been transported over the road that formerly belonged to the Mount Savage Iron Company at the date of the contract, and taken to the wharf of Walsh and McKaig, on the canal basin, has been brought from the George's creek valley, or the Westernport region, it is difficult to perceive upon what principle [**45]  the complainants can suppose themselves aggrieved. The principle of construction is well settled, that to fairly understand the meaning and intent of the contracting parties, reference must be had to the condition of things existing at the date of the contract. Courts should read the contract as the parties understood it, and, in order to do that, they should avail themselves of the light of all the surrounding circumstances. And applying this rule of interpretation to the contract before us, even if its terms and obvious intent were less plain than they are, we could not fail to perceive that the contract was never intended to apply to the coal trade that might thereafter be opened from the Westernport or George's creek region. And although it is not pretended that the contract contains any express affirmative stipulation on the part of the Mount Savage Iron Company, that all the coal that might be transported by it, should be taken to the wharves on the complainants' land, it is, nevertheless, insisted that the covenant by the corporation, to make the terminus of its road on the land of the complainants its only terminus on the Chesapeake and Ohio canal, and not to extend its then [**46]  terminus at the depot of the Baltimore and 

 [*631]  Ohio Railroad Company, towards the canal, plainly implies a covenant to take to the complainants' wharf all the coal transported by the railroad of the Mount Savage Iron Company for transshipment on the canal; and that too without reference to the location or region from which it may be transported. In this general proposition, however, to the extent contended for, we do not agree. This latter covenant must be construed with reference to the subject-matter in the contemplation of the parties at the time, and must not be given a scope and operation which was never designed it should have. As we have said, the contract only contemplated and was intended to apply to the trade from the regions in which the road was operating at the time. The largest application, therefore, that could be given to this restrictive covenant, is to prohibit the establishment of any depot or terminus of the road other than those mentioned, to which the coal and other freight from the regions of Braddock's and Jennings' run could be taken. The corporation had power under its charter to make the eastern terminus of its road at any "convenient point or [**47]  points at or near Cumberland, or at such other point or points as should best suit the convenience and interest of the said corporation;" and, according to our construction of the contract, it only restricted itself in the exercise of the power of selecting the points of termination as to the trade from the particular sections mentioned. If, by subsequent legislation, the corporation had been empowered to extend its road into other sections, or to become general carriers without reference to any particular private object of incorporation, we do not for a moment suppose that it would be so far bound by this covenant as to be prevented from adopting such other depot or terminus of its road, as would better suit its own and the public's interest and convenience. As to the produce of its own mines and manufactories, it is clear, it was perfectly competent to the corporation to bind itself to ship them from any particular wharf; but as to such freight as the railroad was bound to carry for others than the corporation itself, and as 

 [*632]  common carriers, it is very questionable indeed whether such a covenant as that under consideration, even in its restricted form, would be enforced [**48]  by a Court of Equity. Railroad companies accept and hold their privileges and franchises with reference to the public interest as well as their own; and, indeed, they are, as was said by a learned English Chancellor, trustees of the public, in an important sense of that term. No contract, therefore, unless plainly authorized by their charter, if it is likely to be detrimental to the interest of the public, can obtain the sanction of a Court of Equity. Monopolies, and compacts for the prevention of competition in trade, can never, as a general thing, be promotive of the public good, and hence they are not favored by Courts of Justice; and the covenant in question has rather too much of that obnoxious element in it to meet with much favor at the hands of a Court of Equity upon an application for specific execution. It is not deemed necessary, however, to decide this particular question here, as there are other questions involved quite decisive of the case before us.
Seeing, then, upon a fair construction of the agreement, what are the rights of the complainants as against the Mount Savage Iron Company, what are their rights as against the Cumberland and Pennsylvania Railroad Company,  [**49]  the assignee, and, at this time, the sole and exclusive owner of the road owned and used by the Mount Savage Iron Company at the date of the agreement?
The Cumberland and Pennsylvania Railroad Company was incorporated by the Act of 1849, ch. 469, with authority to construct and operate a separate and independent road from that of the Mount Savage Iron Company; and, unlike the latter company, it is exclusively a railroad company, unconnected with mining or manufacturing operations. It is a general carrier of passengers and freights, and has the usual railroad powers and franchises, and is, of course, subject to the ordinary principles that govern common carriers of its class. One main object of its incorporation and construction 

 [*633]  was the facility it might afford to the development of the coal trade of that section of the State, and in which the State itself was, and is still, largely interested. It is now one of the main instrumentalities by which the coal trade on the Chesapeake and Ohio canal is maintained, and its operation, therefore, is alike important to the coal companies and the Chesapeake and Ohio Canal Company. By its original charter, this corporation was authorized [**50]  to construct a railroad from the town of Cumberland to some suitable point on the dividing line between the States of Maryland and Pennsylvania, with power to make lateral roads in any direction whatsoever. By supplements to its charter, it was authorized to purchase existing railroads, or to take the same in payment of capital stock subscribed; and, under these powers, it constructed, and acquired by purchase, a continuous line from the town of Westernport up the George's creek valley to Frostburg, and from thence to the town of Cumberland. By the Act of 1853, ch. 96, section 5, authorizing the company to accept any existing railroad in payment of stock, any incorporated company then existing in Allegany county, was authorized to subscribe to the capital stock of this company, and in pursuance of this authority, the Mount Savage Iron Company subscribed for stock, and in payment thereof, assigned to the Cumberland and Pennsylvania Railroad Company the line of railroad running from the foot of the Frostburg mountain to the town of Cumberland, and which forms a part of its continuous line from Westernport to Cumberland. The deed of assignment is dated the 2d of January, 1854, and by [**51]  which, besides the road, all the interest, right and estate of the Mount Savage Iron Company in and to the wharf property, together with all the rights and benefits secured to and held by it under the agreement of the 8th of September, 1849, are assigned to the Cumberland and Pennsylvania Railroad Company. In the use and operation of the road, therefore, the Mount Savage Iron Company has no interest or control whatever, except as stockholder in the Cumberland and Pennsylvania 

 [*634]  Railroad Company. To what burden, then, is this latter company subject, under the agreement of the 8th of September, 1849, by reason of the assignment by the former company?
It is contended by the complainants that the burden and restriction of the covenants, on the part of the Mount Savage Iron Company, attached to the entire road itself, as it existed at the date of the agreement, and that such burden and restriction adhere to and follow the road into the hands of the assignee, its present holder, who is bound to use the road only as the Mount Savage Iron Company could use it, under the agreement, and in no other way. We are not, however, of that opinion.
In Spencer's Case, 5 Coke, 16,  [**52]  which is the leading case on this subject, the action was covenant by the lessor against the assignee of the lessee, on a covenant by the lessee for himself, his executors and administrators, that he, his executors, administrators or assigns would build a new brick wall on the demised premises; and it was for not making the wall that the action was brought. And the Court, among other resolutions, resolved, 1st. That when the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is in a manner annexed and appurtenant to the thing demised, and shall run with the land, and shall bind the assignee, although he be not bound by express words; as if the lessee covenant to repair the houses, this is parcel of the contract, and extends to the supporting of the thing demised: but, because the covenant in that case was in respect of a thing which was not in esse at the time of the demise made, but to be newly built after, and therefore bound only the covenantor, his executors or administrators, and not the assignee, the covenant did not, by the law, annex. 2d. But if the lessee had covenanted for himself and his assigns,  [**53]   that they would make a new wall upon some part of the thing demised, that forasmuch as it is to be done upon the land demised, that it should bind the assignee; for although 

 [*635]  the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words. These in short are the first two resolutions in that celebrated case, and the distinction there taken between the cases where the assignee is bound, although not named, and where he can only be bound by the express words of the covenant, has been recognized and acted on in modern cases. Balley vs. Wells, 3 Wils. 25, 27; Vernon vs. Smith, 5 B. & Ald. 1.
In this case, the covenant does not stipulate for the covenantor and its assigns; and as in Spencer's Case, the stipulation for the erection of the wharves and other improvements on the complainant's land, was in reference to things not then in esse; nor was the implied covenant to ship coal over the wharves that might be thereafter built, of a nature to attach to the road of the covenantor, in the hands of an [**54]  assignee; certainly not without express words to that effect, if even then. For suppose, instead of such an assignment as was made, the road, as it existed at the date of the contract, had been assigned to one party, and all the right, title and estate acquired by the Mount Savage Iron Company under the agreement had been assigned to another and a different party, what would have been the predicament of the complainants? They would clearly have no right to enforce the covenant against the assignee of the road, with whom they would have no privity, and whose road would have no connection whatever with their estate. Nor could they insist upon the execution of such a covenant by the assignee, of the right and interest under the contract, as he would not have the road with which it could be done.
The case having the closest analogy in its facts to the present, is that of Hemingway vs. Fernandes, 13 Sim. 228. There A., a land owner, entered into articles of agreement with B., the lessee of a neighboring colliery, by which he agreed to grant to B. a lease of part of the land for the purpose of forming a railway for the conveyance of coal to certain 

 [*636]  wharves, [**55]  and B., for himself and his assigns, agreed with A., his heirs and assigns, to convey upon the railway all the coal to be gotten from the colliery, or from any other lands or grounds in the township, and to pay to A., his heirs and assigns, two pence for every ton of coal so conveyed. B. assigned his interest in the colliery, and in the lands taken under the articles of agreement, for forming the railway, together with the use of the railway, to C. And it was held, that the agreement to convey all the coal upon the railway ran with the land, and, consequently, that it was binding on C., the assignee; but it was so held upon the express ground that the covenantor had covenanted for himself, and his assigns in terms; the Vice-Chancellor saying that it seemed to him that the case did expressly fall within the second resolution in Spencer's Case.
But the more controlling authority with us is the case of Keppel vs. Bailey, 2 M. & K. 517, a case in which all the previous authorities are elaborately reviewed by Lord Chancellor BROUGHAM. There, certain parties having formed themselves into a company for the establishment of a railroad called the Trevil, the two Keppels,  [**56]  who held the Beaufort iron works under a long lease, had covenanted with the proprietors of the railroad and their assigns, that they, and their assigns, would procure all the limestone wanted for the iron works from the Trevil quarry, and carry it along the Trevil railroad, paying a certain toll. The Keppels assigned their lease of the iron works to the defendants, who began to construct a railroad to other lime quarries, situated eastward of the Trevil quarry; and on a bill for an injunction to restrain them from using that or any other new road, it was held that the covenant did not run with the land so as to bind the assignees at law, and that a Court of Equity would not, by holding the conscience of the purchaser to be affected by the notice of the covenant, give such covenant a more extensive operation than the law allowed to it. And upon the main question, whether the covenant was of a nature to run with the Beaufort iron works, so as to bind the assignee, the 

 [*637]  Lord Chancellor said: "Assuming that the Keppels covenanted for their assigns of the Beaufort works, could they, by a covenant with persons who had no relation whatever to those works, except that of having [**57]  a lime quarry and a railway in the neighborhood, bind all persons who should become owners of those works, either by purchase or descent, at all times, to buy their lime at the quarry, and carry their iron on the railway; or could they do no more, if the covenant should not be kept, than give the covenantees a right of action against themselves, and recourse against their heirs and executors, as far as those received assets? Consider the question first upon principle--there are certain known incidents to property and its enjoyment; among others, certain burdens wherewith it may be affected, or rights which may be created, or enjoyed with it, by parties other than the owner; all which incidents are recognized by the law. But it must not therefore be supposed that incidents of a novel kind can be devised and attached to property, at the fancy or caprice of any owner. It is clearly inconvenient, both to the science of the law and to the public weal, that such a latitude should be given. There can be no harm in allowing men the fullest latitude in binding themselves and their representatives, that is, their assets, real and personal, to answer in damages for breach of their obligations.  [**58]  This tends to no detriment, and is a reasonable liberty to bestow; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real property, and to impress upon their lands and tenements a peculiar character, which would follow them into all hands, however remote." His opinion was very decided, that the covenant did not adhere to the Beaufort iron works, and, consequently, the assignee was not bound by it.
But it has been suggested that the authority of this case of Keppel vs. Bailey, is questionable, and that it is not consistent with other decided cases. So far, however, from such being the case, we find that it is constantly referred to by approved writers on the subject as a leading case, and its authority has 

 [*638]  been most pointedly sanctioned by the recent case of Ackroyd vs. Smith, 10 C. B., 164.
We are of opinion, therefore, that the covenant here in question does not run with or adhere to the railroad of the Mount Savage Iron Company, as it existed at the date of the agreement, so as to bind it in the hands of the assignee. The Cumberland and Pennsylvania Railroad Company [**59]  purchased this road under express authority of the legislature, and it is entitled to hold and use it under the powers and franchises conferred upon that company by its charter, without being in any way fettered by the covenant of the former owner of the road. The complainants may have their right of action against the Mount Savage Iron Company for a breach of covenant, if there has been a breach committed, but they cannot have the covenant specifically executed. It is true, if any attempt were made by the assignee of the Mount Savage Iron Company to use and apply the wharves and other improvements on the land of the complainants, in a manner and to a purpose different from that intended, a Court of Equity would restrain such improper use and appropriation. In such case, the question would be, not whether the covenant ran with the land, but whether the party should be allowed to use and appropriate the land in a manner wholly at variance with the contract entered into by its assignor, and with notice of which it purchased. That is the principle of the case of Tulk vs. Muxhay, 2 Phill. 774; but it is not involved in the present application.
We shall, therefore, affirm the order [**60]  refusing the injunction; but as the bill prays, in the alternative, for the rescission and cancellation of the contract, and the surrender of the property, which raises a question not now proper to be decided, we shall not dismiss the bill, but remand the cause, that further proceedings may be had with a view to the determination of the question as to the alternative relief.
Order affirmed and cause remanded. 

5 of 142 DOCUMENTS 

DANIEL J. FOLEY, Adm'r c. t. a. of EUGENE CUMMISKEY, vs. DEIDRICK BITTER, and others, Assignees of DANIEL SOLOMON. NATHAN H. CRAWFORD and AUGUSTUS JOHNSON vs. DEIDRICK BITTER, and others. JOHN SCOTT, JR., Trustee, vs. DEIDRICK BITTER, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 646; 1871 Md. LEXIS 91 

June 23, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Superior Court of Baltimore City, in Equity.

The facts are stated in the opinion of the Court.  

DISPOSITION:
Affirmed and remanded.  

HEADNOTES:

Statute of 13 Elizabeth, section 6 -- Construction of the Acts of 1864, ch. 109, and 1868, ch. 116, relating to Evidence -- Attachment on Judgment -- Election of Remedies -- Fraudulent Assignment for the benefit of Creditors.

An attachment on judgment was laid by a judgment creditor in the hands of a trustee, under a deed of trust for the benefit of creditors, before the filing of a bill, to which the judgment creditor was a party complainant, to vacate such deed on the ground of fraud; upon appeal from an order dismissing a petition asking that the judgment creditor be compelled to elect whether to proceed with the equity suit or with the attachment, it was HELD:

1st. That in any view of the case, the petition was too late.

2d. That the two suits were not ad idem.

To sustain a bill filed by creditors to set aside an assignment to C as trustee, by B and J, the testimony of B was offered, an order for taking the same having been passed on application of the complainants. The administrator of C filed an exception on the ground that B was incompetent to testify under the provisions of the Acts of 1864, ch. 109, and 1868, ch. 116. HELD:

That the witness B did not come within the provisions of these Acts, and his testimony was admissible.

A debtor in failing circumstances, may give preferences to creditors, and may stipulate for releases, provided his deed is made bona fide, and conveys all his property.

An assignment for the benefit of creditors which, though valid on its face, is made with a fraudulent intent to delay, hinder and defraud creditors, and which, at the time of its execution, is intended to be and by its terms may operate as an instrument in aid of the fraud, is void as fraudulent in fact.

In the case of a voluntary assignment, the innocence of the trustee, or of the creditors named in the deed, will not save it from condemnation under the Statute of 13 Elizabeth, if fraudulent in fact on the part of the grantors. The trustee and the creditors are not protected as bona fide purchasers under the 6th section of the Statute.  

COUNSEL:
John Scott, Jr., for himself as trustee, and for Foley, administrator. And

J. D. Ferguson, for Crawford and Johnson.

Robert A. Dobbin and Patrick M'Laughlin, for the appellees.

Assignments for the benefit of creditors exacting releases are not favored in law. They are merely tolerated when honestly made. Stone vs. Marshall, 7 Jones, N. C., 300; Am. Exchange Bank vs. Inloes, 7 Md., 380; Brashear vs. West, 7 Peters, 608; 1 Am. Lead. Cases, 73.

A debtor who desires to avert the natural course of the law in the payment of his debts, must dedicate all his property to that purpose, both in form and in fact. Green & Trammell vs. Trieber, 3 Md., 28; Sangston vs. Gaither, 3 Md., 52.

He may direct and control the distribution, but he cannot shield any part from this obligation. Malcolm vs. Hodges, 8 Md., 418; Barnitz vs. Rice, 14 Md., 29; Bridges vs. Hindes, 16 Md., 101; Ins. Co. vs. Wallis & Thomas, 23 Md., 173.

Assignment for the benefit of creditors may be void, though the trustee did not know of the fraud. Stickney [**2]  vs. Crane, 35 Vermont, 89; Ruble vs. McDonald, 18 Iowa, 493; Flanigan vs. Lampman, 12 Michigan, 58; Baldwin vs. Peet, 22 Texas, 708; Gere vs. Murray, 6 Minnesota, 305; Stewart vs. Spenser, 1 Am. Law Reg., 520; Mohawk Bk. vs. Atwater, 2 Paige, 59; Ratcliffe vs. Sangston, 18 Md., 383.  

JUDGES:
The causes were argued before BARTOL, C. J., GRASON, MILLER and ALVEY, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*648]  BARTOL, C. J., delivered the opinion of the Court.
These appeals have been argued together and may all be disposed of in one opinion. They present the question of the 

 [*649]  validity of the deed of trust for the benefit of creditors, executed by Augustus Johnson and William Behr, co-partners, to Eugene Cummiskey, Esquire, on the 29th day of June, 1865.
The bill of complaint was filed by Deidrick Bitter and Daniel Solomon, who were each creditors of Johnson and Behr, and who sued as well for themselves as for all other creditors who might come in and contribute to the expenses of the suit; charging that "the deed was made, executed, delivered and accepted with the views, purpose and intent to delay, hinder and defraud the creditors of the grantors." It further charges that they did not deliver [**3]  to the trustee all their property, but retained a great portion thereof, "which they had concluded to retain at the time of executing the deed; and that a great portion of the debts preferred by the deed are not real debts; but are fictitious and not bona fide." In the progress of the cause Daniel Solomon for value received, assigned his claim to Ludwig E. Amsinck and others, composing the firm of L. E. Amsinck & Co., who were made parties complainants.
The case was heard below on bill, answers and proof, and the Judge of the Superior Court came to the conclusion upon the whole case that "the transaction was a deliberate scheme by Johnson, in which Behr participated to some, though to a less extent than Johnson, to secrete and appropriate to their own use property which rightfully belonged and should have been appropriated to their creditors, and that the deed now assailed was a part, and a very efficient part, of that fraudulent device, since its direct object was to obtain a release from those who would otherwise have a right to continue their pursuit of them." And in accordance with this opinion the Superior Court decreed that the deed should be vacated and annulled; and further [**4]  decreed that the appellant, Foley, administrator c. t. a. of Cummiskey, deceased, should pay over to John Scott, Jr., trustee, appointed in the place of Cummiskey, the whole sum which was admitted by Cummiskey, in 

 [*650]  his answer, to have come into his hands, of the trust funds under the deed, together with whatever interest the trust funds may have earned; the whole to be distributed by the trustee, Scott, among the creditors of Johnson and Behr, according to their legal and equitable priorities under the direction of the Court. From this decree these several appeals have been taken.
It appears by the record that after the case had been set down for hearing at the instance of the defendants in the Court below, and after the argument had begun, a petition was filed by the defendants, Scott, trustee, and Foley, administrator, alleging that the complainant, Solomon, had before filing the bill, sued out attachments on judgment, in a Court of Law, against Johnson and Behr, and had caused the same to be laid in the hands of Cummiskey, for the purpose of having condemnation of the money which came to the hands of the garnishee under the deed of trust; and praying that Solomon [**5]  might be required to elect whether he will proceed with this suit or with the attachments, so that the petitioners may not be vexed by two suits for the same subject-matter. The facts stated in the petition were admitted by the complainants' solicitors.
We think the Superior Court was right in dismissing the petition and refusing to require the complainant to elect. In any view of the case, the application came too late; even if the case were one in which such election might have been required. But there is no rule requiring an election in the case here presented. The proceedings upon the attachment and the bill in this case are not instituted for the same purpose, nor can they attain the same object. Although the validity of the deed would be incidentally involved in the trial of the case at law; yet there a judgment for the plaintiff, would simply establish his right to so much of the money in the hands of the garnishee, as might be necessary to pay his debt. The object of this suit is to have the deed vacated and annulled for the benefit of all the creditors. The two 

 [*651]  suits are not ad idem. Besides Deidrick Bitter, one of the complainants, has not instituted any [**6]  proceeding by attachment; and cannot be denied the right to prosecute the present suit. Whatever rights or liens Solomon may have acquired by his diligence in instituting proceedings at law, we think, as said by the Court below, he is entitled to retain. But that is a question not directly presented by this appeal; it will arise upon the distribution of the fund in case the deed be set aside. Before considering the main question in the case, involving the validity of the deed, there are some other preliminary questions, which will be disposed of.
An exception was filed by the appellant, Foley, to the testimony of William Behr, who was examined as a witness for the complainants; upon the ground that Cummiskey being dead and Foley, as his administrator, being a party to the suit, it was not competent for Behr, who was in the position of an opposing party, to fix by his testimony a liability upon the estate of the deceased. That he was rendered incompetent to testify by the provisions of the Acts of 1864, ch. 109, and 1868, ch. 116.
On this exception we concur in the opinion of the Judge of the Superior Court, that the witness Behr does not come within the provisions of the Acts of [**7]  Assembly referred to. He is not an opposing party to Cummiskey in this suit, testifying upon his own offer; but is called by the complainants, parties opposed to both himself and Cummiskey. It has always been competent for a party in a chancery suit, by leave of the Court for that purpose, to call upon the opposing party to testify; and in this case it appears that on application of the complainants, an order was regularly passed for taking the evidence of the defendant, Behr, in their behalf; the exception to his testimony was therefore properly overruled.
The next question arises upon the construction of the agreement signed by the solicitors in the cause, which is as follows: "It is hereby agreed between the parties, plaintiffs and 

 [*652]  defendants to this suit, by their solicitors, that the creditors mentioned, as preferred in the deed of assignment to Eugene Cummiskey, deceased, at the time of the execution and recording of said deed, and ever since have been partnership creditors of the defendants, Johnson and Behr, and that neither of the said last-named defendants owed to the said preferred creditors any part of the amounts for which they were preferred as aforesaid,  [**8]  except in their co-partnership capacity as members of the firm of Johnson and Behr; and it is further agreed that said Johnson and Behr constituted the said firm of Johnson and Behr."
After the signatures of the solicitors is the following, signed by Scott, trustee:
"This agreement does not apply to Nathan H. Crawford; but as to him, the indebtedness of Johnson and Behr is left open to the proof in the cause."
The counsel have disagreed as to the true construction of this agreement. On the part of the appellees it has been contended that its intent and meaning was simply to admit that the parties, named in the deed as preferred creditors, were not creditors of the individual members of the firm; but, if creditors at all, were partnership creditors, without intending to admit the existence of the debts stated to be due them, or to concede that they were creditors at all. While, on the other hand, the counsel for the appellants insist that by the agreement the existence of the debts, as stated in the deed to be due the preferred creditors, is admitted, except only the debt of Crawford, which is left to be proved. This last, we think, must be accepted as the true construction; most [**9]  consistent with its terms; and especially with the supplementary words at the end, by which it is modified so as to except Crawford's claim, and require it to be proved. We are satisfied by the proof in the record, that Crawford was a bona fide creditor for the amount mentioned in the deed. It follows, therefore, that the objection to the deed based upon the averment in the bill that "the alleged debts to the preferred creditors are fictitious and not real," cannot now be urged, it having been waived by 

 [*653]  the agreement as to all but Crawford; and his claim having been established by the evidence.
The question remains, is the deed fraudulent in fact, as charged in the bill, by reason of its having been executed with the purpose and intent to delay, hinder or defraud creditors within the meaning of the Statute of 13th Elizabeth? The solution of this question depends upon the facts and circumstances attending the transaction, as they are disclosed by the evidence. The deed was made when the grantors were greatly embarrassed, and with means wholly inadequate for the payment of their debts; it gives preferences to certain creditors named, then provides for the payment ratably [**10]  of such other creditors, as should within ninety days execute releases; and then for the payment of all other creditors. It purports in terms to convey all the property of the grantors, both partnership and individual; the instrument is therefore valid on its face; the law being well settled in this State that a debtor in failing circumstances may give preferences to creditors, and may stipulate for releases, provided the deed is made bona fide, and conveys all the property of the grantors.
It is well established by the proof in this case, that while professing on the face of the deed to convey all their property, the grantors were fraudulently engaged in secreting and appropriating to their own use, a considerable amount of their property, which did not go and was not intended to go into the hands of the trustee under the deed. It has been argued that the deed being valid on its face, is not affected by the fraudulent acts of the grantors, which it is said were acts done not under, but against the deed, and we have been referred to Wilson vs. Forsyth, 24 Barb. 105; Thomas vs. Talmadge, 16 Ohio St. 433; Klapp's Assignees vs. Shirk, 13 Pa. 589; [**11]  and Miller vs. Halsey, 4 Abbotl's Prac. Rep., (New Series,) 28, in support of the proposition that the failure of the debtor to deliver all the property assigned, does not necessarily invalidate the assignment. Conceding this proposition to be correct, it is still beyond question, as well upon reason and authority, as upon the words of the Statute, that if the assignment be made 

 [*654]  with the fraudulent intent to delay, hinder and defraud creditors, and at the time of its execution be intended to be, and by its terms may operate as an instrument in aid of the fraud, then it falls "within the words as well as the mischief of the Statute," and is void as fraudulent in fact. We have carefully examined the cases cited in the argument, and many others bearing on this question, but consider it unnecessary to refer to them here; while they are in some respects conflicting, the weight of authority supports the proposition we have stated. For a very clear and able exposition of the principles applicable to this case we refer to the opinion of Judge CURTIS, in Stewart vs. Spencer, 1 Am. L. Reg. 520.
In the case before us, we are entirely satisfied by the [**12]  proof that the deed was not bona fide, but was intended to aid the grantors in dishonestly withholding a large portion of their property from their creditors, and at the same time to enable them to obtain releases from their debts, by fraudulently pretending, by its terms, to convey all their property for the benefit of their creditors.
The stipulation for releases, although allowed by the law where the assignment is bona fide, and all the property is in fact conveyed; yet, is not permissible where the deed is not in fact intended to vest in the trustee all the property of the debtor, or to dedicate it to the benefit of the creditors. It is clear, from the proof in this case, that this stipulation was intended to deceive the creditors, and was a fraud upon them, and that the deed was a mere device or instrument in the perpetration of the fraud, and, therefore, upon the principle before stated, is itself fraudulent and void.
We think there is nothing in the evidence to show that either the trustee or the preferred creditors, participated in the fraud; but, in the case of a voluntary assignment like this, the innocence of the trustee or of the creditors named in the deed, will [**13]  not save it from condemnation under the Statute, if fraudulent in fact on the part of the grantors. The trustee and the creditors are not protected as bona fide purchasers under the 6th section of the Statute.

 [*655]  It is proper to state that we do not mean, by anything in this opinion, to impugn the principles decided in Brooks vs. Marbury, 24 U.S. 78, 11 Wheat. 78, 6 L. Ed. 423, and The State vs. The Bank of Maryland, 6 G. & J. 205. This case is widely distinguished from those, and is governed by different principles. We place our judgment, in setting aside this deed, upon the distinct ground that it is proved to have been fraudulent in fact, and contained stipulations for releases which were intended to operate and in fact did operate in aid of the fraudulent acts of the grantors.
It has been contended, on behalf of the appellant, Foley, that there is error in that part of the decree which directs that the whole sum of money which came into the hands of Cummiskey, should be paid over to the new trustee. Because Cummiskey, being admitted to be a creditor of Johnson and Behr to the amount of $ 500, his administrator ought to have [**14]  been allowed to retain the amount of the debt due the deceased, out of the funds which came into his hands under the deed according to the decision in Peters vs. Cunningham, 10 Md. 554.
The difficulty about this proposition is, that Cummiskey's debt is not established. It is true that, by the agreement signed by the solicitors, as we have construed it, the debt is admitted, and that admission is binding upon the complainants; but it does not bind other creditors, for whose benefit the suit is brought, and who may come in and dispute its validity.
It is proper, therefore, that the money actually in the hands of Cummiskey's administrator should be paid to the new trustee, as directed by the decree below, leaving the administrator to establish the debt by proof, if it should be disputed by other creditors besides the complainants; these are precluded from doing so by their agreement, and if established, he will be entitled to be paid the sum out of the funds.
Under the circumstances of the case, we will direct that the costs of these appeals be paid out of the fund.
Affirmed and remanded. 

6 of 142 DOCUMENTS 

WILLIAM F. WEBER vs. JEREMIAH WEATHERBY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 656; 1871 Md. LEXIS 92 

June 23, 1871, Decided 

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

This was a proceeding by scire facias, instituted by the appellees, to enforce a mechanic's lien for a furnace, range and hot-air fixtures, &c., furnished by them, and used in the construction of a house in the city of Baltimore, of which the appellant was the owner. While the house was being built, on the 9th of October, 1868, the appellant agreed to sell the same to Charles Ranstead upon the terms mentioned in the agreement. The house was to be finished like one adjoining. Ranstead deposited a hundred dollars as forfeit, in case of non-compliance with the agreement. After the making of the agreement, Ranstead purchased of the appellees the range, furnace and other articles for which the lien was claimed, and they were delivered upon the premises with the knowledge of the appellant, the furnace and range being bricked up in the cellar. Subsequently, Ranstead abandoned the contract, and refused to take the house, and the appellant retained the hundred dollars forfeit, and with it the house and fixtures in question.

Exception: The plaintiffs offered the following prayer, which was granted by the Court:

If the jury find [**2]  the contract offered in evidence, dated the 9th of October, 1868, between Ranstead and Weber and Hubner, for the sale to the former by the latter of the premises mentioned in the lien and scire facias among the proceedings, and shall further find that the plaintiffs furnished and delivered to the said house the articles, and performed the work mentioned in said lien and evidence, at the instance of said Ranstead, and that the said articles were by said plaintiffs so erected and built in said premises, and the work done as aforesaid was so done in said building and erection in said premises of said articles, then their verdict ought to be for the plaintiffs for the whole value of said articles and labor, provided the jury further find that the said lien offered in evidence was laid or filed by the said plaintiffs against said house, within six months after such work had been finished, and said articles and materials had been furnished, and that notice in writing was given to said Weber of the intention of said plaintiffs to claim the benefit of the lien upon said premises, according to the provisions of the Mechanics' Lien Laws, within sixty days after the performance of such work and [**3]  furnishing such materials or articles as aforesaid, as admitted by the defendants.

The defendant excepted to the granting of this prayer. A verdict was rendered for the plaintiffs against the property for $ 520.41, and judgment was entered accordingly. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Mechanics' Lien -- Estoppel.

The owner of a house in course of erection, contracted to sell it to R, and to have it completed like one adjoining. R deposited a sum of money as a forfeit, upon his non-compliance with the contract. Pending the contract, R purchased of W a range, furnace and other articles, which were delivered upon the premises with the knowledge of the owner, the furnace and range being bricked up in the cellar. Subsequently, R abandoned the contract, and refused to take the house; the owner retained the forfeit money, and with it, the house and fixtures in question. On a scire facias by W to enforce a mechanics' lien against the house, for the articles furnished by him, it was HELD:

1st. That the articles must be considered as furnished under the authority of the owner of the house, and he is estopped by his own conduct from disputing the demand.

2d. That the adoption by the owner of the acts of R, permitting the articles to be attached to the house, without objection, makes the house answerable for the same, and creates a lien on the property for its payment.  

COUNSEL:
Richard Hamilton and Orville Horwitz, for the appellant.

Ranstead was not the contractor, architect, builder, or other person contemplated by Article 61, section 11 of the Code of Public General Laws. Code, Art. 61, sec. 13; Duff vs. Hoffman, 13 P. F. Smith, 194; Greenway vs. Turner, 4 Md., 304; Bruner vs. Shiek, 9 Watts & Searg., 119.

The lien, if it attached at all, attached only to Ranstead's interest in the building as owner. Code, Art. 61, sec. 9; Church vs. Griffith, 9 Penn., 118; Esterley's Appeal, 54 Penn., 193; Mills vs. Matthews, 7 Md., 324.

Ranstead, as owner, had no power to bind the building. Brown vs. Morrison, 5 Arkansas R., 217; Mills vs. Matthews, 7 Md., 315; Carson's Lessee vs. Boudinot, 2 Wash. C. C. R., 33; Steinmetz's Ex. vs. Boudinot, 3 S. & R., 541, 542; Carey vs. Winterstein, 60 Penn. S. Rep., 397.

The plaintiffs were bound to see that [**4]  they were dealing with the person who was actually the builder or contractor, at the time the materials were furnished. Greenway vs. Turner, 4 Md., 304.

The prayer was erroneous for that it compelled the jury to find a fact, viz: their verdict ought to be for the plaintiffs "for the whole value of said articles and labor," without leaving the jury the right to doubt the evidence of Ranstead as to price or value. Crawford vs. Berry, 6 Gill & Johns., 71, 72; Stiles vs. Causten, 2 Gill & Johns., 53; Mitchell vs. Doll, 4 Gill & Johns., 376; Davis vs. Barney, 2 Gill & Johns., 404; Burt vs. Gwynn, 4 Harris & Johns., 516.

T. A. Linthicum, for the appellees.

The agreement of October 9th, 1868, for the sale of the property to Ranstead, was sufficient to give him the authority to order work or materials to be done or furnished for or about the building, which, when done or furnished, would subject the building to a lien. The materials, when furnished or delivered at the building, belonged to the owner of the building, which was subject to a lien therefor. No personal right of property was acquired by Ranstead by such purchase--and no creditor of Ranstead could take the materials [**5]  in execution on judgment against him. White vs. Miller, 18 Penn. S. R., 52; Savoy vs. Jones, 2 Rawle, 350; Carson vs. Boudinot, 2 Wash. C. C. R., 34; Lyon vs. McGuffey, 4 Barr, 126; Woodward vs. Leiby, 36 Penn. S. R., 437; Leiby vs. Wilson, 40 Penn. S. R., 63; Donaldson vs. Holmes, 23 Ill., 85; Phillips vs. Clark, 4 Met., (Ky.,) 348; Code, Art. 61, secs. 1-11; American Fire Ins. Co. vs. Pringle, 2 S. & R., 138; Pennock vs. Hoover, 5 Rawle, 306.

The proceeding is against the property--and under the first section the lien is general against every building--and the only exception, in respect of interest, is that expressed in section 9, i. e., with respect to the interest of a lessee or tenant for years or life; and Mills vs. Matthews, 7 Md., 315, is to this extent.

There is nothing in the law which restrains the claimant's right to a judgment for the value of his claim, or his right to have the property sold under execution on his judgment. The question of rights of parties incumbrancers, or persons having liens, arise after a sale upon the distribution of the fund. Wells & Miller vs. Canton Co., 3 Md., 234.  

JUDGES:
The cause was agued before BARTOL, C. J., STEWART, GRASON, MILLER [**6]  ALVEY and ROBINSON, J.  

OPINIONBY:
STEWART 

OPINION:

 [*659]  STEWART, J., delivered the opinion of the Court.
This appeal involves the interpretation of the 61st Article of the Code, in reference to the mechanics' lien. No question is made, as to the form or regularity of the proceedings, under the law, but the claim for the articles furnished by the appellees, although used in the house of the appellant, is resisted by him, upon the ground, that the articles were not furnished by his authority, and that the provisions of the law afford no lien on his property for the same.
There is no doubt, the claim of the appellee must come within the scope of the law, or the lien cannot be maintained. Whilst the house of the appellant was in the course of erection by him, he contracted to sell it to Ranstead. By the terms of the contract, the appellant was to finish the house, 

 [*660]  like the one adjoining; certain payments were to be made by Ranstead, and other stipulations were incorporated in the contract; the sum of $ 100 was deposited by Ranstead, as a forfeit, provided in case of non-compliance on his part.
This contract was subsequently abandoned by Ranstead, because of the alleged inability [**7]  of Weber to finish the house by the time agreed upon, and he refused to take the house. Weber seemed to have acquiesced in the abandonment of the contract, retained the $ 100 forfeit, and with it the house and the fixtures in question, which had been ordered by Ranstead, and furnished and delivered by the appellees on the premises, and put up in the house during the pendency of the contract.
The agreement between the parties for the sale of the house, appears to have been mutually waived, and no question is presented in regard thereto, except as it may relate to the creation and imposition of the lien for the materials furnished, whilst the contract was in force. According to the evidence, the furnace for the house adjoining cost $ 360, whilst the charge for the one ordered by Ranstead, was $ 470. As the house, agreed to be sold, was unfinished and had to be completed by Weber, according to the contract, like the one adjoining, including of course such a furnace as was contained in that; if precisely the same sort of furnace had been directed by Ranstead, and had been put up in the house in the possession of Weber, with his knowledge and without objection, it would be a reasonable [**8]  inference that it was done with his sanction and approval, and by his authority. Under such circumstances there could be no question of his liability, according to the contract, to pay for the same, and that it would fasten a lien on the house to which the fixture was attached, according to a fair construction of the provisions of the law. This would be done, by treating Ranstead as the agent, in this particular, of Weber, the owner of the property.
In our opinion, the fact of the extra cost of the furnace, ordered by Ranstead, and put up in the house, under the circumstances, does not alter the relations of the parties, or modify the law applicable thereto. In either case, Weber 

 [*661]  and his house are responsible; the former, according to the principles of natural justice, and the latter, under the provisions of the statute, for the act of Ranstead. The materials must be considered as furnished under his authority, and he is estopped by his own conduct from disputing the demand. To allow him to repudiate the transaction, would be enabling him by reason of the contract with Ranstead, to perpetrate a fraud upon the mechanic or person, furnishing materials for his house, and [**9]  to appropriate the property of others to his benefit.
The provisions of the law applied to the transaction, give the lien, and make the property upon which the building is erected, answerable for work done or materials contracted for and furnished, accordingly, by the authority of the owner or his agent. Weber owning the house, to be constructed and finished by him, permits Ranstead, after the contract with him and during its pendency, to intervene and assist in the construction of the building, to this extent at least, by accepting his agency and recognizing his acts, by interposing no objection thereto; Weber's adoption of Ranstead's acts, permitting the fixtures to be attached, without notice of objection, makes the house answerable for the same, and creates the lien on the property for its payment.
Objection is taken by the appellant in his brief to the language of the prayer, granted by the Court below, as invasive of the province of the jury, in directing them to find for the appellee, for the entire amount of his claim. There was no dispute as to this and no conflict of testimony, and the jury were substantially instructed upon the other hypothetical facts, referred to in [**10]  the prayer, to find for the appellee, and the terms employed were immaterial under the circumstances of the case.
We have carefully examined all the authorities referred to and within our reach, and we think the law applied to the facts, justified the instruction of the Court.
Judgment affirmed. 

7 of 142 DOCUMENTS 

THE CANTON NATIONAL BUILDING ASSOCIATION vs. CHARLES WEBER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 669; 1871 Md. LEXIS 94 

June 23, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Supreme Bench of Baltimore City.

This suit was instituted by the appellee against the appellant. The cause of action was a single bill of the appellant, dated the 24th of October, 1868, for one thousand dollars, with interest, payable twelve months after date, to the order of the appellee, and by him endorsed. There were subsequent endorsements thereon. A further statement of the case will be found in the opinion of the Court.  

DISPOSITION:
Judgment of the Supreme Bench reversed, and the judgment of Baltimore City Court arrested.  

HEADNOTES:

Pleading -- Misjoinder of Counts -- Act of 1864, ch. 6 -- What the Affidavit required by its 8th section need not state -- Practice.

A count in debt cannot be joined with a count in assumpsit, and such misjoinder may be taken advantage of, by motion in arrest of judgment.

In an action on a single bill, under the Act of 1864, ch. 6, it is not necessary for the plaintiff, filing his cause of action, to state in the affidavit required by the 8th section of the Act to be filed with his declaration, the time from which interest is claimed, the amount thereof or the costs of protest.

Where a single bill, duly endorsed, comes back to the hands of the payee, he may sue, in his own name, the obligor, notwithstanding there may be on the single bill one or more endorsements in full, subsequent to his own, and he need not prove the endorsements, but may erase them or not, at his pleasure. 

COUNSEL:
T. A. Linthicum, for the appellant.

John Henry Keene, Jr., for the appellee.  

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

OPINIONBY:
GRASON 

OPINION:

 [*669]  GRASON, J., delivered the opinion of the Court.
Upon the institution of this suit by the appellee against the appellant, a narr. was filed containing seven counts, the 

 [*670]  first six of which were the common money counts, and the seventh was a count on a promissory note, bearing date the 24th day of October, 1868, for $ 1,000, and payable twelve months after date. Before the jury retired, the plaintiff obtained leave to amend his narr.,  [**2]   and made the amendment by adding an eighth count upon a writing obligatory, bearing date the same day and year, for the same amount, and having the same time to run, as the promissory note declared on in the seventh count.
Additional pleas were filed, issues were joined, and the verdict being against the defendant, it moved in arrest of judgment, and filed four reasons, the first and second, because counts in assumpsit and debt were improperly joined in the narr.; the third, because the affidavit, filed with the narr., alleges an indebtedness of $ 1,000, (exclusive of interest and costs of protest,) and no date is stated in the affidavit from which interest is claimed to be due, and no statement is made of the amount of interest claimed, yet the verdict is for $ 1,085, a greater amount than that stated in the affidavit; and the fourth, because the cause of action filed with the narr., shows, by the endorsements upon it, that the title to the same was not in the plaintiff. The Supreme Bench overruled the motion in arrest, and from the judgment overruling the motion this appeal is taken. Although the forms of pleading have been simplified by the Code, the forms of [**3]  action have been preserved and kept distinct. The pleadings therefore, however simplified, must be still adapted to the particular form of action brought, and counts in debt can no more be joined with counts in assumpsit now than they could at common law. The Act of 1856, ch. 112, section 33, authorized causes of action of whatever kind, except replevin and ejectment, to be joined in the same suit, provided they were by and against the same parties, and in the same right. But the Code does not authorize such joinder of causes of action or counts, and if they are so joined, the misjoinder may be taken advantage of by the motion in arrest of judgment. 

 [*671]  1 Chitt. Plead. 205, 206, 207. For this reason, the judgment in this case ought to have been arrested.
Under the Act of 1864, ch. 6, section 8, it is not necessary to state in the affidavit the time from which interest is claimed. Under that section of the Act, the note or other cause of action is required to be filed with the narr. and affidavit, and the note shows upon its face from what time interest is to be calculated. Neither is it required that the amount of interest should be stated in the affidavit,  [**4]  for even if the amount should be stated, the judgment would not correspond with the statement, inasmuch as the plaintiff is entitled to have interest to the date of the judgment, and it would be impossible to know at what time the judgment would be rendered. Nor was it necessary to state in the affidavit the cost of protest as part of the amount due, as it constituted no part of the debt due, but was merely costs of the protest.
We also think there is no force in the fourth reason. The payee, in this case, was the holder of the single bill, and the plaintiff in the action, and it was therefore unnecessary for him to prove the assignments made upon the writing obligatory. This principle, so far as regards promissory notes and bills of exchange, has been settled by the cases of Dugan vs. The United States, 16 U.S. 172, 3 Wheat. 172, 4 L. Ed. 362, and Bowie, use of Ladd, vs. Duval, 1 G. & J. 175, and the same principle is applicable to cases like the one now before us. The cases above cited, decide that, where the payee is the holder of a note or bill of exchange, he need not prove the endorsements, but may erase them or not, at his pleasure. [**5]  
The judgment of the Supreme Bench overruling the motion in arrest, must be reversed, and the judgment of Baltimore City Court arrested.
Judgment of the Supreme Bench reversed, and the judgment of Baltimore City Court arrested. 

8 of 142 DOCUMENTS 

ELISHA P. P. MCCLURE vs. THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 532; 1871 Md. LEXIS 83 

June 22, 1871, Decided 

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

The facts are given in the opinion of the Court.

At the trial below, the plaintiff offered the following prayers:

1. Even should the jury find from the evidence that the conductor of the train in question had a right under the regulations of the company, and the contract made with the plaintiff, should they find such contract, to put the plaintiff off the train in question, the plaintiff is entitled to recover, if they find that in so doing he acted in an unwarrantable manner, as to time or place or mode thereof.

2. That even should the jury find from the evidence that the plaintiff would have been confined by the terms of his ticket to the particular train on which he then was; still, if they further find that before leaving said train, the plaintiff, as a matter of precaution, enquired of an authorized agent of the company, whether he would be permitted to lie over under the check he then held, and was informed that "he would be," that said check was good until taken up, then the fact of his ticket or check having contained any such instruction, would not of itself prevent the plaintiff from recovering.

3.  [**2]  Even should the jury find from the evidence that the conductor of the train in question had a right to put the plaintiff off; the plaintiff is entitled to recover, if they find from the evidence, that in so doing, the conductor required him to leave while the train was in motion, or put him off at a place where there was no station.

4. Even if the jury should find from the evidence that the conductor of the train in question, had a right to put the plaintiff off, the plaintiff is entitled to recover, if they find from the evidence, that in so doing, the said conductor put him off at a place where there was no station or house near at hand, or any adjacent place for shelter or food, or at any unusual place.

The following instruction was asked by the defendant:

If the jury shall find from the evidence that the plaintiff, on the 1st day of May, 1867, purchased at New York, a through ticket from that place to Baltimore, over the New Jersey railroad and P. W. & B. R. Road, and on that day proceeded on his journey as far as Perryville, on the last named road, where he left the train; and if the jury shall further find that after passing Philadelphia, the then conductor of [**3]  the train took up said through ticket and gave plaintiff the check in lieu thereof, which has been offered in evidence; and if the jury shall further find that the plaintiff, on the 6th day of said May, got upon the defendant's train for Baltimore at Havre-de-Grace, and the then conductor refused to take said check, but informed the plaintiff that he must pay his fare to Baltimore, or he would be obliged to stop the cars and put him off, and that the defendant refused to pay said fare, and the said plaintiff was then put off, then the plaintiff is not entitled to recover in this case; provided the jury shall find that no more force than was necessary was used in putting said plaintiff off the train, even if the jury shall further find, that on arriving at Perryville on the train, on the said first day of May, the plaintiff enquired from a man at the window of the ticket office of the defendant at that place, whether said check would be good to take him on to Baltimore another day, and was told by said man that it would.

The Court rejected the first, second and third prayers of the plaintiff, and granted the fourth, as also the prayer of the defendant. The plaintiff excepted to [**4]  the ruling of the Court in rejecting his prayers and granting the prayer of the defendant, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Contract between R. R. Co. and Passenger -- Right of Conductor to put off a Passenger refusing to pay fare -- Agency.

M, on the 1st of May, purchased a through ticket from N. Y. to B. over the P., W., & B. R. R., and on that day took the through train. The conductor of the train took up the ticket and gave M. a "conductor's check," with the words "good for this day and train only," and with the numerals 5 and 1, showing the month and day, punched out of the "check." M, desiring to leave the train at a way station, inquired of some one at the window of the company's ticket office at the station, if the "check" would take him to B. on another train and day, and was told that it "was good till taken up." On the 6th of May, M entered another train going to B., and, being called upon for his ticket, offered the "check." The conductor refused to receive the "check," and M having refused to pay fare, the train was stopped at a point intermediate between two stations, and by direction of the conductor, M left the train. HELD:

1st. That M had no right to leave the train at the way station, and afterwards to enter another train and proceed to his original point of destination without procuring another ticket, or paying his fare.

2d. That on the refusal of M to pay his fare, the conductor had the right to put him off the train, using no more force than was necessary to effect his removal, and was under no obligation to put him off at a station.

3d. That even if the person, by whom M was told that the "check" was good until taken up, was an agent of the company, the presumption is, that a ticket agent at a way-station has no authority to change or modify contracts between the company and through passengers, and the onus of rebutting this presumption rested on M.  

COUNSEL:
Albert Ritchie, for the appellant, cited the following authorities:

Balto. & O. R. R. vs. Blocker, 27 Md., 277; Goddard vs. Grand Trunk R. R., 10 A. L. R., 17; Terre Haute A. & St. L. R. R. vs. Vanatta, 21 Ill., 188; Du Laurans vs. St. P. & P. R. R., 15 Minn., 49; Holmes vs. Wakefield. 12 Allen, 580; Sanford vs. 8th Av. R. R., 23 N. Y., 343.

Thomas Donaldson, for the appellee, referred to

Balto. C. Pass. R. vs. Wilkinson, 30 Md., 224; 2 Redfield on R., 219; C. C. & C. R. R. vs. Bartram, 11 Ohio, 457; Cheney vs. B. & M. R. R. Co., 11 Metc., 121; Beebe vs. Ayres, 28 Barb., (N. Y.,) 275; Johnson vs. Concord R. R., 46 N. H., 213; State vs. Overton, 4 Zab., 435.  

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

OPINIONBY:
GRASON 

OPINION:

 [*535]  GRASON, J., delivered the opinion of the Court.
At the trial of this case in the Court below the plaintiff offered four prayers, the last of which was granted and the others were rejected, and the defendant offered one [**5]  prayer which was granted. The plaintiff excepted to the rejection of his first three prayers and to the granting of the defendant's prayer, and the judgment being against him, he has taken this appeal.
The first question to be considered is, whether a person, who has purchased a through ticket from New York to Baltimore, taken his place in a train, and entered upon his journey, has the right to leave the train at a way-station on the route, and, afterwards, to enter another train and proceed to his original point of destination, without procuring another ticket or paying his fare from the station at which he again enters the car. We think it clear that he cannot.

 [*536]  The contract between the parties is that upon the payment of the fare the company undertakes to carry the passenger to the point named, and he is furnished with a ticket as evidence that he has paid the required fare and is entitled to be carried to the place named. When the passenger has once elected the train on which he is to be transported, and entered upon his journey, he has no right, unless the contract has been modified by competent authority, to leave the train at a way-station and then take another [**6]  train on which to complete his journey, but is bound by the contract to proceed directly to the place to which the contract entitled him to be taken. Having once made his election of the train and entered upon the journey, he cannot leave that train, while it is in a reasonable manner in the undertaking of the carrier, and enter another train without violating the contract he has entered into with the company. "A contrary doctrine would necessarily impose upon the carrier additional duties, the removal of the passenger and his baggage from one train to another, and the consequent additional attention on the part of the company; also an increased risk of accidents, and a hindrance and delay, not contemplated by a reasonable interpretation of their undertaking." C. C. & C. R. R. Co. vs. Bartram, 11 Ohio St. 457; State vs. Overton, 4 Zabriskie's Rep., 438; 2 Redfield on Railways, 219.
In the case now under consideration the appellant, on the 1st day of May, 1867, purchased a through ticket from New York to Baltimore, and on that morning took his place in the through train and entered upon his journey, and some miles south of Philadelphia his ticket was [**7]  taken up, according to custom, by the conductor of the appellee's train, who gave him in its stead what is called a "conductor's check," with the words "good for this day and train only," printed upon one side, and a list of stations, and numerals on the other; the numerals indicating the months and days of the month. The numerals 5 and 1 were punched, showing that this conductor's check had been used on the appellee's train, 

 [*537]  on the 1st day of May. It is clear, therefore, that the appellant had notice that the check, thus delivered to him in the place of his ticket, could be used only on that day and train. When the train arrived at Perryville, the appellant, desiring to go to Port Deposit to remain a few days, sought the conductor for the purpose of ascertaining from him whether the conductor's check which he held would take him to Baltimore on another day and train. Not finding the conductor, he asked a person whom he saw standing at the window inside the ticket office of the appellee at that place, and was informed by him that it "was good till taken up." The appellant entered another train of the appellee on the 6th day of May, at Havre de Grace, having a Mrs. Taylor [**8]  in his company, and after proceeding some distance was called upon by the conductor for his ticket. He handed him Mrs. Taylor's ticket, procured before entering the train, and the conductor's check, which he had received from the other conductor on the 1st day of the month. He was told by the conductor that the check was not good, and that he must give a ticket or pay the fare. The appellant then explained to the conductor what had occurred at Perryville five days before, and that the agent there had informed him that the check was good until it was taken up. The conductor again said that it was not good and that the appellant must give him a ticket or pay his fare or be put off the train. The appellant still declining to pay, the conductor rang the bell to stop the train, and either after the train had stopped, or when it had nearly stopped and was moving very slowly, the conductor either beckoned or nodded his head to the appellant, who immediately left his seat, went to the platform of the car and stepped off the train. He then walked to Aberdeen, two and a half or three miles off, purchased a ticket and took another train of the appellee three or four hours afterwards, and went [**9]  to Baltimore. The appellant and Mrs. Taylor both testified that the conductor seemed to be very angry and excited; that they thought so from the violence with which he pulled the 

 [*538]  bell-rope to stop the train. The conductor testified that he controlled the train by the bell-rope, and that it was always necessary to pull it violently to insure the ringing of the bell, and, in long trains, to take up the slack of the rope. There is no proof of any anger or excitement whatever, except as regards the manner of pulling the bell-rope. There is some conflict in the evidence as to the fact whether the train had stopped when the appellant left it; but be this as it may, it is certain that it was moving very slowly at the time. The bell had been rung to stop the train; it would, no doubt, have come to a full stop if the appellant had waited a moment longer before getting off. The conductor used no force whatever to put him off, did not require him to get off while the train was in motion, and did not touch or say a word to him. It therefore appears that if the appellant did leave the train while it was in motion, that he did so voluntarily and without injury to himself. Upon the refusal [**10]  of the appellant to pay his fare to the conductor he had the undoubted right to put him off the train, using no more force than was necessary to effect his removal, and the proof shows that he used none whatever. We cannot concur in the doctrine, contended for by the counsel of the appellant, that a passenger, having no ticket and refusing to pay his fare, can only be put off at some station on the road. The establishment of such a principle would result in compelling railroad companies to carry a passenger to the station next to the one at which he entered the train, which might, and doubtless would often turn out to be, the very point to which he desired to be taken, and if the passenger were unknown to the conductor the company would be without remedy.
It is claimed, however, that the appellant was authorized, by the information received from the agent of the appellee at Perryville, to use the conductor's check received by him on the first day of May, and, therefore, that it was unlawful to compel him to leave the train. There is no evidence to prove that the person, from whom the appellant received the information, 

 [*539]  was an agent of the appellee. But even if there [**11]  was proof to establish that fact, the presumption is, that a ticket agent at a way-station has no authority to change or modify contracts between the company and its through passengers, and the onus of rebutting such presumption rests upon the appellant; but upon this point he offered no proof whatever. The check held by the appellant showed upon its face that it was good on the 1st day of May only, and upon but one train on that day, and the prescribed numerals showed to the conductor, to whom it was offered, that it had been used on that day; the conductor had, therefore, the right to reject it, and to require the appellant to furnish a ticket or pay his fare, and upon his failure to do either, to compel him to leave the train.
There was no evidence to show that any violence whatever was used in effecting his removal from the train, or that he was compelled to leave it at an improper time, and the first throe prayers of the appellant were properly rejected; the fourth, which was granted, having left it to the jury to find whether his removal from the train was at an unusual or improper place. The appellee's prayer fairly presented the law of the case to the jury, and it was [**12]  properly granted. There being no error in the rulings of the Court below, its judgment will be affirmed.
Judgment affirmed.
MAULSBY, J., dissented.  

9 of 142 DOCUMENTS 

ALPHEUS R. APPLEMAN vs. JOHN H. FISHER, HARRY FISHER and PARKS FISHER, trading as WM. FISHER & SONS. JNO. H. FISHER, et al., trading as W. FISHER & SONS, vs. ALPHEUS R. APPLEMAN 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 540; 1871 Md. LEXIS 84 

June 22, 1871, Decided 

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

This was an action brought by the appellant in the first of the above cases, to recover damages growing out of an alleged breach of a contract with the appellees for the sale of gold. At the trial below, the plaintiff excepted to the admissibility of certain evidence taken under a commission in New York on the part of the defendants, to prove the fact of the actual purchase of the gold by them on the 24th of September; that it was made by a regular broker at the Gold Board; that the Gold Board was the usual place of buying gold; that the price, $ 1.35, was the best that could be had at the time; and that the gold was actually delivered, and paid for by the defendants through the New York house.

The plaintiff also excepted to the admissibility of all the testimony of certain brokers and merchants as to the usage in Baltimore and New York, with reference to the sale of gold or stock short. The Court overruled both exceptions.

The plaintiff offered the following prayers:

1st. If the jury shall find from the evidence that the plaintiff, on the 31st of March, 1869, sold to the defendants the gold in question, at [**2]  the price specified in the telegrams given in evidence, and that the same was deliverable at any time thereafter, on the respective demand of either party, and shall find that the plaintiff tendered the same to the defendants, on the 10th day of January, 1870, and that the defendants refused to receive and pay for the same, then the plaintiff is entitled to recover such difference in value as they shall find to have existed in gold in the market, on the said two named days, from the evidence, with such interest as they may deem proper to allow under all the circumstances.

2d. That if they shall find that the plaintiff lived in Hagerstown, and the defendants lived in Baltimore, and that such contract was made by the telegrams given in evidence, that then the same is not affected by any custom or usage peculiar to brokers and merchants dealing in gold in Baltimore only, and that the plaintiff is entitled to recover, notwithstanding they may find that by custom and usage among such brokers and merchants, they had a right among each other upon such contracts to demand margins, and a right to close out the same on non-compliance therewith, unless they shall find that such usage and [**3]  custom was universal, general, uniform, certain and notorious, or that the same existed in Hagerstown, and of this there is no evidence.

3d. That if the jury shall find as set forth in the first prayer, then the plaintiff is entitled to recover, unless they shall find that as a part of said contract, by usage and custom obligatory upon the plaintiff, the defendants were entitled to call for margin for security thereof, and to purchase said gold in non-compliance with such demand, and also that in this case there was such a demand; and of all which there is no evidence.

4th. That if the jury believe the plaintiff resided and did business as a banker in Hagerstown, and that the purchase of gold specified in the telegrams given in evidence was made by the defendants of the plaintiff, that by the terms thereof the same was deliverable at the place of sale thereof, and was not deliverable in Baltimore, and that before the plaintiff could be in default in regard thereto, some demand must have been made upon him at the said place of sale for performance of said contract there, and that no usage or custom of Baltimore city, not proved to exist elsewhere in Maryland, can in any manner [**4]  affect the performance of said contract or the rights or liabilities of the parties thereto, unless they shall find that said usage and custom did exist at the said place where said contract was made.

5th. That if the jury shall find that on the 22d of September, 1869, by usage and custom obligatory upon the plaintiff, the defendants had a right to call for margin, and that at said time with the collaterals then on hand of the plaintiff at the then price of gold, the sum of $ 5,000 was the amount of margin proper to be demanded, and that on said day the defendants demanded by letter said sum, and that before compliance could be had gold had receded in price equal to $ 7,500 on the amount of the purchase, then the right to demand said $ 5,000 had ceased, and that plaintiff was not in default until some new and fresh demand for margin, properly entitled to be made, was made by defendants of plaintiff, and that he had failed to comply therewith in a reasonable time thereafter.

6th. That if the jury shall believe that the said gold was bought, as alleged, in New York, on the 24th of September, 1869, for delivery, and that the same was not and could not have been delivered by [**5]  the seller until the 2d of October, 1869, then said seller was in default, and it was the duty of the defendants not to have received said gold, save at the price or value thereof on said last mentioned day; and if they shall find that on that day gold had fallen in price, then, in no aspect of this case, can the defendants charge the plaintiff with a higher value for said gold than it was on the day when the seller was first able and did deliver the same.

The defendants offered the following prayers:

1st. That if the jury find that the meaning of the word "short," used in the contract offered in evidence, in connection with a sale of gold, as established by the usage applicable to sales of gold of the kind mentioned in evidence, is that the seller has not the gold at the time of sale, but sells with the expectation of being able to buy gold for delivery at a lower price, and that by said usage a sale short of gold implies that the seller shall at all times during the running of the contract keep in the hands of the buyer or in the hands of some third party agreed upon between seller and buyer, an amount in cash, or securities equivalent to cash, equal to the difference between [**6]  the price at which the gold is sold short, and its market value on any given day, and a further amount in money, or the equivalent of money, equal at all times to five per cent. on the market value of gold on any day, and that by said usage a sale of gold short further implies that in the event of the failure of the seller at any time to keep in the hands of the buyer security in money, or its equivalent in securities, at a cash valuation, to the extent above stated, the buyer may purchase the gold at the best rate at which the gold can be bought, and charge the seller with the loss that may be thereby incurred. And if they shall further find that on the 24th of September, 1869, the plaintiff had failed, upon the demand of the defendants, to place in their hands money or securities to the extent of the difference between the contract price and the lowest price at which gold could have been purchased on that day in the city of Baltimore, and five per cent. on the value of said gold in addition, and that the defendants thereupon purchased said gold at the lowest price they could buy the same at the time of said purchases, the plaintiff is not entitled to recover.

2d. That assuming [**7]  that the defendants improperly closed the plaintiff's account by the purchase of gold on the 24th of September, 1869, at $ 1.35, the plaintiff is only entitled to recover the difference between $ 131,000 and interest thereon, until the 6th of October, 1869, and the lowest price at which the jury may find the defendants could have bought gold in the Baltimore market according to the instructions contained in the plaintiff's letter of October 4th, 1869, provided the jury shall find that said letter was written and received by the defendants, and provided the jury find that by the usage the defendants were bound to execute the said order of the plaintiff in said letter of October 4th, 1869.

3d. If the jury find that the plaintiff sent to the defendants as margin on his contract with them 4,000 of Washington county bonds, and that defendants objected to receive said bonds as margin and that the plaintiff thereupon promised to replace said bonds with money and failed to do so before the 24th of September, that after such failure the plaintiff is not entitled to require the defendants to treat said bonds as available margin, provided the jury find the usage as to margin set forth in [**8]  the defendants' first prayer.

The Court rejected the first, second, third, fourth, and sixth prayers of the plaintiff, and refused to grant his fifth prayer as offered, but granted the same after modifying it by inserting the words "in Baltimore" after the word "receded."

The prayers offered by the defendants were granted.

To the refusal of the Court to grant the prayers of the plaintiff, and each of them as offered, and to the granting of the prayers of the defendants, the plaintiff excepted.

The defendants excepted to the granting of the fifth prayer of the plaintiff as modified by the Court.

The verdict was for the plaintiff for $ 1,061.50, and judgment was entered accordingly. The facts are stated in the opinion of the Court.

Both parties appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Usage -- Sales of Gold "Short" -- Delivery -- Margin.

A, a banker and broker in Hagerstown, having an account current with F & Sons, bankers and brokers in Baltimore, contracted, on the 31st of March, 1869, through a telegraphic correspondence, conducted mostly in cipher, to sell to the latter "$ 100,000 gold, short," at $ 1.31. This amount of gold, at the price agreed on, was credited by F & Sons to A, and carried by them for him until the 24th of September, 1869, when A's account being, as they claimed, deficient in margin, they purchased gold in New York at $ 1.35 to fill his contract, the gold being actually delivered to them on the 2d of October. A repudiated this purchase, and on the 4th of October, 1869, ordered F & Sons to purchase the gold for his account at its then rate, viz: $ 1.29 to $ 1.30. Upon their declining to do so, he, on the 10th of January, 1870, made actual tender of the gold in Baltimore, and demanded the contract price of $ 1.31, gold being quoted on that day in Baltimore at $ 1.22 to $ 1.22 1/8. The tender was refused, and A brought an action for the difference between the contract price and the market price of gold on the day of the tender. At the trial, evidence was offered on both sides, showing that a sale of gold short meant a sale of that which the seller has not, but which he expects to buy in at a lower price than that for which he sells, that the contract may be consummated upon the order of either party, but that, during its pendency, the buyer or seller is entitled to a margin for his security as gold may rise or fall in the market; this margin must be in money or its equivalent in securities, and equal to from five to ten per cent. on the contract price of the gold, over and above its market price at any time; if the margin be not kept up as gold advances, the buyer has the right to buy in the gold for account of the seller, and charge him with the loss; that such usage prevailed in Baltimore and New York, but was not known to prevail in Hagerstown. HELD:

1st. That from the very terms employed in the contract, it is manifest that it was made in reference to some usage in the contemplation of the parties.

2d. That a contract to sell gold, deliverable at a future day, like a contract for a similar sale of stock, is not illegal.

3d. That whether the usrge prevailed in Hagerstown, is wholly immaterial, the question being whether the parties contracted with reference to the usage existing in Baltimore.

4th. That if usage be adopted by implied or tacit understanding, it is as obligatory upon the parties as if incorporated with the contract itself, provided the usage be not repugnant to or inconsistent with the terms of the contract, or in contravention of existing rules of law. In this case, without its aid, the contract would be unmeaning and senseless.

5th. That usage, however local and partial, will govern a contract proved or presumed to have been made in reference to it.

6th. That the usage proved in this case seems to be reasonable.

7th. That in this case, from the nature of the contract, it is plain that it was not intended that the seller should deliver the gold in Hagerstown.

8th. That the amount of margin is to be fixed and regulated by the price of gold in Baltimore, in the absence of any stipulation to the contrary.  

COUNSEL:
Geo. H. Williams, for Appleman.

The usage attempted to be set up in this case, was not proved to exist elsewhere in Maryland than in Baltimore, and all evidence in regard thereto should have been ruled out.

It was not only not a general, uniform and notorious usage, but it was an unreasonable one, contrary to law, and such as Courts would not imply or enforce. The Chesapeake [**9]  Bank vs. Abell, 29 Md., 500; Citizens' Bank vs. Grafflin, 31 Md., 518; Rosenstock vs. Tormey, 32 Md., 179; Thompson vs. Riggs, 5 Wallace, 679; Mutual Safety Co. vs. Hone, 2 Coms., 238; Beirne vs. Dord, 1 Selden, 97; Markham vs. Jaudon, 41 N. Y., 239; Oelrichs vs. Ford, 23 Howard, 63; Oelrichs vs. Artz, 21 Md., 510; Barnard vs. Kellogg, 10 Wallace, 383; Simmons vs. Law, 40 N. Y., 219.

Assuming that such usage was binding upon the parties, and that the plaintiff was in default, and that the appellees had a right to buy the gold by reason of his default, yet they had no right to charge him with any different rate than that of the day when they themselves did in fact take the gold from the New York vendor.

Charles Marshall and Wm. Henry Norris, for Wm. Fisher & Sons.

The custom or usage which the plaintiff offered in evidence to explain the meaning of a short sale, was the custom or usage in Baltimore and New York. The evidence offered by the defendants, of custom or usage, was of that of Baltimore and New York also.

Without some explanation of the word "short," the contract between the parties was as unintelligible to the common mind as if it had never been translated [**10]  from the enigmatical language of the telegrams by which it was made.

The plaintiff denies the admissibility of the proof of usage and custom in Baltimore and New York, to explain the meaning of a "short" sale, and asserts that no usage could govern the contract between these parties, except an usage, "universal, general, uniform, certain and notorious," or an usage which "existed in Hagerstown," and claims that "of this there is no evidence." It will thus appear that the plaintiff denies the admissibility of the proof of that usage and custom which he had himself introduced to explain the contract, and did not offer any evidence whatever of the only usage which, upon his own theory, was admissible to explain his otherwise unintelligible contract. It follows, necessarily, that if his exception be sustained, all the evidence offered as to usage must be struck out of the case, and the plaintiff could not recover, because he wholly failed to prove any intelligible contract.

He can only escape from this consequence by reading the contract as if the word "short" did not occur in it.

But if this word be omitted, and the contract be reduced to a simple sale of $ 100,000 gold,  [**11]  by the plaintiff to the defendants on the 31st of March, 1869, the plaintiff's first prayer must be rejected, because it calls upon the jury to find that under such a contract the gold "was deliverable at any time thereafter on the respective demand of either party," which would, in effect, require the jury to find, without proof, a contract between the parties essentially different from the written contract offered in evidence by the plaintiff, and would also construe a contract to sell $ 100,000 gold, on the 31st of March, 1869, to mean that either party might comply with it at any time, instead of immediately, or in a reasonable time, which would be the true construction.

But the word "short" cannot be rejected from the contract under any principle of construction. It was used by both parties, it appears in the proposal and the acceptance, and must have had a meaning. The law does not reject a word from a contract because it is unintelligible, but because it is immaterial or repugnant to the manifest intent of the parties, as gathered from the whole contract.

While the acts of the parties under a contract cannot be offered to vary or interpret the contract, yet when any [**12]  part of a contract consists of elements imposed upon it by usage, and thus incorporated in it, the acts of the parties are admissible to prove what the contract actually was, so far as usage controls it. Chicago vs. Sheldon, 9 Wallace, 50; Merchants' Mut. Ins. Co. vs. Wilson, 2 Md., 240, 241; Foley & Woodside vs. Mason & Sons, 6 Md., 49, 50; Powell vs. Bradlee, 9 G. & J., 220; Williams vs. Woods, 16 Md., 250-252; Rosenstock vs. Tormey, 32 Md., 180; Railroad vs. Trimble, 10 Wallace, 367.  

JUDGES:
The cause was argued before STEWART, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*548]  ALVEY, J., delivered the opinion of the Court.
Appleman, a banker and broker in Hagerstown, and Fisher & Sons, bankers and brokers in Baltimore, had dealt together in their business as bankers and brokers, and between whom there existed an open account of their transactions, when, on the 31st of March, 1869, the former, by telegraphic correspondence, conducted mostly in cipher, contracted to sell to the latter $ 100,000 gold, short, at $ 1.31. This amount of gold, at the price agreed on in currency, was credited by Fisher & Sons in account, and carried by them for Appleman, until the 24th [**13]  of September, 1869, when they, availing themselves of what is claimed to have been their right under the contract, purchased the gold in New York at $ 1.35, currency, for Appleman's account to fill his contract, and charged it up to him at that price, and thus closed the transaction; which, of course, resulted in a loss to Appleman. He now repudiates this latter act of Fisher & Sons, and insists that the gold was unjustifiably and without authority purchased at the price it was; and, treating the contract as still open and executory, he, by letter of the 4th of October, 1869, directed Fisher & Sons to purchase the gold for his account at its then rates, which were from $ 1.29 to $ 1.30, and upon their declining to do so, he again, on the 10th of January, 1870, made actual tender of the gold in Baltimore, and demanded to be paid the contract price of 

 [*549]  $ 1.31, in currency. Gold, at this latter date, was quoted in Baltimore at $ 1.22 to $ 1.22 1/8, and it is for the difference between the market price of gold on the day of the tender and the price at which the $ 100,000 gold was sold to Fisher & Sons, that this action is brought.
Without explanation, the contract, as embodied [**14]  in the telegrams, is wholly unintelligible. To enable the plaintiff to recover on it, according to his own theory of his rights under it, it became necessary that the terms employed should be elucidated, and the intent and purpose of the parties explained. To do this the plaintiff himself offered and gave evidence of the meaning of the cipher telegrams, and also to explain the meaning of a sale of gold short, as understood among those dealing in that article. From the very terms employed in the contract, it is manifest that it was made with reference to some usage or custom that was then in the contemplation of the parties; and from the plaintiff's own evidence and correspondence, it is quite plain as to what usage was supposed to apply to and control the contract.
By the evidence offered on the part of the plaintiff, it was shown, that a sale of gold short, according to established usage, means a sale of that which the seller has not, but what he expects to buy in at a lower price than that for which he sells. The seller can order the gold to be bought in at any time, and the buyer can call for the delivery of it when he pleases. That the buyer or seller is entitled to [**15]  a margin for his security as the gold may rise or fall in the market. This margin must be in money, or its equivalent in securities, and equal to from five to ten per cent. on the price at which the gold is sold, over and above its market price at any time; and such margin must be kept up as the value of gold fluctuates in the market, so that the buyer shall have in hand, on a rise in price, an amount in money, or its equivalent, sufficient to cover the loss to the seller caused by such rise in gold above the price at which it was sold short, with from five to ten per cent. on the contract price, added to the 

 [*550]  amount of such loss. If this margin be not kept up as gold advances, the buyer has the right to buy in the gold for account of the seller, and charge him with the loss.
The proof, on the part of the defendants, established the existence of the same usage, and the same meaning and interpretation of the contract as that proven on the part of the plaintiff. By the evidence, as offered by them, it is shown that, by the usage, the broker is entitled to demand from the seller a margin of from five to ten per cent. on the price at which the gold was sold short, in addition [**16]  to a sufficient amount to cover any loss occasioned by a rise in gold; and that the seller has the right at any time to deliver the gold sold by him, by ordering the buyer to purchase in the amount for his account; and that the buyer has the right to buy it in on default of margin. That such usage is the same, whether the sale is made by a broker for his principal, or by the principal directly to the broker; and that the delivery is to be made at the place where the gold is purchased. That such usage prevails in Baltimore and New York, but was not known to prevail in Hagerstown, where the plaintiff resided.
It appears that, on the 22d of September, 1869, demand was made, by Fisher & Sons, of the plaintiff, for margin to the extent of $ 5,000; gold at that time being sold at $ 1.42 1/2 in New York, and from $ 1.37 1/2 to $ 1.40 1/4 in Baltimore; and on the 24th of September, it ran up in New York from $ 1.50 to $ 1.62 1/2, but fell again in the latter part of that day to $ 1.33, while in Baltimore sales were made at the Gold Board at $ 1.50.
It was because of the alleged default of the plaintiff in not furnishing the required margin, that the gold was purchased at $ 1.35 in New York [**17]  on the 24th of September; and the main question presented on this appeal is, to what extent was the usage admissible for the purpose of explaining and amplifying the contract as embodied in the telegrams, and determining the rights and duties of the parties under it.

 [*551]  This contract is not of a nature to be favorably considered, belonging as it does to a class of wagering contracts that have always been disfavored by the Courts. Indeed, if this action had been brought in an English Court a half century ago, it is more than probable that the plaintiff would have been non-suited upon the ground of the illegality of the contract. In Bryan vs. Lewis, R. & Mood., 386, Lord TENDERDEN said, that he had always thought, and should continue to think, until he was told by the House of Lords that he was wrong, that if a man sells goods, to be delivered on a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving them by consignment, but means to go into the market and to buy the goods which he has contracted to deliver, he cannot maintain an action upon such contract. Such a contract [**18]  amounts, on the part of the vendor, to a wager on the price of the commodity, and is attended with the most mischievous consequences. And upon a subsequent occasion, according to the report as given in Chitty on Contr., 2d Ed., 332, the same learned Judge ruled, that "if two persons enter into a contract under the semblance of a sale of goods, not intending really to buy or sell the commodity, but merely as a gambling speculation, and to pay the difference of the market price on a particular day, like a time bargain in the stocks, such a contract is illegal and void at common law, and no action will lie to enforce it." But this salutary doctrine, however much its absence may be regretted in view of what is daily occurring, no longer obtains in the Courts either of England or this country. In the case of Hibblewhite vs. McMorine, 5 M. & Wels. 462, the case of Bryan vs. Lewis, was expressly overruled, and it was there held, that a contract for the sale of stock, to be delivered at a future day, was not invalidated by the fact that at the time of the contract, the vendor neither had the stock in his possession, nor had entered into any contract to buy it, nor had any [**19]  reasonable expectation of becoming possessed of it by the time 

 [*552]  designated for its delivery, otherwise than by going into the market after the contract and purchasing the stock. And the principle of that case has become the established law, both in England and this country. It is said, and has been so expressly decided, that a contract for the sale of stock or marketable securities, in which the property passes by delivery, differs from a contract for the sale of a specific chattel, inasmuch as a contract for the sale of stocks or securities, such as are in the market for sale, would be satisfied by the delivery of any stock or securities of the description bargained for, and, consequently, the contract for sale cannot mean an actual sale, but only a contract to deliver. Heseltine vs. Siggers, 1 Exch. 856. And if such a distinction be sound, of course the same may be said of the contract to sell any given amount of gold, deliverable at a future day.
There being no question as to the legality of the contract, it is insisted by the plaintiff that the contract for the sale of the gold by telegram is not affected by the usage proven to exist in Baltimore,  [**20]  and not in Hagerstown, where the seller resided, and that it should be construed without reference to usage, and, therefore, all evidence in regard to usage, existing only in Baltimore, should be excluded.
To maintain this proposition would, as we have said, leave the contract in an unintelligible form, and neither Court nor jury would be able to understand the meaning of the parties. To give the contract effect at all, resort must be had to what the parties had in view at the time, as the means of ascertaining their rights and liabilities. Whether the usage prevailed in Hagerstown, is wholly immaterial, the question being, whether the parties contracted with reference to the usage existing in Baltimore, and intended that their contract should be governed by it. It would certainly have been competent to them, by express reference, to have adopted the usage in Baltimore as determining the nature of the contract, and we think it equally clear that if it be done by implied or tacit understanding, it is as much obligatory upon the parties as if 

 [*553]  incorporated into the contract itself. The principle upon which usage or custom is applied to the interpretation of contracts, is [**21]  very familiar, and of constant occurrence. It may be resorted to in the absence of express stipulations, or where the meaning of the parties is uncertain or doubtful upon the language used, or where the usage of the trade or business to which the contract relates, or with reference to which it was made, may afford explanation and supply deficiencies in the instrument. Technical, local or doubtful words may be thus explained. So, where stipulations in the contract refer to matters outside of the instrument, parol proof of extraneous facts may be necessary to enterpret their meaning. Oelricks, et al. vs. Ford, 64 U.S. 49, 23 How. 49, 16 L. Ed. 534; Williams vs. Woods, Bridges & Co., 16 Md. 220. As was said by PARKE, B., in Brown vs. Byrne, 3 Ell. & Bl. 713, "in all contracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of these usages; they commonly reduce into writing the special particulars of their agreement, but omit to specify these known usages which are included, however, as of course, by mutual understanding; evidence, therefore, of such incidents [**22]  is receivable. The contract, in truth, is partly express and in writing, partly implied or understood and unwritten. But the evidence received must not be of a particular, which is repugnant to or inconsistent with, the written contract;" and it should have been added, nor in contravention of any rule of law. We discover nothing in the usage proved in this case, that is at all repugnant to or inconsistent with the terms of the contract, or in contravention of existing rules of law. On the contrary, it is entirely consistent with the contract, and without its aid the contract would be unmeaning and senseless. In the case of Spicer vs. Cooper, 1 Q.B. 424, the memorandum of sale was in these terms: "Sold M. W. S. 18 pockets of Kent hops, at 100 s;" and it was held that parol evidence was admissible to show the existence of a usage of the trade, by which a contract so worded was understood to mean 51. per cwt., and 

 [*554]  that the hops consequently were to be weighed, and the price ascertained, according to the weight of the article, and that the 100 s. was not to be paid per pocket without reference to the weight of the contents of each pocket. And in the [**23]  very recent case of Field vs. Leban, 6 H. & N. 617, where, upon a sale of mining shares by one broker to another, they respectively signed, bought and sold notes, the former of which being as follows: "Bought, T. F., 250 | 5120ths shares in Wheal Charlotte, at 21. 5s. per share, 562l. 10s., for payment, half in two months, and half in four months;" and the action being for not accepting the shares, it was held, that evidence was admissible of a usage among brokers dealing in mining shares, that, in contracts relating to the sale and purchase of such shares, the delivery takes place at the time appointed for payment. And in this last case it was said, that the plaintiff and defendant must be presumed to be cognizant of the usage.
It is true that where the party is sought to be bound by a particular usage, and the only evidence of the intention of the parties to adopt it, as applicable to their contract, is the fact of its existence, such usage must be clearly shown to be general and uniform, so as fairly to give rise to the presumption that the parties were acquainted with it, and intended to contract with reference to it. "But when their knowledge or intentions [**24]  are established by other direct or circumstantial proof, their contract will be governed by the usage, however local or partial, in reference to which it is proved or presumed to have been made." 1 Duer on Insurance, 258; Merchants Mutual Ins. Co. vs. Wilson, 2 Md. 217; Foley & Woodside vs. Mason, 6 Md. 37, 50; Gabay vs. Lloyd, 3 B. & Cr. 793. And in this case, we think, the evidence deducible from the correspondence that took place between the parties, their business relations, and general conduct and mode of dealing, was sufficient to warrant the jury in finding as matter of fact that the plaintiff was acquainted with the usage proved, and intended to contract with reference to it. Indeed, his own testimony leaves but little room for doubt on the subject.

 [*555]  As to whether the usage is reasonable, we see no good ground to question that. It has had its origin and growth in the business transactions of the trade to which both the parties to this cause belong. The plaintiff himself has been compelled to resort to it to explain and give meaning to the contract he seeks to enforce; and it would not be just that [**25]  he should be allowed to avail himself of such parts of it as may suit his purpose, and reject such other parts of it as may be unfavorable to him, upon the ground of its being unreasonable. If the contract was made with reference to it, it should be either adopted as a whole or rejected as a whole. But we see nothing in the usage itself, as proved, to require that it should be rejected either in whole or in part.
Where the gold was deliverable, that, we think, is settled by the contract of the parties. Ordinarily, where there is no place designated by the contract, the articles sold are to be delivered at the place where they are at the time of sale. The rule upon the subject, however, is greatly dependent upon the nature of the article sold, and the circumstances of the parties. But here, from the nature of the contract, it is plain that it never was intended that the seller should actually deliver the gold at Hagerstown. He tells us himself that such was not the intention of the contract. He says in his testimony, that when he sold the gold short to the defendants, it was not intended that he should deliver it and receive the price, but that the contract was to be closed and delivery [**26]  effected by his order to the defendants to buy in the gold for his account. That they were to buy it, and pay or receive the difference between the buying and selling prices, and that the performance of the contract could be demanded at the option of either party. And it was in accordance with this understanding that he ordered the purchase of the gold on the 4th of October, and afterwards made tender of it to the defendants in Baltimore, instead of notifying them of his readiness to deliver at Hagerstown.

 [*556]  Whether the defendants could purchase in the gold upon default of margin, without giving notice to the plaintiff of their intention to do so, depended, of course, upon the contract, as interpreted by the usage. But that question is not presented on this appeal. The jury, under the instruction of the Court, having found a verdict for the plaintiff, they, of necessity, found as a matter of fact that the purchase of the gold on the 24th of September, by the defendants, was not authorized or justified in respect of any default of margin; and they found, as they were warranted in doing, under the second instruction on the part of the defendants, that the breach of the contract [**27]  occurred by the defendants' refusal to purchase in the gold in accordance with the plaintiff's instruction to them of the 4th of October. Upon no other principle or theory could the verdict have been found, such as was found, under the instructions of the Court.
We think the Superior Court was right in overruling the plaintiff's objection to the admissibility of the evidence taken under the commission to New York. It was both competent and pertinent in one aspect in which the case was presented, though quite immaterial in the other.
It follows, of course, from what we have said, that the Superior Court was right in its ruling as to the admissibility of the evidence of usage; and that it was also right in refusing to grant the first of the plaintiff's prayers, as that prayer sought to ignore and exclude from consideration all question of usage, so far as the same might affect the contract adversely to the plaintiff.
The Court was equally right in refusing to grant the plaintiff's second prayer, as by that all question of the usage prevailing in Baltimore, if not also existing in Hagerstown, was excluded, notwithstanding the parties might have contracted with especial reference to [**28]  the local usage of Baltimore.
The plaintiff's third prayer was also properly refused, first, because it left to the jury to find what usage would be binding on the plaintiff; that being a question of law for the 

 [*557]  Court upon the usage found to exist as a fact; and, secondly, because it asserted that there was no evidence of a demand of margin. There was evidence of demand; though the effect of that demand depended upon other facts to be found by the jury.
The fourth prayer of the plaintiff was equally erroneous as those preceding it, and was therefore properly refused. It was based upon the theory that the gold was deliverable at Hagerstown, and not in Baltimore, and that before the plaintiff could be in default in regard to the margin to be placed in the hands of the defendants, demand should have been made for the performance of the contract at the former place; and that no usage in Baltimore could affect the performance of the contract. This, as we have said, was not in accordance with the intention of the parties.
As the fifth prayer of the plaintiff was originally presented, it was clearly erroneous, but as modified by the Court, when read in connection with the instructions [**29]  granted on the part of the defendants, it was free from objection, and the Court was right in granting it in its modified form. The amount of margin, we think, was to be fixed and regulated by the price of gold in Baltimore, and not the prices that prevailed in New York, if there was in fact a real difference in the prices of the article at the two places. The contract makes no reference to the New York market as the criterion, nor do we perceive any reason why that market should be preferred to the one equally open and accessible to the parties in Baltimore. In the absence of some stipulation to the contrary, it should be presumed that the market price in the place where the contract was to be performed was intended.
As to the plaintiff's sixth prayer, the Court was right in rejecting that also. If the defendants were justified in purchasing the gold on the 24th of September, the plaintiff could have no right to complain that the defendants did not actually receive it until the 2d of October, as the delay was at their risk, and not that of the plaintiff; he was discharged from 

 [*558]  the time of the purchase, and that without reference to any advance that might have occurred [**30]  in the price of gold. On the other hand, if the defendants were not justified in making the purchase at the time they did, as the jury have found they were not, the plaintiff could have no interest in the purchase whatever, as no right of his could be compromitted by it.
Having thus disposed of the plaintiff's prayers, we deem it sufficient to say that we find no error in those granted on the part of the defendants. They fully and correctly instructed the jury upon the whole case before them; and we think that in the fifth prayer of the plaintiff as modified, and the second prayer of the defendants, the plaintiff's rights were as fairly placed before the jury as he could have reasonably required.
Upon review of the whole case we are of opinion that the judgment appealed from should be affirmed on both appeals.
Judgment affirmed. 

10 of 142 DOCUMENTS 

WASHINGTON A. PAGE vs. MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 558; 1871 Md. LEXIS 85 

June 22, 1871, Decided 

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

The facts are given in the opinion of the Court.

At the trial below, the following bills of exception were taken:

First Exception: The appellant in order to prove that he had not been benefited by the condemnation of the parcels of ground, mentioned in the proceedings of the Commissioners for Opening Streets as having been condemned, offered in evidence the ordinances of the Mayor and City Council of Baltimore, of 1826, ch. 11, section 46, and Article 22, section 46, of the Baltimore City Code. The Court refused to admit the testimony and the appellant excepted.

Second Exception: The appellant offered to prove that the strip or parcel of ground attempted to be condemned under the proceedings of the Commissioners for Opening Streets, was a part of the bed of Light street as originally condemned by virtue of the Act of 1805, ch. 84; and that the commissioners in their said proceedings have not widened Light street, from Pratt street to Lee street. The Court rejected the evidence and the appellant excepted.

The verdict and judgment being against the appellant, he took this appeal.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Jurisdiction of the Court of Appeals to revise proceedings of the Baltimore City Court, on appeals from the Street Commissioners -- Jurisdiction of the Baltimore City Court on appeals from Street Commissioners -- Notice given and Oath taken by Street Commissioners -- Condemnation of Private property to Public use.

An appeal will lie from a decision of the Baltimore City Court in proceedings on an appeal to that Court from the Commissioners for Opening Streets.

The Baltimore City Court upon an appeal to it, from the Commissioners for Opening Streets, has authority to review any irregularity in the proceedings of the commissioners.

In the absence of proof showing that legal notice was not given of an application for the passage of an ordinance for widening a street, the Court will presume that the requirements of the law were complied with, and that the Mayor and City Council of Baltimore acted within their authority in passing the ordinance.

The Street Commissioners of Baltimore have authority to give the notice required by section 6, Ordinance 26, 1866, of M. & C. C. of Baltimore, in relation to the opening and widening of a street, before taking the oath required by the 2d section of said Ordinance.

The Acts of 1796, ch. 45, and 1805, ch. 84, authorized the owners of lots on Light street, in Baltimore, to extend wharves into the basin to a certain line, and provided that 60 feet "of said wharves when so made out and extended at the end thereof, parallel with the line of Forest street, shall be deemed, taken and considered as a public highway forever thereafter, reserving nevertheless to the proprietors of said wharves the benefit and advantage of the wharfage thereof, under the limitations aforesaid." HELD:

That these Acts established an incomplete, qualified and limited highway over the wharves, and it was competent for the city authorities to condemn the rights still remaining in the proprietors. 

COUNSEL:
Jno. P. Poe and R.  [**2]  J. Bouldin, for the appellant.

This appeal is authorized by law, notwithstanding the Court below sat as an appellate tribunal. Act of 1852, ch. 77; Act of 1853, ch. 451; Code of Pub. Gen. Laws, Art. 29, secs. 53, 60; Act of 1865, ch. 141; Cons. of 1867, Art. 4, sec. 28; Balt. City Code, 835, sec. 9, of Ordinance, No. 17.

The jurisdiction of the Court below in cases of this description is not limited to the simple inquiry as to whether the assessments of the commissioners were correct or not; but it was bound to hear and consider any and all proper motions, and to admit any and all legal evidence, the object and effect of which were to establish that the Street Commissioners had not pursued the provisions of the law, by a compliance with which they could alone lawfully exercise jurisdiction in the premises, and that it therefore erred in refusing to hear the motion to quash, and in rejecting the evidence in the first and second exceptions.

In this case, the appellant upon appeal moved to quash the proceedings, because the appellees had passed the ordinance in question without giving the indispensable notice required by law; and because the commissioners had proceeded [**3]  irregularly in several specified particulars, and because the street had already been validly condemned sixty years ago; and yet in the face of the decision in Mayor, &c., of Balt. vs. Bouldin, 23 Md., 375, that such a review was legitimate and proper, the Court below refused to hear us on the ground that these objections could not be reviewed upon appeal, but that the appellant must seek redress elsewhere. Methodist Church vs. Mayor, &c., of Balt., 6 Gill, 391; Alexander vs. Mayor, &c., 5 Gill, 383; Richardson vs. Mayor, &c., 8 Gill, 433.

Robert D. Morrison and I. Nevett Steele, for the appellee.

It is contended for the appellee that the motion to quash was properly overruled for the following reasons:

The jurisdiction of Baltimore City Court in cases of this kind is limited and special, and is confined to the review of the assessments of the commissioners in those cases where an appeal is taken. Upon such appeal the validity of the ordinance, under which the proceedings of the commissioners were had, cannot be impeached, nor can evidence for that purpose be admitted. The case comes into Baltimore City Court, as a Court of Appeal, having a special statutory appellate [**4]  jurisdiction, and the question of the validity of the ordinance being one, on which the commissioners do not and cannot pass judgment, it is not before the appellate tribunal, whose only function is to review the decisions of the commissioners. If the ordinance be invalid, the remedy of any person aggrieved by it, is by certiorari, injunctions, or actions of trespass or ejectment, in the Courts having jurisdiction under the State Constitution.

The alleged irregularities, so far from furnishing ground for quashing the proceedings, offer no impediment whatever to the exercise by the Court below of the jurisdiction conferred upon it by law, and which the appeal asks it to exercise, viz: the jurisdiction to ascertain by a jury trial the correct assessment. Code of Public Local Laws, Art. 4, sec. 837; Stewart vs. M. & C. C. of Balt., 7 Md., 500-515; Mayor, &c., of Balt. vs. Porter, 18 Md., 301, 302; Rundle vs. Mayor, &c., of Balt., 28 Md., 361, 362; Swann vs. Mayor, &c., of Cumberland, 8 Gill, 150.

The fifth reason in support of the motion to quash assumes that under the Acts of 1796 and 1805, Light street wharf had been condemned as a public highway, and submits that therefore [**5]  the ordinance of 1869 is invalid, because the Mayor and City Council can not authorize the condemnation for a street, of ground which is already condemned as a public highway. It will be found that the Acts of Assembly do not support this view. On the contrary, they distinctly recognize and protect the proprietary rights of the property owners who should make and fill out wharves, and reserves to them "the benefit and advantage of the wharfage thereof," and then declares the wharves a public highway. They were, therefore, a public highway only in a qualified sense and to a very limited extent, for the ownership of the soil, with the right to use them as wharves remaining in the riparian proprietors, it is manifest that this use of them might, and probably would, so obstruct their use as a public highway, as to render the right of way of little value. Act of 1745, ch. 9, sec. 10; Act of 1796, ch. 45, sec. 3; Acts of 1801, ch. 92; 1805, ch. 84.  

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

OPINIONBY:
GRASON 

OPINION:

 [*562]  GRASON, J., delivered the opinion of the Court.
Under ordinance 7, of 1869, entitled "An Ordinance to condemn and [**6]  widen Light street, &c.," the Commissioners for Opening Streets, gave notice, on the 9th day of September, 1869, in three daily newspapers, published in Baltimore city, that they would meet at the hour and place therein appointed, on the 12th day of October, 1869, and then and there proceed to execute the powers and perform the duties assigned to and required of them in regard to condemning and widening Light street, from Pratt street to Lee street, in accordance with said ordinance. They met in pursuance of the notice, and qualified by taking and subscribing the oath prescribed by the second section of ordinance 26; and the clerk and surveyor, employed by them, also took and subscribed the oaths required of them respectively, by the fourth section of ordinance 26. The commissioners then proceeded 

 [*563]  to discharge their duties under the ordinance of 1869, and assessed against the appellant the sum of $ 1,137.50 as benefits in respect of two lots owned by him in the vicinity of the improvement. Being dissatisfied with the amount of benefits assessed against him, the appellant appealed, within time, to the Baltimore City Court, and there moved to quash the proceedings of the [**7]  commissioners, and assigned five reasons therefor. The motion was overruled, and he then offered the evidence set out in his first and second bills of exception, and it was rejected, and the verdict and judgment being against him, he appealed to this Court.
The first question to be decided is, whether, in a case like this, an appeal lies to this Court from a decision of the Baltimore City Court upon matters of law. By the Act of 1852, ch. 77, section 1, an appeal is expressly given to this Court from the Criminal Court of Baltimore city, to which Court alone appeals from the Street Commissioners were at that time authorized by law. The Act of 1853, ch. 451, section 1, provided for appeals from the commissioners to the Supeperior Court also, and the second section authorized an appeal to the Court of Appeals from a decision of the Superior Court upon any matter of law; and the Act of 1865, ch. 141, prescribed the time for hearing such appeals in this Court. The Constitution, Article 4, section 28, vests the City Court with exclusive jurisdiction of all cases arising under the ordinances of the Mayor and City Council, and to that Court alone do appeals now lie from the Street Commissioners;  [**8]  and appeals from that Court are provided for by the ninth section of ordinance 26. In the case of Rundle vs. The Mayor and City Council, 28 Md. 356, this Court decided that the jurisdiction of the Criminal Court of Baltimore city was a special appellate jurisdiction, conferred by statute, and applied to that case the general rule that an appeal would not lie from such a jurisdiction to this Court, unless it was given by statute. That case was not argued in this Court, but was submitted upon the briefs, in which the Act of 1852 was not 

 [*564]  cited or referred to, and the case was decided without reference to that Act, and the appeal was accordingly dismissed. But there is no doubt that an appeal in such cases, is provided for by statute, and the counsel for the appellee did not attempt to controvert this in his argument in this Court, In overruling the motion to quash, the Court below assigned, as its only reason therefor, that the jurisdiction of that Court, upon an appeal from the Street Commissioners, is special and limited, and confined to a review of the assessments made by them, and that it has no authority or jurisdiction to review their proceedings [**9]  in other respects, and stated, in its opinion, that if the Mayor and City Council, or the commissioners, have exceeded their authority or otherwise violated the provisions of the Acts of Assembly, relief can be had only in a Court of Equity. There is no doubt that, where an ordinance is void, and its provisions are about to be enforced, any party, whose interests are to be injuriously affected thereby, may, and properly ought, to go into a Court of Equity, and have the execution of the ordinance stayed by injunction. This course of proceeding has been sanctioned and approved by this Court in numerous cases, of which it is only necessary to cite Holland vs. the Mayor and C. C. of Balto., 11 Md. 186; Bouldin vs. Mayor and C. C. of Balto., 15 Md. 18; Mayor & C. C. of Balto. vs. Porter, 18 Md. 284. But where there is an appeal given to the parties, to be affected by proceedings of Street Commissioners, any irregularities in the proceedings, or in the qualifications of the commissioners, are open upon appeal, and the appellate tribunal is the proper one to review and correct them. In the case of The Methodist Prot. Church vs. The Mayor & C. C. of Balto., 6 Gill 391, 402, [**10]  a bill for an injunction was filed, in which, among other things, it was charged that the Commissioners for Opening Streets had not given the notice required by law, before proceeding to widen the street in question, and upon appeal, Judge DORSEY, in delivering the opinion of this Court, said: "To persons aggrieved by the proceedings of the commissioners, in cases like 

 [*565]  the present, the legislative enactments upon the subject have provided the tribunal and the means of redress, and there only can it be successfully sought."
The same doctrine was held in the case of The Mayor & C. C. of Balto. vs. Bouldin, 23 Md. 328, in which this Court say: "The objections made to the legality and regularity of the proceedings of the commissioners under the second and fourth sections of ordinance No. 17, are such as could have been reviewed by appeal under the ninth section of that ordinance," and refers to 8 Gill and quotes Judge DORSEY'S language as applicable to the case then under consideration.
One of the objections urged against the legality of the proceedings in that case was, that the commissioners had not given the required notice before proceeding to [**11]  act, and that was an irregularity which, this Court held, could be reviewed upon appeal. In the case of The Mayor & C. C. of Balto. vs. Porter, 18 Md. 284, 301, while this Court decided that the proceeding in that case was properly in a Court of Equity, because the acts of the commissioners were void because the ordinance under which they acted was passed without authority, yet this Court said, that where the commissioners act within the scope of their authority, and the acts complained of are irregularities, they are "subject to be reviewed on appeal by the tribunal appointed by law for that purpose." From these decisions, it is evident that the City Court, upon appeal from the Street Commissioners, has power and authority to review any irregularity in the proceedings of the commissioners, and, therefore, erred in declining to entertain the motion to quash, made by the appellant in this case. It, therefore, becomes necessary to determine whether the grounds set out in the motion to quash are good and sufficient. The first and second are, that legal notice was not given that an application would be made for the passage of the ordinance of the 20th of February,  [**12]  1869, under which the proceedings in this case were had. There was no proof whatever offered to show that the notice was not given as the 

 [*566]  law requires, and in the absence of proof we must presume that the requirements of the law were complied with, and that the Mayor and City Council acted within their power and authority in passing the ordinance.
The third reason assigned is, that the commissioners did not severally take and subscribe the oath or affirmation before they proceeded to act as a board in the exercise of the powers confided to them, as required by the 2d section of Ordinance 26, of 1866. The Street Commissioners are officers of the city government, appointed annually as other city officers. See section 1 of Ordinance 26. Section 2 of that Ordinance provides that, in each and every case, before they shall proceed to act as a board in the exercise of the powers confided to them by that or any future ordinance, they shall severally take and subscribe the oath in that section prescribed. It thus appears that, although holding their office for one year, they are required to take and subscribe the oath in each and every case in which they may be required [**13]  to act. The 6th section enacts that, whenever they may thereafter be required by ordinance to open, extend, widen, straighten or close any street, &c., in whole or in part, they shall give at least thirty days' notice, in at least two daily newspapers of the city, of the object of the ordinance, under which they are about to act, and the day, hour and place of their first meeting under said ordinance. An examination of the provisions of these two sections leads irresistibly to the conclusion that, as officers of the city government, they have authority to give the notice before taking the oath, and that if they take and subscribe the oath before acting in the particular case, the requirements of the ordinance are fully gratified. If they met and qualified before giving the notice, the notice given would be of their second, instead of their first meeting as directed by the 6th section. It appears from the book of proceedings of the commissioners, filed in this Court by the agreement of the parties, that the oath severally taken and subscribed and the notice given by them are in all respects in conformity with the requirements of the law.

 [*567]  The clerk and surveyor employed [**14]  by them also took and subscribed the oaths required to be taken and subscribed by them respectively, at the same time the commissioners did, and what has been said with respect to the qualification of the latter applies with equal force to the qualification of the former.
The only other ground assigned for quashing the proceedings is that contained in the fifth reason, viz: "that Light street wharf, from Pratt street to Lee street, for many years prior to the passage of the ordinance of the 20th of February, 1869, under which the proceedings in this case were had, was and had been and still is a public highway, having been condemned by virtue of an Act of Assembly passed in 1796, ch. 45, and by Act of 1805, ch. 84." The Act of 1796 authorized and empowered the owners of lots at the head of the basin and binding on Light street, to make out and extend wharves into the water opposite their respective lots, to a line drawn from the east side of Light street to the east side of Forest (now Lee) street, and provided that "eighty feet of said wharves, when so made out and extended, at the end thereof, parallel with the line of Forest street, shall be deemed, taken and considered as a public [**15]  highway forever thereafter, reserving nevertheless to the proprietors of said wharves the benefit and advantage of the wharfage thereof, under the limitations aforesaid." The Act of 1805 contained similar provisions, but limited the highway to sixty feet instead of eighty, and also reserved the benefit and advantage of the wharfage to the proprietors. It is very evident from these Acts that the whole of the rights and interests of the proprietors of the wharves, thus made out and extended, were not condemned for the public use, although sixty feet of the wharves were declared to be a public highway; for even over the sixty feet the proprietors were expressly authorized to exercise the rights of wharfage. The right to use the wharves and receive the wharfage having been reserved to the owners, that part of them, declared to be a public highway, was a public highway in a qualified sense and to a limited extent 

 [*568]  only as their use as wharves must, necessarily, have so interfered with the rights of the public as to have rendered them of little use or value as a highway. The damage plat, used and referred to in the argument of the case in this Court, shows that only twenty-six [**16]  feet (including ten feet for a footway) were to be used exclusively as a street, and that the remainder was to be used as wharves only, and it may therefore be inferred that this was a compromise of the conflicting claims of the wharf owners and the city. The Acts of 1796 and 1805 show that the highway by those Acts established over the wharves was incomplete, qualified and limited. It was therefore competent for the city authorities, for the purpose of having a street at that place adequate to the wants of the public, to condemn the interests and rights still remaining in the proprietors of the wharves. We think that there is therefore no force in the objection contained in the fifth reason, and that the motion to quash ought to have been overruled.
From what has already been said, it follows that there was no error in the rejection, by the Court below, of the evidence set out in the two bills of exception. The object in offering that evidence was to show that the wharves to be condemned under the ordinance of 1869, had already been declared to be, and recognized and treated as a public highway, and that there was therefore nothing to be condemned under the ordinance of 1869. We [**17]  have shown, however, that there were still proprietary rights in the wharves liable to condemnation and the evidence was therefore inadmissible, and was properly rejected.
The Court below erred in supposing it had not jurisdiction, upon an appeal from the Street Commissioners, to review any irregularities in their proceedings; but as the motion to quash ought to have been overruled, and as the evidence offered by the appellant was inadmissible, the judgment must be affirmed.
Judgment affirmed. 

11 of 142 DOCUMENTS 

STATE OF MARYLAND, use of the COUNTY COMMISSIONERS OF BALTIMORE COUNTY vs. JOSHUA HORNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 569; 1871 Md. LEXIS 86 

June 22, 1871, Decided 

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

This was an action of debt on three several bonds of William Button, as collector of county taxes for the eleventh collection district of Baltimore county, for the years 1864, 1865 and 1866 respectively. The action was against the appellee as one of the sureties in each of the bonds. The declaration contained three counts. The defendant demurred generally to each count. The Court (SCOTT, J.,) sustained the demurrer, and gave judgment for the defendant.

From this judgment the plaintiff appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Collector of Taxes -- Surety -- Sufficiency of the Declaration in a Suit on a Collector's bond -- Estoppel -- Insufficient grounds for Demurrer to a Declaration -- Legal intendment -- Distinction between what is merely Directory and what is of the Essence of a thing required to be done by a Statute.

In an action on the bond of a collector of county taxes, against a surety therein, a declaration, after setting out the making of the bond, its date and amount, averred that "it was and is subject to a certain condition thereunder written in words and figures following, that is to say: The condition of the above obligation is such that if the above bound B, (who has been appointed collector for the collection of county taxes for the eleventh collection district of Baltimore county, and has accepted the same,) shall well and faithfully execute his said office," &c. The declaration further averred that the tax bills were duly placed in the hands of B, "as collector aforesaid, for collection." HELD:

1st. That the fact of the appointment of B as collector was sufficiently averred in the declaration.

2d. That by the recital in the bond of the appointment of the collector, the obligor in the bond was estopped from denying the fact of such appointment.

3d. That the omission to aver in the declaration when B was appointed collector, and when the levies were made in each year, furnished no good ground for demurring to the declaration; the law intending that what is done by the County Commissioners is rightly done, without express averment to that effect, the contrary not appearing.

4th. That the statutory requirement as to the time of making the levy and appointing the collector, is directory only, with respect to the particular day on which the duty is to be performed; and the action of the County Commissioners will be legal and binding, although done on some other day.  

COUNSEL:
Arthur W. Machen, for the appellant.

The statutory directions of the Code of Public Local Laws, Article 3, section 65, and of the Act of 1865, ch. 96, section 1, as to the time for the levy, and of the Acts of 1862, ch. 159, section 3, 1865, ch. 96, section 2, and 1865, ch. 102, section 1, as to the time for the appointment of the collector, while mandatory, are not restrictive of the power or jurisdiction of the County Commissioners in the premises. The exercise of such a power is imperative; the provision as to the particular day to exercise it, is but directory. State ex rel. Webster vs. County Commissioners Baltimore [**2]  County, 29 Md., 516; Mayor and City Council of Baltimore vs. Marriott, 9 Md., 160; McCauley vs. The State, 21 Md., 556; State vs. Milburn, 9 Gill, 103; U. S. vs. Maurice, et al., 2 Brock., 96; United States vs. Tingey, 5 Peters, 128.

The defendant is estopped from making the objection by the recitals of the bonds. Billingslea vs. The State, 14 Md., 375; Milburn vs. The State, 1 Md., 12; Inhabitants of Trescott vs. Moan, 50 Maine, 347; Lyndon vs. Miller, 36 Vermont, 329.

Each of the counts of the declaration, by averments quite sufficient upon general demurrer, state that the collector was duly appointed, and that the levies were validly made; and that the sums of money severally specified came duly into the collector's hands; and, upon demurrer, it is not to be intended that the County Commissioners acted in a manner not in accordance with law. Fridge vs. The State, 3 G. & J., 113, 114.

S. Teackle Wallis, for the appellee.

The declaration was defective, and the demurrer thereto was properly sustained for the following reasons:

1st. Because it did not allege that Button had been appointed collector. A recital in the bonds that he had been so appointed might [**3]  make them sufficient proof of the fact of his appointment. An averment, however, of that fact would still be necessary. The averment of other facts which would constitute proof of it, is not sufficient. State vs. Gaither, 11 G. & J., 160, 172, 173; Turner vs. Walker, 3 G. & J., 377, 388, 389; Howard vs. Wil. & Susq. R. R.. 1 Gill, 340, 341; Gould's Pleading, 152; 3 Robinson's Prac., 484; Bennett's Ex'r vs. Lloyd, 6 Leigh, 318.

The declaration, however, does not even aver that the bonds recite that fact. It says, parenthetically, "who has been appointed collector, etc.," not that the bonds so recite.

2d. It ought to have alleged when Button was appointed, so that the appellee could take issue of fact as to the truth of the allegation, or of law as to the sufficiency of it. If he was appointed at a time, or in a manner not authorized by law, the appointment was void, and the bonds of the appellee are not responsible.

3d. It ought also to have alleged that the taxes were levied, and when and by whom the levies were made. The bonds were not liable for taxes levied at times or in a manner not authorized by law. Ellicott vs. Levy Court, 1 H. & J., 359; Quynn vs. State, 1 H.  [**4]  & J., 36; State vs. Merryman, 7 H. & J., 79; State vs. Dorsey, 3 G. & J., 75, 90.

4th. The clerk of the County Commissioners was required to deliver to the collector a fair copy of the assessments within ten days after they were made. Code of Pub. Gen. Laws, Art. 81, secs. 42, 43.

Unless these things were all done, the responsibility of the sureties on the bonds in reference to the taxes did not accrue; without an averment that they had been done, the declaration was defective. Code of Pub. Gen. Laws, Art. 75, sec. 2.  

JUDGES:
The cause was agued before BARTOL, C. J., STEWART, BRENT, MAULSBY, GRASON, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*572]  BARTOL, C. J., delivered the opinion of the Court.
The question raised by the demurrer is the sufficiency of the declaration. This contains three counts upon the several bonds given by William Button, as collector of county taxes for the eleventh collection district of Baltimore county, in the years 1864, 1865 and 1866.
The appellee is sued as one of the sureties in each of the bonds. Without setting out the declaration here at length, it will be sufficient to notice the points in which it is alleged to be defective, they [**5]  are as follows:
1st. Because it does not distinctly allege that Button had been appointed collector.
2d. It does not allege when he was so appointed.
3d. It does not allege when the levy in each year was made, whereas it ought to appear affirmatively that it was made at a time authorized and prescribed by law.
4th. In the first count it is alleged that the bond was given on the 5th day of April, 1864, whereas by the law as it then existed, the commissioners were required to make the levy on or before the first day of March, and to appoint the collectors on the first Tuesday of March. In the second and third counts the bonds are alleged to have been given, one on the 26th day of April, 1865, and the other on the 13th day of April, 1866, when it was the duty of the commissioners to make the levy on or before the 1st day of May, in each year, and to appoint the collectors on or before the first Tuesday in May, and the collector was required to give bond within ten 

 [*573]  days from the date of appointment. Code, Art. 3, secs. 56, 65; Supplement to Code, p. 360, sec. 56, (Act of 1865, ch. 102;) and p. 361, sec. 65, (Act of 1865, ch.  [**6]   96, sec. 1.)
These alleged defects in the declaration are urged by the appellee as fatal on demurrer. They will be briefly examined.
1st. We think the appointment of Button as collector is sufficiently alleged. After setting out the making of the bond, its date and amount, it is averred that "it was and is subject to a certain condition thereunder written in words and figures following, that is to say: The condition of the above obligation is such that if the above bound William Button (who has been appointed collector for the collection of county taxes fort he eleventh collection district of Baltimore county, and has accepted the same) shall well and faithfully execute his said office," &c., &c. In our opinion this is a sufficient averment of the fact of his appointment. But the declaration further avers that the tax bills were duly placed in his hands "as collector aforesaid" for collection. The bonds themselves are produced in Court, with the declaration containing the recital of the fact of his appointment, which estops the obligors in the bond from denying the fact of such appointment as was decided in Milburn vs. The State, 1 Md. 1, and Billingsley vs. The State, 14 Md. 369. [**7]  
2d. With respect to the omission to aver when Button was so appointed, and when the levies were made in each year; we think these furnish no good ground for demurrer. Several answers may be made to these objections. In the first place the declaration by apt and sufficient averments, states that the collector was duly appointed, that the levies were validly made, the tax bills duly placed in his hands for collection, and that the sums of money severally specified came into his hands as collector. Now the legal intendment is that the County Commissioners acted according to law; that what was done was rightly done, without express averment to that effect, the contrary not appearing. Fridge vs. The State, 3 G. & J. 103, 114. But another and more conclusive answer to 

 [*574]  these objections is that the statutory directions as to the time of making the levy and appointing the collector are directory only, with respect to the particular day on which the duty is to be performed. The statute imperatively requires the performance of the duty, but the designation of the time is not of the essence of the thing, nor restrictive of the power and jurisdiction of the County [**8]  Commissioners, and their action will be legal and binding although done on some other day. We consider the case falls within the principles laid down in The State vs. County Commissioners, 29 Md. 516, and we refer to the opinion of the Court in that case and the authorities therein cited.
In our judgment the declaration in this case is sufficient, and there was error in sustaining the demurrer. The judgment will therefore be reversed and the cause will be remanded to the City Court, so that the parties may proceed therein.
Judgment reversed. 

12 of 142 DOCUMENTS 

MOSES MOSES vs. THE PRESIDENT AND DIRECTORS OF THE FRANKLIN BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 574; 1871 Md. LEXIS 87 

June 22, 1871, Decided 

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

This action was brought by the appellees against the appellant upon the following check:

"$ 1,200.   BALTIMORE, June 16th, 1869.

"Cecil National Bank of Port Deposit, Md., pay to Moses Moses, or order, twelve hundred dollars.

"JACOB TOME & Co."

"Endorsed -- Moses Moses, Elliott & Blacklar, pay J. B. Ramsay, Cash. for collection account, Franklin Bank, Baltimore. Chas. Goodwin, Cash."

The declaration contained the common money counts, and a special count in the usual form, charging the defendant as endorser upon the check. The defendant pleaded never indebted and never promised, and issues were joined thereon. A verdict was rendered for the plaintiffs for $ 1,315.20, and judgment entered accordingly.

First Exception: The plaintiffs proved by their receiving teller, that on the 17th of June, 1869, the check on which this action was brought, was presented at the Franklin Bank for discount by Mr. Elliott, and upon his certifying that it was all right, it was cashed, after deducting one-half per cent. the usual charge for collection, and was then passed through the books in the usual way, and was sent [**2]  off to Port Deposit the same day, and returned on the 19th, about one o'clock, P. M. The same witness proved, on cross-examination, that on the 17th of June, 1869, the Cecil Bank of Port Deposit had over $ 17,000 to its credit in the Franklin Bank, and the check was at once debited to said account. The plaintiffs then offered in evidence the protest of the check, to which the defendant objected, and his objection being overruled by the Court, he excepted.

Second Exception: The plaintiffs further proved by a witness, who was at the time a clerk and messenger in their bank, that he mailed a letter from the cashier of the Franklin Bank to the cashier of the Cecil Bank, enclosing the said check. The check came back protested on the 19th, between 1 and 2 o'clock, P. M., and three pieces of paper, in the form of notices of protest to Moses, Elliott & Blacklar, and to Charles Goodwin, cashier, were enclosed with it. Witness, on the same afternoon, delivered to the defendant, the notice addressed to him, but could not say exactly what were its contents, except that he saw it was a notice of protest. Plaintiffs admitted the check to have been genuine, and that there were at the time sufficient [**3]  funds of the drawers in the Cecil Bank to have paid it. The defendant produced no testimony, but asked the following instructions to the jury:

1. If the jury believe from the evidence that the check in question became the property of the Franklin Bank in the mode detailed in the evidence, and that at that time there were funds in the hands of said bank belonging to the Cecil Bank, (the drawee of the check,) equal in amount to the amount of the check; and also believe that Tome & Co., the drawers thereof, had funds in the said Cecil Bank sufficient to meet the amount of said check, and that the plaintiff debited the amount of said check in their account with the Cecil Bank, then the check has been paid and the plaintiff cannot recover against the defendant, notwithstanding the check was afterwards protested and returned to the Franklin Bank.

2. That there is no sufficient evidence of notice to the defendant of demand on the drawers of the check in question, and refusal to pay the same, to authorize a recovery thereon against the defendant.

The Court refused the instructions and the defendant excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment [**4]  affirmed.  

HEADNOTES:

Protest of a Check -- Protest admissible in Evidence under sections 6 and 7 of Article 14 of the Code -- Check not an Assignment of the Fund upon which drawn.

A check drawn in the usual form, while not possessing all the incidents of an ordinary bill of exchange, is embraced within the description of paper denominated inland bills of exchange in Article 14 of the Code of Public General Laws, and may be protested for non-payment, and the protest thereof is admissible in evidence under sections 6 and 7 of said Article.

A check drawn on the Cecil Bank was discounted by the Franklin Bank, and passed through the books in the usual way. At the time the check was discounted there were funds in the Franklin Bank to the credit of the Cecil Bank, more than sufficient to pay the check, and it was debited at once to the Cecil Bank. The check was presented to the Cecil Bank and payment refused, although the bank at the time held funds of the drawers more than sufficient to pay it. The check was thereupon protested and returned to the Franklin Bank. In an action by the Franklin Bank against the payee of the check, as endorser, it was HELD:

That the check did not operate as an assignment pro tanto of the fund upon which it was drawn, and payment having been refused, the plaintiff was entitled to recover against the defendant.  

COUNSEL:
Orville Horwitz, for the appellant.

The provisions of the 6th and 7th sections of Article 14 of the Code of Public General Laws, do not apply to checks. Chitty on Bills, 512; Ivory vs. Bank of the State of Missouri, 36 Missouri, 475; Andrew, &c. vs. Blackley, &c., 11 Ohio, (N. S.,) 89; In re Ephraim Brown, 2 Story, 511; Conroy vs. Warren, 3 Johnson's Cases, 261; Bowen vs. Newell, 4 Selden, 195.

There was no sufficient evidence, in point of fact, of the delivery of the notice of protest to the defendant.

It being admitted that there were funds in the Cecil Bank adequate to meet the check in question, the endorsement thereof to the Franklin Bank transferred to the said Franklin Bank an amount of these funds equal to the amount of the check, and the Cecil Bank then became the debtor of the Franklin Bank to the amount of that check; the Franklin Bank having the funds of the Cecil Bank in its own possession, and having already, by its entry to the debit of the Cecil Bank on its books of the check, appropriated so much of said funds as were necessary, the check was, in point of fact and of law, paid to the plaintiff, and the plaintiff, therefore, cannot now proceed [**5]  to collect it again. Munro, et al. vs. Burch, et al., 25 Ill., 35; In re Ephraim Brown, 2 Story, 511; Brown vs. Lush, 4 Yerger, 210; Van Bibber vs. Louisiana Bank, 14 Louisa. An. Rep., 481, 482, 483; Chicago Mar. Ins. Co. vs. Stanford, 28 Ill., 168; Rothschild vs. Corney, 9 Barn. & Cress., 388.

Wm. Reynolds, Jr., and Thomas Donaldson, for the appellee.

The Superior Court was right in allowing the protest of the check sued on, to be read in evidence to the jury, under the Act of 1837, ch. 253, embodied in sections 6 and 7 of Article 14 of the Code of Public General Laws, which makes the protest duly made by a notary public of a bill of exchange, whether foreign or inland, for non-acceptance or non-payment, prima facie evidence of such non-acceptance or non-payment, &c., a check being an inland bill of exchange. Byles on Bills, 10, and cases cited in note; Woods vs. Shroeder, 4 H. & J., 381; Harker vs. Anderson, 21 Wend., 372; Chapman vs. White, 2 Seld., 412; Chitty on Bills, 572; 3 Kent's Commentaries, 74.

The defendant's second prayer was properly rejected:

First: Because if a check be protestable, the protest was prima facie evidence of notice having been sent [**6]  under the Code of Public General Laws, Article 14, section 7; and a witness proved that he delivered to the defendant the notice sent with the protest.

Second: Even if a check be held not protestable, and the protest was therefore a nullity, a witness testified that he delivered to the defendant a notice addressed to him, and which he had read over and saw that it was a notice of protest, and it was competent for the plaintiff to prove the contents of such notice by parol, without notice to the defendant to produce the original. Ackland vs. Pearce, 2 Camp., 601; Ekins vs. Hanley, 2 Fox & Smith, 1, 3, 4; Kine vs. Beaumont, 3 Brod. & Bing., 288; Lindenburger vs. Beall, 6 Wheat., 104; Johnson vs. Haight, 13 John., 370; Tower vs. Wilson, 3 Cain's Rep., 174; Smyth vs. Hawthorn, 3 Rawle, 355; Eisenhart vs. Slaymaker, 14 Sergeant & Rawle, 156; Eagle Bank vs. Chapen, 3 Pick., 180; Taylor vs. Bank of Illinois, 7 Monroe, 756-758; Leavite vs. Simes, 3 New Hampshire Rep., 14; Faribault vs. Ely, 2 Dev. Rep., 67.

The defendant's first prayer was properly rejected, because the plaintiff had no right to appropriate funds of the Cecil Bank in its possession, to the payment of checks drawn [**7]  upon it by third parties, without express authority from the Cecil Bank so to do, even if the plaintiff knew that Tome & Co. had sufficient funds at that time in the Cecil Bank to meet said check, and there is in this instance, no evidence of such knowledge on the part of the plaintiff. It is true that the check was debited to the account of the Cecil Bank; but this was a mere entry, made for the convenience of keeping accounts, upon the supposition that the check would be honored by the Cecil Bank, to be rectified by a counter entry in case the check should be dishonored. It was not a payment by the Cecil Bank, because it was an act done entirely without its consent and knowledge, and the Cecil Bank was not bound to recognize said debit as a proper one. Morse on Banking, 89, 247, 270; Chapman vs. White, 2 Seld., 412.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*579]  ALVEY, J., delivered the opinion of the Court.
Whether the check declared on in this case is in any proper sense an inland bill of exchange, and therefore protestable, within the meaning and object of sections 6 and 7 of Article 14 of the Code, is the first [**8]  question presented; and we think the Court below was right in ruling in the affirmative. According to all the text writers on bills and notes, as well as in numerous decisions, a check is denominated a species of inland bill of exchange; not with all the incidents of an ordinary bill of exchange, it is true, but still it belongs to that class and character of commercial paper. Byles on Bills, 10; 2 Parsons on Notes and Bills, 58; Cruger vs. Armstrong, 3 John. Cases 5; Merchants' Bank vs. Spicer, 6 Wend. 443; Harker vs. Anderson, 21 Wend. 372. The same reason, therefore, that would authorize the protest of an inland bill of exchange for non-payment, would authorize the protest of a 

 [*580]  check, the payment of which had been refused on presentment. Neither instrument was required by the general law merchant to be protested on dishonor; foreign bills alone being required to be protested by that law. But provision has been made by statute for protesting both inland bills of exchange and promissory notes, and we think a check drawn in the ordinary form, such as the one in question here, is embraced within the description [**9]  of paper denominated inland bills of exchange by our statute. The protest, therefore, was properly admitted in evidence.
The next question, whether, because the check was debited to the Cecil Bank by the Franklin Bank while holding sufficient funds of the Cecil Bank to pay the check, and that the latter bank, upon which the check was drawn, held sufficient funds of the drawers to pay the check at the time of presentment for payment, the check is, therefore, as between the Franklin Bank and the defendant, to be regarded as paid, we think was also rightly decided by the Court below.
A check does not, as contended by the appellant, operate as an assignment pro tanto of the fund upon which it is drawn, until it is accepted, or certified to be good, by the bank holding the funds. It is true, a bank, if in funds of the drawer, is ordinarily bound to take up his checks; but it can only be held liable to the holder for its refusal to do so, upon the ground of fraud, whereby he loses the money or some part of it, for which the check is drawn. It is certainly a general rule, that a drawee who refuses to accept a bill of exchange cannot be held liable on the bill itself; nor to the holder [**10]  for the refusal to accept, except it be upon the ground of fraud and loss to the latter. A bank upon which a check is drawn occupies in this respect a similar position to that of the drawee of a bill of exchange. It is but the agent of the depositor, holding his funds upon an implied contract to honor and take up his checks to the extent of the funds deposited. The obligation to accept and pay is not to the holder of the check, but to the drawer. If, therefore, the 

 [*581]  depositor should direct that a check should not be paid, the bank would be bound to observe the direction, unless it had previously accepted the check by certifying it to be good, in which case it would be bound to pay; at any rate to a subsequent holder. The bank, therefore, ordinarily, owes no duty to the holder of a check drawn upon it, nor is it bound, except to the depositor, to accept or pay the check, though it may have sufficient funds of the drawer with which to do it.
In the case of Bullard vs. Randall, 1 Gray 605, it was held that a check for a portion of the drawer's funds worked no assignment until presented for payment and accepted by the bank; and further, that it did not [**11]  avail to bind the bank in any way, that the holder of the check gave notice to the bank of his holding the check; not even where the cashier of the bank, when absent from it, verbally assented to the drawing of the check. So, in the case of Chapman vs. White, 2 Seld. 412, it was expressly held that a check before acceptance neither operates as an assignment, nor creates any lien on the funds of the drawer. In this last case it was said, that "a check is a bill of exchange payable on demand. The drawee owes no duty to the holder until the check is presented and accepted." And in the case of Dykers vs. Leather Manufacturers' Bank, 11 Paige 612, it was held that, where the drawer had given checks exceeding in the aggregate the amount of his funds in the bank, and had forbidden the bank to pay, and finally drew out his funds to make ratable distribution among the check holders, the owner of a check presented before the withdrawal of the funds, but after orders not to pay, could maintain no action against the bank; that mere priority in drawing a check gives the holder no preference or priority in payment, over the holders of checks subsequently [**12]  drawn.
It follows from what has been stated, that the check, until it was accepted, did not operate as an assignment of the drawer's funds in the Cecil Bank; and the acceptance or payment being refused, the Franklin Bank was remitted to 

 [*582]  its remedies against the drawers and endorsers of the check. The fact that the check was debited to the Cecil Bank, upon the supposition that it would be paid on presentation, can make no manner of difference in the right of the bank to recover against the defendant as endorser. It could acquire no right against the Cecil Bank by charging up the amount of the check in its account without authority, and upon the dishonor of the check that charge was of course nullified.
As to the second prayer of the appellant, that, we think, the Court below was right in refusing. There was evidence before the jury from which they could find that the appellant had received the notice of the demand and refusal. The notarial certificate was evidence of the fact that notices of protest had been enclosed to the cashier of the Franklin Bank; and the only additional evidence required was, that the notice for the appellant had been delivered to him in due time.  [**13]  There was evidence certainly tending to prove that fact; and the presumption was, until the fact was shown to be otherwise, that the notice was in due form, and sufficient to charge the appellant. The judgment must therefore be affirmed.
Judgment affirmed. 

13 of 142 DOCUMENTS 

THE MUTUAL BENEFIT LIFE INSURANCE COMPANY vs. HARRIET H. WISE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 582; 1871 Md. LEXIS 88 

June 22, 1871, Decided 

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

This suit was instituted in the Superior Court of Baltimore city by the appellee against the appellant, and subsequently upon the affidavit of the latter, was removed to the Circuit Court for Howard county. The cause of action was a policy of insurance effected by the appellee in the office of the appellant, on the 17th of May, 1867, upon the life of her husband, the Rev. Henry A. Wise of Baltimore city, for the sum of $ 20,000. The premiums were regularly paid by the deceased up to the time of his death, which occurred on the 10th of February, 1869. The appellant, after the death of Mr. Wise, was regularly furnished with the preliminary proof required, but refused to pay the amount of the policy. The policy contained the following clause: "if the declaration made by or for the said assured, and bearing date the 17th of May, 1867, and upon the faith of which this agreement is made shall be found in any respect untrue, then and in such case this policy shall be null and void." In the declaration signed on behalf of the appellee, for whose benefit the insurance was effected, are the words:

"I hereby agree that the answers of the [**2]  said Henry A. Wise, and those of his physician and friend shall be the basis of the contract between myself and the said company; and if any untrue or fraudulent allegation is contained in those answers, or in this declaration, all moneys which shall have been paid to the said company on account of the assurance made in consequence thereof, shall be forfeited for the benefit of the company.

The questions required to be answered by the assured on applying for an insurance on his life, and his answers thereto, in so far as material in this case, are as follows:

"5. Has the party been, or is he now employed in any military or naval service?" "No."

"10. Has the party been afflicted since childhood with disease of the heart, rupture, fits, dropsy, liver complaint, bilious colic, rheumatism, gout, habitual cough, bronchitis, asthma, spitting of blood, consumption, paralysis, apoplexy, insanity, fistula or disease of the kidneys or bladder, and which?" "No."

"11. Has the party had any sickness within the last ten years; if so, what?" "Pneumonia, in 1862."

"15. Has any company declined to insure the party; if so, what company, when, and for what reasons." "No."

Other [**3]  facts in the case will be found sufficiently disclosed in the prayers and in the opinion of the Court.

First Exception: The medical examiner of the defendant in his testimony stated that upon the examination of Mr. Wise, he had some conversation with him, and Mr. Wise said that he had great powers of endurance; that the memorandum at the end of the medical examination was Mr. Wise's own declaration, put in form as near as could be; that Mr. Wise said, "I have great powers of endurance; I am capable of performing considerable feats of pedestrianism without fatigue, and I feel this morning as if I could carry an ordinary-sized man to New York on my shoulders." I knew that he could not do that, but it was not said in a jocular way; that witness had not any other information about Mr. Wise than what he, Wise, had himself given; that the recommendation by witness had been made upon the representations of Mr. Wise, upon witness' own examination and the certificate of the family physician.

The defendant then asked the witness this question, viz: "If you had known that Mr. Wise had been so far weakened or prostrated by his pulpit services in the morning in Philadelphia, that he was [**4]  unable to attend in the afternoon, would that have influenced you in making up your opinion about recommending him while he was informing you about his great powers of physical endurance? The plaintiff objected to the question, and the Court sustained the objection, and thereupon the defendant excepted.

Second Exception: The evidence being closed the defendant offered the following prayers:

1st. That there is no evidence for the plaintiff to enable her to recover on the money counts.

2d. That if the jury find that Henry A. Wise, Jr., made and signed the declaration of particulars required from persons proposing to effect assurance on lives in the defendant, given in evidence; the 11th question of which is in the following form, namely: "11. Has the party had any sickness within the last ten years;" and that the word any is in small capitals in the printed question; and the jury find that the said Henry A. Wise, Jr., answered, "Pneumonia, in 1862," then there is an implied representation that he had not had any other sickness within said term; and if, in point of fact, the jury find that he had another sickness, called "chronic pharyngitis," within said term, that then [**5]  the policy is void by reason of the non-communication of that fact; and it is no matter how innocent the plaintiff may have been in the transaction, and no matter whether such non-communication was fraudulent or resulted from negligence, inadvertence or forgetfulness on the part of Henry A. Wise, Jr.

3d. That if the jury find that Henry A. Wise, Jr., made and signed the declaration of particulars required from persons proposing to effect assurance on lives in the defendant, given in evidence; the 11th question of which is in the following form, namely: "11. Has the party had any sickness within the last ten years;" and that the word any is in small capitals in the printed question; and the jury find that Henry A. Wise, Jr., answered, "Pneumonia, in 1862," and that in point of fact, within said term, his condition in reference to sickness within said term had been such as is particularly narrated in the testimony of Dr. Gerhard, contained in the commission executed at Philadelphia, and find the other facts contained in said testimony of Dr. Gerhard, and that none of the facts or circumstances so narrated by Dr. Gerhard were stated by Henry A. Wise, Jr., in the said declaration [**6]  or at the time of making it, then the policy is void by reason of the omission to state any of those facts or circumstances; and it is no matter how innocent the plaintiff may have been in the transaction, and no matter whether such omission was fraudulent or resulted from negligence, inadvertence or forgetfulness on the part of Henry A. Wise, Jr.

4th. That if the jury find that Henry A. Wise, Jr., made and signed the declaration of particulars required from persons proposing to effect assurance on lives in the defendant, given in evidence; the 15th question of which is in the following form, namely: "15. Has any company declined to insure the party; if so, what company, when and for what reason;" and shall further find that said Wise to that question answered "No;" and shall further find that shortly prior to said declaration being so made by Henry A. Wise, Jr., be had applied to the Mutual Life Insurance Company of New York, for insurance, and had been examined by Francis Donaldson, the medical examiner of said company; and said Donaldson, in answer to the 15th, one of the questions which are to be answered by the medical examiner, said question being "Do you recommend that [**7]  a policy be granted?" had not recommended the granting of it, but had answered as follows, viz: "I can detect no evidence of any disease in Mr. Wise; he is thirty-three years old; his weight does not correspond by forty pounds to his height." And further find that said application was made and signed by said Wise in the city of Baltimore, and left with O. F. Bresee, agent of said Mutual Life Insurance Company, and thence sent to the principal offiee of the said Mutual Life Insurance Company, at New York, and by said company returned to said Bresee, and said insurance was not effected for the reason stated by said medical examiner; and further find that said Henry A. Wise, Jr., did not disclose to this defendant the fact that said application had been mailed and returned to said Bresee, that then it is no matter whether such non-disclosure or concealment was fraudulent or resulted from ignorance, negligence, inadvertence or forgetfulness on the part of said Henry A. Wise, Jr., and no matter whether or not he knew the necessity of a full disclosure of all the facts and circumstances of said transaction with said Donaldson and said Mutual Life Insurance Company or its agent. Nevertheless,  [**8]  it was his duty to have made such disclosure, and therefore the policy upon which suit is brought in this case is void, and the plaintiff cannot recover under the first count in his declaration.

5th. That if the jury find that an application for insurance on his life was made by Henry A. Wise, Jr., to the Mutual Life Insurance Company of New York., and that said application was not granted by said company, that then it was in legal intendment a declination by said company, and ought therefore to have been disclosed by said Henry A. Wise, Jr., in answer to the 15th question.

6th. That if the jury find that Henry A. Wise, Jr., made and signed the declaration of particulars required from persons proposing to effect assurance on lives in the defendant, dated the 17th of May, 1867, given in evidence; and further find the facts stated in the evidence of Mr. Winston, contained in the deposition executed at New York; and also find that the application for insurance therein mentioned was made by Mr. Wise through Mr. Bresee, the agent of the Mutual Life Insurance Company in Baltimore, and returned to said Wise without a policy being issued before his application to defendant, then [**9]  it was the duty of said Wise, in his application to the defendant, in answer to the 15th of the questions answered by him, to have disclosed the fact of his application to the Mutual Life Insurance Company and the fate of it; and if the jury find that he did not make such disclosure, then the plaintiff cannot recover on the first count in his declaration.

7th. If the jury shall find from the evidence that the late Henry A. Wise, Jr., gave the written answers to interrogatories required of persons on whose lives insurance is applied for to the defendant, which accompany and are made part of the application dated May 17th, 1867, for insurance upon his life, which has been offered in evidence, and that upon said application the policy sued on was issued by the defendant, and that to the 15th of said interrogatories, which is in these words: "Has any company declined to insure the party; if so, what company, when and for what reason?" the said Wise gave no other answer than the written answer, "No," which appears on said application. And shall further find, that a short time prior to the said application, an application had been made for insurance upon his life to the Mutual Life [**10]  Insurance Company, and that said application was not accepted by said company, but was returned by it to said Wise before the aforesaid application to this defendant was made, then the plaintiff is not entitled to recover on the first count of the declaration.

8th. If the jury shall find from the evidence that the late Henry A. Wise, Jr., gave written answers to interrogatories required of persons on whose lives insurance with the defendant is applied for, which accompany and are made part of the application dated May 17th, 1867, for insurance on his life, which has been offered in evidence, and that upon said application the policy sued on was granted, and that to the fifteenth of said interrogatories, which is in these words: "Has any company declined to insure the party; if so, what company, when, and for what reason?" the said Wise gave the answer, "No," which is written upon said application. And shall further find, that a short time prior to said application, an application had been made for insurance upon his life to the Mutual Life Insurance Company of New York, and that said application was not accepted by said company, but was returned by reason of any objection whatever [**11]  prior to making the application to this defendant; and shall further find that the said Wise, nor any other person, did not make known to this defendant prior to the issue of its policy, the fact of said application and the return thereof by said Mutual Life Insurance Company, then the policy sued on is void and the plaintiff cannot recover in this action, even were the jury further to find that the objection taken to the risk by said company was one of the objections which was considered by the defendant in estimating the risks intended to be assured by them.

9th. If the jury shall find from the evidence that the late Henry A. Wise, Jr., made and signed the declaration of particulars, which accompanied and made part of the application for insurance given in evidence in this cause, and upon that application the policy of insurance upon his life, which has been given in evidence by the plaintiff, was issued, and that the eleventh question required to be answered by the party upon whose life insurance is applied for, as contained in said application, is in the following form, to wit: "Has the party had any sickness within the last ten years?" And they shall further find that the [**12]  said Henry A. Wise gave to this question the written answer: "Pneumonia in 1862," and gave no other answer or explanation in response to said question; and shall further find that the said Henry A. Wise, in the year 1860 or 1861, or at any time within ten years prior to the said application, had the sickness called "chronic pharyngitis," and was treated for said sickness by his then medical attendant, then the policy offered in evidence by the plaintiff in this cause, was avoided by his non-communication of the fact of said sickness to the defendant, and the plaintiff is not entitled to recover upon the first count of the declaration in this cause.

10th. If the jury shall find that the late Henry A. Wise, Jr., made and signed the declaration of particulars required to be made and answered by persons on whose lives insurance is proposed to be effected with the defendant, which has been offered in evidence, and that the policy sued on was procured upon the faith of said application and the statements by the said Wise in said application made in answer to the questions to him then propounded, in whole or in part; and shall further find, that in answer to question number eleven in [**13]  said application, viz: "Has the party had any sickness within the last ten years?" he said or wrote, "Pneumonia in 1862," and made no other answer and gave no other information touching the matter of said question than those words; and shall further find, that within ten years next before the date of said application, he had had a sickness called "chronic pharyngitis," and that he had been treated for said sickness by a skilful medical attendant, then the non-communication of his having had such sickness, to the defendant, avoids the policy sued on, and the plaintiff cannot recover under the first count of the declaration.

11th. If the jury shall find that the late Henry A. Wise, Jr., made and signed the declaration of particulars required to be made and answered by persons on whose lives insurance is proposed to be effected with the defendant, which has been offered in evidence, and that the policy sued on was procured upon the said application, and that he made the statements contained in said application, in answer to the questions to him then propounded; and shall further find, that in answer to the question No. 5 in said application, viz: "5. Has the party been or is he now [**14]  employed in any military or naval service?" he answered, "No," and made no other answer to said question; and shall further find that he was chaplain in the army of the Confederate States in 1862, that then this non-communication of that fact avoids the policy, and the plaintiff cannot recover under the first count in the declaration.

The first prayer was conceded by the plaintiff, and the other prayers were rejected by the Court. The defendant excepted.

The verdict was for the plaintiff for $ 21,546.67, and judgment was so entered. The defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Life Insurance -- Materiality of Answers -- Answers not Warranties -- Misdirection to the Jury -- Questions exclusively for the Jury -- Admissibility of Evidence.

A policy of insurance, effected by a wife upon the life of her husband, stipulated that "if the declaration made by or for the assured, and upon the faith of which this agreement is made, shall be found in any respect untrue, then in such case this policy shall be null and void." By the declaration made by the wife, it was agreed "that the answers of the assured, and those of his physician and friend, should be the basis of the contract between herself and the company; and if any untrue or fraudulent allegation should be contained in those answers, or in the declaration, all moneys which should have been paid to the company on account of the assurance, made in consequence thereof, should be forfeited for the benefit of the company." Among the questions required to be answered by the assured, and his answers thereto, were the following: "Has the party been or is he now employed in any military or naval service? No" "Has the party had any sickness within the last ten years; if so, what? Pneumonia in 1862." "Has any company declined to insure the party; if so, what company, when, and for what reason? No." In an action on the policy by the wife, it was HELD:

1st. That these answers were not warranties, but representations made material by the agreement of the parties, and their truth alone, was open to the consideration of the jury.

2d. That it was not incumbent upon the insurer to show that the answers were morally false; to show that they were simply untrue, would be sufficient to defeat the plaintiff's action.

3d. That it was a misdirection to the jury, to instruct them that although the answer of the assured, that he had pneumonia in 1862, was true, their verdict must be for the defendant, if they found that the assured had had chronic pharyngitis within the ten preceding years, and had not communicated the fact, and that he had been treated therefor by a physician, however innocent he may have been in making said answer. It should have been left to the jury to find from all the evidence upon the matter, whether "chronic pharyngitis," was a sickness in contemplation of the parties in putting and answering said question, in addition to the other facts which the instruction required the jury to find.

4th. That it was a misdirection to the jury to instruct them that the plaintiff could not recover if they found that the assured answered "No" to the question, "Has the party been, or is he now employed in any military or naval service?" and it appeared that he had been a chaplain in the army of the Confederate States in 1862. It should have been left to the jury to find whether a chaplain in the army, is in the military service, and if in the military service, was the assured ever actually employed in such service.

5th. That it was a misdirection to instruct the jury that the plaintiff was not entitled to recover, if they found that the assured replied "No" to the question, "Has any company declined to insure the party; if so, what company, when, and for what reasons?" and further found that he had a short time previously, made application to the Mutual Life Insurance Company of New York, and the application had been returned to him before he made application to the defendant, and that he did not disclose the facts connected with such application. It should have been left to the jury to find, upon all the evidence in relation thereto, whether any other company had declined to insure his life.

6th. That whether an application to an insurance company by a party desiring to be insured, has been declined or not, is a question exclusively for the determination of the jury.

7th. That it was a misdirection to instruct the jury that the plaintiff was not entitled to recover, if they found that the assured, previously to applying to the defendant, had applied to the Insurance Company of New York for an insurance upon his life, and failed to disclose to the defendant all the facts connected with such application, its return and fate, when replying to the question: "Has any company declined to insure the party; if so, what company, when, and for what reason?" It should have been left to the jury to find whether or not, upon all the evidence before them, the assured knew all the facts connected with his application to the New York company, its return and fate, and knowing them, concealed them.

In an action on a life policy, the medical examiner of the company who had recommended the risk in 1867, having testified that in a conversation with the assured, he had spoken of his great powers of endurance, and of his capability of performing considerable feats of pedestrianism, was asked: "If you had known that the assured had been so far weakened or prostrated by his pulpit-services in the morning, in Philadelphia, (in 1860 or 1861,) that he was unable to attend in the afternoon, would that have influenced you in making up your opinion about recommending him, while he was informing you about his great powers of physical endurance? HELD:

That the question was irrelevant, and therefore inadmissible. 

COUNSEL:
Ed. Otis Hinkley and Wm. M. Merrick, for the appellant.

The fact that Mr. Wise was a chaplain in the army, as stated in the eleventh prayer, is enough for the purposes of what is intended in the policy, by the word employed.

This word in the contract not being intended to require a commission or any pay for the service, but only a doing something, or being somewhere that increases the risk. The word employment is used as synonymous with occupation or business--that is to show the character of the work and not the mode in which a contract was made for such employment, or the rate of pay,  [**15]  or indeed that any such contract was made; for this is foreign to the purpose of the inquiry, and quite useless for the appellant. Hartman vs. Keystone Ins. Co., 21 Penn., 466.

Prayers two, three, nine and ten, did not take the question of materiality of the sickness called "chronic pharyngitis," from the jury, but the Court below did. This was error. The evidence showed the nature of the disease and its tendency to induce bronchitis, which is one of the diseases particularly inquired for.

The answer to the eleventh question was "pneumonia," and this was true as far as it went; but it implied that the party had had no other sickness, and so it was not the whole truth. It is not law that a man can excuse himself by telling only a part of the truth if the other part is material, and even more material than the part disclosed.

The duty of disclosure of all material facts about which inquiry is directly made, lies at the very foundation of the contract of insurance, whether fire, life, or marine; and, perhaps more in life insurance than in either of the other two. It is preeminently a contract of good faith. This duty of disclosure applies to all three questions, and it [**16]  leads to the question whether any of the forms in which this point is raised in prayers numbers four, five, six, seven or eight, rightly enunciate the principle.

Mr. Wise made an application for insurance, and it was not granted, but the application was returned to him for the reason that his weight did not correspond to his height, and he knew that--so the evidence shews. Does not this raise a duty of a more candid answer to the fifteenth question?

It was not sufficient for the assured to answer all questions propounded to him. He was bound to tell the whole truth without waiting to be interrogated. Smith vs. Columbia Ins. Co., 17 Penn., 253; Allegree vs. Md. Ins. Co., 2 G. & J., 162; New York Life Ins. Co. vs. Flack, 3 Md., 341; Augusta Ins. Co. vs. Abbott, 12 Md., 348, 376, 377; Sexton vs. Montgomery, 9 Barb., 191; Clark vs. Manuf. Ins. Co., 8 How., 235-248

Misrepresentation of facts will avoid a policy, whether made fraudulently, or by mistake, or negligence, if the insurer is thereby led into error. Bryant vs. Ocean Ins. Co., 22 Pick., 200; Carpenter vs. American Ins. Co., 1 Story, 57.

A mere inadvertent omission of facts material to the risk, and such as the [**17]  party insured should have known to be so, will avoid it. Dennison vs. Thomaston Ins. Co., 2 Appleton, 125; Sawyer vs. Coaster's Mutual Ins. Co., 6 Cushing, 223; 1 Phillips on Ins., sec. 537.

Statements in the application, "upon the faith of which" the policy is granted, are warranties, and if untrue even in a point immaterial to the risk, avoid the policy. Miles vs. Connecticut Mutual, 3 Gray, 580; Davenport vs. New England Ins. Co., 6 Cushing, 341; Vose vs. Eagle Ins. Co., 6 Cush., 49; Anderson vs. Fitzgerald, 4 H. L. Cases, 484; Curry vs. Commonwealth Ins. Co., 10 Pick., 535; Wilbur vs. Bowditch Ins. Co., 10 Cush., 446; Kimball vs. Etna Ins. Co., 9 Allen, 540; Sawyer vs. Coaster's Ins. Co., 6 Gray, 221; 1 Arnould on Ins., 494, 495, and cases cited in note; Campbell vs. New England Mutual Life Ins. Co., 98 Mass., 381; Life, &c., Ins. Reports, by Bigelow, 77, 161, 229, 409.

Wm. S. Waters and I. Nevett Steele, for the appellee.

The questions raised by the prayers in this case are not upon the facts stated in the declaration made by the appellee, but upon facts stated in the answers to the questions submitted to Mr. Wise. They seem to be raised upon that part of the declaration [**18]  which purports to set out the following agreement on the part of the assured:

"I, Harriet H. Wise, hereby agree that the answers of the said Henry A. Wise and those of his physician and friend, shall be the basis of the contract between myself and the said company; and if any untrue or fraudulent allegation is contained in those answers or in this declaration, all money which shall have been paid to the said company on account of the insurance made in consequence thereof, shall be forfeited for the benefit of the company."

This agreement is not made part of the policy. It is not by the terms of the policy made part of the contract, and as such, a warranty. And unless this is done in the most clear and explicit terms in the policy itself, it will not be construed to be a part of the contract. For the policy of insurance merges in itself the entire agreement of the parties, exclusive of all collateral or prior stipulations. Jefferson Ins. Co. vs. Cottrill, 7 Wend., 72; Fowkes vs. Assurance Association, 3 B. & S., 917; Jennings vs. The C. C. M. Ins. Co., 2 Denio, 75; Barrett vs. S. Co. M. F. Ins. Co., 5 Hill, 190.

This agreement is referred to as a representation. Reference [**19]  is made to certain answers as something upon the faith of which the contract is made. The truth or untruth of the answers referred to are "the basis of the contract," no further or otherwise than as a representation may be such basis. 6 Rob. Prac., 90 to 92.

There being no express stipulation that the policy shall be void in consequence of an incorrect answer given by Mr. Wise and his physician and friend to questions put to them, it follows that nothing but fraud in such answer will have that effect. As to mere representations, there are in the case of a marine or fire insurance, peculiarities which do not apply to a life insurance. The former are contracts for indemnity --a life insurance is not so. It is a promise to pay money upon condition. The company agrees to pay a sum in gross upon the death of a party upon condition that it shall be paid a fixed annuity for his life. And unless there is some condition expressed in the policy itself, the breach of which makes it void, nothing but misrepresentations or fraud will avoid it. Dalby vs. The Ind. L. Ins. Co., 28 E. L. & E., 312; Wheaton vs. Hardesty, 8 El. & Bl., 298; 6 Rob. Prac., 87, 88.

The prayers preclude all inquiry [**20]  by the jury into the materiality of the answers as representations. They exclude all inquiry into any fraud or wilfulness in any supposed misstatement in them.

Considering the prayers upon the supposition that the answers to the questions were warranties, the literal truth of these answers was put in issue, and the jury must find that they were literally false. None of the prayers come up to this requisition. None of them submit the question to the jury of the truth or falsehood of the answers. There is no instance in which either, in the language of the question and answer, is the truth or falsehood of the answer submitted, or is the truth or falsehood of facts which are identically the same facts as those stated in the answers submitted. Mayall vs. Mitford, 6 Ad. & El., 670; Whitehead vs. Price, 2 Cr. M. & R., 447; De Hahn vs. Hartley, 1 T. R., 344; 6 Robinson's Prac., 86-266.  

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

OPINIONBY:
GRASON 

OPINION:

 [*596]  GRASON, J., delivered the opinion of the Court.
The record in this cause contains two exceptions, the first, taken to the ruling of the Court below in excluding from the consideration by the [**21]  jury the evidence therein set out; and the second, to the rejection of ten of the eleven prayers offered by the appellant, its first prayer having been conceded. The rejected prayers all relate to certain answers made by Henry A. Wise, Jr., to questions five, eleven and fifteen put to him before the policy was issued by the agent of the appellant. The appellee, by her declaration in writing, dated the seventeenth day of May, in the year 1867, (the same day the policy bears date,) and filed with the application, declared that the age of said Henry A. Wise, Jr., at his next birth-day thereafter, would be thirty-three years; that he did not, to the best of her knowledge and belief, practice any bad or vicious habit that tended to shorten life, and that she had an interest in his life to the full amount of $ 20,000; and she thereby agreed that the answers of the said Henry A. Wise, Jr., and those of his friend and physician, should be the basis of the contract between herself and the company, and that if any untrue or fraudulent allegation should be contained in those answers or in said declaration, all moneys which should be paid to the 

 [*597]  company on account of the insurance,  [**22]  made in consequence thereof, should be forfeited for the benefit of the company. The policy contains a stipulation that it shall be void if "the declaration made by the assured, and upon the faith of which this agreement is made, shall be found in any respect untrue."
The fifth, eleventh and fifteenth questions, to which the prayers refer, and the answers thereto, are as follows: "5. Has the party been or is he now employed in any military or naval service?" The answer was "no." "11. Has the party had any sickness within the last ten years; if so, what?" The answer was, "pneumonia in 1862." "15. Has any company declined to insure the party; if so, what company, when, and for what reason?" The answer was "no."
The contract between the parties having been entered into upon the basis of the truth of these answers, it becomes necessary to ascertain whether they constitute warranties, which cast upon the assured the onus of proving the literal truth of them, or whether they are representations merely, and if representations, whether their materiality, as well as their truth, is to be passed upon by the jury. We have carefully examined and considered the authorities referred to [**23]  in the argument, and are of opinion that the true rule of construction of contracts like this, is that adopted and acted upon in the cases of Anderson vs. Fitzgerald, 4 House of Lords' Cases, 503-514, and Campbell vs. New Eng. Ins. Co., 98 Mass. 381. Both of those cases presented questions almost identical with those raised in this case, and in each of them it was held that the answers were not warranties, but representations made material by the agreement of the parties, and, therefore, that their truth alone was open to the consideration of the jury. In those cases, it was also held that it was not incumbent upon the insurer to show that the answers were morally false, but that if they were shown to be simply untrue, it would be sufficient to defeat the plaintiff's action. Being satisfied that those cases announce the true rule of construction of such 

 [*598]  contracts as the one before us, we will now proceed to consider the prayers.
The second, third, ninth and tenth prayers refer to the eleventh question and answer. Upon the theory of these prayers, notwithstanding the jury might find that Mr. Wise's answer that he had pneumonia in 1862, was true,  [**24]  yet their verdict must have been for the appellant, if they further found that he had had "chronic pharyngitis" within the ten preceding years, and that he had not communicated that fact, and that he had been treated therefor by a physician, however innocent he may have been in making said answer. By the tenth question, Mr. Wise's attention had been directed to certain diseases, specifically enumerated therein, and had been asked if he had had any of those diseases, and upon his replying in the negative, he was asked by the eleventh question if he had had any sickness within ten years. It is not alleged that the answer to this question, as far as it went, was untrue, but it is contended that it ought to have gone further and disclosed the fact that he had had "chronic pharyngitis" in 1860 or 1861. There is evidence in the record to show that pharyngitis is an inflammation of the throat, and, when slight, not to be called a sickness, and not likely to shorten life. If the policy in this case is to be avoided by the fact of Mr. Wise having had this affection in 1860 or 1861, and by his not having disclosed that fact in his answer, then, if he had suffered from any slight indisposition [**25]  or sickness within the same period, and had failed to communicate that fact in answer to the eleventh question, the policy of insurance would have been made void. His attention having been directed by the tenth question to certain diseases particularly named therein, Mr. Wise may have very naturally supposed that the eleventh question had reference to diseases or sicknesses of the same class, and like importance. It will be recollected that pharyngitis is not named in either the tenth or eleventh questions, and that there was proof to show that it is an affection slight in its character and effects; and if, as matter of law, a 

 [*599]  policy is to be avoided, if a party insured is shown to have had it some six or seven years before insurance, and that he failed to make it known in answering a question like the eleventh, then policies on lives, where the truth of answers to questions is made the basis of the contracts, would be mere devices by which insurance companies could obtain money, by way of premiums, without becoming liable upon the policies issued to the insured. The four prayers now under consideration were therefore properly rejected, because they did not leave it to [**26]  the jury to find from all the evidence before them upon this matter, whether "chronic pharyngitis" was a "sickness" in contemplation of the parties in putting and answering the eleventh question, in addition to the other facts which these prayers required the jury to find.
The eleventh prayer denied the appellee's right to recover if the jury should find that Mr. Wise was a chaplain in the Confederate army in the year 1862. The only evidence as to this point, was a statement of Mr. Haxall, who, without being inquired of about the matter, so testified at the trial below. The fifth question put to Mr. Wise, and answered by him in the negative, was: "Has the party been, or is he now employed in any military or naval service?" There is no evidence to show whether a chaplain in the army is or is not in fact in the military service, and none to show that Mr. Wise was ever actually employed in said service, even if a chaplain can be said to be in the military service. He may have held the position of chaplain without having been ever actually employed. The onus of proving such employment was upon the appellant, and it was a question properly and exclusively for the jury to [**27]  pass upon, and as the eleventh prayer did not submit to the finding of the jury either the question whether a chaplain in the army is in the military service, or the question whether Mr. Wise, if in the military service, was ever actually employed in such service, it was properly rejected.
The fourth, fifth, seventh and eighth prayers refer to the fifteenth question and answer. In answer to the question 

 [*600]  whether any company had declined to insure Mr. Wise's life, he said "no." He had in fact made application to Mr. Bresee, general agent at Baltimore of the Mutual Life Insurance Company of New York, for insurance in that company. Mr. Bresee sent on to the president of his company, in the same letter, the applications of Macmurdo, Staley and Wise, and several days afterwards, received a reply from the vice-president of the company, in the following words, viz:

________________________________________________________________________________

"I have received your letter, dated 1st May. I enclose	
policies No. 62,413, Macmurdo,	$ 36.13	
  "Staley,	Declined.	
  "Wise,	Returned. See mem."	
________________________________________________________________________________

The proof shows that Macmurdo's policy was granted; that "declined" opposite Staley's name, indicated that his application had been finally [**28]  acted upon and rejected, and that the memorandum referred to in the letter as made upon Mr. Wise's application was the word "returned" or "withdrawn," which indicated that his application might be reconsidered. Dr. Donaldson, the examining physician of the New York company, had reported that Mr. Wise's weight did not correspond with his height by forty pounds.
Mr. Bresee proved that Mr. Wise did not know that his application had been sent on to New York; that he had no means of knowing; that after it was returned from New York, he sent a message to Mr. Wise, that his company had some rules about a man's weight corresponding with his height, and that he thought there might be some difficulty or doubt about his application passing, and advising him to withdraw it, and that Mr. Wise sent a message in reply, that he would not take a policy if the company would give it to him, that he would not insure in a company having such nonsensical rules.
Mr. Winston, the president of the New York company, was twice asked, upon his examination, whether Mr. Wise's 

 [*601]  application had been declined by his company, without eliciting a reply in the affirmative. The fourth and seventh prayers [**29]  asked instructions, in substance, that, if Mr. Wise did not make known, in answer to the fifteenth question, the facts connected with his application to the New York company, the plaintiff was not entitled to recover. The Court below was right in rejecting those two prayers, because they did not submit to the jury to find, upon all the evidence in relation thereto, whether any other company had declined to insure Mr. Wise's life. That was a question exclusively within the province of the jury to pass upon. For the same reason, the fifth prayer, which asked the Court to say, as matter of law, that the above facts amounted to a declining of Mr. Wise's application, was also properly rejected. The sixth and eighth prayers do not deny the appellee's right to recover upon the ground of any want of truth in Mr. Wise's answer to the fifteenth question, but upon the ground that it was the duty of Mr. Wise to have disclosed to the appellant all the facts connected with his application to the New York company and its return and fate. In other words, the sixth and eighth prayers are based, in effect, upon the theory of a fraudulent concealment by Mr. Wise of facts, which good faith and fair [**30]  dealing required him to disclose. Mr. Bresee testified that Mr. Wise did not know that his application had been sent on to New York; that he had no means of knowing; that he had never seen Mr. Wise after his application had been made out, and that he thought he had returned Mr. Wise's application to him, as he had not been able to find it at his office. If Mr. Wise did not know that his application had been presented to and considered by the New York company, but believed that the suggestion for its withdrawal came from Mr. Bresee alone, for the reason that Mr. Wise's weight did not correspond with his height, how can it be said that there was any concealment of facts, or want of good faith in not disclosing them? The prayers should have left it to the jury to find whether or not, upon all the evidence before 

 [*602]  them, Mr. Wise knew all the facts connected with said application, its return and fate, and knowing them, concealed them. Not having submitted that question to the jury, the sixth and eighth prayers were properly rejected.
We think that the evidence set out in the first bill of exceptions was clearly inadmissible. Whether Mr. Wise was so fatigued by the morning services [**31]  in 1860 or 1861, that he had to omit services in the afternoon and have them in the evening, or whether, if such were the fact, it would have influenced Dr. Hartman, if known to him, in making up his opinion about recommending him for insurance in 1867, we are at a loss to perceive how the questions at issue between the parties to this case can be affected by it. Mr. Wise was asked no question in regard to it; there is no evidence to show that such a thing ever occurred after he left Philadelphia, even if it occurred there, upon which point the evidence is conflicting; it was irrelevant and therefore inadmissible.
The only remaining question to be noticed, arises from the refusal of the Superior Court of Baltimore city to remove the case to the Circuit Court of the United States upon the petition of the appellant. It conclusively appears that Mrs. Wise, the appellee, was a citizen of the State of Virginia at the time of the institution of the suit, and therefore the provisions of the Act of Congress, authorizing removals from the State to the Federal Courts, do not apply.
Finding no error in the rulings of the Court below, its judgment must be affirmed.
Judgment affirmed. 

14 of 142 DOCUMENTS 

JAMES A. HOOPER vs. THE PRESIDENT, MANAGERS and COMPANY of THE BALTIMORE AND YORKTOWN TURNPIKE ROAD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 521; 1871 Md. LEXIS 82 

June 21, 1871, Decided 

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

This was an action brought in the Circuit Court for Baltimore county, by the appellee, against the appellant, to recover a bill for tolls incurred during the years 1867, 1868, and a part of 1869. The defendant pleaded the general issue. Upon the suggestion and affidavit of the defendant, the case was removed to the Superior Court of Baltimore city on the 22d of May, 1869; it was submitted to the Court for determination, without the aid of a jury, on the 18th of March, 1870.

Exception: The plaintiff, to sustain the issue on its part joined, proved by the keeper of Toll Gate, No. 1, on the plaintiff's turnpike; that the said gate was situated about one mile from the limits of the city of Baltimore; that the defendant, who resided about one hundred feet off the said turnpike road, on the west side of a road called the Old Powder-Mill Road, which intersects the said turnpike road at the Govanstown Hotel, and near the four-mile stone thereon, passed frequently through the said gate in going from his said residence to the said city, and returning during the period from February 1st, 1867, inclusive, to May 10th, 1869, inclusive,  [**2]  and that the claim of the plaintiff against the said defendant for tolls unpaid for the use of said turnpike road during said period, was correctly set forth, item by item, in the plaintiff's bill of particulars.

The witness further testified that the defendant had, during said period, a lot directly in front of his aforesaid residence, which lot fronts on the west side of said turnpike road, within three miles of the said gate, extends back to the east side of the said Old Powder-Mill Road, upon which its rear fronts, and is separated from the said main residence by the said Powder-Mill Road. He further testified that he could not swear to any particular item in the bill of particulars, because he was not always present at the gate, and in his absence his mother kept the gate and reported to him on his return what credit passengers had passed through the same; that he could not distinguish in the bill of particulars which items thereof passed under his own observation, and which he learned from his mother; that he always charged the proportionate toll according to the number of miles the traveller said he had travelled, and was going to travel, and that in the bill of particulars,  [**3]  the mile from the city limits, along Greenmount avenue into the city, was included, for which, under instructions from the company, he did not at the time of testifying, charge.

The plaintiff further proved by the mother of the toll-gate keeper, that she was always present at the gate, in the absence of her son, and reported to him on his return what credit passengers had passed through the gate; that the defendant's carriages and horses had frequently passed through the gate during the period of the bill of particulars; that further than this, she knew nothing of the account contained in the bill of particulars, and could swear to no item thereof.

The evidence introduced by the defendant is sufficiently disclosed in the prayers which he offered.

The defendant's counsel prayed the Court to rule upon the evidence, as follows:

1st. That upon the pleadings and all the evidence in the cause the plaintiff is not entitled to recover, because the evidence does not support the account contained in the bill of particulars filed in the cause, or any item thereof.

2d. That upon the pleadings and all the evidence in the cause, the plaintiff is not entitled to recover,  [**4]  because the evidence does not show that there is an amount due the plaintiff in this cause equal to or exceeding the sum of fifty dollars.

3d. That if the Court find, from the evidence in the cause, that during the whole period of the said bill of particulars filed in the cause, there was laid along the east side of the said turnpike road, from its terminus at the city of Baltimore running thence along said east side, past the said premises of the defendant and past the seventh mile-stone on said turnpike road, a railway with rails unlike those of the ordinary city passenger railways, but resembling those of the ordinary railroads, and resting upon sleepers that stood so far above the surface of the said turnpike road, that the horses and carriages of the passengers thereon were excluded from at least one-fifth the width thereof, or were unable to use the said road one-fifth of the width without great inconvenience, and that the Act of 1860, ch. 259, offered in evidence, which authorized the construction of the railway, contained no provision for the condemnation of the rights of the abutting land owners in the fee of said turnpike road, and that no condemnation thereof was in [**5]  fact made, then the plaintiff cannot recover.

4th. That if the Court find the facts stated in the defendant's third prayer, that then the plaintiff cannot recover more than four-fifths of the amount of the tolls authorized by the charter of the plaintiff, with interest and costs of suit.

5th. That if the Court find from the evidence that on or about the 8th day of September, 1825, the plaintiff did convey unto the Mayor and City Council of Baltimore all the estate, right, title and interest whatsoever of the plaintiff, both at law and in equity of, into and out of that part of the said Baltimore and Yorktown Turnpike Road, extending from the limits of the city of Baltimore into said city for one mile along Greenmount avenue, then the plaintiff cannot recover any toll for said mile, and a proportional deduction therefor must be made from the amount of the said bill of particulars.

6th. That if the Court believe from the evidence that the defendant held as tenant from year to year certain premises in Baltimore county, consisting of two lots, one of about five acres, used by him as a pasture for his cows, fronting on the west side of said turnpike road, within three miles [**6]  of said gate No. 1, and extending back to the east side of the said Old Powder Mill Road and binding thereon, which road was and had always been a public road; and the other of about six acres, fronting on the west side of the Old Powder Mill Road, directly opposite the former, and separated from it by only the said Old Powder-Mill Road, on which second lot defendant's residence stood, and in which residence he resided during the whole period of said bill of particulars; and that the said Old Powder-Mill Road and the said turnpike road join each other at the Govanstown Hotel, on said turnpike road, near the four mile-stone, forming a letter V; and also that David M. Perine, from whom the defendant rented said premises, owned land immediately adjacent to said latter lot upon which said Perine resided, which said land was not separated from the said turnpike road by any road or any means whatever, but fronted on said turnpike road within three miles of the said gate No. 1; and that the said Act of 1804, ch. 51, contained a provision to the effect that not more than one toll in any twenty-four hours should be exacted from any one living on or adjacent to said turnpike road, within three [**7]  miles of any of the gates thereon, for passing the said gate, then the defendant is liable to only one toll for passing said gate No. 1 in any twenty-four hours, and the plaintiff cannot recover more than the same.

The Court rejected all the prayers, and the defendant excepted. The Court, (DOBBIN, J.,) on the 21st of March, 1870, pronounced judgment for the plaintiff for $ 131.97; and from this judgment the present appeal was taken by the defendant on the 3d of June, 1870.

A motion was made to dismiss the appeal on the ground, inter alia, that the transcript of the record was not transmitted to the Court of Appeals, within six months from the time of the appeal taken. The record was not transmitted until on or after the 9th of March, 1871.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

When a motion to Dismiss an Appeal will not prevail -- Practice in the Court of Appeals -- Turnpike Company -- Collection of Tolls -- Construction of a Railway on the bed of a Turnpike road -- Acts of 1804, ch. 51, and 1824, ch. 105, construed -- Right of the B. and Y. Turnpike Co. to collect Tolls on the portion of its Road within the limits of Baltimore.

A motion to dismiss an appeal upon the ground that the transcript of the record of the case, was not transmitted to the Court of Appeals within six months from the time the appeal was taken, will not prevail, if it be shown that the delay in the transmission of the record was not caused by the fault or laches of the appellant.

Where a case is submitted to the decision of the Court upon law and fact, without the aid of a jury, and an appeal is taken from its judgment, the Court of Appeals will review the decision upon questions of law, if the record plainly discloses the points or questions raised and decided by the Court below.

The Legislature has the power to authorize the construction of a railway on the bed of a turnpike road, with the consent of the turnpike company; and the construction of such railway does not affect the right of the turnpike company to collect tolls under its charter.

The fact that an Act of Assembly, which authorized the construction of a railway on the bed of a turnpike road, did not provide for the condemnation of the rights of abutting land owners in the fee of said turnpike road, and no condemnation thereof was made, cannot be urged as a defence in a suit by the turnpike company for the recovery of tolls.

Under the provisions of the Act of 1804, ch. 51, and its supplements, and of the Act of 1824, ch. 105, the Baltimore and Yorktown Turnpike Company have the right to charge and collect tolls on such portion of their road as lies within the limits of the city of Baltimore.

A person whose premises do not abut upon the turnpike, but who rents a pasture lot lying thereon, the lot not being parcel of the premises, but separated therefrom by a public highway, is not entitled to the privilege, secured by the 33d section of the charter of the Baltimore and Yorktown Turnpike Company, (Act of 1804, ch. 51,) which exempts "persons living on or adjacent to the turnpike road, within three miles of any of the gates, from the payment of toll more than once in twenty-four hours." 

COUNSEL:
George G. Hooper, for the appellant.

The appellant was entitled to the privileges secured by the 33d section of the Act of 1804, chap. 51. His residence is within the terms of the Act, consisting as it does of two lots, one lying on the turnpike within three miles of gate No. 1, and the other immediately in the rear on which his house stands, and only separated from the former by a highway running between [**8]  them. He held the fee of the highway, between the two lots, as abutting tenant on each side, and thus has a continuous lot to the turnpike, with a right of way to the public through it. Angell on Highways, 299; Douglas vs. Boonsborough Turnpike Road Co. 22 Md., 219; 3 Kent's Com., (5th Ed.,) 433; Wright vs. Carter, 3 Dutcher, 76.

Clauses in statutes conferring an exemption from the payment of tolls are construed most liberally in favor of the immunity. Angell on Highways, 349; Bertram vs. Central Turnpike Co., 25 Cal., 283; Pennsylvania R. R. vs. Canal Com., 21 Penn., 9; Sedgwick on Stat. and Con. Law, 339.

The appellee, by its railway, excluded the appellant from full one-fifth of its road, and cannot recover, if any thing, more than four-fifths of the regular tolls. If a turnpike company neglect to keep its road in proper repair, no toll is chargeable. Sims vs. Yazoo & Big Black P. R., 38 Miss., 23.

Laying rails on a turnpike road is a new servitude, and requires a new condemnation. Imlay vs. Union Branch R. R., 26 Conn., 349; Douglas vs. Boonsborough Turnpike Co., 22 Md., 219; Rex vs. Morris, 1 B. & Ad., 441; Kelly vs. Donahue, &c., 2 Metcalf, (Ky.,) 484; Trustees [**9]  of Pres. Society, in Waterloo vs. Auburn & Rochester R. R. Co., 3 Hill, 567; Fletcher vs. Auburn & Syracuse R. R., 25 Wend., 462; Craig vs. Rochester, &c., R. R., 39 Barb., 494.

If the Legislature can authorize one railway to appropriate one-fifth of the road, without condemnation, it can authorize four more, and thus totally destroy the highway. The Act of 1860, ch. 259, is void, because it makes no provision for condemnation or indemnifying abutting owners. Moale vs. Mayor, &c., of Baltimore, 5 Md., 314; Thatcher, et al. vs. Dartmouth Bridge Co., 18 Pick., 501.

The claim of the appellee is not supported by the evidence. The testimony of the gate-keeper does not go beyond his account, (the bill of particulars) and that is at best but a copy of the appellee's book entries, which, (although originals,) are not admissible in this State. He qualifies his first statement by admitting that he cannot swear to a single item, for the reason that of some his only knowledge is hearsay, viz: what his mother told him; and he cannot distinguish the latter from those that passed under his own observation. Such testimony cannot prove an account under the settled law of this State. Salmon [**10]  vs. Feinour, 6 G. & J., 60; Lee, et al. Garnishees of Wolf, vs. Tinges, 7 Md., 215; Lewis vs. Kramer & Rahn, 3 Md., 265; Wallace vs. Gilmor, 3 H. & J., 383; Clark vs. Magruder, et al., 2 H. & J., 77; Owings vs. Low, 5 G. & J., 134; King vs. Maddux, Ex'r, 7 H. & J., 467; Reynolds, Adm'r of Paul, vs. Manning, 15 Md., 510; Green vs. Caulk, 16 Md., 556.

Arthur W. Machen and I. Nevett Steele, for the appellee.

Nothing is brought up by the record for review by an appellate tribunal. It does not appear that any questions of law were decided by the Court below. There is no opinion of the Court as there was in Tinges vs. Moale, 25 Md., 480, and in Thomas vs. Hunter, 29 Md., 411. The bill of exceptions does not purport to state all the evidence--in point of fact, it does not contain the whole. But even if the evidence all appeared, we cannot know how it was regarded by the Court, and until it be ascertained what state of facts was found, it is impossible to eliminate the questions of law involved in the judgment. That the Court has refused to lay down certain legal propositions in the language in which they were presented, amounts to nothing in the case of such a trial as this. The [**11]  prayers for aught that appears were rejected because they presented abstract propositions, or because the Court took such a view of the facts that in its opinion it was not necessary to pass judgment upon the prayers. In a case of this nature, a rejection of offered prayers is simply a refusal to entertain them. If a jury receive an instruction, and there is any evidence upon which they could possibly find so as to make it applicable, the instruction is pertinent; but a Court cannot instruct itself, and, consequently, where the whole matter is before the Court, its office must be "first to ascertain, from the proof, the facts, and then to apply the law to the state of facts as found." Tinges vs. Moale, 25 Md., 485.

The evidence which was in, without objection to its admissibility, supports the account. And in point of fact the original book of entries was in evidence. The appellant was, himself, examined as a witness on his own behalf, and did not on the stand deny the correctness of a single statement in the account of the gate-keeper.

The evidence did show that there was more than the sum of $ 50 due, and it was so found as matter of fact by the Court in its verdict and [**12]  judgment.

The construction of the railway was authorized by law. But even had it not been, the turnpike road was not thereby obstructed, and was, in fact, used by the appellant. The railway did not occupy any part of the artificial road of twenty feet in width required by the charter, but only occupied according to the appellant's proof, a narrow side strip, about one-fifth of the whole sixty-six feet owned by the company. It is not for the appellant to complain if there has been any interference with the rights of the owners of the soil.

The facts upon which the fifth prayer was founded, were not before the Court. If they had been, it would appear that the objection is wholly unfounded. Act of 1804, ch. 51, sec. 29; Act of 1824, ch. 105.

The facts of the case showed that the appellant was not within the exemption contained in the 33d section of the Act of 1804, ch. 51. The lot of ground, on which was situated the residence which he rented and occupied, was situated on the Powder-Mill road, and not on the turnpike, but separated therefrom by the premises belonging to the Govanstown hotel. The pasture lot subsequently rented was entirely distinct, and did not constitute [**13]  part of the premises on which he resided. It nowhere appears in the record that he was charged more than once in the twenty-four hours for the same vehicle. The finding of the Court shows that in the judgment of the learned Judge, the facts did not entitle him to an exemption. See Owings vs. Baltimore & Reisterstown Turnpike Road Co., Court of Appeals, June Term, 1820.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*529]  BARTOL, C. J., delivered the opinion of the Court.
We think the motion to dismiss this appeal ought to be overruled. The proof offered in this Court shows that the delay in the transmission of the record was not caused by the fault or laches of the appellant. By an amendment of the record, which has been filed by counsel, it appears that the bill of exceptions was signed and sealed by the Judge of the Superior Court on the 21st day of May, 1870, the same day on which the judgment was rendered. In our judgment, the questions of law raised by the appellant, and decided by the Court below, appear with sufficient distinctness by the bill of exceptions and the prayers of the appellant, bringing the case within the [**14]  decisions of Tinges vs. Moale, 25 Md. 480, and Thomas vs. Hunter, 29 Md. 406, in which it was held, that where a case has been submitted to the decision of the Court upon law and fact, without the aid of a jury, this Court will review the decision upon questions of law, if the record plainly discloses the points or questions of law raised and decided by the Court below.
We proceed, therefore, to examine the questions presented by the appellant's prayers. As was said in Tinges vs. Moale, 

 [*530]  "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." There was testimony tending to prove the account of the appellee, which it would have been proper to submit to a jury, if one had been impanelled, and of the weight and conclusiveness of which it was the province of the Court, under the submission of the parties, to decide; the first and second prayers of the appellant were, therefore, properly rejected; they rested upon the theory of a total failure of evidence in support of the account sued on.
The third and fourth prayers vested the defence [**15]  upon the theory that because a horse railway had been constructed upon the bed of the turnpike road on one side thereof, which created an obstruction to the free and convenient use for horses and carriages of that part of the road occupied by the railway, being one-fifth of its width; and because the Act of Assembly of 1860, ch. 259, which authorized the construction of the railway, contained no provision for the condemnation of the rights of abutting land owners in the fee of the road, and no condemnation thereof was in fact made, therefore the appellant was not bound to pay toll for the use of the turnpike road.
The third prayer claimed entire exemption from tolls for the reasons stated, and the fourth prayer claimed exemption to the extent of one-fifth of the tolls prescribed and authorized by the charter of the appellee.
Clearly there was no error in rejecting these prayers. There can be no doubt of the power of the Legislature to authorize the construction of the railway on the bed of the turnpike road, with the consent of the turnpike company, without affecting the right of the company to collect tolls under its charter.
The question of the rights of land owners abutting upon [**16]  the turnpike road, growing out of the construction of the railway, is a question which in no manner affects the rights 

 [*531]  and responsibilities of the appellant in this case, and cannot properly be raised by him, or urged in his defence to the suit.
The point raised by the fifth prayer is sufficiently answered by a reference to the Act of 1804, ch. 51, section 29, and the other provisions of the original charter and its supplements, regulating the tolls of the company; and especially by the Act of 1824, ch. 105, authorizing cessions to the Mayor and City Council, of such portions of the road as lay within the limits of the city of Baltimore, and the 4th section of the last named Act, which provides for the continuance of the turnpike gates, in the same manner as if such cessions had not been made.
The sixth, and last prayer, raises the question of the construction of the 33d section of the charter, Act of 1804, ch. 51, which exempts "persons living on, or adjacent to, the turnpike road, within three miles of any of the gates, from the payment of toll more than once in twenty-four hours."
The appellant claims that the facts disclosed in the evidence and stated in the prayer, [**17]  entitle him to this exemption. We are not of that opinion. This provision of the charter was construed by the Court of Appeals, in the case of Owings vs. The Baltimore and Reisterstown Turnpike Road Company, decided at June Term, 1820. The Court held that "the privilege must be confined to persons who reside on premises which lie on, and touch the road within three miles of the gate." Unquestionably this is the true construction of this section of the charter. The premises, upon which the appellant resides, do not abut upon the road; but he rents from Mr. Perine, a pasture lot for his cows, lying on the west side of the turnpike road, and so claims to be within the exemption. It appears, however, that this pasture lot is not parcel of the premises upon which his dwelling is situated, but is separated from them by a public highway called the "Old Powder-Mill road," which runs into the turnpike by an acute angle. The pasture lot lying between these roads, and the dwelling 

 [*532]  and premises of the appellant lying on the other side of the Old Powder-Mill road. He is, therefore, not entitled to the privileges secured by the 33d section of the charter, and there was no error [**18]  in refusing the sixth prayer.
Judgment affirmed. 

15 of 142 DOCUMENTS 

THE PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, THOMAS S. WILSON and ELLEN M. N. WILSON, his Wife, vs. CHARLES C. BROWNE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 450; 1871 Md. LEXIS 76 

June 20, 1871, Decided 

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

On the 15th of August, 1844, Mary E. Browne made her will, devising and bequeathing all her property to the Rev. Thomas Lilly, and appointing him her sole executor. On the 4th day of May, 1850, the Rev. Thomas Lilly, who was a Catholic Priest of the Society of Jesuits, devised all his property of every description, then owned or that might be owned by him at the time of his death, or in which he then had or might thereafter have any interest, to the appellants, the President and Directors of Georgetown College, a corporation in the District of Columbia, incorporated by Act of Congress in 1844, and appointed them his executors. In 1863, and during the lifetime of Mary E. Browne, the Rev. Thomas Lilly died without revoking this will, and after his death, his heirs-at-law and legal representatives conveyed to the college all their title to and interest in his estate. Mary E. Browne died 22d of April, 1867, without revoking her will, and it was admitted to probate in common form by the Orphans' Court of Baltimore city, where the testatrix resided at the time of her death. Subsequently the appellee filed a caveat and amended caveat against [**2]  it. These were duly answered by the President and Directors of Georgetown College--issues were asked for by the appellee--granted by the Orphans' Court--transmitted for trial to the Superior Court of Baltimore city, and finally decided by the jury in favor of the college. Thereupon the appellants, the President and Directors of Georgetown College, as executors named in the will of the Rev. Thomas Lilly, and as the owners under his will of the property devised to him by the will of Mary E. Browne, applied by petition to the Orphans' Court of Baltimore city for letters of administration c. t. a., upon the estate of the said Mary E. Browne, and being a corporation, named the appellants, Thomas S. and Mrs. Wilson, as such administrators.

Mrs. Wilson was a sister of the testatrix, and the appellee her only brother.

Upon this state of facts the majority of the Court below (Judge DANELS dissenting) passed an order dismissing the petition of the college and refusing to appoint Dr. and Mrs. Wilson such administrators, being of opinion that the appellee as next of kin of the testatrix was entitled to be made administrator.

From this order the petitioners, the President and Directors [**3]  of Georgetown College and Thomas S. and Mrs. Wilson, appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Right of Administration -- Letters Testamentary or of Administration not to be granted to a Corporation -- Residuary legatee.

Letters testamentary or of administration will not be granted to a corporation; nor will a corporation, when named executor, be allowed, according to the English practice, to designate a person to receive administration, with the will annexed.

In this State the right of administration cannot be delegated.

B executed her will in 1844, by which she devised and bequeathed her entire estate to L, whom she appointed her sole executor. L died before B, leaving a will by which he gave all his property in possession, and all to which he might be in anywise entitled, to Georgetown College, a corporation by virtue of an Act of Congress. Subsequently in 1867, B died leaving her will unchanged. She left neither husband, father, child nor grand-child, but a brother and married sister. On the question, to whom should letters of administration on the estate of B, be granted, it was HELD:

1st. That the College was not residuary legatee under the will of B, and could claim no right to administer on that ground; and being a corporation, it would have been excluded from administration, even if B had devised all her property to it directly.

2d. That under section 34 of Article 93, of the Code of Public General Laws, the brother of B was entitled to letters of administration with the will annexed, on her estate.  

COUNSEL:
John P. Poe and I. Nevett Steele, for the appellants.

The devisees of Thomas Lilly took under his will all the property devised to him by the will of Mary E. Browne, notwithstanding she survived him; or, in other words, the devise to him did not lapse in consequence of his death in her lifetime. Code of Pub. Gen'l Laws, Art. 93, sec. 304; Magruder vs. Carroll, 4 Md., 335; Alexander vs. Worthington, 5 Md., 471; Wilson vs. Wilson, 6 Md., 487.

The appellee, as next of kin to his sister, Mary E. Browne, is not entitled to administration under sections 21 and 23 of Article 93 of the Code of Public General Laws, because these sections relate exclusively to cases of intestacy, and have no application whatever to a case like the one in question, where there is a will and an executor named in it who died before the testatrix.

This case is to be governed by the provisions of section 34 of Article 93. And, inasmuch, if Mary E. Browne had named no executor and had died before Father Lilly, he, as sole legatee under her will, would have been entitled to administration, so in like manner the parties,  [**4]  who under his will succeed as his devisees to the estate devised to him by her will, are entitled to administration on her estate as a necessary incident to their title as his devisees. Ex parte Young, 8 Gill, 286; Hoffman vs. Gold, 8 G. & J., 79; 1 Williams on Executors, 402, et seq.

Accordingly his executors and devisees, the President and Directors of Georgetown College, are entitled to administration; and being a corporation could validly appoint the appellants, Dr. and Mrs. Wilson, as their agents or representatives for this purpose--which appointment is in no sense a delegation of their right, as a majority of the Court below assumed, but is in legal contemplation a mere selection by them of agents to execute their trust. 1 Williams on Executors, 198, 199, (side.)

If it be held, that section 34 of Article 93 of the Code does not regulate this case, then there is no statutory provision upon the subject--and we are, therefore, remitted to the English practice governing such a case; under which the appellants' petition would have been granted. 1 Williams on Ex'rs, 402, et seq.

Robert J. Brent, for the appellee.

The residuary devise to Thomas Lilly, being protected [**5]  notwithstanding his death in the lifetime of the testatrix, by the Code, Article 93, section 304, can his residuary legatee, Georgetown College, claim the preferred right to administration, conferred by the Code, Article 93, section 34? This last section clearly prefers the residuary legatee of Mary E. Browne, if any there be.

But as Thomas Lilly died before her, it is equally clear that no claim can be made in behalf of her residuary legatee; but it is said that inasmuch as Georgetown College is the residuary legatee of Thomas Lilly, the right which was personal to him has passed to the college. This claim is answered by the case of Young, 8 Gill, 286, which decides that the preferred right of administration is personal and cannot be delegated. If Mr. Lilly had survived the testatrix, he could not have assigned his personal right, neither can be assign it by his will, to take effect at his death.

Article 93, section 304, merely prevents the lapse and vests the property in the deceased legatee, as if he had survived, and conceding that he may alienate or devise his expectancy before it can vest in him, yet he and he alone is the residuary legatee of the testatrix, and his [**6]  assignee or devisee is not invested with the character which applies to him alone. It is one thing to claim preperty as assignee of the deceased residuary legatee, and another thing to be substituted to his personal rights which cannot in the nature of things survive.

That the college cannot administer as a corporation is conceded; but it is claimed that it can name persons to administer in its place, who are called Syndics by the English law. No such practice or officers are recognized in Maryland. There is no residuary legatee in esse to administer, but only an assignee of the title of the residuary legatee, and therefore the appellee was rightfully appointed administrator under the Code of Public General Laws, Article 93, sections 21 and 23.  

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

OPINIONBY:
MILLER 

OPINION:

 [*454]  MILLER, J., delivered the opinion of the Court.
Mary E. Browne executed her will in 1844, by which she devised and bequeathed all her property, real and personal of every kind and description, to Thomas Lilly, whom she also appointed her sole executor. Lilly died before the testatrix, leaving a will by which [**7]  he gave all his property in possession, and all to which he might be in any wise entitled, to the president and directors of Georgetown College, a corporation in the District of Columbia, incorporated by Act of Congress in 1844. Subsequently, in 1867, Miss Browne died, leaving her will unchanged. The real question in dispute is, who is entitled to letters of administration on her estate? or, in what mode, or by what rule shall such letters be granted? though the particular order appealed from is an order dismissing the petition of the college claiming the right to designate the party to be appointed, or, if no such right exists, then praying that letters may be granted to a sister of the deceased and her husband. The party on the other side, who claims that he is entitled by law to have letters granted to him, is the appellee, the sole surviving brother of the testatrix; she having died, leaving neither husband, father, child nor grandchildren.

 [*455]  It is very clear the corporation is not residuary legatee under this will, and can claim no right to administer on that ground. Its right to the property is derived solely from the will of Thomas Lilly, and his estate is not the [**8]  estate to be administered upon. But even if the will of Miss Browne had devised and bequeathed all her property directly to this corporation, it could not have claimed administration, because we take it to be well-settled, that a corporation cannot become an executor or administrator; nor has the English practice of allowing a corporation, when named executor, to designate a person styled a syndic, to receive administration with the will annexed, ever prevailed in this State, but, on the contrary, all power of delegation over the right has been expressly repudiated and denied by our Courts. All right of the corporation, and all right of its appointees as such to administer, being out of the case, the question recurs, has the surviving brother of the testatrix, who appears and claims the appointment, any right by law thereto?
The case is one where a testatrix has left a will, and the party named as executor therein has died before the will took effect, thus calling for the grant of letters of administration with the will annexed, in the first instance, and where the residuary legatee under the will has also died before the testatrix. Is there any provision of our testamentary [**9]  law covering such a case, or is it a casus omissus in which the grant of letters must be left to the discretion of the Orphans' Court, to be guided and controlled by the general policy of the system which requires the right of administration should follow the right to the estate? In our opinion, the case is provided for by the statute. The Code, (Article 93,) in its arrangement of the testamentary law under the sub-division "administration," which extends from sections 14 to 40 inclusive, embraces the provisions for administration and the order of preferences between the next of kin. Amongst these, sections 21 and 23, which provide that brothers and sisters shall be preferred, if there be no widow, child, grand-child or 

 [*456]  father, and that males shall be preferred to females in equal degree, would, it is conceded, extend to this case if it were one of intestacy. But are all these provisions confined to such cases? We think not. In immediate connection with them is to be found section 34, (which is also placed in the same connection in the original law of 1798,) by which it is declared, that "if letters of administration, with the will annexed, are to be granted, and [**10]  there be a residuary legatee or legatees in such will, he or they shall be preferred to all except a widow, and it shall be incumbent on the Court to proceed in the manner directed by law with respect to executors within the State, before administration shall be granted to any other person; and a male residuary legatee shall be preferred to a female." The purpose, intent, effect and true construction of this section are to be ascertained by reading it in connection with antecedent and subsequent provisions upon the same subject. Its meaning and effect, when thus read and considered, appear to be thus: The law having, in previous sections provided for the grant of letters of administration generally in cases of intestacy, and having defined with great exactness and particularity who should be entitled, and what order of preference should exist and be observed, provides in this section for a class of cases, numerous and of frequent occurrence, where letters of administration, with the will annexed, must be granted in the first instance, as where no executor is named in the will, or where as here the party so named may have died before the testator, and in that event the direction [**11]  is, that the residuary legatee, if there be one, "shall be preferred to all except a widow," that is, to all who are entitled to preference by the prior sections except the widow, and it is made incumbent on the Court, before administration shall, in such cases, "be granted to any other person," that is, to any other person who, but for the intervention of the legatee, would be entitled to administer, to have a summons issued for the residuary legatee, as provided in section 44 for the case of an executor within the State. In other 

 [*457]  words, when cases of this kind arise, the Orphans' Court are directed to grant letters in the first place to the widow, if she chooses to take them--next, to the residuary legatee, if there be one, preferring males to females; and if there be no such legatee, or none capable of acting, or if, on being summoned, he shall fail to appear and give bond, then they are to proceed and grant the letters to the other persons designated in the preceding sections, observing the order of preference there prescribed. This reading is not only in our opinion warranted by the language of the section itself, but makes, and is essential to make,  [**12]  the entire system uniform and complete.
A brief consideration of the provisions of some of the subsequent sections will, we think, make it apparent the Legislature intended such should be its construction and effect. Thus, in section 43, if an executor, present at the probate of the will, fails to give bond or take out letters in another county, letters of administration, with a copy of the will annexed, may be granted in the county wherein was the probate, "to such person as they might be granted to in case of intestacy." And in section 44, if an executor, not present at the probate, is within the State, and fails to appear to the summons as there provided, "letters of administration may be granted as aforesaid," that is, as in cases of intestacy. The same provision is also contained in section 45, and substantially also in section 46. Again, in section 47, it is provided, that if the executor renounces, "there may be the same proceedings with respect to granting letters testamentary or of administration, as if the party so renouncing had not been named in the will." And in sections 52, 56 and 58, where an executor is disqualified or incapable of acting, or is a married woman,  [**13]  and her husband fails to give bond, the direction in each case is, to grant letters testamentary or of administration "in the same manner as if such person had not been named in the will." Is it not apparent from this that the Legislature supposed they had prescribed the mode and manner of granting letters of administration, with the will annexed, in cases 

 [*458]  where no executor or no competent executor was named in the will? And yet no such provision is to be found in the law, unless it is contained in this section 34. We have no doubt that, in each of sections 44, 52, 56 and 58, reference is made to section 34 for the mode and manner of proceeding, and we have as little doubt that the law-makers never imagined any construction could be placed on that section, by which, in this large class of cases, the Orphans' Court could act in their absolute discretion, if there was no widow or residuary legatee claiming or capable of taking administration. Discretion is very sparingly confided to that tribunal, and whenever conferred, it is given in express terms, and in very restricted cases. Thus, section 31 provides, that only when there shall be neither husband, nor [**14]  wife, nor child, nor grand-child, nor father, nor brother, nor sister, nor mother, or if these be incapable or decline or refuse to appear on proper summons or notice, or when other relations, and creditors shall neglect to apply, can administration be granted at the discretion of the Court. By section 68, letters of administration, pendente lite, may be granted to the person named executor, or to the person to whom the largest portion of the personal estate may be bequeathed in the contested will, or to the person who would be entitled to letters by law as in cases of intestacy. And by section 70, if an executor or administrator die before completing his administration, "letters de bonis non, or de bonis non cum testamento annexo, may be granted at the discretion of the Court, giving preference, however, to the person entitled, if he shall actually apply for the same," that is, to the person entitled to preference by the antecedent sections, from 18 to 30 inclusive, as well as section 34. These provisions, without reference to others, show how cautiously discretion is limited, how carefully the rights of persons entitled are preserved, and the designated [**15]  order of preference made to apply to cases of testacy as well as intestacy, and in fact made to control the grant of administration even in the most unimportant and temporary cases. In a 

 [*459]  system of law like this, which was undoubtedly designed to cover every case, an important casus omissus ought not to be readily assumed or even allowed, if, by any reasonable construction, it can be avoided, especially not where the result of allowing it would be to enlarge an irreviewable discretion, which, in other and less important particulars, the Legislature has seen fit to restrain and confine to the narrowest limits.
We are also of opinion the construction we have placed on this section derives support from the views of our predecessors. Thus, in Hoffman vs. Gold, 8 G. & J. 79, 84, the Court say: "The testamentary laws have made provision for every case to insure an administration with promptness. If the party dies, leaving very near relations, they are to be summoned, if within the State, or an effort is to be made to summon them; more remote relations, and creditors next have the preference if they apply. In the absence of such application, the [**16]  Court can exercise a discretion, and in doing so, should undoubtedly, as a general rule, pursue the policy of the system, and commit administration to the person having the greatest interest in the estate." And again, in ex parte Young, 8 Gill 285, it is said: "The appointment and the rights of administrators are regulated by law. There must be some sufficient reason in designating the particular parties in their order to whom the administration of the estate is committed;" and the first reason why the custodiary is thus distinctly designated, is "to prevent litigation about the possession."
Before concluding, it may be observed, that in the case before us, if it were one resting in the discretion of the Court, the policy of the system could not be carried out, because, in no event, can administration be committed to the corporation to whom the entire estate belongs, so that letters must be granted to some one who has no interest whatever in the property. The Court was not bound to regard the mere wishes and preferences of the officers of the college as between the sister and her husband and the brother of the deceased testatrix, and treating the [**17]  order dismissing their petition as a refusal 

 [*460]  by the Court to heed those wishes, the appeal should be dismissed, because, in this view of the case, the order was merely the exercise of a discretion over which this Court has no revisory power.
But we rest our decision upon no such ground. We are entirely satisfied the construction we have given to the statute is correct, that the appellee has by law the right to this administration, that no sufficient reason is disclosed in the record for depriving him thereof, and accordingly, and for that reason, we affirm the order appealed from.
Order affirmed. 

16 of 142 DOCUMENTS 

JOHN PEDDICORD vs. THE BALTIMORE, CATONSVILLE AND ELLICOTT'S MILLS PASSENGER RAILWAY COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 463; 1871 Md. LEXIS 77 

June 20, 1871, Decided 

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

This was an action of trespass brought by the appellant against the appellee, to recover damages for alleged injury to certain leasehold property of the former, in Baltimore county. The facts of the case are sufficiently stated in the opinion of the Court.

Exception: The plaintiff at the trial below offered the following prayer:

That the turnpike company had no right to empower the defendant to change the bed of the turnpike road in front of the plaintiff's premises, as the evidence shows was done by the defendant, for its use as a railroad track, except by the agreement of the plaintiff, as he is in law the owner as termor of the bed of the turnpike in front of his premises to the middle of the said turnpike, subject merely to the servitude of such property, for the uses of such turnpike company, according to the grade as it was accepted by the Act of 1809, ch. 2, and that the plaintiff is entitled to recover such damages to his termor interest, as the jury find were the consequences before and at the time of the institution of this suit, of the defendant's conduct in altering the grade of the road to the centre of the [**2]  turnpike, in front of the plaintiff's premises, and the use of such land for railroad purposes.

The defendant asked the Court to instruct the jury as follows:

1. That in connection with the other Acts of Assembly offered in evidence by the plaintiff, the Legislature had the constitutional power to enact the Act of 1860, chap. 34, also offered in evidence by him, and if the jury shall find that the agreement of the 11th of March, 1861, offered in evidence by the plaintiff, was made by and between the defendant and the President, Managers and Company of the Baltimore and Fredericktown Turnpike Road; and that under and in pursuance of said agreement, the defendant graded the bed of said turnpike road, and constructed thereon a horse railway, as shown by the evidence, then the plaintiff is not entitled to recover damages from the defendant, for or on account of the said grading of the turnpike and construction of said railway thereon.

2. If the jury find from the evidence that the defendant and the President, Managers and Company of the Baltimore and Fredericktown Turnpike Road made the agreement of the 11th of March, 1861, offered in evidence by the plaintiff, and that [**3]  under and in pursuance of said agreement, the grading and excavation complained of by the plaintiff, and described in the evidence, were done and made by the defendant on the bed of the said turnpike road, then under said agreement, and the Acts of Assembly offered in evidence by the plaintiff, that is to say, the Acts of 1787, ch. 23; 1790, ch. 32; 1801, ch. 77; 1804, ch. 51; 1809, (June,) ch. 2, and 1860, ch. 34, it was lawful for the defendant to do and make such grading and excavation, and the plaintiff cannot recover damages therefor in this action.

The Court rejected the prayer of the plaintiff and granted the prayers of the defendant. To this action of the Court, the plaintiff excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Turnpike Company -- Rights and Powers -- Passenger Railway Company -- Easement -- Servitude -- Use in a Highway -- Adjacent Property holders -- Compensation -- Construction of Contract -- Abandonment of a Power.

By the Act of 1787, ch. 23, Commissioners were appointed to survey and lay out a public road from Baltimore to Frederick, sixty-six feet wide, and to cause the same to be cut down and well cleared fifty-two feet wide, and grubbed and stoned forty-feet wide, and to agree with the proprietors of lands through which the road might pass, as to the compensation to which they might be entitled, for damages occasioned by the passage of the road through their lands, and in case of inability to agree, to cause the same to be ascertained by an inquisition. The Act of 1801, ch. 77, recited that the said road had been surveyed and laid out, and by its fourth section authorized the supervisor, appointed by the Act, to cause the road to be cleared to the width of sixty-six feet, and to have twenty-one feet, at least, bedded with wood, stone, gravel, &c. By the Act of 1787, the road was to be forever afterwards, taken, held and adjudged in all Courts of Law and Equity, a public road and common highway. By both Acts, the jury of inquisition was to take into consideration the convenience and benefit, and the disadvantages occasioned to owners of land by reason of the passage of the road through their lands. By the Act of 1804, ch. 51, the President, Managers and Company of the Baltimore and Frederick Town Turnpike Company were incorporated and empowered to construct a road over the bed of the road provided for in the Acts of 1787 and 1801. The seventeenth section of this last Act, provided that twenty feet at least should be bedded with wood, stone or gravel, &c., so as to secure a surface so nearly level, that it should not rise above or fall below an angle of four degrees with a horizontal line, except in crossing the mountains mentioned in the Act. By the Act of 1809, ch. 2, the turnpike road as it then stood was confirmed, and by the supplementary Act of 1811, ch. 202, the road was again confirmed. By the Act of 1860, ch. 34, a company was incorporated, and authorized, the assent of the turnpike company being first obtained, to construct a passenger railway, by horse power, from Baltimore to Ellicott's Mills, upon the bed of the turnpike, with power to alter the grade thereof. Subsequently an agreement was entered into between the turnpike company and the Passenger Railway Company by which the latter was authorized to construct its railway on the bed of the former, and to grade the same, all costs and expenses connected with the change being borne by the railway company. Under this agreement, the railway company proceeded to construct its road, and while grading it at the same angle to which the turnpike company by its charter was required to conform, it so lowered the grade of the road along the line of certain property abutting thereon, as to leave the buildings of the proprietor some feet above the new grade. On an action brought by the property holder against the railway company to recover damages for the injury alleged to have been sustained by him, it was HELD:

1st. That the turnpike company acquired by its charter the right to grade, pave and use, in any manner that would promote the benefit and convenience of the public, for the purpose of a public highway, the whole sixty-six feet of roadway, or any part thereof, not less than twenty feet wide, and to grade the same to any angle less than four degrees, and that it retained that right up to the time it entered into the agreement with the railway company, and that the holding of the plaintiff was subject to that right of the turnpike company.

2d. That the turnpike company having the power to change the grade of its road, assigned such power to the railway company, as it was authorized to do by the Act of 1860, ch 34, and the railway company in exercising this power, within the limits prescribed, was not liable to the plaintiff for the injury complained of.

3d. That the use and occupation of the bed of the turnpike for the purpose of a passenger railway was not a new and distinct servitude, entitling the plaintiff to new compensation for such use of the land, and to damages resulting therefrom,

4th. That the construction of the railway track upon a portion of the bed of the turnpike, leaving abundant room for the vehicles of travellers who did not use the railway, was not a new use, but only a modification of the old one.

5th. That the railway company had no right in or over the soil beyond that which it acquired from the turnpike company, by permission of the Legislature; and therefore had no right for the acquisition of which the plaintiff could demand from it compensation.

6th. That the contract between the two companies could not be construed into a provision by the turnpike company, in behalf of abutting land owners, that the railway company should pay them compensation for the exercise of rights, which it derived from the turnpike company, and for which the contract provided payment to the latter.

7th. That the use in the highway defined by the Acts of 1787 and 1801, was that the road bed should be cut down to as near a level, as might be, and by the charter of the turnpike company, that it should be graded down to an angle of at most four degrees; and the fact that it was not so cut down and graded by the turnpike company, could not be construed into an abandonment of the power, defined by the Acts of Assembly and by the charter, to do it at any time.  

COUNSEL:
Charles Marshall and Wm. Henry Norris, for the appellant.

The use of the highway for the purpose of a railway, is a new and distinct servitude, not acquired by the consideration paid for the use of the property as a highway, and such new use of the land entitles the owner to new compensation, and to damages resulting from such new use. This Court has decided that by the condemnation or purchase of [**4]  property by a corporation, no right is acquired in the property beyond what is necessary to enable the corporation to accomplish the purpose for which it is allowed to acquire the property. All other rights to the property, not inconsistent with those so acquired by the corporation, remain in the owner. Kane vs. The Mayor, &c., 15 Md., 240.

All the right to this property acquired by the turnpike company, was the right to use the land as a highway. To lay a railway upon an established street or highway, is a new servitude, entitling the property owner to damages, whether the railway company employ steam or horse-power. Williams vs. N. Y. Central R. R. Co., 16 N. Y., 97; Williams vs. Natural Bridge Plank Road, 21 Mo., 580; Nicholson vs. N. Y. & N. H. R. R. Co., 22 Conn., 74; Gardner vs. Boston, &c. R. R., 9 Cush., 1; Tate vs. Ohio & Miss. R. R., 7 Porter, (Ind.,) 479; Haynes vs. Thomas, 7 Porter, 38; People vs. Kerr, 27 N. Y., 188; Crawford vs. Delavin, 7 Ohio N. S., 459; Street Railway Co. vs. Cumminsville, 14 Ohio N. S., 523; Douglass vs. Boonsborough Turnpike Co., 22 Md., 237, 238; Ford vs. Chicago & N. W. R. R., 14 Wis., 609; Pomeroy vs. Mil. & Ch. R. R., 16 Wis., 640; Veazey [**5]  vs. Penobscot R. R., 49 Maine, 119; Craig vs. Rochester City and B. R. R. Co., 39 Barb., 494.

It is contended by the appellee, that the appellant is not entitled to damages by reason of the change of grade, because the turnpike company, by its charter, was required to establish the same grade, that is an inclination of four degrees with a horizontal line, and the new grade made by the appellee accords with this provision of the charter, and the turnpike company could lawfully authorize the appellee to do what it might have done by its own power.

While the Act incorporating the turnpike company, required its grades to be at an angle of four degrees with a horizontal line, the charter only authorized the company to acquire such rights of property as might be necessary for its purposes, by purchase, and did not give it the power to condemn anything except materials. The company took the road as already established by the commissioners of review, with no authority to acquire any new rights of property except by purchase. The appellee, therefore, could not acquire from the turnpike company any right to change the grade of the road, without compensation to the land owner.

The [**6]  change of grade in this case, was not made by the appellee under any authority of the turnpike company for its own purposes, but by the authority conferred upon the appellee by its charter, subject only to the conditions which the turnpike company was authorized to impose upon the exercise of the power conferred upon the railway company by the Act of 1860, ch. 34.

The question between the parties, therefore, is not whether the Legislature could authorize the railway company to avail itself, with the consent of the turnpike company, of rights which the latter may be supposed to have possessed under its charter, but it is, "could the Legislature confer upon the railway company, a power distinct from and independent of any power which the turnpike company may have had, to make alterations in the grade of the turnpike, for the purposes of the defendant only, and not required for the purposes of the turnpike company, by which the rights of the plaintiff as between him and the turnpike company, which had been enjoyed more than fifty years, are impaired, and an injury done to his property which, but for the benefit of the defendant, would not have been done, and at the same time, deny [**7]  compensation to the plaintiff?"

Whatever may be the law as to the power of the Legislature to subject land, already taken as a highway, to the additional use of a railway, without compensation to the owner for damages arising from such new servitude, it is competent for the Legislature to require the railway company to make compensation for such new use, and in this case, the Legislature has in fact required the defendant to make such compensation. Bradley vs. N. Y. & N. H. R. R. Co., 21 Conn., 294; Seneca R. R. vs. Auburn, &c. R. R., 5 Hill, 170; Act of 1860, ch. 34, and the contract between the railway and turnpike companies.

While the sixth section of the Act of 1860, ch. 34, permits the defendant to use the highway and to change its grade, it requires as a condition, that it shall enjoy this right, subject to the regulations and conditions imposed by the turnpike company. It makes those regulations in fact a part of the law itself, as much so as if they had been incorporated in its text. Upon examining the regulations, it will be seen that they expressly provide that the railway company shall pay all damages caused by the change of grade.

The contract shows clearly [**8]  that such changes were to be made at the expense, for the use, and upon the responsibility of the railway company alone, and the railway company is as much bound to comply with this regulation to pay damages inflicted by itself, upon property owners, as it is to pay the turnpike company for the use of the road. And if there be a doubt as to the true construction of the charter of the defendants, the public should have the benefit of the doubt. Taggart vs. W. Md. R. R. Co., 24 Md., 588; Douglass vs. Boonsborough Turnpike Co., 22 Md., 238.

Arthur W. Machen and I. Nevett Steele, for the appellee.

The authority of the turnpike company to make a change of grade is clear. Acts of 1787, ch. 23, (April); 1790, ch. 32; 1801, ch. 77; 1804, ch. 51; 1809, ch. 2, (June); Goszler vs. Corporation of Georgetown, 6 Wheat., 593; Smith vs. Corporation of Washington, 20 How., 135; Callender vs. Marsh, 1 Pick., 418; Ely vs. City of Rochester, 26 Barb., 133; Plate Glass Co. vs. Meredith, 4 T. R., 794; Tyson vs. Commissioners of Baltimore County, 28 Md., 528.

The change made in this instance was highly beneficial to the turnpike road as such, and was proper and necessary, without reference [**9]  to the question of the construction of the horse railway upon a portion of the bed of the turnpike. It was expressly sanctioned by the Act of 1860, ch. 34. The alteration of grade being itself proper, and being made at the instance, and under the direction of the turnpike company, the agency or instrumentality employed to effect it, could not make the thing done improper. Both the alteration of grade and the employment of the railway company to make it, were expressly sanctioned and authorized by the Legislature in the Act of 1860, ch. 34.

The construction, upon a portion of the bed of a highway, of a railroad track, to be run upon by cars or carriages drawn by horses--leaving abundant room for the vehicles of travellers who do not use the railroad, is not a new use, but only a modification of the old one. The public highway does not thereby cease to be a highway. It is adapted to a new state of things, and made better to subserve the public convenience under the present circumstances, and that is all. The Commonwealth vs. Temple, 14 Gray, 74; Elliott vs. Fairhaven & Westville R. R. Co., 32 Conn., 579; District Attorney vs. Lynn & Boston R. R. Co., 16 Gray, 242; Douglass vs. Boonsborough [**10]  Turnpike Co., 22 Md., 219.

As a common highway may lawfully be converted into a turnpike road, so a turnpike road may be converted into a common highway, or either into a plank road, or a plank road re-converted into a common public highway. Douglass vs. Boonsborough Turnpike Co., 22 Md., 219; Wright vs. Carter, 3 Dutch., N. J., 76; Pearce vs. Somersworth, 10 N. H., 369; Benedict vs. Goit, 3 Barb., 459; Heath vs. Barman, 49 Barbour, 496.

A material distinction exists between a railroad to which locomotive steam engines are applied--the safe use of which may necessarily involve an exclusive occupation of the road--and a railway intended only for horse cars. Even the use of steam may be permissible in certain circumstances, and under particular police regulations. Case of Phila. and Trenton R. R. Co., 6 Whart., 25; Commonwealth vs. Erie & North East R. R. Co., 27 Penn., 384; Murphy vs. City of Chicago, 29 Ill., 279; Porter vs. North Missouri R. R. Co., 33 Missouri, 128; People vs. Kerr, 27 N. Y., 18.  

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

OPINIONBY:
MAULSBY 

OPINION:

 [*471]  MAULSBY, J., delivered the opinion of the Court.
The Act of 1787, chap.  [**11]  23, passed at the April session, appointed commissioners to examine, survey, lay out and mark a public road from Baltimore town towards Frederick town, sixty-six feet wide, and to cause the same to be cut down, and well cleared fifty-two feet wide, and grubbed and stoned forty feet wide, and to agree with the proprietors of lands, through which the same may pass, on the amount of compensation to which they may be entitled for damages, occasioned by the passage of said road through their lands, or in case of inability to agree, then to cause the same to be ascertained by an inquisition; and provided for the erection of gates or turnpikes, and the collection of tolls.
The Act of 1801, ch. 77, recited in its preamble that the said road had been surveyed, laid out, marked and bounded according to the provisions of the Act of 1787, that the same was opened and supported at a very great and expensive charge to the county, and provided new means for managing the same and keeping it in better repair. Amongst other things, it provided by the 4th section, that the supervisor, under the direction of the Levy Court, should cause it to be cleared sixty-six feet wide, and twenty-one feet, at [**12]  least, bedded with wood, stone, gravel, or any other hard substance. The road was to be made, by the Act of 1787, by straightening and widening the old road, and by making the new, and plats were to be returned to the clerk of Baltimore county, and to the commissioners of Baltimore town.
The Act of 1801, by its 5th section, contemplated that the old road, on the bed of which the location of the new road 

 [*472]  ran, was twenty feet wide, and provided for ascertainment of damages to land owners for the additional forty-six feet for the new road, as shewn by the plat then returned and filed, or for the sixty-six feet where the new road had not been located on the bed of the old road, either by agreement with the land owners, or by condemnation. By the Act of 1787, the road was to be, forever afterwards, taken, held and adjudged, in all Courts of Law and Equity, a public road and common highway. By both Acts the jury of inquisition was to take into consideration the convenience and benefit, and the disadvantages occasioned to owners of land by reason of the passage of said road through their lands.
By the Act of 1804, ch. 51, passed 12th of January, 1805, the President, Managers [**13]  and Company of the Baltimore and Frederick Town Turnpike Road were incorporated, with power to make a turnpike road in, over and upon the bed of the road mentioned in, and provided for, by the Acts of 1787 and 1801. This company was empowered to change the location, when desirable, but that power was not exercised, so far as this case is concerned. Nor is it necessary in this case to refer to other provisions of the charter than the 17th section which provides that twenty feet at least shall be bedded with wood, stone, gravel or other hard substance well compacted together, "and so nearly level in its progress as that it shall in no place rise or fall more than will form an angle of four degrees with an horizontal line," and which should be forever, during the continuance of said corporation, maintained and kept in good and perfect order and repair; and to the 19th section, which provides that the company may be authorized to collect tolls, when on having perfected the road for distances of ten miles, the Governor shall permit it by license under his hand and the seal of the State; and to the 39th section, which provides that the company shall proceed to carry on the work within [**14]  two years from the passage of the Act, and complete the same to Frederick town in six years, to Middletown in two years thereafter, and to 

 [*473]  Boonsborough in two years thereafter, or in default, the right of the company to the road not finished, shall revert to the counties respectively. The 3d section of the Supplement of the same year, ch 101, reaffirms, in substance the same forfeiture provided for by the 39th section.
Then follows the Act of June, 1809, ch. 2, which enacts that the said turnpike road from Baltimore to Frederick town, and thence to Middletown, and thence to Boonsborough, as then located, turnpiked and licensed, be and the same is thereby confirmed; and the Act of 1811, ch. 202, reciting in its preamble that it is represented by the petition of the three corporations, created by the Act of 1804, ch. 51, that, since the passage of the Act of 1809, all said companies have completed the whole of said roads, and enacting that all of said roads, as located, turnpiked and licensed, be confirmed.
The questions touching this case arising on a review of these several Acts of Assembly are, what were the powers of the Baltimore and Frederick Town Turnpike Road Company [**15]  in respect to grading the bed of its road, in part or in whole, prior to the Acts of 1809 and 1811, and how have these powers been affected, if at all, by those Acts? It is clear that whilst the company was obliged to grade twenty feet in width, it was authorized to grade the whole sixty-six feet, if it thought best. To what extent was it authorized to cut down and fill up the road bed, in the process of grading?
The Act of 1787 required the commissioners appointed thereby to cut down and well clear fifty-two feet of the sixty-six feet of width of the public road and common highway. The extent of cutting down is not specified. The duty was to cut down, as much as was practicable, until the best condition of road attainable was reached, as was useful and beneficial to the road, within limits of reasonable cost. In Tyson vs. The Commissioners of Baltimore County, 28 Md. 510, this Court said, "the law casts upon the defendants not only the right, but the duty to protect the public roads from injury, 

 [*474]  and keep them in proper repair for the use of the public; individual rights must be held and enjoyed in subordination to those of the public." The [**16]  commissioners under the Act of 1787 occupied the same relation to the road to be made, and kept in repair, under that Act, as did the county commissioners to the public roads in question in the case in 28 Md. Their power to cut down was not confined, we think, to the original making or opening the road. It was a power and duty, always continuing in those having charge of the road, to cut down from time to time, as they might be able, the road bed, until as near a level was attained as might be. The use of the public is promoted, not only by keeping in repair the road as originally opened, but also by reducing its elevations, and filling up its depressions from time to time as may be practicable. In the same case in 28 Md., the Court said that it was the duty of the Commissioners of Baltimore county to adopt the necessary means to prevent the public road in that case from being overflowed by water, and that they would not be justified in the neglect of that duty, merely because the natural flow of water had been allowed for any period to submerge the highway, to the inconvenience and detriment of the public. In that case the plaintiff claimed that inasmuch as the natural flow [**17]  of the water which supplied his mill, was to overflow the public road, and had done so ever since it had been laid out and used, the commissioners were not justified in erecting a wall to protect the road from the accustomed overflow, the effect of the erection being to damnify his mill. But this Court held otherwise. See also Goszler vs. Corporation of Georgetown, 19 U.S. 593, 6 Wheat. 593, 5 L. Ed. 339, and Smith vs. Corporation of Washington, 61 U.S. 135, 20 How. 135, 15 L. Ed. 858.
The commissioners under the Act of 1787, and the other authorities provided by the Act of 1801, had the right, we think, and it was their duty, to cut down the bed of the road, from time to time, to any extent that was useful and beneficial to the road, and promoted the convenience of the public in using it, and this right and duty were transferred to the 

 [*475]  President, Managers and Company of the Baltimore and Frederick Town Turnpike Road by the Act of 1804. Their charter obliged them to discharge this duty to the extent that the twenty feet to be stoned, &c., should in no place rise or fall more than would form an angle of four degrees with an [**18]  horizontal line, but did not relieve them from the duty, or perhaps more certainly did not take from them the right, to so construct the road as that the angle should be so much less as the convenience of the public might demand, and as might be accomplished by the use of reasonable means. The company did not comply with this condition of the 17th section of its charter, but constructed the road so that it did rise and fall at a greater angle than four degrees with an horizontal line. The Governor nevertheless issued his license authorizing the collection of tolls. Still the road had not been completed "according to the true intent and meaning of the original Act," in the language of the Supplement of 1804, ch. 101, and remained liable to revert to the respective counties through which it passed, and to relieve it from this liability was, we think, the intent and effect of the Acts of 1809, ch. 2, and 1811, ch. 202. These Acts are nearly or quite identical, and the fact that both were sought for by the company, evidences an apprehension on its part that it was not quite safe from a claim that its property and franchises might be forfeited, until it had obtained an affirmation, and [**19]  then a reaffirmation, by the Legislature on that point.
The learned counsel of the appellant argued that the Act of 1809, operated as an agreement between the Legislature, the land owner and the company, that the then existing status of the road, in respect to grading, was to be its determinate condition, and that from thenceforth abutting property holders could not be interfered with by any new or changed grade. That thenceforth they were to hold their property exactly as the road then stood, so far as grading was concerned. We are unable to concur in this view. If this were true in respect to the angle of elevation or depression, 

 [*476]  why would it not be also true in respect to the embankments on the side of the road, and to the width to which the twenty feet of stoned way might have been cut through elevations. It is presumable that, in its infancy, the company was anxious to collect tolls as soon as possible, and that its efforts were directed to doing first only so much as might be necessary to enable it to reach that result; and therefore that it cut down all elevations only to the width required, leaving on either side large embankments between the cuts and the fences [**20]  of abutting land owners. Those embankments might be of great value to the land owners in affording them facilities in making and repairing their fences, by giving them access on both sides of their lines of fence. And as they might be gradually removed, in the course of the operations of the company, the removal might be especially hurtful in leaving their posts unsupported, and so throwing down the fences, or necessitating a removal of them within the lines of the land holders. And in many other respects, the construction of the stoned way twenty feet wide only, would leave the remainder of the sixty-six feet convenient and useful to adjoining land owners. If the existing condition of the road in 1809, were by that Act made its determinate condition in respect to grading, it would follow that the same effect must result in all other respects, and if the property holder acquired rights forbidding a change of that condition by a change of the grades by the company, he acquired the same right to demand that the condition should not be altered in any other respect which detracted from his convenience.
Whether the right of way under the Acts of 1787 and 1801, or either, were acquired [**21]  by purchase, condemnation, or dedication, the result is the same. It was acquired under the Act of 1787 or of 1801. The recital to the Act of 1801 indicates that it had been then acquired. The 11th section of the Act of 1804, shews that it had been before that time acquired. In either case, the purchase, grant or dedication was of the right of way sixty-six feet in width, for any and all the uses 

 [*477]  and purposes to which the company was authorized by its charter to apply it, and the adjoining owners of property held cum onere, and transmitted their titles cum onere. Our conclusion is that the turnpike company acquired, by its charter, the right to grade, pave and use in any manner that would promote the benefit and convenience of the public, for the purpose of a public highway, the whole sixty-six feet of road way, or any part thereof, not less than twenty feet wide, and to grade the same to any angle less than four degrees, and that it retained that right up to the contract entered into between it and the appellee, and that the holding of the appellant was subject to that right by the company.
By the Act of 1860, ch. 34, the appellee was incorporated with power to [**22]  construct a horse passenger railway, from the city of Baltimore to the village of Ellicott's Mills, and by the 6th section was authorized, provided it could obtain the assent of the Baltimore and Frederick Town Turnpike Company, which consent the latter company was authorized to give, to construct the railway upon the bed of the turnpike road, with power to alter the grade thereof, subject only to such regulations and conditions as might be prescribed by the turnpike company. On the 11th of March, 1861, a contract was entered into between the appellee and the turnpike company, by which, amongst other things, the former was empowered to construct its railway on the bed of the latter, in the centre thereof and with a flat rail, within the city limits, and thence on the southern line of the turnpike, or near thereto, unless where deemed necessary by the superintendent of the latter and the engineer of the former, to the proper construction thereof, it be changed to the northern side, with a T rail. The ordinary travel on the turnpike is not to be interfered with. The railway company is authorized to grade the turnpike bed, and when this is done the whole width of the latter is to be graded, [**23]  and all costs, charges, expenses and damages connected in any way with the change, are to be borne by the railway company. The railway company did grade the bed 

 [*478]  of the turnpike where the property, of which the appellant is lessee, abuts on it, to the same angle to which the turnpike company was required by its charter to grade the same, and from the necessity to do which it was, in effect, by the Acts of 1809 and 1811 released. The consequence was to change the condition of the turnpike bed, as it had existed from the construction of the turnpike to that time, to the inconvenience of enjoyment of the appellant's property. The argument of appellant's counsel was that this change of grade was made in pursuance and by virtue of the power conferred by the Act of 1860, and that it was incompetent to the Legislature to grant the power without providing compensation for the land owner. We do not think that in this case, we are called on to decide whether or not the Legislature may authorize the grade of a highway to be changed, to the injury of abutting property holders, without providing for compensation to them. In this case the power to change the grade was derived, not from [**24]  the Act of 1860, in our opinion, but from the turnpike company, by virtue of the contract offered in evidence. The turnpike company had the power to change the grade, and it was authorized by the Act of 1860, to assign its power to the railway company. So far as change of grade is concerned, the railway company only did, by permission of the turnpike company, that which it was the duty of the latter, under its charter, to do, and that which promoted the convenience of the public in the use of the turnpike as a public highway. The authority given by the contract was not to grade a railway track only, which could not have advantaged the highway for public use, but to grade the whole sixty-six feet, the reduction of the elevation and depression in which must of necessity make it an easier and better highway. Compensation to the land holder for this identical act, that is for grading to as near a level as might be, and which should not exceed an angle of four degrees, had been provided by the Acts of Assembly, in virtue of which the right of way to the road bed had been secured, whether by purchase, grant or 

 [*479]  dedication. We do not think that the appellant is entitled to recover,  [**25]  in this case, on account of the grading of which he complains.
It remains to inquire whether the appellant has been injured, and can recover on the ground that the road bed, which was dedicated to the uses of a highway, has been applied to a new use or servitude, as contended by him. It must be borne in mind that the turnpike company had a right to use sixty-six feet, but was compelled only to use twenty feet, for the purpose of a highway, and that of any use which it might make of the sixty-six feet, so only that no part of it was diverted to other uses than of a highway, the appellant had no right to complain. It is not alleged that the turnpike company has appropriated any part of the twenty feet to any other purpose than that of a stoned passage way, according to its charter. Has it devoted any other part of the sixty-six feet to a purpose inconsistent with the objects of its own being, is the question? It has granted to the appellee the right to use part of the sixty-six feet for a passenger railway, in consideration of tolls or rent to be paid. The use so granted does not, in the language of the Court in 14 Ohio St. 523, "exclude or seriously interfere with [**26]  the original modes in which the highway was used; but simply adds another, in furtherance of the same general object." The test applied by the Court in that case to the power of the Legislature in the management and control of easements acquired for public highways, is that they cannot be diverted to other purposes than those for which they were acquired, nor enlarged so as to to accumulate additional burdens upon the land, or destroy or impair the incidental rights of the owner, appurtenant to his land located upon the highway; the distinction being between those things which fairly belong to the grant, and those which are reserved to the owner, or by law attach as incidents to his property.
Intending to confine this opinion strictly to the case before us, and, therefore, not to declare whether this test would be 

 [*480]  properly applicable in other cases, we accept it in application to this. Can it be said that the grant by the turnpike company, by permission of the Legislature, of so much of the easement of the public highway as may be required to lay a horse railway track on one or the other outside lines of the turnpike's right of way, was such a diversion or enlargement [**27]  of the easement as operated to impose additional burdens on the land, or to destroy or impair the incidental rights of the owner?
It has been hereinbefore said that the easement of the turnpike company, attached to the public highway by the Acts of 1787 and 1801, before the charter was granted to the turnpike company, included the right to dig down the hills and fill up the valleys to such extent as might be requisite to attain as near a level as might be, and by the charter granted to it, it was made incumbent on the turnpike company so to dig down and fill up as that its road should in no place rise or fall more than would form an angle of four degrees with an horizontal line. This being the burden to which the land was subjected by its original appropriation to the purposes of a public highway, and it having been subjected by the railway company, under its license or grant from the turnpike company, to so much only of that burden as was the minimum which it was the duty of the latter company, by its charter, to impose on it, we are unable to see the burden on the land additional to the burden originally imposed by its dedication to the purpose of a highway, or in what manner [**28]  its value to the owner has been impaired by the construction of the railway track, more than if it had been cut down, graded and covered with stone, or other hard substance, by the turnpike company, or how the passage over it of a car on iron rails, for the conveyance of passengers, could be more injurious to the land and the rights of the owner, than the passage of an omnibus over the stone bed.
It is true, that when the right of way was originally acquired, and when it was granted to the turnpike company, it 

 [*481]  was not actually contemplated by any of the parties to the acquisition and grant, that it would be used for a passenger railway, yet it may be said to have been within the legal contemplation of all that it was to be used for all purposes by which the object of its creation, as a public highway, could be promoted. The parties looked to the future--to "forever," if the company should last so long--as well as to the then present, and it cannot be supposed that the authors of its existence intended otherwise than that it should respond to whatever demands, new improvements and increased facilities might make upon it, so only that such demands must be always consistent [**29]  with its character and purpose as a public highway. The demand made upon it for the use of so much of its sixty-six feet as may not be required for ordinary travel for horses, wagons and carriages, for a horse railway, which will not impede or interfere with the use of all that is required for the ordinary travel actually contemplated by its charter, cannot well be said to be for a new use, in the meaning of the law, but may more properly be said, we think, to be for a new adaptation of its original use to the advancement of public convenience--to a more comfortable and more economical enjoyment of it by the public as a highway.
It was maintained by the appellant that the construction and use of the railway track is an occupation of the soil, permanent and exclusive, and consequently imposed on the land a burden or servitude beyond the mere easement which had been created by the Acts of 1787 and 1801, and granted to the turnpike company by the Act of 1804, and by it assigned to the railway company, and 39 Barbour 494, and similar cases were referred to. It is not necessary to analyze those cases. They may or may not be law under the facts and circumstances existing [**30]  in them, and it will be time enough to attempt to reconcile the conflicting authorities, or to determine by which of them this Court will be bound, when the necessity shall arise. The franchise of this appellee to use the road bed of the turnpike company is vested only in, or 

 [*482]  resides only in, the public easement of the highway. The appellee has no estate in the soil beyond that of the public easement of the highway. Its franchise it derives from the turnpike company by permission of the Legislature. If the turnpike company shall be dissolved, or its franchises forfeited in any manner, the turnpike road bed is still to remain a public highway forever, in virtue of the Acts of 1787 and 1801, and the franchise of the railway company will remain attached to, or dependent on, the public easement in the highway. But that public easement will be within the control of the Legislature, which may direct the public highway to be abandoned and closed; and with such action by the Legislature the franchise of the appellee, to run its cars on the bed of the highway, would be extinguished. It has acquired no property or right in, or over, the soil other than the right which it has acquired [**31]  from the turnpike company, and which it holds, of right, or by legal tenure, dependent on the continuance of the turnpike company as a corporation, and on the obligation of the contract between the two companies. In other words, it holds under the turnpike company and under the legislative permission to acquire a right under the turnpike company. That being its whole tenure, it possesses no right except the right of the turnpike company assigned to it, and therefore it has no right for the acquisition of which the land owner can demand compensation from it. If there be a new use to which the turnpike company has appropriated its road bed, such appropriation is the act of that company, and if any could be responsible for it, that company only could be. The railway company, which has acquired no property, right or estate from the land owner, cannot be liable to him for the value of any. Its franchise rests on, or is vested in, no property or estate of its own, but merely in the public easement in the highway, which easement the public, the Legislature, authorized the turnpike company to permit the appellee to participate in the enjoyment of, for a price to be paid to the turnpike company.  [**32]  The only parties to, or connected with, or concerned in, any 

 [*483]  right acquired by the railway company, so far as this case goes, are the turnpike company and the Legislature having control of the public interests, and the only right acquired is the right of the turnpike company, or of the public, as the case may be, and in which the appellant can have no concern except as one of the public.
The proper construction of the contract between the two companies is, that if the railway company shall do any act outside or beyond the rights of the turnpike company which were assigned to it, or for which the turnpike company might be liable in damages, it shall pay the damages for its wrong doing. That contract cannot, we think, be construed into a provision by the turnpike company, in behalf of abutting land owners, that the railway company shall pay them compensation for the exercise of rights which it derived from the turnpike company, and for which the contract provides payment to the latter. We cannot concur, therefore, in the position maintained by the learned counsel for the appellant that a right of the appellant to recover damages was created by the contract between the companies,  [**33]  or that it made any provision for the benefit of the appellant in this case.
The authorities cited by the appellant's counsel go to establish the position that when the public has defined the extent of a use in a highway which it requires, then the rights of adjacent property holders attach to the condition so defined, and it cannot be changed without compensation, on the same principle upon which they were entitled when their property was originally taken for public use. Or, that a change of a defined and established public use is an appropriation to a new use, though it may be of the same nature with the old. This proposition can only apply however when the public has exhausted the right of user acquired by it, and not when it has, by one or more acts of user, only partially exercised its right, continuing vested with a remainder of the use, to be exercised when, in its judgment, occasion may arise. As in the cases referred to in 6 Wheaton and 20 Howard, a municipal corporation, 

 [*484]  having the power to grade streets, does not exhaust its power by one or more acts of grading, but may continue its acts, and change the grades, so often as the public convenience [**34]  may demand, and the property holder acquires no right to new compensation for every change of grade. But it is another question when the municipality, not requiring the change of grade for the public convenience, may grant to a private corporation a right to lay a railway track on its streets, and that corporation may undertake to change the grade for its own advantage, though it may be with the consent of the municipal corporation. In that case it may be well said that the private corporation is seeking to appropriate the use acquired by the public to purposes not within those of its original acquisition, and that the right of the adjacent property holder to compensation for a new use attaches.
Conceding to this position all the force that may be claimed for it, it does not, we think, apply in this case. Here the use defined by the Acts of 1787 and 1801, was that the road bed should be cut down, according to our construction, to as near a level as might be, and by the charter of the turnpike company, that it should be graded down to an angle of, at most, four degrees; and the fact that it had not been cut down to as near a level as might be, and that it had not been graded [**35]  by the turnpike company so nearly level, as that it did rise and fall more than formed an angle of four degrees with an horizontal line, cannot be construed into an abandonment of the powers defined by the Acts of Assembly and by the charter, to do it at any time.
We trust that nothing can be found in this opinion which may tend to hinder an efficient discharge of the duty of this Court, in whatever cases may arise, involving the protection of private rights against that class of encroachments which were alluded to in the closing argument of the appellant's counsel with force and eloquence.
Judgment affirmed. 

17 of 142 DOCUMENTS 

RICHARD NORRIS, JR., vs. WILLIAM H. JOHNSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 485; 1871 Md. LEXIS 78 

June 20, 1871, Decided 

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

The case is fully stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Corporations -- Individual Liability of Stockholders of a Manufacturing Company, under Section 52 of Article 26 of the Code of Public General Laws -- Extent of such Liability -- How enforced.

The individual liability of a stockholder of a manufacturing company, (organized under Article 26 of the Code of Public General Laws,) for debts due by the company, may be enforced in an action at law against such stockholder, by one creditor, even where others are shown to exist.

The extent of the liability of each stockholder is measured by the par value of the stock held by him at the time the debts were contracted, continues at least until all the capital stock is paid in, and is in no way affected by the amount thereof that mav at any time remain unpaid. 

COUNSEL:
Robert J. Brent, for the appellant.

One creditor of a corporation cannot sue at law a stockholder thereof, where it is shown that other creditors exist. The proceeding must be a creditors' bill in equity against the individual stockholder, as all have an equal interest, and one cannot appropriate the individual liability of, perhaps, the only solvent stockholder, to his exclusive use. Briggs vs. Penniman, 8 Cowen, 592, 593; Stedman vs. Eveleth, 6 Metealf, 119; Crease, et al. vs. Babcock, et al., 10 Metcalf, 532; Erickson, et al. vs. Nesmith, 15 Gray, 222; Harris vs. First Parish in Dorchester, 23 Pick., 114; Mann vs. Pentz., 3 N. Y., 422.

Charles Marshall and Wm. A. Fisher, for the appellee.

The only questions presented are:

First: The effect of the fact that the appellant had paid up his subscription.

Second: The right of the appellee to sue the appellant alone, at law.

On the first point this Court has decided, in construing the 9th section of the Act of 1852, ch. 358, (which is nearly identical in language, and entirely [**2]  similar in its legal import, to the provisions of Article 26, section 52 of the Code of 1860,) that the liability exists without reference to the amount the subscriber may have paid on his subscription. Matthews, &c. vs. Albert, &c., 24 Md., 535, 536; Angell & Ames on Corporations, sec. 621.

The second point involves the right of one creditor of such corporation to sue one stockholder at law, it being admitted that there were other unknown creditors of the company.

The only case in this State which touches the question, is that of Matthews, &c. vs. Albert, &c., 24 Md., 538. That was a proceeding in equity against all the stockholders, and the Court there say that "it is just and proper that such other stockholders as are liable under the statute, should contribute ratably their proportion of the complainant's claim." This language is used with reference to that case, and must be understood and construed as applicable to a case in which a creditor does not seek to enforce the several liability of one stockholder, but contents himself with calling upon all the stockholders for contribution. The equitable rule is laid down by the Court, but it does not necessarily exclude the [**3]  creditor from insisting upon his right to adopt a different form of action, and proceed upon the several liability of any stockholder.

The Code gives the right asserted by the appellee. The personal liability created by the statute amounts to a contract between each stockholder severally, and each creditor who becomes such while the stockholder is a member of the corporation.

The Legislature could not take away the liability of the stockholders, after it had once attached. Hawthorne vs. Calef, 2 Wallace, 10, 23.

The moment the corporation contracts a debt, two contracts arise under the law. The one is the contract of the corporation, which it is bound to fulfil to the extent of its corporate property. The other is coexisting, and is a contract between the creditor and each subsisting stockholder severally, that if the capital stock be not fully paid up, as required by law, the stockholder will pay the debt out of his own property, to the extent of the par value of his stock. There is nothing in such a contract to make it necessary for the creditor to resort to a Court of Equity to enforce it. It may subject the stockholder to several suits, but that is the consequence [**4]  of his making a contract with several creditors. He cannot vary the right of one creditor, by making a contract with another. To hold that the creditor must seek contribution from all the stockholders, is in effect to hold that the liability of the stockholder is limited to his contributory share of the debts of the company, and not to the par value of his subscription as provided by law. Bank of Poughkeepsie vs. Ibbotson, 24 Wend., 473; Garrison vs. Howe, 17 N. Y., 462; Abbott vs. Aspinwall, 26 Barb., 207; Paine vs. Stewart, 33 Conn., 516, 529; Bullard vs. Bell, 1 Mason, 297; Angell & Ames on Corp., secs. 611, 624, 626; Hawthorne vs. Calef, 2 Wallace, 10, 23.

The stockholder, when sued by one creditor, cannot set up any defence to his statutory liability, except some right in himself. He is bound to pay a certain sum of money, and, no matter how many creditors there may be, he can only be required to pay that sum. He cannot urge in his defence that other unknown creditors may claim a share of what he owes.  

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

OPINIONBY:
MILLER 

OPINION:

 [*487]  MILLER, J., delivered the opinion of the Court.
This is an action [**5]  at law by the appellee as a creditor, against the appellant as a stockholder of the "Baltimore City 

 [*488]  Concrete Company," a corporation formed under the provisions of the Code, (Article 26,) relating to corporations for manufacturing purposes. The suit is to enforce the individual liability of the defendant under section 52 of that Article, and the declaration is framed upon that section. All errors in pleading were waived, and it was agreed the parties may recover or defend upon any facts offered in evidence, without reference to the state of pleadings. By agreement, it was admitted that the company was duly incorporated under these provisions of the Code, in March, 1866, with a capital stock of $ 100,000, in one thousand shares each, of the par value of $ 100; that in January, 1869, the company became indebted to the plaintiff in the sum of $ 471.10 for goods sold and delivered, and work done and materials furnished; that at the time this debt was contracted, the defendant was a stockholder, holding one hundred and ten and a half shares, which he fully paid up, and continued to hold them at the time of trial; that the whole amount of its capital stock has never been paid [**6]  in, and a greater amount thereof is unpaid than the amount of the plaintiff's claim; that the corporation has other creditors, whose number and the amount of their claims are unknown; and that the defendant, before suit brought, tendered to the plaintiff the sum of $ 72.96, as the amount which he owed him. The Court instructed the jury, that if they believed these facts, the plaintiff was entitled to recover the full amount of his claim, and refused a prayer of the defendant to the effect that the plaintiff could not recover because other creditors equally entitled to enforce the personal liability of the defendant, are not joined in the action, and to these rulings the defendant excepted.
The provisions of the section are, that "all the stockholders of any such corporation shall be severally and individually liable to the creditors of the corporation 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 the corporation, until the whole amount of the capital stock fixed 

 [*489]  and limited by the corporation, shall have been paid in--one-half thereof in one year, and the other half in two years [**7]  from and after the incorporation of said company--or such corporation shall be dissolved."
It is not necessary, for the purposes of this case, to determine some of the questions arising upon the construction of this section. For instance, we need not decide whether the liability for all debts contracted before the capital stock is paid in, continues after that event, and until such debts are all paid, or whether all antecedent liability is released and terminated by that event, because the plaintiff's case is within either construction. But it is quite clear, the extent of liability is measured by the par value of the stock held by each stockholder at the time the debts are contracted, and is in no way affected by the amount of capital that at any time may remain unpaid. The sole question we are now called upon to decide is, can this liability be enforced by one creditor, where others are shown to exist, against an individual stockholder, or must the creditor resort to equity for relief? It is to be observed that this section, unlike in that respect similar laws in some of the States, is silent as to remedy, prescribing no form, and designating no tribunal where relief may be had.  [**8]  In such case, it is unanimously conceded the creditors may have relief in equity, but the controverted question is, have they not also the right to sue at law. In Matthews vs. Albert, 24 Md. 527, the only case that has hitherto arisen in this State on the subject, the creditors filed a bill in equity, but the Court was careful not to decide against the remedy at law. In other States, the point has been determined in numerous cases, all of which have been cited in argument, and have received our most careful consideration.
By the decisions in New York, under similar statutes, the question has been settled in favor of the right to sue at law. Amongst the many cases on the subject in that State we refer to Bank of Poughkeepsie vs. Ibbotson, 24 Wend. 473, and Garrison 

 [*490]  vs. Howe, 17 N.Y. 458, because they contain the reasoning on which they maintain the right. That reasoning, which appears to us to be forcible and just, is briefly this: the ground and extent of the liability being distinctly given and defined, there can be no greater difficulty in establishing or resisting the demand in a Court of Law than in a Court [**9]  of Equity. It is true the stockholder may be subjected to several suits, but he can be charged only to the extent of his stock; by proving payment of debts or a personal charge in respect to them to this amount, there is an end of further liability, and he can show this as easily at law as in equity. Again, both policy and convenience require that the creditor should have this right, for in the case of small debts the proceeding for an account in equity would be so tedious and expensive as to destroy the value of the remedy.
In Massachusetts the line of decisions is different, and it is there held that the creditor is confined to his remedy in equity. In favor of that doctrine it is said the remedy in equity is more beneficent in its operation, and will work less hardship on parties liable as stockholders than an action at law, that it compels the party seeking to enforce the liability to join in the suit all the parties in interest who can be affected by the decree; that it avoids multiplicity of suits, apportions the liability amongst all the stockholders, and in the same suit which charges them, decrees contribution from each of his respective share of the general burden; whereas [**10]  by an action at law each creditor may pursue his separate remedy against an individual stockholder, compel him to pay the entire debt and place on him the burden of obtaining contribution from those equally liable with himself. Harris vs. First Parish in Dorchester, 40 Mass. 112, 23 Pick. 112; Erickson vs. Nesmith, 15 Gray 221. This reasoning seems to us to proceed upon the assumption that it is the duty of the Courts in determining where relief shall be had, to consult the interest and convenience of the stockholders exclusively, rather than to afford a speedy and efficient remedy to the creditors. But 

 [*491]  the law was not enacted in the interest or for the benefit of stockholders. It imposes a liability upon them for the security and protection of creditors, and if the burden and delay of a chancery suit is to be incurred by any one, why throw it upon those for whose protection the provision was made, and who trusted the corporation, relying upon this personal responsibility of its stockholders? They become stockholders in these corporations voluntarily, and risk their money in them for expected gain to themselves, and with full knowledge [**11]  of the nature and extent of the liability, the law says they shall assume in so doing. In this way credit is given to the corporation that contracts the debts, and when debts are thus contracted we see no objection to permitting any creditor to seek out any responsible stockholder and sue him at law for the debt, and place on him the burden of proceeding in equity to obtain contribution from others equally liable with himself. The creditors, as amongst themselves, may here, as in other cases, be well left to a race of diligence in the recovery of their claims, especially when the extent of recovery as against any one stockholder is limited, and he can show that that limit has been reached as a defence to any further suits. It is true he may be thus compelled to pay more than his share looking to the like responsibility of other stockholders, but for this he has his remedy in equity for contribution. There is no injustice in holding, it is for him to seek this mode of relief, when it is considered the law has provided that all this personal liability may be avoided by paying up the capital stock at the time of subscription and formation of the corporation, or before any debts are contracted. [**12]  In our opinion the weight of reason as well as authority is in favor of sustaining the action, and this judgment must therefore be affirmed.
Judgment affirmed. 

18 of 142 DOCUMENTS 

RICHARD NORRIS, JR., vs. JOHN C. WRENSCHALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 492; 1871 Md. LEXIS 79 

June 20, 1871, Decided 

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

The appellee in this case having recovered judgment against The Baltimore City Concrete Stone Company, (incorporated under the provisions of Article 26 of the Code, relating to manufacturing companies,) for services rendered the company as superintendent, instituted on the 23d of June, 1870, an action under the Act of 1864, ch. 6, against the appellant, a stockholder, to enforce his individual liability for the debt, under section 52 of Article 26 of the Code. The plaintiff filed with his declaration an account verified by affidavit, together with a short copy of the judgment. The writ of summons was made returnable on the second Monday of July, 1870, the next return day prescribed by the Act, after the suit was commenced; on the return day the defendant appeared and demurred to the declaration. At the following September Term, the first term thereafter, the plaintiff entered a motion for judgment by default, for want of a plea verified by affidavit; on the 16th of December following, the Court overruled the demurrer and entered judgment by default, for want of a plea and affidavit of defence, and on the same day assessed the damages [**2]  and entered final judgment thereon. From this judgment the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Pleading -- The nature of the Personal liability of Stockholders in a Manufacturing company, under section 52, Article 26 of the Code -- Practice under the Act of 1864, ch. 6 -- Practice in the Court of Appeals.

In an action at law by a creditor of a manufacturing company against a stockholder thereof, to enforce his personal liability under section 52 of Article 26 of the Code, for the debt due by the company, no averment of notice to the stockholder, that the debt was contracted by the corporation, need be made in the declaration.

The personal liability of a stockholder of a manufacturing company, under section 52, Article 26 of the Code of Public General Laws, is not in the nature of a penalty, but is so far an obligation arising ex contractu, as fairly to come within the spirit and intent of the Act of 1864, ch. 6; and a creditor of such company in an action at law to enforce his claim against an individual stockholder, may make the affidavit thereto as required by said Act.

An action was instituted, on the 23d of June, 1870, under the Act of 1864, ch. 6; the writ of summons was made returnable on the second Monday of July, 1870, the next return day prescribed by the Act, after the suit was commenced; on the return day the defendant appeared and demurred to the declaration. At the following September Term, being the first term thereafter, the plaintiff entered a motion for judgment by default, for want of a plea verified by affidavit; on the 16th of December following, the Court overruled the demurrer and entered judgment by default, for want of a plea and affidavit of defence, and on the same day assessed the damages and entered final judgment thereon. HELD:

That these proceedings were in strict conformity with the requirements of the Act of 1864, ch. 6.

Where the Court, after judgment by default, assesses the damages on proof, without empannelling a jury, the amount of damages thus assessed, cannot be reviewed in the Appellate Court, on appeal from the judgment, no exception on that ground having been taken, unless such amount should exceed the amount claimed in the declaration. 

COUNSEL:
Robert J. Brent, for the appellant.

The judgment from which this appeal was taken was erroneous, because it was based on the Act of 1864, ch. 6, and by the 6th section of that Act, the summary proceedings thereunder are only authorized where the cause of action is a contract express or implied. Act of 1864, ch. 6, secs. 6, 7, 8.

As this was a judgment based on no contract whatever, but on a right of action to enforce what was in its nature a statutory penalty, no color can be given to it by the Act in question. This action is not ex contractu, but penal in its character. First National Bank of Plymouth vs. Price, et al., 33 Md., 487; 4 Allen, 579.

Nor is the judgment authorized by the 8th section of the Act, the filing of the docket entries of a judgment being not provided for by that section; nor does the affidavit filed in this case state any debt beyond the $ 918 and interest, and it would not warrant a judgment on the 16th of December, 1870, for more than $ 973.08--while this judgment is for $ 981.48, including manifestly the costs of the old judgment not covered [**3]  by the affidavit.

The Act of 1864, ch. 6, prevents the filing of a plea setting forth facts without an affidavit, and it does not apply to a demurrer.

The declaration is defective in not showing a sufficient cause of action, under the 52d section of the 26th Article of the Code, by omitting to state how much of the capital stock was not paid in, so as to measure and limit the personal responsibility of the defendant.

The stockholder is in no sense privy to the primary corporate liability, but his responsibility being merely secondary, contingent and collateral to that of the principal debtor, he stands in the light of a guarantor. His individual liability, therefore, cannot be enforced until he has notice of the default of the corporation, and a demand is made on him for the precise amount of the creditor's claim, as to which he is an entire stranger. This principle is well sustained by all the authorities which require that the plaintiff should aver and prove notice of the corporate default, and a demand on the stockholder as a condition precedent to the suit. Hicks vs. Burns, 38 New Hampshire, 145, 153; 4 Allen, 577. And such is the rule in this State in analogous [**4]  cases. Oyster vs. Annan, 1 G. & J., 456; Scott vs. Ducker, 2 Md., 284; Dent vs. Maddox, 4 Md., 529.

It is not shown by the narr. that there are no other creditors who are entitled to enforce pari passu with the plaintiff, the liability of the defendant.

The statute of Massachusetts is analogous to the Maryland Code, for the former provides that "if any loss, &c., shall arise from official mismanagement, &c., the stockholders, at the time of such mismanagement, shall, in their individual capacities, be liable to pay a sum not exceeding the amount of stock actually held by such stockholder at the time." Yet it was held in a masterly opinion, that an action at law would not lie by a creditor against the stockholder where other debts were shown to exist, and all the cases are reviewed. Harris vs. First Parish in Dorchester, 23 Pick., 112, 114, 115. And such seems to be the principal of Mann vs. Pentz, 3 N. Y., 422, 423; Crease vs. Babcock, 10 Metcalf., 532, 533; 1 Hopkins, 305; Erickson, et al. vs. Nesmith, 15 Gray, 222.

The question is now for the first time presented in Maryland, "whether an action at law by one creditor can be maintained against a single stockholder.  [**5]  " The case of Matthews vs. Albert, 24 Md., 536, cannot be considered as an adjudication on this point; as that was a case in equity where the Court ordered a general account and contribution. Nor does the reference in that case to the New York cases, merely to establish the liability of the stockholder to the full amount of his stock, whether paid for or not, commit this Court to the other points ruled in those cases touching matters not then before this Court.

The 52d section of the 26th Article of the Code, declares that "the stockholders shall be severally and individually liable to the creditors," but as it is silent as to the forum, there is no difficulty in filing a creditors' bill in equity against any one stockholder, as was done by the original bill in Matthews vs. Albert, 24 Md., 534. That would be enforcing the several liability of each stockholder for the equal benefit of all the creditors, who upon notice, could come in and equally participate. Or there could be no difficulty in filing a general creditors' bill against all the stockholders, and obtaining a decree, binding each defendant severally to the extent of his stock, as provided in the Act of 1868, ch. 471,  [**6]  section 214.

In all these suits, the corporation should be made a co-defendant, as it is most interested in denying the debt, and most capable of showing payments, &c. See 7 N. Y., 147.

Thomas Rowland, for the appellee.

The 52d section of Article 26 of the Code, is identical with the ninth section of the Act of 1852, ch. 338, which was construed by this Court in the case of Matthews vs. Albert, 24 Md., 527.

As to the nature of the liability of the stockholder, therefore, there can be no further question. But the appellant contends that a single creditor cannot be permitted to sue a single stockholder at law; and that the only remedy of the creditor is in equity. This question was distinctly presented in the case of the Bank of Poughkeepsie vs. Ibbotson, 24 Wend., 473. The question there arose upon the construction of the New York Act of 1811, relative to manufacturing companies, an Act recognized by this Court in 24 Md., 536, as similar to our own. This Act made stockholders "individually responsible to the extent of their respective shares of stock." Act of 1811, ch. 67, sec. 7, 2 Revised Statutes of N. Y., 654 of 5th Ed.

It was decided that the creditor might [**7]  elect whether to proceed at law against a single stockholder, or in equity against all. This case was decided in 1840. In 1848, the Legislature of New York passed a new Act in relation to manufacturing companies, (the basis of our Act of 1852, ch. 338; Code, Art. 26, sec. 40, &c.) by which stockholders are made, as in our Act, "severally individually liable, &c." Act of 1848, ch. 40, sec. 10, 2 Revised Statutes of N. Y., 660 of 5th Ed.

The construction placed upon the Act of 1811, in 24 Wend., was recognized as applicable to the Act of 1848, in Garrison vs. Howe, 17 N. Y., 462, (cited in 24 Md., 536.)

Our Act of 1852 is evidently modelled upon the New York Act of 1848, and it was passed at a time when the construction of the New York Acts was well settled. The individual liability sections of the two Acts are almost identical. Matthews vs. Albert came up upon appeal from a Court of Equity, but the existence of a concurrent remedy at law was distinctly recognized in that case, and the New York cases were relied upon in the construction of our Act of 1852. Bank of Poughkeepsie vs. Ibbotson, 24 Wend., 473; Garrison vs. Howe, 17 New York, 462; Abbott vs. Aspinwall, 26 Barb.,  [**8]  207; Paine vs. Stewart, 33 Conn., 516, 529; Corning vs. McCullough, 1 N. Y., 47; Bullard vs. Bell, 1 Mason, 297; Angell & Ames on Corporations, secs. 611, 624-626.

The remedy by bill in equity would be slow, tedious and expensive. It would be necessary to make all the stockholders and all the creditors parties. A great deal of cross-litigation would arise in such a suit. Issues of fact would be sent to a Court of Law. The stockholders could protract the suit indefinitely. The insolvency of any stockholder, pending the suit, would render a new account and contribution necessary. Different stockholders would be responsible to different creditors, they being responsible only for debts "created while they were stockholders." Matthews vs. Albert, 24 Md., 537; Moss vs. Oakley, 2 Hill, 265.

But the creditors had a remedy in equity, before the Act of 1852, covering the very case provided for in the individual liability clause of that Act. Independently of any statute, the creditors of a corporation, whose capital stock is not fully paid up, may file a bill in equity against the individual stockholders, and compel the appropriation of the unpaid capital to the satisfaction of their [**9]  claims. This individual liability in equity has been recognized and acted upon ever since the time of Charles II. Doctor Salmon vs. The Hamborough Co. Cases in Chancery, 204; Briggs vs. Penniman, 8 Cowen, 396; Slee vs. Bloom, 19 Johns., 483; Ward vs. G. M. Co., 16 Conn., 593; Adler vs. M. P. B. Co., 13 Wis., 61; Winans vs. M. R. & N. Co., 6 Blatchf. C. C. R., 222; Angell & Ames on Corporations, secs. 600-602, and cases there cited.

It seldom happens that the nominal capital stock of a corporation exceeds its liabilities, for this is the foundation of its credit with the community, and is generally made sufficiently large. We see that this nominal capital stock might always have been reached by the creditors in equity. But section 52 requires the stockholders to make this nominal capital stock a real one; and until this is done, makes them liable, not merely to a greater extent than formerly, but in a different manner. Angell & Ames, sec. 611.

Until its capital stock is fully paid up, a manufacturing company, formed under the provisions of Article 26, is only a quasi corporation. The liability of the stockholders is that of partners at common law, except so far as it is modified [**10]  and limited by the statute. Sections 52 and 40 are to be construed together, as merely granting to the stockholders a limitation of the common law liability of partners, until they have attained a complete corporate character by payment in full of their capital stock. Corning vs. McCullough, 1 N. Y., 47, 53, 60; Moss vs. Oakley, 2 Hill, 265, 269; Abboott vs. Aspinwall, 26 Barb., 207; Conant vs. Van Schaick, 24 Barb., 87, 96; Hawthorne vs. Calef, 2 Wall., 22; Paine vs. Stewart, 33 Conn., 529; Angell & Ames, sec. 611.

It is upon this theory of the statute, that it has been determined that only those stockholders are liable, who were such when the debt was contracted. Matthews vs. Albert, 24 Md., 535-537; Moss vs. Oakley, 2 Hill, 269.

If there were other creditors unpaid, or other stockholders liable, which the Court below could not presume, the defendant should have made the fact appear by plea in abatement, or to the jurisdiction. Smith vs. Cooke, 31 Md., 179.  

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

OPINIONBY:
MILLER 

OPINION:

 [*498]  MILLER, J., delivered the opinion of the Court.
We have decided in Norris vs. Johnson, (ante 485,) that [**11]  an action at law may be brought by a creditor to enforce the liability of stockholders under section 52 of Article 26 of the Code. We have also there determined that the extent of the 

 [*499]  liability of each stockholder is measured by the amount of stock held by him at the time the debt was contracted, continues at least until all the capital stock is paid in, and is in no wise affected by the amount thereof that may at any time remain unpaid. There is no provision in the Code by which this liability is made dependent upon any other contingency than the contracting of debts by the corporation, whilst the defendant was a stockholder, and before the capital stock is fully paid up. These two conditions make the liability determinate and irrevocable. In this respect, the Code is materially different from the statute under which the very able decision in Hicks vs. Burns, 38 N.H. 141, was made, and, in our opinion, no averment of notice to the stockholder that the debt was contracted by the corporation, need be made in the declaration; and so far as demand on the corporation is concerned, if that were necessary, (a point on which we express no opinion,) it is sufficiently [**12]  stated in the averment that the plaintiff had recovered a judgment for his claim against the corporation, no part of which has ever been paid. The demurrer to the declaration was, therefore, properly overruled.
Another question which this case presents is, were the suit and proceedings therein properly instituted and conducted to final judgment, under the Act of 1864, ch. 6, regulating the return of process and taking judgments in the Superior Court and Court of Common Pleas of Baltimore City? That Act, intended to facilitate the recovery of judgments in those Courts is, by its terms, applicable to "every suit where the cause of action is a contract, whether in writing or not, or whether express or implied," provided the plaintiff files with his declaration an affidavit or affirmation stating the true amount that the defendant is indebted to him over and above all discounts, and also "the bond, bill of exchange, promissory note or other writing or account by which the defendant is so indebted." The inquiry before us, therefore, involves the question, what is the nature and character of this personal 

 [*500]  stockholder-liability? In our judgment, it is very clear, it is not in [**13]  the nature of a penalty, like that in other sections, imposed upon the trustees, managers, directors or other officers of the corporation, for doing that which the statute expressly or by implication forbids, or the omission to do something which the law directs to be done, and, therefore, does not come within the decision in the case of the First National Bank of Plymouth vs. Price, et al., 33 Md. 487. The section we are now considering, not only does not forbid the contracting of debts before the capital stock is paid in, but allows it to be done on condition that those who were stockholders at the time, shall become severally and individually liable therefor. As to the true nature of this liability, there is some diversity of judicial opinion, and it is not easy to reconcile or comprehend the reasoning of all the authorities on the subject. A very elaborate and able opinion by the Court of Appeals of New York, on this question, is found in the case of Corning vs. McCullough, 1 Coms. 47. The statute there construed, made the stockholders continuously liable for all debts of the corporation, and one of the grounds on which the Court placed [**14]  the obligation, was that of contract.
The liability, they say, is for the payment of a debt of the company incurred by the purchase of merchandise of the plaintiff for the use and benefit of the company, and wherein the defendant, as one of the members, was interested, and for which he thereby, and under the provisions of the charter, became and was, concurrently with the company from the inception of the debt, personally liable. It is, therefore, virtually and in effect a liability upon a contract and the mutual agreement of the parties, not indeed in form an express personal contract, but an agreement of equally binding obligation consequent upon, and resulting from, the acts and admissions, or implied assent of the parties. Another ground there taken is, that the Legislature by subjecting the stockholders to personal liability for the debts of the company, thereby merely removed the corporate protection from them as corporators, 

 [*501]  and left them liable as partners and associates as at common law. For these reasons the Court held the action against the stockholder was within that clause of their Statute of Limitations relating to actions of account, assumpsit, or on [**15]  the case, founded on any contract or liability, express or implied. In a very recent case, (Story vs. Furman, 25 N.Y. 214,) the same Court has applied the same doctrine to a case arising under a statute similar to our own, where the liability is qualified and limited in amount. Every person, say the Court in that case, dealing with one of these manufacturing companies, organized under the Act of 1811, must also be held to trust to the personal liability of its stockholders to the extent specified in the Act of its incorporation, and such liability is part of the contract. The personal liability of the stockholder for the payment of the debts of the company, to the extent specified in its charter, became and was one of the terms of the sale to the company of any property, and constituted part of the security of the creditor for any debt contracted by the company. The Supreme Court in Hawthorne vs. Calef, 69 U.S. 10, 2 Wall. 10, 17 L. Ed. 776 have decided a liability of this description is protected by the Constitution of the United States, and a law repealing or taking it away, is void as impairing the obligation of contracts. And in Matthews vs. Albert, 24 Md. 527, [**16]  this Court has said the stockholders are "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."
We do not wish to be understood as adopting all the reasoning of the New York cases we have cited, and especially not that which places the liability on the ground that the statute simply removes corporate exemption, and leaves the responsibility to remain as upon partners at common law, but from the best consideration we are able to give to the subject, we are satisfied the obligation does not rest so entirely upon statutory liability, as to be destitute of any of the elements of a contract. It is, in our opinion, so far an obligation arising ex contractu, as fairly to come within the spirit and intent of 

 [*502]  the Act of 1864. It is a debt under the statute due from the stockholder to the creditor, springing out of and coexistent with the contract between the corporation and the creditor. Such being its character the plaintiff may well make the affidavit thereto as he has done, the amount being within his own knowledge, and liquidated and ascertained by the account [**17]  as well as the judgment against the corporation. Both the account and a short copy of the judgment were filed with the declaration, and either is within and a compliance with the 8th section of the law of 1864.
The record shows the writ of summons was made returnable to the second Monday of July, 1870, the next return day prescribed by the statute, after the suit was commenced: that on the return day the defendant appeared and filed a demurrer to the declaration: that at the following September Term, being the first term thereafter, the plaintiff entered a motion for judgment by default for want of a plea verified by affidavit: that the Court on the 16th of December, following, overruled the demurrer and entered judgment by default, for want of a plea and affidavit of defence, and on the same day, assessed the damages and entered final judgment thereon. In all this we discover no departure from the requirements of the statute, but strict conformity to the proceedings it prescribes. The case therefore does not in this respect fall within the decision in King vs. Hicks, 32 Md. 460.
The power of the Court after judgment by default, to assess the damages on proof,  [**18]  without empannelling a jury is conferred by the 9th section of the Act of 1864, ch. 6, as well as by the Act of 1864, ch. 175. The amount of damages thus assessed, is not open for revision in this Court on appeal from the judgment, when no exception on that ground has been taken, unless they exceed, as they do not in this case, the amount claimed in the declaration. Finding, therefore, no ground for reversal, the judgment must be affirmed.
Judgment affirmed. 

19 of 142 DOCUMENTS 

THOMAS C. BASSHOR and WALLACE STEBBINS vs. WERNER DRESSEL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 503; 1871 Md. LEXIS 80 

June 20, 1871, Decided 

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

This was an action brought by the appellants, creditors of a corporation known as "The Baltimore Chrome Mining and Manufacturing Company," against the appellee, a stockholder therein, to charge him for the debt due by the company under the provisions of section 52 of Article 26 of the Code of Public General Laws. Judgment was rendered for the defendant and the plaintiffs appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Corporations -- Defect in a Certificate of Incorporation cured by a Legislative recognition of the Corporation -- Construction of section 68 of Article 26 of the Code -- Capital stock of Mining Corporations.

Certain persons desiring to form a company under the provisions of Article 26 of the Code, for the purpose of mining chrome ores and manufacturing bi-chromates and other salts, executed a certificate of incorporation, by which they acknowledged that they had associated themselves for such purpose, and that the name of the incorporation should be "The Baltimore Chrome Mining and Manufacturing Company." This certificate was duly recorded in the office of the clerk of the Superior Court. Subsequently, the company applied to the Legislature for an amendment of its charter, and the Act of 1867, ch. 382 entitled "An Act to amend the charter of the Baltimore Chrome Mining and Manufacturing Company, by empowering the said company to increase its capital stock, or to make calls or assessments upon the present capital stock," was passed for that purpose. This Act was accepted by the company. In an action by creditors of this company against a stockholder, to enforce his personal liability for the debt under section 52 of Article 26 of the Code, the defendant denied the existence of the company, charging that the certificate of incorporation was not valid, because of its attempted combination of a mining with a manufacturing company. On an appeal by the plaintiffs from a judgment in favor of the defendant, it was HELD:

That the Act of 1867, ch. 382, was a legislative recognition of the validity of the existing corporation, and cured the defect, if any such existed, in the original certificate, of combining the two kinds of corporations in one charter. By accepting this Act, the corporation, as to any such defect, became valid ab initio.

The provision of the Code (Article 26, section 68,) which allows lands as well as money, to be considered as payment of any part of the capital stock of mining corporations, does not authorize leasehold interests to be considered as payment in full of such capital stock, so as to exempt the stockholders from personal liability under section 52 of Article 26 of the Code.  

COUNSEL:
Thomas Rowland and John Thomson Mason, for the appellants.

The Court below erred in instructing the jury that there was no legal evidence of the incorporation of The Baltimore Chrome Mining and Manufacturing Company, and the plaintiffs were, therefore, not entitled to recover in this action.

The certificate of incorporation is not defective. It contains all the requisites prescribed by section 40 of Article 26 of the Code, as necessary to constitute a manufacturing corporation. It was in this character that the company dealt with the plaintiffs. Whatever more the certificate contained may be rejected as surplusage. Code of Pub. Gen'l Laws, Art. 26, sec. 40; Eastern Plank Road Co. vs. Vaughn, 14 [**2]  New York, 546.

There is no reason why the business of mining and manufacturing should not be carried on by the same company. The Code does not prohibit it, but rather, by implication, permits it. In fact, every mining company does do a manufacturing business in preparing its ores for the market. It was only to this extent that the company in question proposed to engage in manufacturing. The difference between the "mining of chrome ores" and the "manufacturing of bi-chromates and other salts," is not nearly so great as that between different kinds of manufacturing.

If these two operations should require the formation of two different companies, it would be difficult to define exactly where the operations of the mining company should terminate, and those of the manufacturing company should begin. Code, Art. 26, secs. 40, 68; Neale vs. The Vestry of St. Paul's Church, 8 Gill, 116; Bird vs. Daggett, 97 Mass., 494.

A substantial compliance with the requirements of section 40 is sufficient; even if those provisions are not to be considered as directory rather than fundamental. Angell & Ames on Corporations, sec. 92; Abbott's Digest of the Law of Corporations, 24; Eakright [**3]  vs. Logansport & N. I. R. R. Co., 13 Ind., 404; Rogers vs. Danby Un. Soc., 19 Vt., 187; Mead vs. Keeler, 24 Barbour, 24; Spring Valley Water Works vs. San Francisco, 22 Cal., 440; Hawes vs. A. S. Petroleum Co., 101 Mass., 394; Merrick vs. R. E. & G. Co., 101 Mass., 381; Gen. Stats. of Mass., (1860,) ch. 61, secs. 1, 8; State vs. Brown, 31 N. J., (Law,) 357.

If there has been a user of a corporate franchise by an association of persons, their existence as a corporation can only be inquired into by the State; it cannot be questioned in a collateral proceeding. Angell & Ames on Corporations, secs. 94, 635; M. E. U. Church vs. Pickett, 19 N. Y., 482; Buffalo & A. R. R. Co. vs. Cary, 26 N. Y., 75; Eaton vs. Aspinwall, 19 N. Y., 119; Abbott vs. Aspinwall, 26 Barb., 202; Cochran vs. Arnold, 58 Penn., 399; Tarbell vs. Page, 24 Ill., 46; Baker vs. Adm'r of Backus, 32 Ill., 81; State vs. Brown, 31 N. J., (Law,) 357.

One who has participated in the acts of user of a corporation de facto, subscribed to its capital stock and acted as an officer of the corporation, is estopped from denying that it has ever existed.

A creditor dealing with a corporation formed under the provisions [**4]  of Article 26, looks to the individual as well as the corporate liability. To permit a stockholder and officer of a company, holding itself out to the world as a corporation formed under the provisions of Article 26, to contract debts in its behalf, and then repudiate them because of some formal defect in his own certificate, would seem to be utterly inconsistent with any reasonable idea of justice. It is certainly a violation of those principles of truth and equity which have given rise to the doctrine of estoppel in pais. Angell & Ames on Corporations, secs. 94, 611, 630 a, 635; Abbott vs. Aspinwall, 26 Barb., 202; Eaton vs. Aspinwall, 19 N. Y., 119; Mead vs. Keeler, 24 Barb., 20; Callender vs. P. & H. R. R. Co., 11 Ohio, 516; West Winsted Association vs. Ford, 27 Conn., 289; Tarbell vs. Page, 24 Illinois, 46; McHose vs. Wheeler, 45 Penn., 32; Smith vs. Heidecker, 39 Mo., 162; Dooley vs. Cheshire Glass Co., 15 Gray, 494; McDougall vs. Lane, 18 Ga., 444; Neal vs. Vestry of St. Paul's Church, 8 Gill, 116, 119.

According to the true construction of Article 26, this company would not have attained a full corporate character, in any event, until the requirements of section 52 were [**5]  complied with. Until the capital stock is fully paid up, the liability of the stockholders is that of partners at common law, except so far as is it modified and limited by the statute; and is not dependent upon the validity of the incorporation. Angell & Ames on Corporations, sec. 611; Matthews vs. Albert, 24 Md., 535, 537; Corning vs. McCullough, 1 N. Y., 47 53, 60; Moss vs. Oakley, 2 Hill, 265, 269; Abbott vs. Aspinwall, 26 Barb., 207; Conant vs. Van Schaick, 24 Barb., 87, 96; Hawthorne vs. Calef, 2 Wall., 22; Paine vs. Stewart, 33 Conn., 529.

Charles Marshall, for the appellee.

It is competent for a party when sued as a stockholder of an alleged corporation, to deny its legal existence. The liability is one created by statute, and exists only as to stockholders of a corporation created according to law.

Upon principle, there should be no estoppel, because the denial of the validity of the Act of incorporation works no wrong to the creditor, inasmuch as the liability of the defendant, in case the corporation had no existence, is unlimited, whereas if he be a stockholder of a legal corporation, his liability is limited to the amount of his stock. The defendant may [**6]  contest the existence of the corporation, for the neglect or violation of any condition precedent to a valid corporate existence, or because there is no warrant in the law for the creation of such a corporation. Utley vs. Union Tool Company, 11 Gray, 140; Franklin Fire Ins. Co. vs. Hart, 31 Md., 59; Frostburg C. & I. Co. vs. Frost, 24 How., 283; Harrison vs. McGregor, 29 Cal., 126; Spencer, Field & Co. vs. Paul Cook, 16 La. An., 153; Crocker vs. Crane, 21 Wend., 220; Mokalumne Hill M. Co. vs. Woodberry, 14 Cal., 424; Dauchy vs. Brown, 24 Vermont, 197; 1 Redfield on Railways, 64, ch. 4, section 18.

The proof in this case shows that there never was a legal corporation known as "The Baltimore Chrome Mining and Manufacturing Company."

The Code, Article 26, section 40 to section 67, inclusive, provides for the incorporation of manufacturing companies, and section 68 to 87 inclusive, of the same Article, provide for the incorporation of mining companies. The certificate offered in evidence, purports to combine in one corporation both a manufacturing and a mining company. There is no provision in the Code which permits such an amalgamation of the two kinds of corporations, on the [**7]  contrary, it will be seen upon examination of the powers and duties of each, that they are repugnant and inconsistent in many essential particulars. The Act of 1868, ch. 481, sections 35 and 36 provide for the incorporation of companies for two or more of the purposes named in the Act, and for the amalgamation of two or more of these companies after incorporation. The absence of such a provision in the law under which the corporation in question was attempted to be formed, becomes for this reason very significant. Without authority of law, it was as much beyond the power of the parties to unite two statutory corporations in one, as it would have been to incorporate a company for a single purpose not permitted by the law. Angell & Ames on Corporations, sec. 111; 1 Redfield on Railways, ch. 4, sec. 18, p. 64.

Two existing legal corporations cannot amalgamate so as to form a single corporation combining the purposes of both, even with the consent of every stockholder, without express legal sanction. State vs. Bailey, 16 Ind., 46. If this be true, an amalgamation of corporations, formed under special laws, must have express legislative sanction.

The differences between the two [**8]  kinds of corporations, which a brief examination of the powers conferred upon each, and denied to each, would disclose, show conclusively that the attempt to amalgamate, not only was without legal authority, but that it was contrary to law.

The proof of the fact of a legal incorporation in this case was radically defective, and did not show the existence of any corporation recognized by law. If this be correct, there can be no statutory liability.  

JUDGES:
The cause was argued before STEWART, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*508]  MILLER, J., delivered the opinion of the Court.
This is another case where creditors of a corporation are seeking to enforce as against a stockholder, the personal liability imposed by section 52 of Article 26 of the Code. None of the questions determined in Norris vs. Johnson, and Norris vs. Wrenschall, arise here. The case was concluded in the Court below by an instruction to the jury that there was no legal evidence of the incorporation of the company of which the defendant is sought to be charged as a stockholder, and the plaintiffs are not, therefore, entitled to recover in this action, and whether this instruction [**9]  be correct is the main question in this case.
The certificate of incorporation, dated the 11th of October, 1866, professes on its face to form a company for the purpose of mining chrome ores and manufacturing bi-chromates and other salts, under the name of "The Baltimore Chrome Mining and Manufacturing Company," and provides that the mining operations of the company shall be conducted in 

 [*509]  Harford county and other counties of the State, and its manufacturing operations and generally all the business of the company shall be conducted in the city of Baltimore, in which its office for the transaction of business will be situated. On the part of the appellee, it is contended that this is an attempt to create a company, both for mining and manufacturing purposes, for which no provision is made by the Code: that these several kinds of corporations are provided for by different sections, are in many essential features totally dissimilar, and parties have no power without legislative sanction to amalgamate the two in one certificate: that this is a radical defect in the organization of this company, just as fatal to its corporate existence as if the attempt [**10]  had been to incorporate it for a purpose not permitted by law: that the right of recovery against a stockholder depends upon the fact that the plaintiff was a creditor of the corporation of which the defendant was at the time a stockholder, and hence the plaintiff must show the existence of the corporation of which he became a creditor: and that on this issue it is competent for the defendant to contest the legal existence of the corporation by reason of neglect or violation of any condition precedent to a valid corporate existence, or because there is no warrant in the law for the creation of such a corporation. On the other hand, the appellants insist, first, that there is no defect in the certificate, that it contains all the prescribed requisites necessary to constitute a manufacturing corporation, and whatever more there is in it may be rejected as surplusage, especially in view of the facts that the certificate was recorded in Baltimore city only, and no attempt made to organize a mining company by having it recorded in Harford county, or elsewhere, that the corporation did carry on a manufacturing business in the city of Baltimore, for at least a year and a-half, and its [**11]  debt to the appellants for machinery to be used in that business was there contracted: secondly, that where there has been such user of corporate franchises by an association of individuals, their existence as a corporation can only be inquired into by the State, 

 [*510]  and cannot be questioned in a collateral proceeding like the present between a creditor and a stockholder: and thirdly, that the appellee, who was one of the originators of the company, a subscriber to its stock, a signer of the certificate of incorporation, and who acted as one of its directors from its organization until it stopped business, and was present at the meeting of the board at which the settlement of the appellants' claim was unanimously authorized, is estopped by these acts of active participation in the user of a corporation de facto, from denying it had ever existed, and to permit him now to repudiate the existence of the corporation which he was thus instrumental in creating, conducting and holding out to the world as a corporation and capable of contracting debts as such, and escape the liability of a stockholder therein, would be inconsistent with any reasonable idea of justice,  [**12]  and in violation of those principles of truth and equity on which the doctrine of estoppels in pais is founded.
These conflicting views have been strongly urged in argument, and a large number of authorities cited and pressed upon our attention, but we are relieved from the duty of expressing any opinion upon them, because, in our judgment, this case does not rest upon the positions stated by the appellants' counsel. We are convinced that any defects, whether vital or formal, that may have existed in the original certificate of incorporation, because of its attempted combination of a mining with a manufacturing company, have been cured by competent authority. The record shows that the defendant offered in evidence the minutes of proceedings of this company contained in a book which it was agreed should be used in this Court, and as we understand the offer, it embraces all the proceedings in that book that are relevant to the matters in controversy between the parties to this suit. An examination of that book has disclosed the facts that the company applied to the Legislature for an amendment of its charter, and a special law, (Act of 1867, ch. 382,) for that purpose [**13]  was passed, which, on motion of the appellee, was accepted, and is 

 [*511]  set out in full on the minutes of proceeding. That law, entitled "An Act to amend the charter of the Baltimore Chrome Mining and Manufacturing Company, by empowering the said company to increase its capital stock, or to make calls or assessments upon the present capital stock," amongst other things, empowers that corporation to increase its capital stock to the sum of $ 750,000, and if that shall not be done, then to make calls or assessments upon its present capital stock to the amount of $ 1 on each share. We regard this Act as a legislative recognition of the validity of the existing corporation, and as having the effect to cure the defect, if any such existed, in the original certificate, of combining the two kinds of corporations in one charter. By accepting this Act, the corporation, as to any such defect, became valid ab initio, as much so as if incorporated under the law of 1868, ch. 471, section 35. With the proof of this law and its acceptance in the case, there was error in the instruction granted by the Court, and for this reason the judgment must be reversed.
The only other question [**14]  material to be considered is, whether there is any sufficient evidence to authorize the jury to find that the capital stock had all been paid up. The certificate fixes the capital stock at $ 500,000, divided into one hundred thousand shares of $ 5 each. In reference to manufacturing corporations, the law provides that nothing but money shall be considered as payment of any part of the capital stock. There is no proof and no pretence that this provision has been complied with. In the case of mining corporations, the law allows lands, as well as money, to be considered as payment, but that does not authorize leasehold interests, of which the greater part of this property consisted, to be considered as payment in full of the capital stock, so as to exempt the stockholders from personal liability under section 52. And even if all the property had consisted of fee-simple estates in lands, we should be very unwilling to decide that such property, whose actual value, ascertained beforehand by public sale, was certainly less than $ 50,000, could, 

 [*512]  by any arrangement or agreement between the stockholders, be taken to be worth $ 500,000, so as to constitute payment in [**15]  full, under this section, of stock to that amount. We are fully satisfied there is no proof in this record of compliance with the statutory provision, by observance of which, exemption from personal liability is secured to the stockholders.
These views dispose of all the material questions that will probably arise in the further progress of this case, and we are therefore relieved from the necessity of deciding in detail, upon the large number of prayers offered by the appellants and rejected by the Court.
Judgment reversed and new trial awarded. 

20 of 142 DOCUMENTS 

HENRY K. HAYES vs. JOSEPH WELLS and CHAS. BABBITT, trading as WELLS & BABBITT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 512; 1871 Md. LEXIS 81 

June 20, 1871, Decided 

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

The facts of the case, together with the exceptions which were taken in the Court below by the defendant, are sufficiently stated in the opinion of this Court. The verdict and judgment being for the plaintiffs, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Agreement for the Extension of the time of Payment of a Bond -- Effect to Discharge a Guarantor -- Collateral Security -- How effecting the right of a Creditor to enforce payment of the Original obligation -- Evidence -- Practice in the Court of Appeals.

An extension of the time of payment of a bond, given by the holder thereof to the principal obligor, does not operate to discharge a guarantor of such bond, if the agreement for the extension were entered into after the maturity of the bond.

An agreement, which will operate to discharge a surety in a bond, or a guarantor of its payment, must be an actual agreement between the creditor and the principal to extend the time of payment, and it must be upon sufficient consideration, and must amount in law to an estoppel upon the creditor sufficient to prevent him from bringing a suit before the expiration of the extended time; when such an agreement is made, the surety is discharged.

The agreement for extension must not only be valid and binding in law, but the time of the extension must be definitely and precisely fixed.

The possession of an additional or collateral security, does not impair the right of a creditor to enforce payment of the obligation, to secure which the collateral was given and accepted, so long as it does not appear that the debt has been paid.

An agreement to extend the time of payment of a bond will not be inferred from the acceptance by the holder, of a collateral security which did not mature until after the maturity of the bond.

A witness having testified touching the insolvency of certain parties, that by general reputation, they were insolvent; that he never knew them to possess any property other than a little household furniture; that he knew of the failure to make debts out of them; was asked "whether or not, from the circumstances of the parties, and his knowledge, they were not in his judgment insolvent?" and he replied they were. HELD:

That this was an improper question -- the opinion of the witness, based upon the circumstances of the parties, and his knowledge of facts, was not legal evidence.

Where an illegal question is asked a witness, and his answer allowed to go to the jury as evidence, and exception is taken thereto, the judgment against the exceptant will not be reversed on appeal, if it appear to the Court that he was not injured by the admission of the evidence.  

COUNSEL:
George M. Russum, A. B. Hagner and A. Randall, for the appellant.

John B. Brown, for the appellees.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY, GRASON and MILLER, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*514]  MAULSBY, J., delivered the opinion of the Court.
Two questions are presented in this case, one on the admissibility of evidence, and the other on the prayer of the appellant refused by the Circuit Court. We will consider the prayer first.
The appellant assigned to the appellees the bond of Alexander A. Laws and Daker G. Jester, due February 7th, 1857, by an assignment in writing under seal, containing a guaranty for the payment thereof, and on this guaranty the suit was brought.
Laws, one of the obligors in the assigned bond, had two bonds of Theodore L. Davis, one of which was due in December, 1857, and the other in September, 1858, on both of which, judgments [**2]  had been rendered, under the laws of Delaware, it is presumed, by a Delaware Court at May Term, 1856, and in November, 1856, both of said judgments were entered "transferred to Wells & Babbitt" on the docket of that Court.
Evidence was offered by the appellant, tending to prove that the appellees had received the bonds of Davis in payment of the bond of Laws & Jester; and by the appellees, that the appellant had waived any right arising from neglect on their part to institute suit on the bond of Laws & Jester, or on those of Davis, and that the bonds of Davis were assigned to them as collateral security for the payment of the bond of Laws & Jester. On these points there was conflicting proof.
The appellees also offered evidence to prove that Laws & Jester were insolvent at the time of the maturity of their bond in February, 1857, and that Davis was insolvent at the maturity of each of his bonds. The appellant offered no evidence 

 [*515]  contradicting this proof, and none tending to prove that any of the parties, Laws, Jester or Davis, were solvent.
The first prayer of the appellant was, that if the jury believed from the evidence that the appellant assigned to the appellees [**3]  the bond of Laws & Jester, and that subsequent to the assignment, and before the maturity of the bond, the appellees received from Laws the bonds of Davis in payment and discharge of the debt due on the assigned bond, their verdict must be for the appellant, which was assented to by the appellees. Thereupon the appellant offered the prayer now under consideration: That if the jury believe from the evidence that the appellant assigned to the appellees the bond of Laws & Jester, and guaranteed the payment thereof, and that subsequent to said assignment the appellees received from Laws the bonds of Davis as collateral security, and extended the time of payment of the assigned bond by Laws & Jester, without the knowledge and consent of the appellant, their verdict must be for the appellant. This prayer was defective on several grounds. Even if there had been proof of a valid contract for extension of the time of payment of the bond of Laws & Jester, on which the appellant was guarantor, yet if that agreement had been entered into after the day of the maturity of the bond, it would be inoperative to discharge the guarantor or security. To give to such an agreement that effect, it must be [**4]  made before the maturity of the bond. Rees vs. Berrington, 2 Vesey, Jr. 540; United States vs. Howell, 4 Wash. C. C. 620, 26 F. Cas. 394.
The proposition contained in the prayer being that an extension of time of payment given by the holder to the principal obligor at any time after the assignment to the holder, operates to discharge the surety, or guarantor, without regard to whether the extension were given prior or subsequent to the maturity of the bond, it is, in this respect, defective.
An agreement, which will operate to discharge a surety in a bond, or a guarantor of payment of a bond, must be an 

 [*516]  actual agreement between the creditor and the principal to extend the time of payment, and it must be upon sufficient consideration, and must amount in law to an estoppel upon the creditor, sufficient to prevent him from beginning a suit before the expiration of the extended time; when such an agreement is made the surety is discharged. See the numerous authorities collected in note f, 2 Parsons' Cont., 26; Oberndorff, Trustee, vs. Union Bank of Baltimore, 31 Md. 126.
The agreement for extension must not only be [**5]  valid and binding in law, but the time of the extension must be definitely and precisely fixed. Miller vs. Stem, 2 Pa. 286, and cases collected in note f, above referred to.
Whether, to have the effect of discharging the surety in a bond, or a guarantor under seal, an agreement for extension of time of payment, in all other respects valid, may be by parol, or whether it must be under seal, we are not to be understood to decide. There are conflicting authorities on the point, and we are not called on to decide it in this case. That a parol contract is not sufficient is held in Tate vs. Wymond, 7 Blackf. 240, where the case of Davey vs. Prendergrass, 5 Barn. & Ald. 187, is relied on, whilst the contrary is held in United States vs. Howell, 4 Wash. C. C. R., where Mr. Justice WASHINGTON reviews the case in 5 Barn. & Ald., and supposes that it was not meant to hold that position, but concludes that if it does, he dissents from it, for the reasons which he assigns.
There is, in this case, no evidence from which the jury could be at liberty to find such an actual agreement between the creditor and one of the [**6]  principals, Laws, to extend the time of payment, upon sufficient consideration, and sufficient to prevent the creditor from bringing suit before the expiration of the extended time, even if a parol agreement were conceded to be sufficient, as the law requires, and on that ground alone, it would have been error in the Court below to have granted the prayer. It would have misled the jury.

 [*517]  But the prayer assumes that the bond of Davis was accepted, by the appellees as collateral security for the payment of the bond of Laws & Jester. The possession of an additional or collateral security cannot impair or affect the right of a creditor to pursue and enforce payment of the obligation, to secure which the collateral was given and accepted, so long as it did not appear that the debt had been paid. Brewster & Spratt vs. Frazier, 32 Md. 302. The effect of the prayer would be to assert as a legal inference that an agreement to extend the time of payment of the assigned bond, must result from the acceptance by the holder of a collateral security which did not mature until after the assigned bond matured. In 2 Parsons on Contracts, 685, it is said that an agreement [**7]  to suspend or delay will not be inferred from the mere giving of collateral security, with power to sell the same at a certain time, if the debt be not previously paid. And in Emes, et al. vs. Widdowson, 4 Carrington & Payne 151, where the plaintiffs and defendant had come to an arrangement whereby the defendant assigned certain property as a security for certain sums then due, and also for all future demands, with a power of sale not to be executed until after six months notice, Chief Justice TINDAL said, "such an assignment can only be considered as collateral security, and the personal remedy is not suspended, as there is not any clause to that effect in the deed." So far, then, from the law making the inference asserted by the prayer, it will not permit it to be made, according to these authorities.
That the bonds of Davis were not received by the appellees in payment of the bond of Laws & Jester, appears from the finding by the jury on the first prayer, admitted by the appellees.
There was no error in the refusal of the Court to grant the appellant's second prayer.
The question which we will next consider is the exception to the evidence admitted by the Circuit Court.  [**8]  

 [*518]  The appellees proved by the witness, Nicholson, that by general reputation Laws & Jester were insolvent--that Jester left for California prior to February, 1857--that he knew both for several years prior to 1857, and that he never knew them to possess any property other than a little household furniture since February, 1857--that he knew of the failure to make debts out of them. This was legally sufficient proof of insolvency. The appellees, however, further asked the witness "whether or not from their circumstances and his knowledge, they were not in his judgment insolvent" and he said they were. This is the question excepted to. The witness had stated their circumstances and his knowledge,--that is, his knowledge of facts touching their insolvency; and his opinion, based on those circumstances and facts, was not, in our opinion, legal evidence, and was improperly allowed to go to the jury. This Court has said in the case of Higgins, et al. vs. Carlton & Scaggs, 28 Md. 115, in discussing the cases in which opinion is admissible, that "the rule has been already sufficiently relaxed, and we think that the doctrine of admitting the opinions of witnesses [**9]  has been carried quite as far as is consistent with a proper administration of the law." Opinions have been admitted only where, from the nature of the case, they are the best evidence attainable. But, as a rule, where an issue is capable of being proved by facts, evidence of a lesser degree, or of more uncertain character, ought not to be admitted. Liability of a witness to the penalties of perjury, if he corruptly misstate facts, is one of the securities for truth which ought not to be removed, unless on necessity. And in proportion as opinion is admitted, that liability is removed. The existence of general reputation of insolvency is a fact, like any other fact. If it be not true, the witness, who states it to be a fact, is responsible as fully as if he misstate any other fact, and this class of proof has been declared to be admissible to prove insolvency.
Whilst we are decidedly of opinion that the evidence of the witness' opinion was improperly admitted, it remains to inquire 

 [*519]  whether the appellant was injured by its admission. If it clearly appear to the Court that no injury was done, the judgment will not be reversed. In Chew's Adm'r vs. Beall, 13 Md. 348, [**10]  the question was the gift and delivery and subsequent exchange of a slave. The plaintiff offered proof of the contents of a written paper evidencing the exchange, which had been lost. The Court below admitted the proof, and an exception was taken. The plaintiff also offered the parol proof of two witnesses to the gift, delivery, and exchange. The Court of Appeals said "if the questions presented by the first and fifth bills of exception had been decided by the Court in favor of the defendants, the effect would have been to exclude all proof of the existence, loss, and contents, of any instrument of writing in relation to the alleged exchange of Maria for Jane. The consequence of which would have been to leave the gift and delivery of Maria, and the exchange of her for Jane, with the delivery of each, supported and sustained by the unimpeached and uncontradicted parol proof of Caroline Mackall and Mrs. Bowie. The rulings, therefore, against the defendants, in these two exceptions, did no injury to them, inasmuch as it must be supposed the parol proof of these two witnesses would be sufficient to convince the jury that the exchange had been made. If, therefore, these two exceptions had [**11]  been ruled in compliance with the wishes of the defendants, we cannot suppose the verdict would have been different from the one which was given."
In Comstock, et al. vs. Pendergast, an unreported case, decided at April Term, 1869, the plaintiffs offered proof to sustain their claim, which was admitted, excepted to, and was error. They, however, proved by three witnesses the admissions by the defendant of the correctness of their claim. The proof of one of these witnesses was controverted by evidence offered by the defendant, but that of the other two was not contradicted. The defendant asked one of the plaintiffs' witnesses, after his examination, to compare the vouchers with the claim of the plaintiffs, and re-called the witness to state 

 [*520]  the result, when he said that the claim was correct. This Court refused to reverse, because, under all the circumstances, the erroneous admission of that part of the proof which was inadmissible did not injure the defendant.
In this case, the witness, Nicholson, had proved the insolvency by competent evidence, before the illegal question was propounded to him. After his examination, the appellees further proved the same fact of [**12]  insolvency by the competent evidence of Thomas McCrackin and of Laws, one of the insolvent parties, and the appellant offered no conflicting evidence. He offered no evidence tending to prove solvency, or to contradict or impeach either of the appellant's witnesses. The fact having been proved by three competent witnesses, and not contradicted, to use the language of the Court in the case in 13 Md., "it must be supposed that the proof of these witnesses would be sufficient to convince the jury" of the fact of insolvency, and that the verdict would not have been different, notwithstanding the admission of one piece of illegal evidence which tended to the same conclusion.
Since the argument, a prayer, which had been granted below, and omitted in making up the record, has been sent up, with an agreement that it be considered as if contained in the record. That prayer contained the law applicable to the case, but does not aid in respect to the inadmissible evidence in question. We think, however, that, under all the circumstances of the case, substantial justice would not be promoted by a reversal of the judgment because of the admission of the evidence excepted to, and that the judgment [**13]  ought to be affirmed.
Judgment affirmed. 

21 of 142 DOCUMENTS 

SAMUEL STONEBRAKER and HENRY K. HOFFMAN vs. HENRY STONEBRAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 444; 1871 Md. LEXIS 75 

June 16, 1871, Decided 

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

This case was before this Court on a former appeal, (vide Stonebraker, et al. vs. Stonebraker, 33 Md., 252.) This Court reversed the decree of the Circuit Court, and remanded the cause that a new decree might be passed in conformity with the opinion of the Appellate Court, filed in the case. A decree was passed by the Circuit Court, without further proceedings, in accordance with the directions of this Court. From this decree the present appeal was taken.

A motion was made to dismiss the appeal.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

Dismissal of an Appeal.

Where a cause is remanded that a decree may be passed by the Court below, in conformity with the opinion of the Court of Appeals, and a decree in strict accordance therewith is passed, an appeal from such decree will be dismissed.  

COUNSEL:
Charles Marshall and Wm. Schley, for the appellants.

The decree from which this appeal is taken goes far beyond, and differs, materially, from the decree of the Court of Appeals on the former appeal, in the following particulars:

1. The present decree decides, as matter of fact, not only that the appellants violated their agreement of the 10th of December, 1866, in the assignment and transfer to Leonard Passano and William P. Clotworthy; but that they did so with the fraudulent intent and purpose, that the said assignees, might and should manufacture and imitate Stonebraker's medicines or preparations,  [**2]  and sell medicines under the names and titles thereof, in fraud and contrary to said agreement, &c.; whereas the said decree of the Court of Appeals expressly decides, that under the provisions of the said agreement of the 10th of December, 1866, these appellants had the clear right under said agreement to sell and transfer the medicines, &c., to said Passano & Clotworthy; so that the declaration, that they sold the same in fraud of and in violation of said agreement is not in conformity to said decree; but in disregard thereof. And as to the imputed fraudulent intent, in assigning and transferring the same to said Passano & Clotworthy, the same is not warranted by said decree, and is not sustained by any proof in the cause.

2. After declaring that said Passano & Clotworthy, together with Charles A. Clotworthy, entered into a covinous and colorable arrangement with Abraham S. Stonebraker, for the manufacture and sale of certain medicines or preparations; and had, in pursuance thereof, manufactured and sold large quantities of medicines and preparations, with labels, wrappings, &c., whereby the said medicines and preparations were held out and sold, as the medicines and preparations [**3]  of the complainant, it is, in terms, further declared, that such things were done with the aid, encouragement and connivance of the now appellants, in fraud of the said agreement; and that it is the purpose of said other defendants, with the same aid and contrivance, to continue to do so, which decision is not warranted by the decree of the Court of Appeals; and it is not sustained by the proof in the cause.

3. Because, by said decree of the Circuit Court, an injunction is awarded against the present appellants, restraining them and each of them, their agents and servants, and any and all persons claiming under them, or either of them, from manufacturing or imitating any of the medicines or preparations therein described; and, also, from taking or having any interest in the manufacture or preparations of said medicines; or from being, in any way, interested in the manufacture or sale thereof, or in imitation of them. Whereas, in point of fact, and in truth, no acts were shewn or proved in the cause, to justify such injunction; for the same impliedly asserts, that your appellants had done, or attempted to do, such acts as are prohibited by such injunction; without any warrant for [**4]  such decision, from anything said or decided by the decree of the Court of Appeals; and without any proof in the cause, that the present appellants, or either of them, ever manufactured or imitated any of said medicines or preparations, or intended to do so, or ever proposed or intended to have or take any interest, in any way, in the manufactures or sale of such medicines or preparations; whereby an unmerited and unwarranted imputation is cast upon the present appellants by necessary implication, of wrongful conduct, in the very teeth of their answer under oath, and without proof to overcome said answer.

4. Because, furthermore, by said decree of the Circuit Court, these appellants, with other named persons, are restrained or enjoined from counterfeiting or imitating the trademarks, &c., of the complainant, used and employed by him, with or upon certain designated medicines and preparations, &c., &c.; without any warrant, for such wrongful implication of misconduct on the part of these appellants, in the decree of the Court of Appeals, or in the pleadings or proofs in the cause.

5. Because, by said decree of the Circuit Court, the cause is referred to a special auditor to [**5]  take and state an account, of and for, any and all medicines and preparations whatsoever, by your appellants, and Leonard Passano, Abraham Stonebraker, William P. Clotworthy and Charles A. Clotworthy, or either or any of them, since 10th December, 1866, manufactured and sold, or in any wise disposed of, under any of the names, specified in said decree, wherewith were used any of the labels, &c., produced and given in evidence in the cause; whereby these appellants, in the absence of proof, that they or either of them, manufactured or sold a single article, are made liable in solido, with the other named persons; for acts that may have been done by those other persons, or any of them, without any proof in the cause of the concurrence, sanction or even knowledge of these appellants, of such manufactures or sales, if any there were.

It is no justification for the injunction that it does not, practically, work any pecuniary loss to the appellants, nor interrupt their business. It casts upon them undeserved imputations and unmerited censure. It does not conform to the spirit and true meaning of the mandate of the Court of Appeals.

Robert D. Morrison and S. Teackle Wallis, for [**6]  the appellee.  

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

OPINIONBY:
BRENT 

OPINION:

 [*447]  BRENT, J., delivered the opinion of the Court.
When this case was before us upon a former appeal, it was very fully and carefully examined. We then arrived at the conclusion, that the decree of the Court below was correct, except in so far as it required an account for medicines "manufactured or sold." We designed to restrict the accounting to such medicines as were manufactured and sold under the trade-marks of Henry Stonebraker or the imitations of them, after the dissolution of the firm of Stonebraker, Hoffman & 

 [*448]  Co., on the 10th day of December, 1866. The purpose and meaning of the Court was to exclude such medicines as might have been manufactured, but had not been sold, and also to exclude all medicines on hand at the time the firm was dissolved.
Hoffman and Samuel Stonebraker had an undoubted right, under the terms of dissolution, to sell and transfer, with the trade-marks and certificates, any medicines on hand at the time of the dissolution of the firm of Stonebraker, Hoffman & Co. The sale of such medicines was in accordance [**7]  with their contract, and if they had done nothing more than make the sale to Passano & Clotworthy, there could have been no decree against them. But the evidence so connected them with the subsequent acts of their vendees, that we were satisfied, as was the Court below, that the sale was made by them with the intent and for the purpose of enabling Passano & Clotworthy to manufacture and sell medicines under the trademarks of Henry Stonebraker.
It was therefore that we found no error in that part of the original decree, in which it is set out that the sale was made to Passano & Clotworthy with that intent and for that purpose.
We also believed that they had so connected themselves by their acts and declarations with the subsequent manufacture and sale of medicines under the prohibited trade-marks, as to make them equally responsible with their co-defendants for such sales, and as the record did not disclose any facts, which made it equitable that the wrong done to the complainant should be apportioned among the several co-defendants, we also agreed with the Court below that the accounting by them should be in solido.
The connection of these appellants with the unauthorized sales [**8]  of the medicines in question was distinctly presented and decided in the former appeal--and that question is no longer an open one before this Court. In the opinion then delivered, this language is used: "That Samuel Stonebraker 

 [*449]  and Henry K. Hoffman were both connected with and actively advanced the arrangement effected with Doctor Abraham S. Stonebraker, by which medicines and preparations have been manufactured and sold under the prohibited trademarks, the weight of evidence abundantly establishes."
It was also decided that the injunction, which was issued against them, had been properly granted. There were two of the appellants then in this Court, and in deciding the propriety of granting the injunction asked for in the complainant's bill, the Court say: "the decree of the Court below is correct in so far as it proceeds to restrain and enjoin the appellants."
The present decree carefully avoids the error committed in the first. In the account directed to be taken, the medicines on hand at the time of the dissolution of the firm of Stonebraker, Hoffman & Co., are to be excluded, and only such sales are to be included as were made of medicines manufactured after [**9]  that time, and sold under the prohibited trade-marks.
These views, we think, dispose of the several objections made on the part of the appellants to the decree in its present form. We have been unable to discover any error in it, but are of opinion that it has been passed in accordance with the directions and opinion of this Court as expressed upon the former appeal.
This being so, the present appeal cannot be maintained, and the motion to dismiss must be granted.
Appeal dismissed. 

22 of 142 DOCUMENTS 

BUCKLER JONES vs. JOSEPH ADLER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 440; 1871 Md. LEXIS 74 

June 14, 1871, Decided 

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

This was an action of assumpsit brought by the appellee, a property agent or broker, to recover from the appellant commissions for services rendered in procuring a purchaser for a certain house in the city of Baltimore. The pleas were, never indebted as alleged, and did not promise as alleged.

Exception: The plaintiff asked the following instruction:

If the jury find from the evidence that the defendant employed the plaintiff to procure a purchaser for the property spoken of by the witness, and the plaintiff did procure a purchaser for said property, and the said property was sold by the defendant to a purchaser, procured by the plaintiff, then the plaintiff is entitled to recover such compensation as they may find usual and customary.

The defendant offered the following prayers:

1. That the plaintiff is not entitled to recover commissions for the sale of the property, inasmuch as the proof in the case shows the title to the property was in Mrs. Priscilla A. Jones, and the same was sold by her to Dr. Erich.

2. That the jury shall find their verdict for the defendant, unless they shall believe from the evidence [**2]  that the defendant employed and solicited the services of the plaintiff to sell said property for $ 14,000; and that the plaintiff sold the property at the price agreed on between him and the defendant.

3. That if the jury shall believe from the evidence, that the property at the corner of Broadway and Gough street, sold by Mrs. Priscilla A. Jones, and her husband, the defendant, to Dr. Erich was not sold by the plaintiff in this case as broker, at the request of the defendant for $ 14,000, to Dr. Erich, under an agreement for commissions to be paid by the defendant to the plaintiff, then he is not entitled to recover in the present suit.

4. That if the jury believe from the evidence that the broker, Bucksbaum, was the person first to communicate to the defendant that Dr. Erich wished to buy the property in question, and that in consequence of such information, negotiations were opened between Dr. Erich and the defendant, which were finally consummated at the house of Mr. Myers, with Mrs. Priscilla A. Jones, and that she sold the property to Dr. Erich, then the plaintiff is not entitled to recover in the present action.

The Court granted the plaintiff's prayer, and rejected [**3]  the prayers of the defendant. To this ruling of the Court the defendant excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Commissions of a Property broker.

Where a broker is employed to procure a purchaser for a house, and through his agency negotiations are begun, and a sale is finally effected, he may recover his commissions from the party at whose instance and request the services were rendered, whether he held the legal title of the property beneficially, or in trust for his wife.

Where by a special contract, a broker is not to be paid commissions unless he sells the property at a stipulated price, the sale by him at such a price is a condition precedent to his right to compensation, unless pending the negotiations and whilst his agency remains unrevoked, the owner consents to a sale at a different price.

If a broker introduces the purchaser or discloses his name to the seller, and through such introduction or disclosure negotiations are begun and the sale of the property is effected, the broker is entitled to his commissions, although, in point of fact, the sale may have been made by the owner.

Where property is sold at a particular price with the consent of the owner, the broker who effected the sale is entitled to his commissions, although he may not have been requested by the owner to sell at that price, under an agreement to pay commissions.  

COUNSEL:
John H. Ing, for the appellant.

Thales A. Linthicum, for the appellee.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*442]  ROBINSON, J., delivered the opinion of the Court.
This suit was brought by the appellee to recover broker's commissions from the appellant, for the sale of certain property situate in the city of Baltimore.
At the trial below, the appellee offered evidence tending to prove that he was employed by the appellant to sell the property in question, and that through his agency negotiations were begun, and the sale finally effected. Whatever may have been the conflict in the testimony, if the jury believed these facts, the appellee was entitled to his commissions; and his services being rendered at the instance and by the request of the appellant, the personal liability of the latter was wholly unaffected by the question, as to whether he held the legal title of the property beneficially, or in trust for his wife. The Court was [**4]  right therefore in granting the appellee's first prayer, and in rejecting the appellant's.
By the second prayer of the appellant, the plaintiff's right to recover was based upon the finding by the jury of a special contract to sell the house at fourteen thousand dollars, and that 

 [*443]  it was sold at such price. Where there is a special contract, by the terms of which the broker is not to be paid commissions unless he sells the property at a specified price, the sale by him at such a price is a condition precedent to his right to compensation, unless pending the negotiations, and whilst his agency remains unrevoked, the owner consents to a sale for a sum other than originally agreed upon. In this case then, although by the terms of the original contract, the appellee was not to receive commissions unless he sold the house for sixteen thousand dollars, yet, if pending the negotiations, the appellant and his wife agreed to take fourteen thousand dollars, and the sale was made through the agency of the appellee at that price he would undoubtedly be entitled to commissions.
The third, like the second prayer, is erroneous in assuming the appellee could not recover,  [**5]  unless the jury found a special agreement to pay commissions, in case the appellee sold the house to Dr. Erich for $ 14,000, and the request of the appellant to make such sale. It is well settled, if the agent introduces or discloses the name of the purchaser, and such introduction or disclosure is the foundation upon which negotiations are begun and the sale effected, he will be entitled to commissions, and this too although in point of fact the sale may have been made by the owner. In other words, he cannot avail himself of the services, and by making a sale through information derived from the agent, deprive the latter of his commissions. Keener vs. Harrod & Brooke, 2 Md. 63; Beale vs. Creswell, 3 Md. 196.
If, therefore, the appellee sold the house to Dr. Erich for $ 14,000, with the consent of the appellant, the former was entitled to recover in this action although he may not have been requested by the appellant to sell at that price, under an agreement to pay commissions.
In regard to the fourth prayer, we find no evidence in the record to support it, and the Court was right in refusing to grant it. Whatever may have been the prior [**6]  agency of the 

 [*444]  witness Bucksbaum, in regard to the sale of the property, and his offer of it to Dr. Erich, he admits that his agency had ceased before the sale of the same by the appellee, and there is no evidence tending to show that the offer of the property by Bucksbaum, was the foundation of negotiations, or contributed in any manner towards making the sale. On the contrary, Dr. Erich, the purchaser, says, "the sale was concluded through the appellee."
Finding no error in the rulings below, the judgment will be affirmed.
Judgment affirmed. 

23 of 142 DOCUMENTS 

THE PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD CO. vs. SOLOMON WEAVER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 431; 1871 Md. LEXIS 71 

June 13, 1871, Decided 

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

The case is sufficiently stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Agency may be inferred -- Prayers and Instructions -- Practice.

Where the keeper of a boarding house of a railroad company had been in the habit of purchasing provisions from the plaintiff, for the use of the boarding house, and the bills for such provisions had been, from time to time, paid by the company, the plaintiff might properly regard him as an agent pro tanto of the company, and would be justified, in the absence of any notice to the contrary, in dealing with him as such.

Where the instruction given to the jury covers the ground of controversy, the judgment will not be reversed, though some of the prayers rejected were free from objection.  

COUNSEL:
H. McCullough and Alexander Evans, for the appellant.

J. T. McCullough, for the appellee.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*432]  BRENT, J., delivered the opinion of the Court.
This suit is brought by the appellee to recover the value of three firkins of butter, alleged to have been purchased by one Richardson for the use of a boarding house of the railroad company, at Perryville. The sale and delivery of the butter to Richardson is not denied, but the company insists that he had no authority to make the purchase as their agent, and that they cannot therefore be held liable in this action.
The evidence offered by the plaintiff tended to establish the agency of Richardson, and if uncontradicted no doubt of the liability of the company could be entertained. The company however offered testimony tending to show he had no authority to make the purchase in question, and thus a conflict in the evidence arose, and it became the duty of the jury to determine upon its weight.
The [**2]  judgment being against the company, an appeal is taken upon the ground, that there is error in the rulings of the Court below, in granting the instructions asked for by 

 [*433]  the plaintiff, and in the refusal to grant the third prayer offered by the defendant.
The plaintiff asked two instructions from the Court which were granted, and we cannot perceive any error in either of them.
The first instruction is based upon the evidence of the plaintiff, which if found to be true by the jury, certainly establishes the authority and agency of Richardson to make the purchase of the butter in question. If he was, at the time, keeper of the company's boarding house, and had been in the habit of purchasing supplies for such boarding house, of the same character as claimed in this suit, and the bills for such supplies were from time to time paid by the company, the plaintiff properly regarded him as an agent pro tanto, and was justified, in the absence of any notice to the contrary, in dealing with him as such.
The correctness of the second instruction, we suppose, would have been conceded by the counsel for the defendant, had the case been argued orally, as the law announced in it [**3]  cannot be questioned. If the butter "was delivered to the defendant at their request or the request of their agent, and consumed or used by the defendant in their boarding house," there can be no doubt of the plaintiff's right to recover from the defendant what it was reasonably worth.
The theory of the defendant is, that Mills was the sole agent of the company in Perryville, and that he alone, and not Richardson, had the authority to purchase supplies for the company's boarding house. This question is correctly submitted to the jury by the first instruction asked for by the defendant and granted by the Court. By this instruction the jury were directed "if they believe from the evidence that Isaac N. Mills was the sole agent of the defendant, authorized to purchase butter and provisions for the boarding house of the defendant, and the plaintiff delivered the butter to Richardson without any orders from Mills or other agent of the defendant, and after said Mills had declined and refused to purchase said 

 [*434]  butter, then the plaintiff cannot recover in this action, unless the jury shall further believe that the defendant or its agent, assented to the delivery and sale of said [**4]  butter to Richardson."
This prayer distinctly submits to the jury the defendant's case upon the evidence offered in its behalf, and was all that could properly have been demanded from the Court.
The third prayer of the defendant, which was refused by the Court, is ambiguous, and upon that ground its rejection might be very properly placed. If by it the Court was asked to direct the jury if they found from the evidence Mills was solely authorized to approve and forward bills against the company, and had notified the plaintiff that he, Mills, did not want any more of his butter, it was sufficient to put the plaintiff upon inquiry as to the agency of Richardson, and if he failed to make such inquiry, he cannot recover, the prayer was manifestly erroneous. For had it been granted, no matter how conclusive the testimony of Richardson's agency might have been, the plaintiff could not recover, because he had failed to inquire as to his agency. This is certainly not law. The plaintiff's right to recover cannot depend upon the inquiries he may or may not have made, but depends solely upon the fact of the agency of Richardson at the time he dealt with him.
If on the other hand the prayer [**5]  was intended to submit to the jury the question of the sole agency of Mills to purchase supplies, its rejection by the Court below is no ground for a reversal of the judgment, because that question is raised and submitted in the first prayer of the defendant, which the Court had granted. It is well settled, if an instruction given to the jury covers the ground of controversy, the judgment will not be reversed, though some of the prayers rejected were in themselves correct. 3 Md., 341; 11 Md., 434; 27 Md., 536.
As we find no error in the rulings of the Court below, its judgment will be affirmed.
Judgment affirmed. 

24 of 142 DOCUMENTS 

FREDERICK AWALT vs. THE EUTAW BUILDING ASSOCIATION, NO. 4.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 435; 1871 Md. LEXIS 72 

June 13, 1871, Decided 

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

This was an action of assumpsit brought by the appellant, to recover from the appellee an alleged over-payment, made under the circumstances set forth in the opinion of the Court.

Exception: The plaintiff prayed the Court to instruct the jury as follows:

If the jury find from the evidence that the plaintiff borrowed from the defendant the sum of $ 3,000, and paid to it, on account thereof, $ 807.50, leaving due $ 2,192.50, and that in order to obtain a release of the mortgage given to secure the sum so loaned, he was compelled to pay, and did pay, on account of the said indebtedness, the sum of $ 2,515.90, he is entitled in this action to recover the difference between such sums, viz: $ 323.40, with interest thereon from the 20th of February, 1869, the date when such payment was made.

The defendant offered the following prayer:

If the jury shall find from the evidence, that the plaintiff was a member of the Eutaw Building Association, No. 4, the defendant in this cause, to which he had mortgaged certain property, and that to obtain a release of said mortgage, he did, on or about the 20th of February, 1869, pay to said association [**2]  the sum of $ 2,515.90, (of which the sum claimed in this action, to wit: $ 323.40, was a part,) which amount was demanded of him by said association as a matter of right under the provisions of the mortgage; and if they shall further find that the attention of the plaintiff was directed to said alleged over-charge before payment, and that although he believed and asserted that it was not a proper charge, yet, for reasons satisfactory to himself, and without any fraud on the part of the defendant or its agents, afterward assented to and paid the same, then they must find for the defendant.

The Court rejected the plaintiff's prayer and granted the prayer of the defendant. The plaintiff excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Voluntary payment.

No action will lie to recover back money voluntarily paid with a full knowledge of the facts and circumstances under which it was demanded, though the payment may have been made under a protest.  

COUNSEL:
John H. Ing, for the appellant.

Joseph S. Heuisler, for the appellee.  

JUDGES:
The cause was agued before BARTOL, C. J., BRENT, GRASON, ALVEY and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*436]  ROBINSON, J., delivered the opinion of the Court.
The appellant having executed a mortgage to secure the payment of $ 3,000 loaned by the appellee, made application to have the property released from the effect and [**3]  operation of said mortgage. As a condition precedent to the execution of said release, the appellee demanded of the appellant the payment of the sum of $ 2,515.90, claiming the same to be due under the mortgage. To the payment of this sum the appellant objected, alleging that there was only due on account of said mortgage, $ 2,192.50, but, in order to have the property released, with full knowledge of the facts, and without any allegation of fraud on the part of the appellee, he paid the full amount thus demanded, and this suit is brought to recover the sum of $ 323.40, the alleged over-payment.
In Lester vs. Mayor and City Council of Baltimore, 29 Md. 415, this Court said: "No principle is better settled than that where a person, with full knowledge of the facts, voluntarily pays a demand unjustly made upon him, though attempted or threatened to be enforced by proceedings, as appears to have been the case in this instance, it will not be considered as paid 

 [*437]  by compulsion, and the party thus paying is not entitled to recover, though he may have protested against the unfounded claim at the time of payment made."
And in Mayor, &c. of Baltimore vs. Lefferman, 4 Gill 425, [**4]  after a full review of the authorities, it was held, "that a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid. A payment, say the Court, made under the apprehension, or even menace of an impending distress warrant, would not render it a payment by compulsion."
There is nothing in the case before us to exempt it from the operation of the well-established principles thus laid down and recognized by this Court. It cannot be pretended that the payment was made by the appellant under compulsion or duress. If the appellee demanded a larger sum than was due on the mortgage, the Courts were open to the appellant, and there the question could be heard and determined. If he preferred to pay the demand thus made, rather than resort to litigation, no action will lie to recover it back.
Finding no error in the rulings of the Court below, the judgment will be affirmed.
Judgment affirmed. 

25 of 142 DOCUMENTS 

DANIEL B. BANKS and GEORGE W. HAYNE vs. WILLIAM M. BUSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 437; 1871 Md. LEXIS 73 

June 13, 1871, Decided 

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

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

When an Injunction should not issue.

A bill by the assignee of the original lessee of certain premises, for an injunction to restrain the landlord from proceeding by distraint, to collect certain rent which he claimed to be due to him and in arrear, charged that the rent had been paid to the landlord by his lessee, and that such payment was evidenced by an account furnished by the former to the latter. The account was not exhibited with the bill, and no reason assigned for its non-production; the injunction issued as prayed. On an appeal by the landlord, it was HELD:

1st. That to support the averment of payment, the account should have been exhibited, or some satisfactory reason assigned for its non-production, and in the absence of such prima facie proof, the injunction ought not to have been granted.

2d. That the injunction ought not to have been granted for the further reason that the complainant had a full, complete and adequate remedy at law, by an action of replevin, of trespass, or by a special action on the case, and by a suit against his assignor for a breach of his contract in failing to pay the rent as it accrued. 

COUNSEL:
Neilson Poe, for the appellants.

Wm. M. Busey and Samuel Snowden, for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*438]  BARTOL, C. J., delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court of Baltimore city, granting an injunction to restrain the appellants from proceeding by distraint to collect certain ground rent, amounting to $ 450, alleged by the appellant, Banks, to be due to him and in arrear, on a lot of ground with improvements, situated in Baltimore city.
The bill and amended bill state substantially that "the appellee was the assignee of Walter Smith, the original lessee; that at the time of his purchase, Smith informed him all the rent then due was paid, and it was agreed between him and Smith that he (Smith) would continue to pay it as it accrued; that subsequently Banks had presented an account to Smith, in which the latter was charged with the rent and 

 [*439]  other moneys, and credited with sundry payments, leaving a balance due upon general account of about $ 317.  [**2]  That subsequently Banks had sued out the distress in question; that all the rent charged in said account was settled and satisfied by the payments credited thereon; that it would be a fraud upon the appellee, and unjust and oppressive in the extreme, to permit Banks to collect the rent twice; that upon a proper accounting, Banks was largely indebted to Smith, and that the appellee was ready to pay all he properly owed."
In the argument of the case in this Court, two points have been made by the appellants, both of which, in our judgment, are well taken, and present objections fatal to the maintenance of the injunction.
1st. The whole equity of the bill rests upon the averment that the rent had been paid to Banks by Smith, the appellee's assignor, and it is alleged that such payment is evidence by a certain account furnished by Banks to Smith. To support the averment, the account ought to have been exhibited with the bill, or some satisfactory reason assigned for its non-production. Without such prima facie proof, the injunction ought not to have been granted. The case falls within the principle decided in Hankey vs. Abrahams, 28 Md. 588, and the cases cited [**3]  in the Court's opinion.
2d. Even if the objection above stated did not exist, we are of opinion that the injunction ought not to have been granted, for the reason that the appellee had full, complete and adequate remedy at law.
As well stated in the appellant's brief, by resorting to his action of replevin, the remedy especially adapted to such case, he might have availed himself of all the defences to the landlord's claim, which are alleged in the bill. "In trespass or special action on the case, he could recover any damages occasioned by the alleged illegal distress." And he had his legal remedy against Smith for his breach of contract in failing to pay the rent as it accrued. In our opinion, the bill does not present a case entitling the appellee to equitable relief by injunction; 

 [*440]  he ought to be left to his remedies at law, which are adequate and complete. In support of this position, it is hardly necessary to cite authorities; we refer only to Lewis vs. Levy, 16 Md. 85; Chappell vs. Cox, 18 Md. 513, and to Glenn & Kennedy vs. Fowler, 8 G. & J. 340, 348, 349.
Order reversed and cause remanded. [**4]  

26 of 142 DOCUMENTS 

GEORGE E. MORRILL and MARY E. MORRILL, his Wife, vs. HUGH GELSTON'S LESSEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 413; 1871 Md. LEXIS 68 

June 2, 1871, Decided 

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

Ejectment instituted by the appellee against the appellants, to try the title to and obtain possession of a lot of ground on Lombard street, in the city of Baltimore. Plea "not guilty" and issue thereon.

Exception: At the trial of the cause, the lessor of the plaintiff to sustain the issue on his part, offered in evidence to the jury the admission of the defendants by their counsel in open Court, that the premises described in the declaration had been duly granted by the State of Maryland, by patent, and that by regular transfer of title from the patentee, the seizin in fee of the said premises was, on the 18th of February, 1858, in John S. Donnell, William Donnell and James J. S. Donnell; and further offered in evidence, subject to exceptions to be thereafter taken, a volume of the Land Records of Baltimore city, containing the record of a lease of the premises for the term of ninety-nine years, renewable forever, from the said Donnells to William M. Willis, made the 18th of February, 1858, also a mortgage of the same date from said Willis to the said Donnells, also a release of said mortgage by the mortgagees at the foot [**2]  of the mortgage on said record, and a mortgage from the said Willis to Hugh Gelston, dated the 8th of April, 1858.

The lessor of the plaintiff then offered in evidence the original papers and docket entries in the case of Gelston vs. Willis, ex parte, on the equity side of the Superior Court, under the laws relating to mortgages in the city of Baltimore, for the purpose of foreclosing the mortgage from Willis to Gelston--said original papers consisting in part of the petition for the sale of the mortgaged premises, the original mortgage from Willis to Gelston, and an account, verified by Gelston, of the amount due under the mortgage, the decree for the sale, the bond of the trustee duly approved, the report of sale by the trustee, the order of ratification nisi, together with the order of final ratification, and the deed from the trustee to the purchaser, the plaintiff's lessor.

The defendants offered no evidence.

And the lessor of the plaintiff then offered in evidence a deed from the trustee to Gelston, executed the 1st of March, 1861, and purporting to be made in pursuance of the decree in the case of Gelston vs. Willis.

Whereupon the lessor of the plaintiff [**3]  offered the following prayer.

If the jury find from the evidence [the grant by the State of Maryland of the premises in the declaration mentioned, and the seizin in fee of John S. Donnell and others, parties to the lease to William M. Willis, being admitted,] the execution of the mortgage from Willis to Gelston, the lessor of the plaintiff, and the passing of the decree of the Superior Court of Baltimore City, upon the petition of said Gelston, and the sale to him and the final ratification thereof, and shall also find the execution of the deed from John H. Ing, trustee, to said Gelston, notwithstanding they shall also find the execution of the mortgage by said Willis to said John S. Donnell, and others, provided they find the release of the same, that then they ought to find their verdict for the plaintiff.

The defendants offered the following prayer:

That there is no evidence in the cause to sustain the plaintiff's right of action, and the jury must render their verdict for the defendants.

The defendants, under the right to except as reserved, urged three objections, to be found in the opinion of the Court, to certain evidence of the plaintiff's lessor.

The [**4]  Court (DOBBIN, J.,) overruled these objections, rejected the prayer of the defendants, and granted the prayer of the lessor of the plaintiff. To this ruling of the Court, the defendants excepted, and the verdict and judgment being against them, they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Sale under a Decree passed in pursuance of Article 4, sections 782, &c., of the Code of Public Local Laws, not to be questioned in a Collateral proceeding -- Validity of a Trustee's deed -- Record books as Evidence.

Upon the final ratification of a sale of mortgaged property, made under a decree, to the passing of which in pursuance of the provisions of the law relating to mortgages in the city of Baltimore (Art. 4, secs. 782, &c., of the Code of Public Local Laws,) the mortgagor had given his assent, such sale has all the judicial sanction that it could have if it had been made by virtue of an ordinary decree, and cannot be called in question in any collateral proceeding.

Where by the terms of a decree for the sale of certain mortgaged property, one-half of the purchase money was to be paid on the day of sale, and the balance in six months, and the purchaser waiving the credit paid the whole purchase money at once, and the sale was ratified, he was entitled to have a conveyance of the property, and the deed of the trustee could not be impeached, because it was executed before the expiration of the six months' credit prescribed in the decree.

Where the trial of a cause is in the same Court where a deed is recorded, as required by law, the record book containing such deed is sufficient evidence thereof.  

COUNSEL:
Orlando F. Bump and J. Montgomery Peters, for the appellants.

The jurisdiction of a Court may be inquired into when its judgment is brought in question in a collateral action. Williamson vs. Berry, 8 How., 495, 540; Harris vs. Hardiman, 14 How., 334; Elliott vs. Piersol, 1 Pet., 328, 340; Hollingsworth vs. Barbour, 4 Pet., 446, 471; Shriver vs. Lynn, 2 How., 43, 60; Hickey vs. Stewart, 3 Howard, 750, 762; Webster vs. Reid, 11 How., 437; Wernway vs. Pauling, 5 G. & J., 500, 507; Boswell vs. Otis, 9 Howard, 336, 348; Harrington vs. People, 6 Barb., 607; Bloom vs. Burdick, 1 Hill, 130; Woodruff vs. Taylor, 20 Vt., 65.

In summary proceedings, where a Court exercises an extraordinary power under a special statute, the facts which give jurisdiction must appear upon the face of the record, and the proceedings stand on the same footing as those of a Court of inferior jurisdiction. Thatcher vs. Powell,  [**5]  6 Wheat., 119, 127; Wickes vs. Caulk, 5 H. & J., 43; Shriver vs. Wilson, 5 H. & J., 130, 132; Owings vs. Worthington, 10 G. & J., 283; State vs. Merryman, 7 H. & J., 79; Corning vs. Deming, 11 Wend., 647; Striker vs. Kelly, 7 Hill, 9; Simon vs. De Barre, 8 Abb. Prac., 273; Kundolph vs. Thalheimer, 17 Barb., 506.

Section 782, of Article 4 of the Code of Public Local Laws only applies to mortgages executed after the adoption of the Code.

The Act of 1833, chapter 181, only authorizes an ex parte decree when the mortgage contains an assent on the part of the mortgagor sufficient to authorize the passing of a decree before his default. Kenly vs. Wierman, 18 Md., 302; Black vs. Carroll, 24 Md., 251, 257.

Statutes conferring special authority and contracts involving a forfeiture must be strictly construed. Shriver vs. Wilson, 5 H. & J., 130; Jackson vs. Silvernail, 15 Johns., 278; 2 Parsons on Contracts, 510, note y.

A deed executed by a trustee under a power must pursue the terms of the power. 4 Kent's Comm., 330, 333; 1 Sugden on Powers, 250; Dolan, et al. vs. Mayor & C. C. of Balt., 4 Gill, 394, 405.

The power conferred upon the clerk of the Court to record conveyances,  [**6]  is a special statutory power, and the Court cannot take judicial cognizance of such records made by its clerk. Code, Sup., Art. 18, sec. 51.

The production of the original record alone, is not sufficient proof of the release of a mortgage made at the foot of the record. Code, Art. 37, sec. 58; Code, Art. 18, sec. 1.

Record books are not admissible in evidence without proof of the loss of the original deeds. Brooks vs. Marbury, 11 Wheat., 78, 82, 99; Fox vs. Lambson, 3 Halst., 275, 280; 2 Phillips on Evid., (Cowen & Hill's Notes,) 584.

The only record books which are admissible as original evidence are those which, instead of being mere copies of instruments that are original evidence, are themselves the original and best evidence of the facts they contain, and even then they must be proved to be the record books. 1 Greenl. Ev., secs. 483, 485.

John H. Ing and Attorney General Jones, for the appellee.

The equity proceedings do show the special jurisdiction upon their face. They are the same proceedings which were fully considered by this Court, upon the full record, at April Term, 1870, in the case of Mary E. Morrill, one of the appellants in this case, against [**7]  Hugh Gelston (vide 32 Md., 116.) The Court found no defect in the proceedings, and reversed the order of the Court below in that case, awarding the writ of habere facias possessionem, solely on the ground that that summary remedy was not applicable under the circumstances of that case. Whilst the equity papers in that case were lost or mislaid, the present action of ejectment was instituted. When they were found, the case of ejectment was put upon the stet docket till the decision of the Court of Appeals upon the said order in equity. After which the ejectment case was duly put upon the trial docket, and with the result shown by the record now before the Court.

The trustee's deed was duly executed in exact accordance with the directions of the decree, to wit: "On obtaining the Court's ratification of the sale, and on the payment of the whole purchase money."

The production of the original records, and reading therefrom to the jury the several title papers offered in evidence, was sufficient legal prima facie evidence of every requisite to give validity to the said instruments. The clerk of the Superior Court of Baltimore city is the custodian of the books and papers pertaining [**8]  to his office; and it is his duty to record all deeds, mortgages, &c., required to be recorded in said city. Code, Art. 18, secs. 1, 51.

A release of a mortgage by the mortgagee may be written upon the record in the office where the mortgage is recorded, and attested by the clerk, and shall be sufficient to release said mortgage. Code, Art. 24, secs. 33, 34, 37.

The mortgage of Willis to Gelston was made subject to a prior mortgage to Donnell and others, which was released by the mortgagees in accordance with these provisions of the Code.

The land-record books, containing the record of the deeds, mortgages, and the release mentioned as offered in evidence, were produced in Court by the clerk thereof, and the deeds, &c., read from said records. The trial was had in the Superior Court, where the records belonged, and the Judge whereof was charged with the duty of inspecting and examining them at every term, and so must take judicial cognizance thereof. Code, Art. 29, sec. 13.

The instruments being required by law to be recorded, the production of the record thereof affords the highest and best evidence. 1 Greenl. Ev., secs. 501, 502.  

JUDGES:
The cause was argued before [**9]  BARTOL, C. J., STEWART, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
STEWART 

OPINION:

 [*419]  STEWART, J., delivered the opinion of the Court.
Three exceptions were taken by the appellants to the evidence introduced on the part of the lessor of the plaintiff below, and have been brought up for review in this appeal. The first exception is to the admission of the proceedings in the Superior Court of Baltimore city, in the matter of Hugh Gelston vs. William M. Willis, because, as alleged, they were had under a special jurisdiction not shewn upon their face.
The application to the Superior Court, on the part of Gelston, was to foreclose the mortgage he held against Willis, referred to in the proceedings. The mortgage contained clauses declaring it to have been made with reference to certain provisions of the laws in regard to mortgages of real estate, or chattels real, in the city of Baltimore, and declaring the assent of the mortgagor to the passing of a decree, under the said laws or supplements thereto; and to a sale under any of said laws or supplements, in case of any default in any of the conditions of the mortgage--the proceeds of any sale to be applied to the extinguishment [**10]  of the claims of the mortgagee, whether matured or not.
Under section 782 of Article 4 of the Code of Public Local Laws, the mortgagee, in such case, was authorized to submit to the Superior Court of Baltimore city such mortgage or copy, under seal of the Court, at any time after filing the mortgage for record; and the said Court was empowered forthwith to decree a sale of the mortgaged premises at any one of the periods limited for the forfeiture of the mortgage, or for a default of the mortgagor, on such terms as might seem proper to the Court, and to appoint a trustee to make the sale.

 [*420]  The 784th section of the same Article provides that sales made and conveyances thereupon shall have the same effect, if finally ratified by said Court, as if the same had been made under decrees between the proper parties in relation to the mortgages, and in the usual course of said Court.
It appears from the character of the mortgage, and the proceedings to foreclose the same under these provisions, the Superior Court had jurisdiction in the matter, and was authorized to pass the decree for the sale of the mortgaged property. See Black vs. Carroll, 24 Md. 251. [**11]  When the sale has been ratified by the Court, the same legal intendment and construction are to be applied thereto as if the same had been made by virtue of an ordinary decree, and it can no more be called in question, in any collateral proceeding, than a sale under any other decree of the Court.  Cockey vs. Cole, 28 Md. 276.
The second exception is taken to the deed of the trustee offered by the lessor of the plaintiff, because executed before the expiration of the six months' credit prescribed by the decree. The terms of sale prescribed by the decree were, one-half of the purchase money to be paid in cash on the day of sale--the balance on a credit of six months. Upon the payment of the purchase money, (and not before,) after ratification of the sale, the trustee was authorized to convey the property sold, to the purchaser.
The credit instalments afford opportunity to make a better sale of the property, for the benefit of all parties concerned. They allow the purchaser the privilege of the credit, if he desires it, but if the property is sold upon the prescribed credit, and the purchaser prefers to waive it and pay all the money, and the sale is ratified, (the [**12]  purchase money all being paid,) he is entitled to have a conveyance of the property, and the deed of the trustee cannot be impeached upon the ground that the money was thus paid.
The third exception is to the admission of the deeds in evidence, on the ground that the production of the record was not sufficient proof thereof.

 [*421]  By the 58th section of Article 37 of the Code, copies of any record in the custody of any of the clerks of the Courts of Law or Equity, or register of wills, are made evidence; judgments, decrees, deeds, and other papers and proceedings required by law to be recorded, are considered records. Where the trial of a cause is in the same Court where the record is to be found, it has been the universal practice, which it would be unwise to disturb, to produce the record books as evidence.
The release of the mortgage from the Donnells, the mortgagees, was contained in the record book. The release of a mortgage may be made in the form prescribed by the Code, Article 24, sections 33, 34, 35, attested by the clerk, and in the absence of any proof to the contrary, we must assume the release in question was in that form, and the record is evidence of such release,  [**13]  as of the mortgage.
The lessor of the plaintiff has made out at least a prima facie case, and there being no proof to the contrary, the Court below could not do otherwise than to overrule the exceptions to the evidence offered, and grant the plaintiff's and refuse the defendant's prayer.
Judgment affirmed. 

27 of 142 DOCUMENTS 

LEWIS KIMBALL vs. ROBERT K. HARMAN and THOMAS B. BURCH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 407; 1871 Md. LEXIS 67 

June 1, 1871, Decided 

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

The case is sufficiently stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Action on the Case for an alleged Conspiracy -- Gist of the Action -- Special Damage sustained by the Plaintiff -- Conspiracy as matter of Aggravation -- When Case is not a proper Remedy.

In an action on the case against several, founded on an alleged conspiracy to injure the plaintiffs, they are not entitled to recover, even if there were such unlawful conspiracy among the defendants, unless the plaintiffs can show that they have in fact been aggrieved, or have sustained actual legal damage by some overt act, done in pursuance and execution of the conspiracy.

No action lies for simply conspiring to do an unlawful act; it is the doing the act itself, and the resulting actual damage to the plaintiff which furnish the ground of the action.

An act which, if done by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several. The quality of the act, and the nature of the injury inflicted by it, must determine the question whether the action will lie.

The fact of conspiracy is matter of aggravation, and it only becomes necessary, in order to entitle the plaintiff to recover in one action against several, that the combination or conspiracy should be proved.

In an action on the case against several, for an alleged conspiracy to defeat the right of the plaintiffs to receive and possess a certain lot of bedsteads, which they had purchased of one of the defendants, the plaintiffs cannot recover damages against such defendant, for a breach of the contract of sale to them.  

COUNSEL:
Samuel Snowden, for the appellant.

John Henry Keene, Jr., for the appellees.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*408]  ALVEY, J., delivered the opinion of the Court.
This was an action on the case, grounded on an alleged conspiracy by the three defendants to injure the plaintiffs, the present appellees. The declaration contains four counts and charges, in substance, that the defendants combined and conspired together to defeat the right of the plaintiffs to receive and possess a certain lot of bedsteads which they had purchased of Kimball, the appellant, and whereby they, the plaintiffs, were subjected to great trouble, delay and vexatious litigation.
The case was tried on the general issue plea of not guilty, and the verdict was in favor of the plaintiffs as against Kimball, the appellant, but acquitted the other two defendants, Thomas H. Hanson and John E. Phillips, and this appeal, therefore, is by Kimball alone.

 [*409]  At the trial,  [**2]  there were several exceptions taken by the defendants to the admissibility of evidence offered by the plaintiffs; and at the close of the evidence there were some seven prayers offered by the defendants for instruction to the jury; but of which prayers only the first and second were granted, and to the refusal of the rest, exception was taken.
Before considering any of the questions raised by these exceptions, it may be proper that we state briefly the general principles that govern cases of this character, as by so doing we may the more readily determine whether there be any sufficient ground disclosed in the record to sustain the plaintiffs' right to recover as against the appellee.
There is no doubt of the right of a plaintiff to maintain an action on the case against several, for conspiring to do, and actually doing, some unlawful act to his damage. But it is equally well-established, that no such action can be maintained unless the plaintiff can show that he has in fact been aggrieved, or has sustained actual legal damage by some overt act, done in pursuance and execution of the conspiracy. Cartrique vs. Behrens, 30 Law J, (2 B.,) 168. It is not, therefore, for [**3]  simply conspiring to do the unlawful act that the action lies. It is for doing the act itself, and the resulting actual damage to the plaintiff, that afford the ground of the action. Indeed, the allegation of conspiracy by the defendants would seem to be immaterial as to the right of action. "A simple conspiracy," says NELSON, Chief Justice, in Hutchins vs. Hutchins, 7 Hill, (New York,) 107, "however atrocious, unless it resulted in actual damage to the party, never was the subject of a civil action, not even when the old form of a writ of conspiracy, in its limited and most technical character, was in use. Then, indeed, the allegation of conspiracy was material and substantive, because, unless established by the proof, the plaintiff failed, as it was essential that the verdict should be against two at least in order to be upheld." The action like the present, therefore, may be brought against one defendant, or, if brought against several, one may be convicted and 

 [*410]  the others acquitted. But where the action is brought against several, as having combined to do the unlawful act, it is necessary, of course, in order to recover against them all, to prove that they [**4]  were all engaged in the conspiracy. The foundation or gist of the action, however, is the actual damage sustained by the plaintiff. Some right of his must be violated, and damage must result therefrom as the direct and proximate consequence, otherwise, the action cannot be sustained. This has been repeatedly decided. In Savile vs. Roberts, 1 Ld. Raym. 374, Lord HOLT, in answer to the suggestion at the bar, that the fact of the conspiracy was sufficient to maintain the action, said, "that conspiracy is not the ground of these actions, but the damage done to the party, for an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution; but if the party be damaged, the action will lie. From whence it follows," continued his lordship, "that the damage is the ground of the action, which is as great in the present case as if there had been a conspiracy. And F. N. B., 114 D., says, that where two cause a man to be indicted, if it be false and malicious, he shall have conspiracy; where one, he shall have case, so that the actions are founded upon one common foundation; but the number of the parties defendants determines it to [**5]  the one or to the other. Though in the old books, such actions are called conspiracies, yet they are nothing in fact but actions upon the case. For conspiracy (to speak properly) lies only for procuring a man to be indicted of treason or felony, where life was in danger. F. N. B., 116 A. And if such an action be sued against two defendants for procuring a man to be indicted of a smaller offence, though the word conspiraverunt be in the writ, yet if one of them be acquitted, the other may be found guilty. 11 Hen. 7, 25. Contra, of a proper action of conspiracy; for there, if the one be acquitted, no judgment can be given against the other."
It is clear, therefore, as well upon the authority of other cases as that of Savile vs. Roberts, that an act which, if done 

 [*411]  by one alone, constitutes no ground of an action on the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several. The quality of the act, and the nature of the injury inflicted by it, must determine the question whether the action will lie. Hutchins vs. Hutchins, 7 Hill 104; Wellington vs. Small, 3 Cush. 145; [**6]  Adler vs. Fenton, 65 U.S. 407, 24 How. 407, 16 L. Ed. 696; Cotterell vs. Jones, 11 Com. Bench 713, (73 E. C. L. Rep.)
The fact of conspiracy is matter of aggravation, and, as we have before stated, it only becomes necessary, in order to entitle the plaintiff to recover in one action against several, that the fact of the combination or conspiracy should be proved.
Now, with these general principles in view, let us turn to the prayers that were offered by the defendants and rejected by the Court below, and ascertain whether there was error in their rejection. The third and sixth would seem to be the most material.
By the third prayer, the Court was requested to instruct the jury that, even if there had heen an unlawful combination among the defendants to injure the plaintiffs, there was no evidence that any damage was done them, and they were not therefore entitled to recover.
As we have seen, the gist of the action is not the conspiracy, but the actual damage done to the plaintiffs; and this prayer must be taken as referring to such damage as was properly recoverable in this form of action. The combination or conspiracy among the defendants [**7]  to damage the plaintiffs, was negatived by the verdict of the jury in acquitting two of the defendants, Hanson and Phillips; and whether the other defendant, the appellant, should not also have been acquitted, depends upon the nature of the act proved, and the consequent damage to the plaintiffs.
The only evidence in the case upon which the plaintiffs could pretend to rely for recovery as against the present appellant alone, was the well established fact that the bedsteads, which had been purchased by the plaintiffs and shipped to 

 [*412]  them in Baltimore, were withheld from them by the direction of and through the instrumentalities employed by the appellant, when, as it subsequently appeared, they were entitled to receive them. They resorted to replevin and recovered them; but it is very manifest from all the evidence in the cause, both on the part of the plaintiffs and defendants, that the replevin was more the result of the election of the parties than the necessity of the case. Be that, however, as it may, it is very clear, that no matter how flagrant may have been the intention of the appellant to violate his contract with the plaintiffs, or however much he may in [**8]  fact have violated it, this action was not the remedy for such a wrong. If the property had been so far delivered to the plaintiffs as to vest in them the right of possession, then, for any unauthorized obstruction of or interference with that right, such as is complained of in this case, the actions of trespass or trover were the appropriate remedies for the recovery of damages. But an action on the case, in which consequential damages only are recoverable, is not the proper remedy, and especially not in the face of the testimony of one of the plaintiffs themselves, that he "could not say anything about any particular damage," and did not know of any instance in which their business had been hurt. Finding, therefore, no sufficient evidence, in the record, of damage to the plaintiffs that could be recovered in this action, we think the Court below was in error in refusing the third prayer.
By the sixth prayer, the Court was requested to instruct the jury that the plaintiffs were not entitled, under the pleadings in the cause, to recover any damage against the appellant for breach of any contract of sale to the plaintiffs; which prayer was refused, and, in which refusal, we [**9]  think the Court was clearly in error. The action is not founded upon breach of contract, and the jury should not have been allowed to take any such question into consideration. It appears by the bill of exception that the plaintiffs' counsel conceded the correctness of the prayer, but as the Court rejected it, it was withheld 

 [*413]  from the jury, and, consequently, the appellant derived no benefit from the concession. It was clearly his right to have the instruction granted by the Court, being, as we think, such as ought to have been granted.
The judgment of the Court below will, therefore, be reversed; but, in order that the plaintiffs may have an opportunity of producing other proof, or to make application for leave to amend in such respect as they may be advised, we shall remand the cause for a new trial. But, of course, any further proceeding that may be had in the present case can only be taken against the appellant, as the other two original defendants stand acquitted and discharged.
Judgment reversed and new trial awarded. 

28 of 142 DOCUMENTS 

FRANCIS P. SCOTT vs. JOHN LEARY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 389; 1871 Md. LEXIS 65 

May 31, 1871, Decided 

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

This is an action of assumpsit brought by the appellant against the appellee. The declaration professed to contain the common money counts, and a count for money found to be due from the defendant to the plaintiff, upon an account stated between them, but there was an omission of the words "and for" directed by the Code, (Art. 75, sec. 22,) to be prefixed to each successive count or statement of a cause of action, after the first.

A further statement of the case will be found in the opinion of the Court.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Recovery of Usurious Interest -- Effect of a Bill of Particulars -- Demurrer -- Pleading.

In this State a borrower may recover back, in an action for money had and received, the usurious interest he has paid.

In an action of assumpsit, the declaration professed to contain the common money counts, and a count upon an account stated. The defendant, without pleading to the declaration, demanded a bill of particulars, which was furnished, and it showed that the plaintiff sought to recover back the excess of interest over and above the legal rate which he had paid to the defendant on two several loans. The defendant then filed a general demurrer to the declaration. HELD:

1st. That the effect of the bill of particulars was to show the plaintiff's entire cause of action under all the counts of his declaration, and the effect of the demurrer interposed after the bill of particulars was filed, was to admit the cause of action to be as therein stated, and to deny that it furnished any ground of action, thus fairly presenting the question whether usurious interest could be recovered back by the borrower in such form of action?

2d. That the plaintiff was entitled to recover back the amount of interest he had paid in excess of the legal rate.

One good count in a declaration is sufficient to sustain it against a general demurrer. 

COUNSEL:
T. B. Mackall and Thomas W. Hall, Jr., for the appellant.

While it is undoubtedly true, that "the Statute Law of Maryland upon the subject of usury, is to be found in the Act of 1704, ch. 69, as amended by the Act of 1845, ch. 352, and in the provisions of the Constitution of 1851, Article 3, section 49; Constitution of 1864, Article 3, section 50, and Constitution of 1867, Article 3, section 57," it is equally true that in every stage of legislation upon this subject, and through all the successive changes introduced both in the organic and statute law, the right of the party who has [**2]  paid illegal interest, to recover back the usurious excess, both at common law and in equity, has been uniformly recognized.

The Act of 1704, ch. 69, which forfeited the principal as well as interest of the usurious loan, and gave besides a qui tam action to the informer to recover treble the amount so loaned, by way of penalty, was substantially a copy of the English Statute, 12 Anne., ch. 16. That an action for money had and received would lie to recover back interest paid in excess of the legal rate, was admitted both under the Maryland Statute and its English prototype. Browning vs. Morris, Cow., 790; Williams vs. Hedley, 8 East., 378; Smith vs. Bromley, 2 Douglas, 696, (note); Lucas vs. Latour, 6 H. & J., 100.

After the Act of 1845, ch. 352, had modified the Statute law of this State, introducing the identical provision which is the basis of the present Article 95, title Usury, in the Code of Public General Laws, the same doctrine continued to be recognized. Baugher vs. Nelson, 9 Gill, 308; Thomas vs. Watson, Taney's Dec., 304.

Since the adoption of the Code, and the last revision of the Constitution in 1867, the same principle has been admitted and applied in equity.  [**3]  Hitch vs. Fenby, 6 Md., 223; Andrews vs. Poe, 30 Md., 485.

In other States where the common law prevails, and where there has been subsequent legislation similar to the present Statute Law of Maryland, the same point has been expressly decided. Wheaton vs. Hibbard, 20 Johns., 289, 293; Grow vs. Albee, 19 Verm., 540; Boardman vs. Roe, 13 Mass., 104.

The case of a party who seeks to recover back usurious interest which he has paid, is distinguished from, and taken out of the rules which govern ordinary cases of illegal contracts executed in whole or in part, or cases of voluntary payments. In usurious transactions, the parties are not regarded as in pari delicto. The whole theory of legislation and of the adjudged cases is, that the lender is the guilty party, and the borrower the unfortunate victim for whose protection usury laws are enacted. The payment of usurious interest is presumably under duress--the law taking note, in this particular, of the duress of poverty and of the borrower's necessities--and is not within the rule applicable to voluntary payments or the operation of the maxim volenti non fit injuria. 3 Parsons on Contracts, 127, 128; 2 Smith's Leading Cases,  [**4]  528, (note to Merryweather vs. Nixon); Story's Eq., sec. 302.

The position that relief from the consequences of a usurious contract can only be obtained in the way prescribed by the Act of 1845, viz: by waiting for a suit to be brought by the creditor, and "specially pleading the facts by way of defence," cannot be maintained. The Act of 1845, ch. 352, relates to the single case where the usurious contract itself is sought to be enforced at law, in which case the defence of usury must be specially pleaded, and cannot be availed of under the general issue. Other remedies remain as at common law, unaffected by the statute. Where there is a remedy at common law, and a further remedy is given by statute, without a negation, express or impled, of that which exists at common law, both remedies remain, and that which is given by statute is cumulative merely. Sedgwick on Statutory Con., 402; (see also pp. 34, 93); Dwarris on Statutes, 474; Wright vs. Freeman, 5 H. & J., 467; Wheaton vs. Hibbard, 20 Johns., 289, 293.

The present usury law gives no remedy whatever, but merely regulates the form of plea. It leaves to the debtor or borrower all the remedies which he might have at common [**5]  law.

Was the question decided below regularly raised by the pleadings? The omission in the record (a clerical omission purely) of the words "for" after the prefatory clause, "money payable by the defendant to the plaintiff," and also of the words "and for" directed by the Code (Art. 75, sec. 22,) to be prefixed to each successive count or statement of a cause of action, after the first, although such omission may impair the grammatical connexion, does not affect the legal sufficiency of the declaration. The declaration in the record is distinguishable from the pleading held bad on demurrer in Merryman vs. Rider, ante 98, and Pearce vs. Boarman, Garn. Kendig, et al., decided at April Term, 1871, and not to be reported. See also Fagg vs. Mudd, 3 Ell. & Bl., 77 Eng. Com. Law, 650.

The true question to be considered in determining the sufficiency of any pleadings under the Code, is not whether the rules of syntax are strictly observed, but whether substance is sufficiently expressed. No conciseness is bad which does not mislead the pleader, (Fagg vs. Mudd, ut supra.) The spirit in which section 22, Article 75 of the Code, relating to "Pleading and Practice," should be construed,  [**6]  is clearly indicated by the Code itself. Art. 75, secs. 3, 6, 7 and 22. See also Act of 1870, ch. 420.

But all question on this head is removed by the bill of particulars, which, for the purposes of the suit, is an extension or amplification of the declaration, and contains a full statement of the plaintiff's cause of action. See Evans' Prac., 212; 1 Tidd's Pr., (Am. Ed.,) 599.

C. L. L. Leary, for the appellee.

The action is not brought in the proper form. Under the 4th section, Article 95, of the Code of Public General Laws, the usurious creditor "forfeits" all the excess above the real sum actually lent and the legal interest thereon. The plaintiff then should have sued in "debt," either in the old form of "qui tam," or as directed by the Code, Article 40, section 1. Boehme vs. Aisquith, 4 H. & J., 207.

The remedy against usury can only be taken advantage of by the debtor as a defence. It cannot be asserted as an affirmative demand. Act of 1704, ch. 69; 1845, ch. 352, sec. 1, where the particular form of plea is prescribed; Code of Pub. Gen'l Laws, Art. 95, sec. 5.

Where a form of remedy is prescribed by a statute, that form must be pursued. 1 Chitty's Pleadings,  [**7]  112, (11th Am. Ed.,) note (6); Adams vs. Wood, 2 Cranch, 341; Blackburn vs. Baker, 7 Porter, (Ala.) 284.

If a party has no other right than what is derived from the statute, his remedy must be under the statute. Almy vs. Harris, 5 Johns., 175.

The remedy provided by the Code applies only to cases where the lender is seeking to enforce his claim against the borrower. In Baugher vs. Nelson, 9 Gill, 309, the plea in bar was usury under the Act of 1704, chapter 69; the pleas were ruled bad, as not complying with the Act of 1845, chapter 352, requiring the borrower to designate in his plea the amount actually loaned, &c., as now required in 5th section, Article 95, of the Code. Bandel vs. Isaacs, 13 Md., 225.

The proposition that usury can only be urged as a defence is confirmed by Act of Congress of 22d April, 1870, chapter 59, entitled "An Act to amend the Usury Laws of the District of Columbia." See 4th section, where the party paying usurious interest is expressly authorized to bring his action. In Virginia also, this form of remedy is prescribed by special statute. 2 Rob. Prac., 482.

The declaration does not allege that the defendant received the money claimed.  [**8]  Proof of the actual receipt of the money by defendant, or in this case, an allegation to that effect, is indispensable. Brent & Horsey vs. Ferry, 9 Md., 227; Parker vs. Fassitt, 1 H. & J., 339.

The declaration does not allege that the principal debt and lawful interest has been paid, nor does the plaintiff tender payment of the debt and lawful interest; it alleges payment of excess of interest above six per cent., but does not allege payment of the principal. Lucas vs. Latour, 6 H. & J., 100; Baugher vs. Nelson, 9 Gill, 308; Carter vs. Dennison, 7 Gill, 157.

The payment of excessive interest by the plaintiff in this case was voluntary--it was not compulsory. Mayor, &c. vs. Lefferman, 4 Gill, 431, 436; Morris vs. Mayor, &c., 5 Gill, 244.  

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

OPINIONBY:
MILLER 

OPINION:

 [*394]  MILLER, J., delivered the opinion of the Court.
This suit as shown by the bill of particulars was instituted to recover an excess of 4 per cent. over and above the legal rate of 6 per cent. interest paid by the plaintiff to the defendant on a loan of $ 7,500, from the 11th of May, 1866, to the 5th of February, 1868, and a like excess [**9]  on another loan of $ 4,500, from the 5th of February, 1868, to the 11th of November, 1869. The whole amount claimed is $ 634, and it is assumed as must be admitted by the pleadings or established by the proof, that the principal sums with legal interest thereon as well as the excessive interest have been paid to the defendant. The declaration to which there is a general demurrer is in indebitatus assumpsit and contains the common money counts, and the count upon an account stated. The main question presented by the record and which has been fully argued at bar, is, can this action to recover back this excessive interest be maintained?
But for our present Statutory and Constitutional provisions on the subject of usury this question would not be open for discussion. It is undeniable that at common law a party who has paid excessive interest may recover it back in an action for money had and received. To such cases the maxims "in pari delicto potior est conditio defendentis," and "volenti non fit injuria," have no application. This proposition is asserted by all the elementary writers, amongst whom we refer to Comyn on Usury, 210; 1 Story's Equity, sec. 302, and to 

 [*395]  2 [**10]  Smith's Leading Cases, notes by Hare & Wallace, 528, where the American authorities on the subject are collected, but it is sufficient for us that the Court of Appeals in Baugher vs. Nelson, 9 Gill 299, 308, have said it is "established that if the borrower has paid money upon an usurious contract, both the Courts of Law and of Equity will enable him to recover back the excess paid beyond the principal and lawful interest, but not further." The reasons upon which this doctrine is founded are stated by Lord MANSFIELD, in Browning vs. Morris, Cowp., 792, and in 3 Parsons on Cont., 128, where it is said "the distinction has been taken between statutes enacted on general grounds of policy and public expediency in which each party violating the law is in pari delicto and entitled to no assistance from a Court of justice, and those laws enacted to protect weak or necessitous men from being overreached, defrauded or oppressed, in which event the injured party may have relief extended to him, and the whole purport and reason, both of the law of usury and of the great mass of decisions under it, indicate that the lender on usury is regarded as the oppressor [**11]  and the criminal, and the borrower as the oppressed and injured." This remedy exists and these decisions have been made in view of statutes similar to our former Act of 1704, ch. 69, which forbids the exacting or taking of more than 6 per cent. interest, makes void all usurious contracts and imposes upon the usurer, for every offence of usury, a forfeiture of treble the value of the money or thing loaned, one-half to go to the State, and the other half to "him or them who shall sue for the same," and which is allowed "to be recovered in any Court of record by action of debt, bill plaint, or information." The borrower being thus clearly entitled to this common law remedy, whilst statutes of this character were in force, the question is has he been deprived of it by any subsequent legislative or other provisions on the subject, or have such provisions so far changed the law respecting usury as to render inapplicable now the reasons and principles upon which the allowance of this remedy is 

 [*396]  founded? It is a well settled and familiar rule of law that where a new statute prescribes a particular remedy none can be taken but that given by the Act, but where a right exists independent [**12]  of the statute, or where a party has a remedy at common law for a wrong, and a statute be passed giving a further remedy without an express or implied negation of the common law remedy, both remedies remain, and that which is given by statute is merely cumulative. 1 Chitty's Pleadings, 112; Wright vs. Freeman, 5 H. & J. 467; Wheaton vs. Hibbard, 20 Johns. 290; Alvey vs. Harris, 5 Johns. 174. The first of these subsequent provisions is the Act of 1824, ch. 200. It had been determined that a security tainted with usury in its origin, would remain worthless in the hands of an innocent assignee or holder, and this Act provides that the original law of 1704 should not be construed so as to destroy the right of such assignee or holder for value and without notice, of any such security, to sue and recover thereon. This law in no way affects the question now under consideration.
The Act of 1845, ch. 352, is next in order. It repealed in express terms the penal section of the Act of 1704, and provided that if in any suit at law or in equity upon any contract of loan, any person should seek to avail himself of the provisions of the Act [**13]  of 1704, he must specially plead the same, and set out in his plea the principal sum and interest thereon at the rate of 6 per cent. per annum, actually and bona fide due, and upon the trial of any issue joined on such plea, the jury at law, and the Chancellor or Judges in Equity, shall ascertain the amount of principal and such interest due on the contract, and judgment or decree shall be rendered in favor of the plaintiff therefor. It is very clear this law gives to the borrower no new statutory remedy, but takes away in part the remedy, or rather the defence, which the former statute gave him. Prior to this Act it had been decided in accordance with the English decisions, that the borrower, being at all times under a moral obligation to pay to the lender the sum actually loaned with legal interest, could not as plaintiff obtain 

 [*397]  relief either at law or in equity, except upon the equitable condition of paying to his creditor the sum actually and fairly due after deducting the illicit interest, Lucas vs. Latour, 6 H. & J. 100; Trumbo vs. Blizzard, 6 G. & J. 18; but where he stood in Court as a defendant he could relieve [**14]  himself from the entire contract, because the statute had declared it utterly void. The effect of the Act of 1845, was to compel the borrower who, as defendant, sought to extricate himself from a usurious contract to do precisely what he was before obliged to perform when he asked to be protected against it in the position of a plaintiff. 9 Gill 308. After this statute it could no longer be said the contract was void in toto, but the legal rate of interest was still fixed, and there is not only no express negation of the common law remedy to recover excessive interest, but there is nothing in the language or professed object of the Act, from which a legislative intent to that end can be inferred. It treats entirely of the defence which the borrower may make when sued as a defendant, leaving unaffected every remedy which he before had when seeking relief as a plaintiff. In Thomas vs. Watson, (Taney's Circuit Court Dec., by Campbell, 307,) decided in 1846, shortly after this Act was passed, Ch. J. TANEY said, "although this law abrogates the penalties inflicted by the Act of 1704 in cases of usury, and permits the party to recover [**15]  the sum actually loaned, with legal interest thereon, yet the contract so far as the usurious interest is concerned is still made void and the policy of the former law in that respect remains unaltered." The Constitution of 1851, provided that "the rate of interest in this State shall not exceed 6 per cent. per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide by law all necessary penalties and forfeitures against usury," and the question arose whether a usurious contract was not by force of this provision made void in toto, which was settled by the case of Bandel vs. Isaac, 13 Md. 202. The decision in that case is that the Constitution did not of itself make void the contract in whole, but merely fixed the legal rate of interest, that 

 [*398]  it was for the Legislature by forfeiture and penalties to punish the usurer and avoid the contract in whole or in part as to it might seem best, and until such provision should be made by law, the Act of 1845 remained in force.
We find nothing in this decision affecting the present question. It is true the Court say the Act of 1845 "is nothing more than an Act relating [**16]  to the remedy, that is to say, the mode in which the party seeking to avoid any part of the contract on the ground of usury, shall bring such defence to the notice of the Court, and until he does bring such defence to the notice of the Court in legal contemplation, it has no existence," but this refers entirely to the defence which the borrower may rely upon when sued, and has no application to his right as plaintiff, at law or in equity, to recover back or get rid of the excess. That question was not before the Court, and was not intended to be, nor was it in fact decided in that case. The Code of 1860 (Article 95,) provides that interest may be charged or deducted at the rate of 6 per cent., and "if any person shall exact, directly or indirectly" any greater rate, "he shall be deemed guilty of usury," and "any person guilty of usury shall forfeit all the excess above" the sum actually lent and legal interest thereon, "which forfeiture shall enure to the benefit of any defendant who shall plead usury and prove the same," and that "every plea of usury" shall be the same as that prescribed by the Act of 1845. The Constitution of 1864 contained the same provision [**17]  as that of 1851. The present Constitution provides that "the legal rate of interest shall be 6 per cent., unless otherwise provided by the General Assembly," thus remitting again to the Legislature full control over the entire subject. But under this no legislation has yet taken place, and the provisions of the Code still remain in force. That the borrower could, since the Act of 1845, maintain his bill in equity if filed within a reasonable time, for relief against usury, has never been questioned in any of the cases of that character which have arisen. Hitch vs. Fenby, 6 Md. 218; Wetter vs. Hardesty, 16 Md. 11; 

 [*399]  Banks vs. McClellan, 24 Md. 62; Andrews vs. Poe, 30 Md. 485.
We have thus stated at some length the several changes in the law of usury in this State, and many of the decisions of our Courts thereunder. From them it is very apparent, that whilst much, if not all of the harshness of the old statute has been removed by the removal or modification of penalties and forfeitures, and by leaving the contract, under all circumstances, to remain good for the principal sum loaned and legal [**18]  interest, yet the legal rate is still fixed, and the exacting of usury, in language at least denounced, and all excessive interest forfeited. To this extent the law still retains its essential characteristic of a statute to protect the weak and necessitous, and the common law remedy to recover back such excess in an action for money had and received, is nowhere in express terms taken away, or decided by the Courts to be no longer applicable. This remedy afforded by the Courts to the plaintiff borrower, upon the equitable condition of paying or proving that he has paid the principal and legal interest, has existed from the earliest times, almost from the day the first usury law was enacted, and when, as defendant, his defence on this ground, if he chose to take it, was far more effective for relief than now, and we can discover nothing in the present state of our law which would justify us in deciding it no longer exists. We have examined recent decisions in other States, and find they maintain, with almost entire uniformity, the same doctrine. They say it is too well settled to admit of doubt, that the payment of usurious interest is not a voluntary payment in any such sense as to [**19]  entitle the receiver to retain the sum paid above legal interest, that no other proof of duress or oppression is necessary than such as is involved in the act itself of taking the money under an usurious contract, and that the excess may be recovered in this form of action. Philanthropic Building Association vs. McKnight, 35 Pa. 470; Porter vs. Mount, 41 Barb. 561; Williams vs. Wilder, 37 Vt. 613. The law 

 [*400]  being thus settled, it is not in the power of the Courts to change it. It must so remain until the Legislature shall, in plain terms, declare that usurious interest once paid shall not be recovered back, and it is entirely for that department of Government to decide whether the time has now arrived for further legislation on the subject.
It remains for us to show that the question thus decided, properly arises in this case; and this is a matter of some importance in practice. As we have said, the declaration professes to contain the common money counts, and a count upon an account stated. The defendant, without pleading thereto, demanded a bill of particulars which was furnished, and its purport has already [**20]  been stated. The defendant then filed a general demurrer to the declaration, which the Court below sustained and gave judgment thereon for the defendant, and from that judgment the plaintiff has appealed. It is very correctly stated in Evans' Prac., 258, that the mode of obtaining a bill of particulars in this State differs very materially from that in England. The usual practice here is for the party before plea or replication to enter a demand for a bill of particulars on the docket, which is furnished by the party called upon, instead of a replication or rejoinder, and the party making the demand is again placed under rule plea or replication, and the pleadings and cause then proceed as usual. Mere formal defects in a bill of particulars are disregarded, but it must in substance inform the defendant of the nature of the plaintiff's claim, and if it does not the defendant may, provided he does so in due time, (Randall vs. Glenn, 2 Gill 430,) move the Court to compel the plaintiff to amend it. The office and legal effect of a bill of particulars (as decided in Carter vs. Tuck, 2 Gill 248,) is to extend to and inform the antagonist party [**21]  what is claimed under each and every count in the narr., be they many or few. The effect therefore of the bill of particulars furnished by the plaintiff in this case, is to show his entire cause of action under all the counts of his declaration, and at the trial 

 [*401]  he will undoubtedly be precluded from giving any evidence of any other demand or claim. In our opinion the effect of the demurrer interposed after this bill of particulars was filed, is to admit the cause of action to be as therein stated, and to deny that it furnishes any ground of action, and hence fairly presents the question we have determined and on which the judgment must be reversed. We do not mean to decide that a bill of particulars is itself the subject of a demurrer or that in this or any case it so far forms a part of the declaration as to cure any substantial defect in the latter that would be fatal on general demurrer. But here if the demurrer had been interposed before the bill of particulars was filed, and thus presented the naked question of the sufficiency of the narr., it ought to have been overruled, because the declaration, as it appears in the record contains at least one good count,  [**22]  that for "money found to be due from the defendant to the plaintiff on accounts stated between them," (Fagg vs. Mudd, 25 Eng. L. & Eq., Rep. 224, which is sufficient to sustain it against a general demurrer.
Judgment reversed and new trial awarded. 

29 of 142 DOCUMENTS 

LEWIS KIMBALL vs. ROBERT K. HARMAN and THOMAS B. BURCH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 401; 1871 Md. LEXIS 66 

May 31, 1871, Decided 

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

DISPOSITION:
Judgment reversed and cause remanded.  

HEADNOTES:

Removal of Causes -- Construction of section 8 of Article 4 of the Constitution of 1867 -- From what an Appeal will lie.

Under the 8th section of Article 4 of the Constitution of 1867, which makes it the duty of the Judges, upon suggestion in writing, supported by affidavit, that a fair or impartial trial cannot be had in such Court, to order the record of proceedings, "to be transmitted to some other Court (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases," the Judges may in their discretion order the record of proceedings to be transmitted to a Court of a different circuit, even though the party applying should state in his suggestion that he did not elect such Court.

From an order striking out a judgment solely upon the ground that the Court had no jurisdiction of the cause, and remanding the record to the Court whence the cause had been removed, an appeal will lie, notwithstanding that the motion to strike out the judgment was made during the term at which it was rendered.  

COUNSEL:
Wm. A. Hammond and Samuel Snowden, for the appellant.

John Henry Keene, Jr., for the appellees.  

JUDGES:
The cause was tried before BARTOL, C. J., STEWART, BRENT, MAULSBY, GRASON, ALVEY and ROBINSON, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*402]  ALVEY, J., delivered the opinion of the Court.
The appeal in this case is taken from an order of the Circuit Court for Howard county, striking out a judgment in favor of the appellant recovered against the appellees, and remanding the record to the Court of Common Pleas of Baltimore city from which it had been removed, on the suggestion of the appellees.
It appears that the action was instituted in the Court of Common Pleas to the January Term thereof, 1869, and in June, 1870, the defendants, the present appellees, made suggestion to the Court, supported by affidavit, that they could not have a fair and impartial trial in that Court, and prayed that the record of proceedings might be ordered to be transmitted to some other Court for trial; but in the suggestion they stated that they did not elect a Court of a different circuit. Upon this suggestion the Court ordered [**2]  the record to be transmitted to the Circuit Court for Howard county, where 

 [*403]  it was in fact sent, and in which latter Court, on the 8th of September, 1870, the case was tried, and a verdict and judgment thereon rendered in favor of the appellant for $ 495.12. And on the 16th of September, 1870, the appellees filed a motion to strike out the judgment, assigning several reasons in support of such motion, the second of which was the want of jurisdiction in the Court to take cognizance of the cause. This motion was heard, and on the 30th of December, 1870, the Court ordered that the second reason assigned by the appellees for striking out the judgment be sustained, and that the judgment be accordingly stricken out, and that the record be remanded to the Court of Common Pleas from whence it was removed. It is from this order that the appeal is taken, and the only question presented by it is the one of jurisdiction, whether the cause was properly removed from the Court of Common Pleas to the Circuit Court for Howard county.
It is contended on the part of the appellees, that inasmuch as they did not elect to have the cause removed to some Court of a different circuit from that [**3]  to which the Common Pleas belongs, but having elected to remain in that particular circuit, it was error in that Court to order the record to be transmitted to the Circuit Court for Howard county, being a Court of a different circuit, and that the latter Court was wholly without jurisdiction over the cause, and consequently there was no error committed by it in striking out the judgment and remanding the record. But from this proposition we entirely dissent. The Constitution of 1867 would seem to be plain, and to afford no ground whatever for the position of the appellees. By the 8th section of the 4th Article, it is made the duty of the Judges, upon suggestion in writing, supported by affidavit, to order the record of proceedings "to be transmitted to some other Court, (and of a different circuit, if the party applying shall so elect,) having jurisdiction in such cases." But not necessarily to some other Court of the same circuit, even although the party should elect not to go out of it. The Judges may, in their discretion, order the 

 [*404]  record to be transmitted to any other Court having jurisdiction in such cases, except in those instances where the party applying elects [**4]  to go out of the circuit, and then the discretion is so far restricted that the record must be transmitted to some other Court of a different circuit. We must suppose, if it had been intended by the authors of the Constitution to confine the discretion of the Judges to the Courts of the particular circuit, except where the party should elect to go out of it, that apt and appropriate terms would have been employed to express their purpose. The provision in the previous Constitutions of 1851 and 1864, in reference to the power of removal, has been materially changed by that in the present Constitution. By the 28th section of the 4th Article of the Constitution of 1851, it was made the duty of the Judges, upon suggestion, to order the transmission of the record to the Court of any adjoining county; "provided, that the removal in all civil causes be confined to an adjoining county within the judicial circuit, except as to the city of Baltimore, where the removal may be to any adjoining county." And by the 9th section of the 4th Article of the Constitution of 1864, the record was required "to be transmitted to some other Court in the same or any adjoining circuit having [**5]  jurisdiction in such cases." It is thus plain to be perceived that the provision in the present Constitution differs from that in both the preceding ones in reference to this subject. Why this change in terms, if it was not intended to express a different rule? and as a different rule was intended, it is clear from the terms employed, that it is less restrictive than that prescribed by the former Constitutions. For without the words in parenthesis, the discretionary power of selection conferred on the Judges by the terms, "some other Court having jurisdiction," must be conceded to be general and unlimited; and the office of the terms in parenthesis is simply to restrict this general discretionary power of selection, and to require the record to be sent to some Court out of the circuit, if the party should so elect. It must also be observed, that where the 

 [*405]  party elects to go beyond the circuit, there is no restriction upon the discretion of the Judges as to the Court to which the record shall be transmitted, except that it cannot be a Court of the same circuit. This being so, why should we suppose that it was intended that a restriction should exist to confine the selection [**6]  to some other Court within the circuit, in the absence of an election by the party applying to have the cause removed? There is certainly no good reason for such a restricted exercise of discretion in the one case, while such enlarged discretion is given in the other. But, apart from this, there are other reasons which would seem to be conclusive of the correctness of our construction. This particular clause of the Constitution is not to be construed in a way to do violence to other parts of the instrument. By the same. Article, in which the clause under consideration occurs, the State is divided into eight Judicial Circuits, and the city of Baltimore constitutes the eighth circuit, in which there is but one Court having criminal jurisdiction. The right of removal applies to prosecutions in that Court as well as to those depending in any other Court in the State, and yet every case that may be removed from it, must be removed to some Court of a different circuit, and that too without any regard whatever to the election of the party applying for the removal. And so in those circuits composed of but two counties, if the plaintiff in a civil action, or the State in a criminal prosecution,  [**7]  should apply for removal and not elect to go beyond the circuit, and the record should be transmitted to the other Court in that particular circuit, and afterwards the defendant or party accused should think proper to suggest a removal, as he has a right to do, under the Constitution, and the Act of 1868, ch. 180, and should decline or fail to elect to have the cause removed to a different circuit, or should, as in this case, elect to remain in the circuit, what is to become of the cause, if the construction contended for by the appellees should prevail? The inevitable consequence would be that, all jurisdiction in the circuit having been 

 [*406]  exhausted, the action or prosecution would fail for the want of a competent Court to try it. We cannot suppose for an instant that the framers of the Constitution ever contemplated such a result, and we are by no means disposed to place a construction upon their work that would lead to such an embarrassment in the administration of justice in the Courts of the State. Besides, it is eminently proper that there should be a large discretion reposed in the Judges as to the Courts to which the record should be transmitted. Expedition of trial,  [**8]  convenience to the parties concerned, and witnesses, economy, as well as various other matters, often, and most generally do, enter into the considerations that influence the discretion of the Judges in selecting the Court to which to transmit the record for trial; and no construction would be beneficial to the public that would restrict or preclude such considerations in a large proportion of the removals that occur. The right of election by the party only applies where he desires the cause to be removed to some Court of a different circuit, and the discretion of the Court is entirely uncontrolled by any election of the party that the record should be transmitted to some Court of the same circuit.
It has been contended, however, on behalf of the appellees, that as the motion to strike out the judgment was made during the term at which the judgment was rendered, and the case is still for trial, no appeal lies to this Court from the order of the Court below. But obviously there is nothing in this objection. The judgment was stricken out solely upon the ground, as it appears, that the Court had no jurisdiction of the cause, and consequently the record was remanded to the Court of Common [**9]  Pleas whence it came. The Common Pleas having no jurisdiction over the cause, there is no Court, as the case now stands, to take cognizance of it. Until the order appealed from be reversed, no proceedings whatever can be had in the cause. The question involved being one of jurisdiction, and having been decided adversely to maintaining the proceedings in the Court below, it is preliminary to 

 [*407]  all other questions, and must be decided on appeal, if at all, before the appellant can move in his case. The appeal was therefore properly taken. See the case of Wright vs. Hamner, 5 Md. 370.
The order appealed from will be reversed, and the cause remanded that the judgment be reinstated; and if the other causes assigned by the appellees for striking out the judgment have not been acted upon by the Court below, (as they do not appear to have been,) it will be competent for that Court, upon reinstating the judgment, to dispose of them as justice and right may require.
Judgment reversed and cause remanded. 

30 of 142 DOCUMENTS 

THE STATE OF MARYLAND vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 344; 1871 Md. LEXIS 63 

May 30, 1871, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Constitutionality of the Acts of Assembly exacting for the use of the State, one-fifth of the amount received by the Baltimore and Ohio Railroad Company from Passengers over its Washington branch -- Such exaction not a Capitation tax -- Right of the State to recover from the Railroad in an Action for money had and received -- Set-off as a plea to an Action by the State.

The Acts of Assembly (1832, ch. 175, 1836, ch. 261, 1844, ch. 103, 1845, ch. 370, and 1852, ch. 328,) in so far as they provide that the Baltimore and Ohio Railroad Company shall pay semi-annually to the Treasurer of the State, for its use, the one-fifth of the whole amount that may be received by the company for the transportation of passengers over its road between Washington and Baltimore, are not in conflict with the Constitution of the United States.

The exaction by the State of the one-fifth of the passenger fare collected by the Baltimore and Ohio Railroad Company over the Washington branch, is not a capitation tax, or in any proper sense a tax upon the passenger for the right of transit, but a tax imposed upon the corporation with its consent, and therefore free from all Constitutional objection.

Even if the one-fifth of the passenger fare secured to the State under the provisions of the Act of 1832, ch. 175, and its supplements, were a capitation tax unconstitutionally imposed upon passengers for the right of transit, the railroad company having collected the money in pursuance of their provisions, could not be allowed to retain it as against the claim of the State; and the same may be recovered by the State in an action of assumpsit for money had and received.

A State being sovereign is not liable to be sued by an individual or corporation; the right therefore of set-off which is in the nature of a cross suit, does not exist in actions instituted by the State, except where such defence is expressly allowed by statute.  

COUNSEL:
Philip Francis Thomas, S. Teackle Wallis, I. Nevett Steele and Attorney General Jones, for the appellant.

Even if the unconstitutionality of the Acts of Assembly in question, were a matter involved in the present issue, there is no ground on which the Court could be justified in pronouncing them unconstitutional.

The Baltimore and Ohio Railroad Company was incorporated by the Act of 1826, ch. 123. By section 14 of that Act, it was empowered to make "lateral railroads in any direction whatsoever" in connection with its main road from Baltimore to the Ohio, and with the same power for the construction and repair of the lateral as of the main roads. By section 23, however, the State reserved to its citizens and companies subsequently incorporated, the right to connect with the Baltimore and Ohio Railroad, "any other railroad leading from the main route to any part or parts of this State" By section 18, the Baltimore and Ohio Railroad Company was prohibited from charging more than three cents a mile for any single passenger, or [**2]  more than the same sum per ton of merchandize.

In the winter of 1830, the Baltimore and Ohio Railroad Company applied to the Legislature for its concurrence in a plan proposed by the company, for the construction of a railroad from Baltimore to Washington. The Act of 1830, ch. 158, was accordingly passed.

This Act proving ineffectual, the Act of 1831, ch. 30, was passed.

But this last Act brought no subscribers, and the railroad company, not being able to borrow the necessary funds, came again to the Legislature for relief, which was liberally accorded by the Act of 1832, ch. 175.

By the Act of 1844, ch. 103, the Baltimore and Ohio Railroad Company is authorized to reduce the rate of tolls for passengers, from time to time, in its discretion, so, however, as that the charge between the two cities shall at no time be less, for a single passenger, than $ 1.50, and that one-fifth of all such passage moneys shall be accounted for and paid into the State treasury as heretofore. The same law also authorizes round-trip tickets at reduced rates, in the discretion of the company, and allows a proportionate reduction in the fare of way-passengers.

The Act of 1845, ch.  [**3]  370, allows a reduction of fare also, in the discretion of the company, in the case of passengers passing from either of the two cities, or a point beyond either to the other city or a point beyond it--thus covering the case of passengers over a distance who pass over the road as part of a longer route.

The Act of 1852, ch. 328, finally disposes of the whole matter, by withdrawing all limitations whatever upon the authority of the company to reduce the passenger tolls and by authorizing them, in terms, "to regulate the tolls to be paid for the transportation of passengers on the Washington branch of said road, in their discretion, not exceeding the maximum ($ 2.50) heretofore fixed by law: provided that one-fifth of the passage money received from the said branch road be accounted for and paid into the State treasury as now required by law." The only legislative restraint therefore which now exists upon the absolute control of the whole matter by the appellee, is the fixed maximum which it shall not exceed. Its power to reduce the fare to the lowest figure is absolute, and the only right or benefit secured to or enjoyed by the State, so far as the fare is concerned, is to receive [**4]  one-fifth of what the company may in its discretion, charge and shall actually receive.

Such was the state of the law, in December, 1868, when the president and directors of the Baltimore and Ohio Railroad Company, approving the report of their finance committee, to the same effect, refused to pay over to the treasurer the arrear of the State's one-fifth of passenger tolls. The committee reported that "the company has not the right to continue to pay this tax:" that "it has not the legal power to apply any portion of its receipts from passengers travelling upon the Washington branch to the payment of this tax: nor can the sum of which the Governor requests payment be considered to be, in any sense, 'the money of the State.'"

As to the unconstitutionality of the statutes under which the State's right to one-fifth of the passenger tolls arose, the company relied upon an opinion of its eminent legal adviser, the senior counsel of the appellee here, which mainly rested for its conclusions upon the case of Crandall vs. Nevada, 6 Wallace, 35. Upon that case the learned Judge of the Superior Court rested his opinion.

This case differs widely from the Nevada case. The laws in [**5]  question were a contract made with the company by the State, at the urgent entreaty of the company and for its aid and benefit. They constituted a contract, not merely because Acts of incorporation are from their nature contracts, but because they were supported by good and valuable consideration; because they were eminently fair and just; because the company not only solicited but joyfully accepted them, and built and finished, and has enjoyed the profits of its road under them and by means of them. The right to one-fifth of the gross receipts from passenger fare was given to the State in exchange for a valuable privilege and option which it parted with, upon that consideration, and on the company's urgency. Though now called a "capitation tax," it was reserved as the foundation of a proper sinking fund to provide reimbursement to the State for the public moneys expended, upon the company's solicitation, and for its benefit.

But, it is contended that under the decision in the Nevada Case, 6 Wallace, 40, and the language used by Chief Justice TANEY in the Passenger Cases, (7 Howard, 283,) as the burden of the exaction falls, here, on the passenger, it is practically a tax on him,  [**6]  and therefore a restraint on his constitutional rights. Non sequitur. The usual fare exacted by any railroad company would, if this were true, be unconstitutional. But it is not true. The American citizen has a right to travel, but certainly it is not his constitutional prerogative to travel free. Nor is he constitutionally aggrieved because the rates of fare happen to be exorbitant. They always are, where there is a monopoly, and yet he cannot help himself. Nor are his constitutional rights any the more invaded because the State receives a share of the fare he pays, than if it were received by a private or corporate person other than the State, provided the fare be exacted as fare, and the State's share is compensation for her part in furnishing him the railroad conveniences for which fare is properly payable and exacted. A State might build a railroad herself and receive the whole of the fare, and make it a high fare also, if she chose, without thereby making the fare a "capitation tax" and unconstitutional.

Besides, the Supreme Court, in the Nevada Case, 6 Wallace, 39, makes it an element of the sort of "tax" which it pronounces unconstitutional, that it should require each [**7]  traveller to pay "a specific sum to the State," for the exercise of the right of transit. Here there is no "specific sum" named or set. The company fixes its own fares, at its own rates, and is only restrained by a fixed maximum.

The legislation in question imposes no tax, and creates no unconstitutional exaction, but simply embodies a fair and valid contract between the State and the appellee, whereby the latter agreed, for good and valuable consideration, to pay to the State a portion of its receipts, and the State, on its part, and at the request of the appellee, surrendered, in exchange therefor, a valuable privilege, by the concession of which the appellee had originally tempted the State into the common enterprise. The State is entitled to every intendment in favor of the constitutionality of the laws in question, not only on the grounds which usually control such questions, but because of all the circumstances surrounding the particular legislation. Mayor, &c., vs. Balt. and Ohio R. R. Co., 6 Gill, 291, 298; Ohio Life Ins. Co. vs. DeBolt, 16 How., 435-437; Gray vs. Bennett, 3 Metc., 522; Lane County vs. Oregon, 7 Wallace, 80; Dartmouth College vs. Woodward, 4 Wheat., 592,  [**8]  593, 594, 627, 629, 630; Dwarris on Statutes, 9 Law Library, 39-42, 44, 45, 60; Passenger Cases, 7 Howard, 402, 403, 409, 483; State Bank of Ohio vs. Knoop, 16 Howard, 378, 381, 389, 391; Gordon vs. Appeal Tax Court, 3 Howard, 145; Searight vs. Stokes, 3 Howard, 179.

But the constitutionality or unconstitutionality of the laws in question is not in any way involved in the case at bar, and the first prayer of the appellee ought to have been rejected, on that ground, as well as on the merits of the legal proposition which it embodies. The appellee's second prayer should have been refused on the same ground of irrelevancy to the issue, even if it had not asked an instruction that the State was not entitled to recover. In an action for money had and received like this, and under the conditions stated in the appellant's prayers, both of the instructions asked by the appellant should have been granted.

There is no pretence of any intentional violation of the Constitution. The unconstitutionality alleged is not supposed to arise from the breach of any particular provision of that instrument, but only from violation of its general scope and spirit. There is, therefore, no turpis [**9]  contractus to be discussed upon this record; no public policy which demands the confiscation of the State's moneys in the hands of the company, as a warning to evil-doers. The company simply has in its hands moneys which it confessedly collected and received for the State, and as her agent, from parties who set up no constitutional objection to paying it, but paid it voluntarily, are not asking that it be returned to them, and could not recover it back if they would.

The law upon this point is stated in Paley on Agency, 28 Law Lib., 62, 63, (marg.,) and cases cited.

The doctrine laid down by PALEY is fully sustained by the Supreme Court of the United States, in the cases of McBlair vs. Gibbes, 17 How., 236; Brooks vs. Martin, 2 Wallace, 79.

This Court itself has decided that a collector who has received State taxes cannot set up the unconstitutionality of the tax as a defence to the State's recovery. Waters vs. The State, 1 Gill, 308; Dumot vs. Jones, 2 Wallace, 9; Coursey vs. Covington, 5 Har. & John., 47; Sharp vs. Taylor, 2 Phillips' Ch., 817, 818; Tenant vs. Elliott, 1 Bos. & Pul., 3; Farmer vs. Russell, 1 Bos. & Pul., 296; Thompson vs. Thompson, 7 Vesey, 473.

The [**10]  State is sovereign and cannot be sued in its own Courts. This immunity belongs to it, both as a matter of prerogative and upon grounds of public policy. By the Act of Assembly of 1786, ch. 53, the right to sue the State was given to those who claimed to be its creditors, but no such right existed prior to that time. This Act was found so inconvenient in its practical results, that by the Act of 1820, ch. 210, it was repealed. The State then resumed and has ever since retained her original immunity. Tiernan vs. Rescaniere, 10 Gill & John., 225; Plater vs. Scott, 6 Gill & John., 121; State vs. Bank of Maryland, 6 Gill & John., 225, 226, 227.

A set-off is a cross-suit or action, and cannot be maintained against the State, for the same reasons which forbid an original suit. Whether the action be original or cross, it is equally an attempt to coerce the sovereign to do justice, and the principles of the common law do not permit a sovereign State to be thus subjected to coercion by its own tribunals. It is presumed to be always ready to do justice voluntarily. So in regard to public policy, set-offs and suits against the State equally tend to delay and embarrass it in the collection [**11]  of its revenue, and to substitute the Courts for the Legislature and the public officers to whom the Constitution has confided the disbursement of the public money. Commonwealth vs. Matlack, 4 Dallas, 303; Chevellier vs. State, 10 Texas, 315; Treasurer vs. Cleary, 3 Richardson, 372; Wilson vs. Lewiston, 1 Watts & S., 428; Commonwealth vs. Rhodes, 5 Monroe, 318; State vs. Northern Central Railway, 18 Md., 193; Constitution of 1867, Art. 3, sec. 32; Art. 6, sec. 2.

To entitle a defendant to a set-off, his claim must be such, that he could sue upon it in a Court of law and recover. This is one of the tests by which the right to a set-off must be tried. In this case, the defendant's claim was one upon which it will not be pretended that a suit at law could be maintained. The only remedy upon it was by petition to the Legislature. Milburn vs. Guyther, 8 Gill, 93, 94, 95.

Set-off is a statutory remedy given to the defendant against the plaintiff in a pending suit.

The object of the set-off is to prevent circuity of action. As no action will lie against the State, there is in this case no circuity of action to be prevented, and the effect of holding the State to be within the [**12]  statute, would be not to prevent circuity of action, but to give to the defendant a right of action, by means of set-off which he did not originally possess.

It is well-settled that general terms in a statute do not embrace the State. Laws are made ordinarily for the citizen, and not for the sovereign. To include the State within the operation and binding effect of a statute, the State must either be expressly named, or there must be a clear and inevitable implication from the language of the statute, that it was intended to embrace the State. The statutory provisions on the subject of set-off in this State, are sections 12 and 13 of Article 75 of the Code. They do not expressly name the State, and there is no ground whatever for any implication that they were intended to embrace the State. State vs. Milburn, 9 Gill, 108, 109, 118, 119; United States vs. Hoar, 2 Mason, 312.

Charles J. M. Gwinn, John H. B. Latrobe and Reverdy Johnson, for the appellee.

The requirement made by the Act of 1832, chapter 175, section 8, to pay the money therein referred to, into the treasury of the State of Maryland, is unconstitntional and void, because it imposes a tax upon every person [**13]  traveling upon the Washington branch road of the defendant, which tax is required to be collected by the company, and to be by it paid into the treasury of the State.

Every citizen of the United States, being a citizen and resident of any particular State, has a right to travel into or through any other State, without paying for such privilege of entry or transit, any tax or charge to the State into or through which he shall so travel. For being a citizen of another State, and subject to its jurisdiction and taxing power, and not being temporarily a resident even of the State into which he may enter for a purpose of travel or transit only, he cannot constitutionally be taxed by such State.

Such a power of taxation was substantially denied to the Confederated States in the original Articles of Confederation; for therein it was declared that "the people of each State shall have free ingress and egress to and from any other State;" and it cannot be supposed that the Constitution of the United States intended to leave a larger power in the States, over citizens of other States, than was conferred by the Articles of Confederation. Articles of Confederation, Art. 4. See McCullough [**14]  vs. The State of Maryland, 4 Wheaton, 316, as showing the limit and subject of the taxing power of a State; also Howell vs. State, 3 Gill, 23, and The Passenger Cases, 7 Howard, 492.

It is asserted that the arrangement contained in the Act of 1832, chapter 175, was a mere contract, by which the railroad company agreed to pay to the State, in each year, in consideration of receiving certain concessions, a stipulated portion of its gross receipts; and that such arrangement can not rightfully be considered as imposing a tax either upon the corporation or upon the passengers; but that if it could be considered as a tax, it must be held to be a tax not upon the passenger, but upon the corporation, and as amounting, pro tanto, to a waiver of the exemption from taxation secured to the company by the Act of 1826, chapter 123, section 18.

It was not a simple agreement to pay to the State a portion of the gross receipts of the company. It was, on the contrary, a provision of law by which the State gave power to the company to increase the amount of its gross receipts from each passenger, in order that a portion of such increase should be so received for the use of the State, and should [**15]  be paid into the treasury of the State. It operated as a direct tax upon the passenger, and this unconstitutional exercise of power cannot be accomplished by a form of contract with a company engaged in the transportation of passengers. Nor was the Act intended to operate as an agreed tax imposed upon the company by its own consent; for it authorized such rates of charge as left the company, if it exercised its powers, in the possession of larger revenues, after paying the tax, than it had under the privilege of complete exemption, which it enjoyed before the passage of the Act of 1832, chapter 175. It was an agreed tax, but it was imposed on those who were not parties to the agreement.

The revenue thus derived by the State was not a dividend upon any investment in the company. The State had subscribed to the special stock of the Washington branch road under a separate and distinct contract, authorized in the Act of 1832, chapter 175, section 1, and was authorized to receive its share, as a stockholder, of the net profits of the branch road (1832, chapter 175, sections 2 and 3); but a share in the gross receipts made no part of any legal dividend.

The revenue thus derived [**16]  by the State was not interest payable upon any debt, because the State was not in fact a creditor of the Washington branch road. It was not a semi-annual price or bonus paid by the company for the privilege of constructing the road, and operating it in connection with a road built under the authority of Congress, for the price was not in fact paid by the company. It was paid by those who travelled upon the road, as a part of the price of their journey, although it enured to the exclusive use and benefit of the State. If the money secured to the State by the operation of the Act of 1832, chapter 175, section 8, was neither dividend, interest nor bonus, what then was it? It was a tax imposed by the State upon every passenger travelling upon the Washington branch road.

The general argument that the tax imposed by the Act of 1832, chapter 175, &c., if it be conceded that a tax is thereby imposed, is a tax upon the company, and one to which it has given its corporate assent, and not a tax upon the passengers, is answered by the case of State vs. Mayhew, 6 Gill, 495, and is identical, moreover, in kind with that insisted upon by this State in the case of Brown vs. State of Md., 12 Wheaton,  [**17]  419.

In the case of Crandall vs. State of Nevada, 6 Wallace, 35, it was asserted, on the part of the State, that the tax imposed was levied on the carrier, or person engaged in the business of transportation, not upon the passenger.

But the Supreme Court said: "If the Act were much more skilfully drawn to sustain this hypothesis than it is, we should be very reluctant to admit that any form of words, which had the effect to compel every person travelling through the country by the common and usual modes of public conveyance, to pay a specific sum to the State, was not a tax upon the right thus exercised."

The Court having reached the conclusion that the Act in question did in fact impose a tax on the passengers, for the privilege of leaving the State, or passing through it by the ordinary means of passenger travel, and after recognizing in this case, as in the Passenger Cases, that the tax was demanded from other persons than the passengers only for convenience of collection, decided after careful consideration, that the Act was in conflict with the Constitution of the United States, and therefore void.

The legislation of the State of Maryland, which it has become [**18]  the duty of the appellee to contest in this cause, is inoperative and void for the general reason, it assumes a control over the intercourse between the various sections of the United States, and thus limits a privilege belonging to the citizens of the several States, which it was the purpose of the Constitution to leave subject to no other supervision than the national authority. For this reason, alone, the legislation referred to would be invalid, even if it were not open to the specific objections already made. Cooley vs. Board of Wardens, 12 How., 319; Steamship Co. vs. Port Wardens, 6 Wallace, 32; Hinson vs. Lott, 8 Wallace, 152.

The Supreme Court, in its latest adjudications upon the questions involved in this discussion, has reaffirmed the case of Crandall vs. State of Nevada. See Woodruff vs. Parham, 8 Wallace, 138, Justice MILLER; Hinson vs. Lott, 8 Wallace, 152, Justice MILLER.

And since, in the case of Crandall vs. State of Nevada, the judgment of the Court rested in great part upon portions of the able opinion of Chief Justice TANEY, in the "Passenger Cases," and gave to that opinion, to the extent of the principle involved in this case, the force of authority,  [**19]  it is submitted that this opinion, enforced by the case of Crandall vs. State of Nevada, may well be accepted as conclusive of this case.

The Acts of 1836, chapter 261, section 7; 1844, chapter 103, sections 1, 2 and 3, and the Act of 1852, chapter 328, do not in anywise obviate the constitutional objection to the validity of the Act of 1832, chapter 175, section 8.

These later Acts do not change the substantial nature of the arrangement made between the State and the Baltimore and Ohio Railroad Company, except by substituting an ad valorem tax for a specific duty. The effect of these amendatory Acts was equally to "add to the price of the article;" and the tax thus levied was, in fact, paid by the passenger in like manner as a direct tax levied upon himself would have been paid. Brown vs. State of Maryland, 12 Wheaton, 419.

The Superior Court was, moreover, right in granting the first prayer of the appellee, because the Act of 1832, chapter 175, section 8, and the Acts amendatory of, or supplementary to its provisions, already cited, authorize a charge within the District of Columbia, which is not sanctioned by the Act of Congress of March 2d, 1831, and because these [**20]  Acts do impose a tax for the use of this State, upon persons travelling from point to point in the District of Columbia, although such persons are not resident citizens of this State, and do not journey upon its territories.

Although the appellee has charged and received $ 1.50, for the transportation of each passenger for the whole distance between Baltimore and Washington, over its branch road, and has, up to the 30th day of June, 1868, accounted for and paid to the treasurer one-fifth of the gross receipts from passengers on said road, it is not estopped from denying the constitutionality of the Acts, referred to in the first prayer of the appellee, in so far as they contain the objectionable provision, which has been already discussed, and the Court committed no error in granting the appellee's second prayer.

This proposition is fully maintained by the case of the Pennsylvania, Delaware and Maryland Steam Navigation Co. vs. Dandridge, 8 G. & J., 248, 319, 320.

In opposition to this view, it is contended that if the Baltimore and Ohio Railroad Company be correct in assuming that the payment required by the Act of 1832, ch. 175, section 8, and by the Acts supplementary [**21]  thereto or amendatory thereof, is a tax, the payment of which is imposed upon the company as a statutory duty, it is, nevertheless estopped from setting up the unconstitutionality of these provisions of law, by reason of certain familiar principles of law recognized in the case of Waters, et al. vs. State, 1 Gill, 302.

In that case the defendant was a collector of taxes only, and had no other right or authority to collect the money which he had received than was conferred by his particular office of tax collector. He had no personal right to any part of the money collected, and he was not at liberty to deny the right of the State to the money which had been collected only by his practical assertion of the existence and validity of such right.

The facts in this case, now under discussion, are widely different, and the case cited can furnish no guide to the judgment of this Court. The appellee is not a collector of taxes for the State, and it has a right to retain the money received, as its own property, if the claim of the State is invald. The appellee cannot be regarded as a collector of taxes. The State vs. Mayhew, 2 Gill, 495, 496.

The appellant insists that even if [**22]  the Act of 1832, ch. 175, section 8, as modified by subsequent Acts of Assembly, is held to be unconstitutional, because it imposes a tax on passengers travelling on the Washington branch road, yet that, nevertheless, the appellant is entitled to recover, under its count for money had and received, as explained by the bill of particulars, one-fifth of the gross amount received by the defendant for the transportation of passengers upon the said branch road, which may not have been already paid by the appellee to the State.

It is believed that this prayer is based upon the theory that the case, now under discussion, is within the ruling made by the Court of Appeals in Waters, et al. vs. State, (1 Gill, 302,) already referred to.

The reasons given in support of the second prayer of the appellee suffice to maintain the propriety of the rejection by the Superior Court of the first prayer of the appellant.

The appellant further insists that if the appellee accepted the terms of the several Acts of Assembly, relating to the rate of fare for the transportation of passengers on its road, between Baltimore and Washington, and relating to the payment to the State of one-fifth of [**23]  the said fare, and received, between December 31st, 1859, and December 31st, 1869, any sum of money for said transportation, the appellee is entitled to recover one-fifth of the sum so received, and not already paid to the appellant, without regard to any question of conflict between the said Acts, or any of them, and the Constitution of the United States.

This prayer is based upon the theory that where a contract in which two or more parties are engaged was illegal, but has been carried out, a partner, in whose hands the profits are, cannot refuse to account for and divide them, on the ground of the illegal character of the original contract. Such is alleged to have been the ruling of the Supreme Court in the cases of McBlair vs. Gibbes, 17 Howard, 232, and in Brooks vs. Martin, 2 Wallace, 78, and in the cases cited by the Supreme Court in those decisions.

This has not been the ruling upon the same question in this State. Stewart vs. McIntosh, 4 H. & J., 239, 240; Schwartze vs. Tyson, 4 H. & J., 290; Chappell and Stansbury vs. Wysham, 4 H. & J., 562; Hall vs. Mullen, 5 H. & J., 193; Roberts vs. Gibson, 6 H. & J., 127; Dill vs. Ellicott, Taney's C. C. Decisions, 236; Bank [**24]  of the U. S. vs. Owens, 2 Peters, 527, See also Chitty on Contracts, Am. Ed.,) 731, 732, notes i and k; Froar vs. Nichols, 2 C. B., 501, 512; Simpson vs. Bloss, 7 Taunt., 246; Holman vs. Johnson, Cowper, 343; Parsons vs. Thomson, 1 H. Bl., 322; Armstrong vs. Toler, 11 Wheat., 258; Collins vs. Blantern, 2 Wilson, 341.

But the appellee is not compelled to rely upon these authorities in order to maintain the proposition that the Superior Court was right in rejecting the second prayer of the appellant.

The case of Brooks vs. Martin rests upon the theory that the whole contract was illegal, but that it did not lie in the mouth of the partner, who had, by fraudulent means, obtained possession of the funds, to refuse to do equity to his other partners, because of the wrong originally done or intended, and then wholly consummated.

This case is marked by no such feature. The appellee had, under the Act of 1832, ch. 175, section 7, and under the Act of Congress already alluded to, a distinct, separate and specific right to charge and take the fares, therein mentioned, or provided for, for conveying each passenger upon the Washington branch road. This right,  [**25]  secured by the particular section of the Maryland Act alluded to, remains good and valid, even if other parts of the same statute be invalid. Davis vs. The State, 7 Md., 160; Mayor and City Council of Hagerstown vs. Dechert, 32 Md., 384.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*359]  BARTOL, C. J., delivered the opinion of the Court.
The questions presented by this appeal are of very great interest and importance; more on account of the character of the parties, and the large amount of money involved, than by reason of any intrinsic difficulty in the questions themselves. These depend for their solution upon plain and familiar principles of law, which are not affected in their application either by the amount in controversy or the dignity and power of the parties litigant.
The action is indebitatus assumpsit, instituted by the appellant against the appellee on the 6th day of May, 1870.
The declaration contains a count "for money had and received by the defendant for the use of the plaintiff."
In answer to the defendant's demand for a bill of particulars, the plaintiff's claim was stated [**26]  to be "for five hundred 

 [*360]  thousand dollars, ($ 500,000,) being the one-fifth part of the whole amount of moneys received by the defendant for the transportation of passengers upon the Washington branch of the Baltimore and Ohio Railroad, from the 1st day of January, 1860, to the 1st day of January, 1870; which said sum of $ 500,000 was received by the defendant for the use of the plaintiff, and was due and in arrears to the plaintiff at the time of the institution of this action."
The defendants plead "that they never were indebted as alleged by the plaintiff," and also filed a plea of set-off.
To this second plea there was a demurrer, which was sustained by the Court below. Issue being joined on the first plea, a verdict was rendered in favor of the defendant under the instructions of the Superior Court, and from the judgment thereon this appeal has been taken.
It appears from the bill of exceptions that the plaintiff offered in evidence the Acts of the General Assembly of Maryland, containing the charter of the defendant, all the Acts of Assembly relating to the construction of a railroad between the cities of Washington and Baltimore, and to the payment to the plaintiff [**27]  by the defendant of one-fifth part of the whole amount which may be received by it from the transportation of passengers on the said branch road, and all other Acts applicable in the premises; that these Acts were accepted by the defendant, and the branch road completed and put in operation under them in the year 1835. Also offered in evidence statements made from the books of the defendant, showing the whole amount of money so received by the defendant for the transportation of passengers, and the portion thereof paid to the State on account of said one-fifth, during the period covered by the bill of particulars, showing an apparent balance unpaid on the 1st day of January, 1870, of $ 316,871.43. Evidence was then offered showing that the fare charged and received from passengers on the branch road during the whole period of time covered by the bill of particulars, was $ 1.50 for each passenger between Washington 

 [*361]  and Baltimore, and at the same rate for shorter distances; and that from the time of the completion of the branch road down to the 1st day of January, 1868, the defendant had annually rendered an account purporting to show the gross amount received for the transportation [**28]  of passengers, and the State's proportion thereof; and had made semi-annual payments in January and July in each year on account of the same, to the Treasurer of Maryland, down to the 1st day of July, 1868.
After the testimony on the part of the plaintiff had been closed, two prayers were offered on the part of the defendant, stating substantially:
1st. That the several Acts of Assembly, so far as they provide for the payment by the defendant to the treasurer for the use of the State, of one-fifth of the money received for the transportation of passengers on the branch road, are unconstitutional, because in conflict with the Constitution of the United States.
2d. That the defendants are not estopped from denying the constitutionality of said Acts, by reason of their having charged and received $ 1.50 for the transportation of each passenger for the whole distance over the branch road, and accounted with and paid to the treasurer one-fifth of the gross receipts from passengers on said road up to the 30th day of June, 1868, and that the plaintiff was not entitled to recover.
These prayers were granted by the Superior Court. It thus appears that the defence to the action rests entirely [**29]  upon the alleged ground that the several Acts of Assembly, whereby the obligation was assumed by the company to pay to the State Treasurer, the one-fifth of the gross amount received from the passenger fare on the railroad, are inoperative, because in conflict with the Constitution of the United States.
The argument urged in support of this position is that the operation and effect of such a contract between the company and the State is to impose a capitation tax upon passengers, 

 [*362]  to the amount of one-fifth of the railroad fare charged by the company; which, to that extent, is a tax upon the right of citizens to travel through the State, and is a violation of the Constitutional rights of the citizen under the decision of the Supreme Court in Crandall vs. Nevada, 73 U.S. 35, 6 Wall. 35, 18 L. Ed. 745.
This Constitutional question has been fully argued, and has received the consideration by this Court which its importance demands; and before concluding this opinion we propose to explain the grounds upon which we think the contract between the State and the railroad company is free from all Constitutional objection.
But before taking up that question [**30]  it is proper to say that in our judgment the rights of the parties in the present suit do not, by any means, necessarily depend on its solution.
If, as we think, the legislation of the State in question is constitutional and valid, the defence relied on by the appellee fails, and the judgment must of course be reversed. But if, for the purposes of the present case, it be conceded that the defendant's position upon the Constitutional question is correct, that the effect of the Act of 1832, and its supplements, is to impose upon passengers a capitation tax, collected from them by the railroad company for the use of the State, above and beyond the mere charge for transportation, (and upon that ground alone is it contended that the one-fifth of the money paid by the passengers is an unconstitutional tax;) and if in point of fact a sum of money so collected has actually been received by the company, then it is money collected not for itself, but for the use of the State, and the question arises whether it is competent for the company to set up as a defence to the action brought by the State, for the recovery of the money so received, that the Acts of Assembly under which it was collected [**31]  were unconstitutional. That is the question raised by the prayers offered by the plaintiff, which were refused by the Superior Court.
They assume for the purposes of the present case that the money collected from passengers for the use of the State was 

 [*363]  an unconstitutional exaction from them, as alleged by the defendant, and yet assert the proposition that this furnishes no defence in the present suit; and that the plaintiff is entitled to recover one-fifth of the gross sum actually received for the transportation of passengers, and not already paid to the plaintiff "without regard to any question of conflict between the Acts of Assembly and the Constitution of the United States." Or to state the proposition more plainly, that the railroad company having collected certain moneys from passengers for the use of the State, cannot be allowed to retain the money, and refuse to pay it to the party to whom it belongs, on the plea that the persons from whom it was collected were not legally bound to pay it. In our opinion this proposition is a sound one, consonant with the plainest principles of reason and justice, and supported by an unbroken current of decisions.
This action [**32]  is indebitatus assumpsit, upon the implied promise of the defendant to pay to the State the money collected for its use: the receipt of the money for the plaintiff's use being the ground of the action from which the implied promise springs.
In such case the question of the validity of the law under which the money was collected cannot properly arise. That is a distinct and collateral question which might have been raised by the persons from whom the money was collected, but cannot be successfully urged by the railroad company in answer to the suit of the State. Of course we are not to be understood as maintaining the proposition, that the legal rights of parties are dependent upon the mere form of action adopted, or that it is competent by resorting to an action upon an implied assumpsit, to enforce a contract, which could not be enforced by an action brought on the express contract. Such an evasion is not tolerated by the law, which does not allow that to be done indirectly which cannot be done directly. But if the foundation of the suit be something collateral to the illegal contract or transaction, and the plaintiff is not 

 [*364]  obliged to resort to this in order [**33]  to maintain the suit, or to derive any aid from it, then the illegality of the original transaction is not a defence to the suit.
There is a broad and well recognized distinction between suits to enforce illegal contracts, and those asserting title to money arising from them. We shall presently cite some authorities in support of this general proposition. But first let us examine more particularly the nature of the arrangement between the State and the railroad company, and see in what its supposed unconstitutionality is alleged to consist. There is no pretence of any intentional violation of the Constitution, nor is there any express provision of that instrument to which the State laws are repugnant, it is said they are in conflict with its general scope and spirit. This is then not a case of turpis contractus.
The defence here urged is, that under its contract with the State, the company has added the moneys for the State's account, to the fares it collected for itself, and thus collected from passengers a capitation tax for the use of the State, which could not be constitutionally imposed. Now if this be so, the illegality of the transaction consisted entirely in the supposed [**34]  unconstitutional exaction from the passengers; they were the only parties whose constitutional rights were invaded; they having waived the question of legality and paid the money voluntarily to the railroad company, cannot recover it back, This position is settled by numerous authorities, among them we cite Lefferman vs. Mayor, &c., 4 Gill 425; Morris vs. Mayor, &c., 5 Gill 244; Balt. & Sus. R. R. Co. vs. Faunce, 6 Gill 68; Lester vs. Mayor, &c., 29 Md. 415. That a party may waive a constitutional provision which applies in his favor, was decided in Baker vs. Braman, 6 Hill 48, cited and approved by the Supreme Court in the recent case of the Philadelphia, Wilmington & Baltimore R. R. Co. vs. Trimble, 77 U.S. 367, 10 Wall. 367, 19 L. Ed. 948.
The question then is, shall the defendant be allowed to retain the money as against the claim of the State?

 [*365]  It is certainly true that the Courts of justice do not lend their aid in the enforcement of illegal or unconstitutional contracts. But in the aspect in which the defence in this case is presented, the [**35]  contract between the State and the company, if obnoxious at all to objection on constitutional ground, can only be so in respect to the collection from passengers of the one-fifth of the fare for the use of the State. It is perfectly clear that when the money has actually been collected by the company, that part of the transaction which is supposed to be unconstitutional has been completed; the illegal contract has been performed and is at an end, and in no manner enters into the question which subsequently arises between the railroad company and the State, as to the duty and obligation of the company to pay over the money to the State for whose use it was collected, and to which it belongs. To that part of the company's contract there remains no constitutional objection, and it is no answer to the suit of the State, instituted to enforce its payment by the company, that it was an unconstitutional tax upon the passengers.
A point very analogus to this was expressly decided in Waters vs. The State, 1 Gill 302. It was there held, that a collector who has received State taxes cannot set up the unconstitutionality of the tax as a defence to the State's recovery. "Having [**36]  admitted," says Judge ARCHER, p. 308, "the receipt of the money, the collector, who is in the light of an agent of the State, could not be heard to urge in his defence to a suit, that the money he had received was on account of taxes which the Legislature had no constitutional power to impose."
In Paley on Agency, 28 L. Lib. 62, the general principle is thus clearly and correctly stated:
"If money has been actually paid to an agent for the use of his principal, the legality of the transaction, of which it is the fruit, does not affect the right of the principal to recover it out of the agent's hands. For though the law would not have assisted the principal, by enforcing the recovery of it 

 [*366]  from the party by whom it was paid, because it is the policy of the law not to aid the completion of an illegal contract, yet when that contract is at an end, the agent, whose liability arises solely from having received the money for another's use, can have no pretence to retain it."
This doctrine is fully sustained by a number of adjudged cases, some of which are cited by the author. In Tenant vs. Elliott, 1 B. & P. 3, the defendant being a broker, effected [**37]  an illegal insurance for the plaintiff on his ship. The ship being lost, the underwriters paid the amount of the insurance to the defendant, who, without any intimation from them to retain the money, refused to pay it over to the plaintiff. In deciding the case, BULLER, Justice, said: "Is the man who has paid over money to another's use to dispute the legality of the original consideration? Having once waived the legality, the money shall never come back into his hands again, can the defendant then in conscience keep the money so paid? For what purpose shall he retain it? To whom is he to pay it over but to the plaintiff?" Chief Justice EYRE said, in the same case: "The defendant is not like a stakeholder. The question is, whether he who has received money to another's use, on an illegal contract, can be allowed to retain it, and that not even at the desire of those who paid it to him? I think he cannot." In Farmer vs. Russell, in the same volume, 295, the same principle was decided, and was recognized by Lord Chancellor COTTENHAM in Sharp vs. Taylor, 2 Phillips' Chan. Rep., 817, 818, and by Sir WM. GRANT, M. R., in Thompson vs. Thompson, 7 Vesey 473. [**38]  
These cases have been cited and approved, and the same principle has been followed by the Supreme Court in McBlair vs. Gibbes, 58 U.S. 232, 17 How. 232, 237, 15 L. Ed. 132, and in Brooks vs. Martin, 69 U.S. 70, 2 Wall. 70, 17 L. Ed. 732. In the case last cited, the bill was filed by one partner to recover his share of the profits of a partnership entered into for the purpose of buying soldiers' claims in violation of an Act of Congress. The Court say, (p. 79,) the traffic in which the firm was engaged was illegal; and yet the 

 [*367]  bill was maintained upon the ground that the illegal contract had been completed and was at an end, and the suit was brought to recover the plaintiff's share of realized profits. The opinion of Lord COTTENHAM in Sharp vs. Taylor, 2 Ph. Ch., is quoted at great length, citing the cases of Tenant vs. Elliott, Farmer vs. Russell, and Thompson vs. Thompson, as showing the difference between enforcing illegal contracts and asserting title to money which has arisen from them. The Court then say, (p. 81,) "These cases are all reviewed in the opinion of this Court in McBlair vs. Gibbes, 58 U.S. 232, 15 L. Ed. 132, 17 How. 232, [**39]  and the language here quoted from the principal case is there referred to with approbation. We are quite satisfied the doctrine thus announced is sound, and is directly applicable to the case before us."
We need only add that the principles upon which those cases rest, and which have thus received the unqualified sanction of the Supreme Court, appear to us to be consonant with reason and justice, and fully sustain the position taken by the appellant on the question now under consideration.
In respect to the one-fifth of the money actually received from passengers by the defendant, which this suit was instituted to recover, as we have before said, the right of the plaintiff to recover does not depend upon the question of the constitutionality of the Acts of Assembly; for assuming the appellee's views upon that question to be correct, this furnishes no defence to the present suit.
For these reasons, we are of opinion the prayers of the appellant ought to have been granted.
In the view we have taken of this case, as it is presented by the pleading and upon the prayers of the plaintiff, it may, perhaps, be unnecessary to express any opinion upon the constitutional question; but as [**40]  that is presented by the defendant's prayers, has been fully argued and has received our careful consideration, and as our silence on a matter of so much interest and importance might lead to some misapprehension with respect to the opinion entertained by this Court, 

 [*368]  we consider it proper to state some of the reasons which have led us to the conclusion that the legislation of the State now called in question, is nowise in conflict with the Constitution of the United States.
In the preceding part of this opinion, we have treated the case as the plaintiff has chosen to present it, assuming the hypothesis of the defendant's prayers to be correct, and have shown that it does not affect the right of the plaintiff to recover in the present suit. But in our judgment this hypothesis is erroneous, and rests upon a misconstruction of the Acts of Assembly. It seems to us to be a great error to suppose that the arrangement between the State and the railroad company, under which the branch road was constructed and went into operation, and the company has enjoyed its franchise; whereby the company for valid and sufficient considerations contracted to pay the State a portion of its gross [**41]  receipts from the transportation of passengers, can be fairly construed as imposing an unconstitutional tax upon passengers within the decision of the Supreme Court in Crandall vs. State of Nevada, 73 U.S. 35, 6 Wall. 35, 18 L. Ed. 745.
That case arose in this way. The Legislature of Nevada, in 1865, enacted "that there should be levied and collected a capitation tax of one dollar upon every person leaving the State by any railroad, stage-coach or other vehicle engaged or employed in the business of transporting passengers for hire." "The proprietors, owners and corporators so engaged were required to pay the tax of one dollar for each and every person so conveyed or transported from the State. For the purpose of collecting the tax, another section required from persons engaged in such business, or their agents, a report every month, under oath, of the number of passengers so transported, and the payment of the tax to the sheriff or other proper officer." Crandall, the agent of a stage company, was indicted for refusal to make the required report and pay the tax. He plead that the law was unconstitutional and void; his plea being overruled by the State [**42]  Court, the 

 [*369]  case was carried on writ of error to the Supreme Court, where the judgment below was reversed--all the Judges being of opinion that the law of Nevada was unconstitutional; two of them (Chief Justice CHASE and Mr. Justice CLIFFORD) considered that the State law interfered with the regulation of commerce between the States. The majority of the Court placed its decision upon the ground that the Nevada statute taxed every traveller for the privilege of leaving the State by any of the ordinary modes of transit, and that as the right to tax involved the right practically to prohibit, the law was an obstruction, and might, if such a power could be exercised by the State, be made a prohibition of the right of the citizen to unobstructed access to all parts of our common country, and of the right of the Federal Government to secure the presence of the citizen in any part of the Union to aid in its civil administration, or to support it in war.
Such a power was held to be inconsistent with the implied powers of the Federal Government and the rights of the citizen under the Constitution of the United States, and therefore could not be constitutionally exercised by a State.  [**43]  
The language used by the late Chief Justice TANEY, in his dissenting opinion in the Passenger Cases, 48 U.S. 283, 12 L. Ed. 702, 7 How. 283, 492, is cited in the opinion of the Court as stating the ground upon which the decision of the Nevada case was placed, as follows: "A tax imposed by a State for entering its territories or harbors is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the object which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it."
It is very clear that the case of Crandall vs. Nevada fell directly within this plain and salutary rule. The statute there under consideration imposed in terms a "capitation tax" upon every individual who left the State by a public conveyance. It was held to be a tax upon the right of the citizen to pass through or leave the State, and involved the power of prohibiting 

 [*370]  the enjoyment of such right altogether. Such a power, it was decided, could not be constitutionally exercised by a State, no matter what terms the statute might [**44]  employ. The Court say: "We should be very reluctant to admit that any form of words which had the effect to compel every person travelling through the country by the common and usual modes of public conveyance to pay a specific sum to the State, was not a tax upon the right thus exercised." Such was the decision of the Supreme Court in Crandall vs. Nevada, which being the decision of the Court of last resort, is a binding and conclusive authority upon the question.
But in our judgment there is no analogy between that case and the one before us--not the least similarity between the Nevada statute and the Acts of Assembly of Maryland which are here assailed. These do not, like the Nevada law, in terms or in fact "impose a tax for the use of the State, upon the right of the citizens to travel, at the usual and agreed rate of fare, over existing and established routes, and in existing and established conveyances." The Maryland Laws were passed in order to create new and improved modes of conveyance; to give to the traveller better, cheaper and more rapid means of transportation than before existed. It is a perversion of the intention of the Legislature, and contrary to the whole scope [**45]  and meaning of the laws to construe them as imposing a tax upon travellers or an obstruction upon the right of locomotion. The whole argument of the appellee, by which it is sought to bring this case within the principle decided in Crandall vs. Nevada, is that the effect of the State's reservation is to increase the fare of the passenger upon the railroad; and thus it operates indirectly as a tax upon him; if this be so, it is no infringement of his constitutional rights. Such would be the effect of any State law imposing taxes upon the property of the company for the support of Government, as thereby the pecuniary burdens and expenses of the company would be augmented, and its rates of charges for transportation consequently increased.

 [*371]  The same may be said of any Act of incorporation of a railroad company, whereby a bonus is reserved to the State for granting the franchise; such a bonus might be a sum of money payable by the company in gross, or in instalments, or payable out of the receipts of the company for transportation of passengers or merchandise, Gordon vs. Appeal Tax Court, 44 U.S. 133, 11 L. Ed. 529, 3 How. 133, 145, and yet [**46]  it cannot be for a moment supposed that the State laws, requiring the payment of such taxes or bonus by the corporation would be repugnant to the Constitution of the United States.
In construing legislative contracts the same rule applies as in the construction of other contracts. As was said by the Supreme Court in the case of the Binghamton Bridge, 70 U.S. 51, 3 Wall. 51, 18 L. Ed. 137, "they are to be construed to accomplish the intention of the parties. **** It is not the duty of the Court by legal subtlety to overthrow a contract; but rather to uphold it and give it effect, and no strained or artificial rule of construction is to be applied to any part of it." This rule applies with peculiar force when the contract has assumed the form of a law. In dealing with an Act of Assembly, which is alleged to be inoperative by reason of want of power in the Legislature to pass it, for supposed repugnancy to the Constitution of the State or of the United States, every intendment ought to be made in support of the law, and it is not to be declared invalid except for the plainest and most conclusive reasons.
Applying these rules of construction to these Acts [**47]  of Assembly, what is their plain meaning and intent? They confer upon the defendant the franchise and power to construct the branch railroad and to collect tolls for the transportation of passengers and merchandise; the State in order to aid in the accomplishment of the work, by the Act of 1832, ch. 175, relinquished the privilege and option which had been retained under the antecedent Acts, and engaged to advance a half million of dollars, one-third of the estimated cost of the work, and to become a stockholder to that amount. The 

 [*372]  company for these considerations stipulated to pay to the State a certain portion (one-fifth) of its gross receipts from passenger transportation; and at the same time the State limited and prescribed the maximum rates of toll to be charged by the company. The Act of 1832 contained a proviso, that the one-fifth of the passenger fare for the whole distance, should not be less than twenty-five cents; or in other words, that the fare for a single passenger should not be less than $ 1.25. By subsequent Acts this provision was repealed; and by the Act of 1852, ch. 328, which is still in force, the company is authorized to regulate the tolls to [**48]  be paid for the transportation of passengers, in their discretion, not exceeding the maximum already fixed by law.
These Acts when accepted by the defendant, became a contract between the company and the State. It was entered into in good faith and for a valuable and sufficient consideration. It certainly did not enter into the imagination of the parties that it was in any respect repugnant to the Constitution. It has been acquiesced in, and faithfully observed by the company for more than thirty years. This Court is now called on to declare it unconstitutional and void, because it is alleged to be a law imposing a capitation tax upon passengers. Such was not the purpose of the Legislature, nor is such intention to be found in the provisions of the law.
It seems very clear to us that the money reserved by the State is a tax upon the corporation not upon the passengers, and it is therefore not subject to any constitutional objection. The power of the State to impose such a tax or burden upon the company, with its consent, is too clear to be questioned. The corporation was created by the laws of the State, and except so far as exempted by its charter, it is subject to the jurisdiction [**49]  and power of the State. In the case of McCulloch vs. The State, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579, Chief Justice MARSHALL, in speaking of the power of taxation by a State, says: "It is obvious that it is an incident of sovereignty, and is coextensive with that to which it is incident. *** All subjects 

 [*373]  over which the sovereign power of a State extends are objects of taxation; but those over which it does not extend are upon the soundest principles exempt from taxation. *** The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission."
This is the distinct and well-defined power to which we are to refer the legislation of the State now in question. Is it a tax upon the corporation? This question is answered by the terms of the law, and its whole tenor and scope. The money is payable by the company out of its own receipts. The passenger fare received by the company is simply the toll for transportation collected by virtue of its powers under the charter, these are regulated in its discretion, subject only to the limitation prescribed by the Acts of Assembly, and which the State had the [**50]  undoubted power to prescribe. Under the law it is bound to render accounts of its gross revenue from passenger transportation, and to pay to the State a sum equivalent to one-fifth of the whole amount so received. The sums payable to the State are to be ascertained by reference to the amount of gross receipts or income of the company from passenger transportation, this furnishes the standard or basis of the computation. Such is our construction of the Acts of Assembly; so construed, they are wholly unlike the statute of Nevada considered in Crandall's Case in 6 Wallace.
They may be assimilated to the provisions in the Act of Congress, approved June 30th, 1864, ch. 173, section 103, which imposes a tax, upon railroad companies and other carriers, of a certain per centum upon their gross receipts. By the same process of reasoning adopted by the appellee in construing the Maryland Laws, these provisions of the Act of Congress would be construed as levying a capitation tax on passengers, and therefore unconstitutional, for Congress can no more impose such a tax constitutionally, than can a State Legislature, and it is besides prohibited by the Constitution from imposing direct [**51]  taxes upon the citizen. 

 [*374]  But the Act of Congress referred to is properly construed, as imposing a tax upon the carrier, not upon the passengers; and we think the same construction ought to be placed upon the Acts of Assembly before us.
In our opinion they are not in conflict with the Constitution of the United States, and therefore the Superior Court erred in granting the prayers of the appellee.
Upon the question raised by the demurrer to the second plea, we concur in the ruling of the Superior Court. In actions instituted by the State, it is well settled that no right of set-off exists, unless in cases where such defence is expressly allowed by statute, for the reason that the State being sovereign is not liable to be sued by an individual or corporation.
The right to sue the State was given by the Act of 1786, ch. 53, but this was afterwards repealed and the right taken away.
This immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy. Parties having claims or demands against her, must present them through another department of the Government--the Legislature--and cannot assert them by suit in the Courts. For the [**52]  same reason a right of set-off against the State does not exist. This is in the nature of a cross-suit, the object of which is to prevent circuity of action, and it does not exist where the subject matter of the set-off could not form the ground of an independent suit. It is a remedy conferred by statutes, which do not apply to the State, as she is not expressly embraced by their provisions. For these positions we refer to Milburn vs. Guyther, 8 Gill 92, 93-95; Plater vs. Scott, 6 G. & J. 116, 121; State vs. Bank of Md., 6 G. & J. 205, 225-227; Tiernan vs. Rescaniere, 10 G. & J. 217, 225; State vs. Milburn, 9 Gill 105, 118; United States vs. Hoar, 2 Mason 312.
It is very clear that the subject matter of defence alleged in the plea cannot constitute a ground for recoupment, because the alleged cross-claim does not arise in any manner out of the contract or transaction which constitutes the cause of 

 [*375]  action, but is an entirely separate and distinct claim, having no connection therewith.  Carroll's Adm'r vs. Quynn. 13 Md. 379, 390.
It could [**53]  only be relied on, if at all, under a plea of set-off, which, as we have said, is not a good plea in this suit, and the demurrer was properly sustained. Although it does not necessarily arise on this appeal, we have considered it proper to express our opinion upon this question, because it is presented upon the record, and in case of another trial might be again raised.
Judgment reversed and new trial ordered. 

CONCURBY:
ALVEY 

CONCUR:

ALVEY, J., delivered the following opinion, in which GRASON, J., concurred, recognizing the right of the State to recover, but not in the present form of action:
The right of the State to recover of the railroad company the tax sued for in the present action is maintained, according to the opinion of the majority of this Court, upon the assumption (which is, for the purposes of this suit, a virtual concession) of the illegality of the tax in question; and as I do not perceive the propriety of such an assumption to maintain the right of the State, I must dissent from this mode of disposing of the case; although I entirely concur with the rest of the Court in the conclusion that the State is entitled to recover, and that the judgment appealed from should [**54]  be reversed.
I shall, therefore, in a very brief way, and without at all going into an extended argument upon the subject, state my views of the two questions presented by the record before us.
And first, as to the validity of the tax sought to be recovered in this action.
This question is directly presented by the appellee's prayers, which were granted, and in the argument of it in this Court, the great effort in behalf of the company has been to show 

 [*376]  that the tax in question is of the character of that declared to be unconstitutional and void, in the case of Crandall vs. the State of Nevada, 73 U.S. 35, 6 Wall. 35, 18 L. Ed. 745. But, with all proper respect for the ability and apparent sincere conviction of the learned counsel who argued for the company, I have been utterly unable to discover the supposed resemblance of the two cases. That reported in 6 Wallace was the case of a specific tax levied on the traveller for the privilege of leaving the State of Nevada by any of the usual and ordinary modes of travel, the question being, as stated by the Supreme Court, the right of a State to levy a tax upon persons residing in the State [**55]  who might wish to get out of it, and upon persons not residing in it who might have occasion to pass through it. The State law, determined to be in conflict with the Constitution of the United States in that case, provided that there should be levied and collected a capitation tax, as such by express denomination, of $ 1 upon every person leaving the State by any railroad, stage-coach or other vehicle engaged or employed in the business of transporting passengers for hire, to be collected and paid over to the State by the carriers. But the case at bar is in all material respects different. The law here involved certainly does not in terms impose any specific tax upon the passenger for the right of transit, as in the Nevada case; nor do I think that any ingenuity is capable of so construing its terms as fairly to put the State in the position of imposing a direct tax upon the right of travel, upon the theory that though it be collected as fare, it becomes a direct tax upon the passengers by simply making the apportionment as between the State and the railroad company. On the contrary, the obvious reading of the law is, that this is a special tax, founded on compact between the [**56]  State and the railroad company, assessed not on the passenger, but on one portion of the company's income and profit. The company is required to pay into the treasury of the State the "one-fifth of the whole amount which may be received" for transporting passengers over its road; or, in other words, twenty per cent. 

 [*377]  of the gross receipts from one particular branch of its business; and reference is made to the passenger only by way of limiting and regulating the amount of fare that the company is authorized to exact, not on account of the State, but on that of the company. It is certainly competent to the State to tax the entire gross profits of the company, and, if so, it is equally competent to tax any particular part of them. The tax, then, according to my view, is imposed directly upon the profits of the railroad company, and not upon the passenger, as contended by the counsel of the company; and the passenger is not otherwise affected by such tax than he would be by the same amount imposed as a tax upon the bed of the road or its rolling stock. It may be true, and no doubt is the case, that the rates of fare fixed by the company are somewhat enhanced by the existence [**57]  of this continuing demand of the State, but it is only as any other tax or demand upon the company would be calculated to produce such enhancement. The company would naturally so regulate its rates of fare as to enable it to discharge its obligations, and to make profit for its shareholders besides. But, as the law now stands, and has stood since the Act of 1852, chapter 328, the company is only restrained from charging as fare more than the maximum rate prescribed by the Act of 1832, chapter 175. Under that sum, it has full and complete discretion over the rates of fare, and the State is only entitled to the one-fifth, or twenty per cent. of the smallest amount that the company may think proper to exact from the passenger as fare. And if the law imposing the tax now sued for were to be declared void, it by no means follows, as a necessary consequence, that the railroad company would lessen its rate of fare; no one can confidently predict such a result; and it is certainly true, that there is no power to compel it to be done. And this being so, what better test could be furnished of the nature of the tax in question, and as to the party upon whom it is imposed? Indeed, as I understand [**58]  the counsel for the company, it is not only conceded that the fare heretofore charged was legal, 

 [*378]  but it is insisted upon as the right of the company, in its discretion, to charge and receive of the passenger any rate of fare, not exceeding the maximum rate allowed by the law to be charged; the illegality, therefore, supposed to exist, consisting simply in the claim of the State to share in the proceeds. Thus, in effect, at once conceding that the tax is not levied upon the passenger, but upon the income or gross profits of the company, derived from the transportation of passengers. And this tax, thus levied, the company agreed to pay to the State for most material aids and benefits conferred, and for the surrender by the Act of 1832, chapter 175, of important and valuable rights held by the State under the Acts of 1830 and 1831, recited in the Act of 1832, and without which the road could not have been made; certainly not at the time it was made.
Now seeing that this tax is not a capitation tax, or in any proper sense a direct tax upon the passenger for the right of transit, can it be successfully maintained that the law imposing it is in conflict with the Constitution [**59]  of the United States, simply because the passenger may be incidentally affected by such tax, in the price of the fare he may be required to pay to the railroad company?
To maintain the affirmative of this proposition, would require that the Courts should, in all cases, inquire as to the elements upon which the rates of fare of the numerous railroad companies of the country are based, and if it be found that such rates have any reference whatever to the State taxes that may be imposed upon the company, and whereby the fare of the passenger is at all enhanced, such taxes would, therefore, have to be declared void. If such were to be the declared law, it would certainly afford an easy device by which all the railroads of the country could obtain exemption from State taxation. We may be assured, however, with reasonable certainty, that the principle of the Nevada case will never be carried to such an extent.

 [*379]  I shall add nothing more upon this question, except to refer to the case of The Commonwealth vs. The Railroads, known as the Tonnage Tax Cases, in 62 Pa. 286, in which there is a well-reasoned opinion of the Supreme Court of Pennsylvania, upon [**60]  a question of a kindred nature to that presented in this case. Much of the reasoning in that case applies here, and the most material parts of the argument advanced for the company in this case will be found to be well answered by that opinion.
With these views, I fully concur in opinion with the other members of the Court, that there was error committed by the Court below, in granting the prayers offered on the part of the appellee--the railroad company.
The next question is, has the State the right to recover this tax of the railroad company in an action simply for money had and received? and it is in reference to this part of the case that I differ from the rest of the Court.
Assuming the tax to be valid, and that it is levied upon the profits and income of the company, I think it clear that the action for money had and received is inapplicable, and cannot be maintained. I take it to be free from doubt, that the money recoverable in this form of action should have been originally received by the defendant to the plaintiff's use, or, at the time of the action brought, it should have belonged to the plaintiff, and not to the defendant in his own right. That is not the case [**61]  here. If I am right in supposing the tax to be levied upon the company, and not upon the passenger, the arrears of taxes become an ordinary debt due from the company to the State, and there can be no pretence that the money sought to be recovered in the present action was ever received to the use of the State, or that the company ever held it as belonging to the State, and as distinguished from money held in its own right. If, on the other hand, it be assumed, as has been done for the purpose of maintaining this form of action, that the levy is directly upon the passenger, and that the railroad company is merely the collector of the 

 [*380]  taxes for the State, then it may be conceded that the action for money had and received would lie.
But being of opinion, as we all are, that the levy is not upon the passenger, but upon the company, I must confess I am at a loss to understand why we should not put the judgment of this Court upon the proper ground upon which the State is entitled to recover. To adjudge the right to recover upon the mere assumption that the tax is levied directly upon the passenger, and is therefore illegal, as stated in the plaintiff's first prayer, when we [**62]  determine that in truth it is not so, would seem to be placing the State in a false position with respect to her rights. The question here is, not what would be the right of the State against the company in the event of the tax being decided illegal, but what is her right, and upon what ground is she entitled to recover, declaring, as we do, the tax to be constitutional and valid. I think the State ought rather to recover as for a valid tax levied upon the company, than as for an assumed illegal one levied upon the passenger and collected by the company. And with the views entertained by this Court in regard to the main question involved, that of the constitutionality of the law imposing the tax, I think we ought not to say of the plaintiff's prayers that they were erroneously rejected by the Court below, as they raised directly the question of the applicability of the form of action to the right asserted by the State under the law imposing the tax.
I am therefore of opinion, that the judgment appealed from should be reversed for the error committed in granting the prayers on the part of the defendant, and that the cause be remanded in order that the State may obtain leave and amend [**63]  its declaration, so as to entitle it to recover upon the true ground upon which the tax is due, that is, as a tax levied upon and due from the company.
The law having created the claim in favor of the State against the company, and given no specific remedy for its collection, an assumpsit exists upon which the State is entitled 

 [*381]  to recover in an action of assumpsit, but it must be upon a declaration properly framed, and not as for money had and received. See the case of The Mayor and City Council of Balto. vs. Howard, 6 Har. & John. 383.
I am authorized by Judge GRASON to say, that he concurs with me in this opinion.  

31 of 142 DOCUMENTS 

CHARLES SHIPLEY vs. THE BALTIMORE AND POTOMAC RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 336; 1871 Md. LEXIS 62 

May 25, 1871, Decided 

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

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

DISPOSITION:
Order affirmed.  

HEADNOTES:

Constitutionality of the Act of 1870, ch. 80, providing for taking private property for the Construction and repair of a Rail Road -- Construction of the same Act.

Article III, section 40 of the Constitution of Maryland forbids the Legislature to enact any "law authorizing private property to be taken for public use, without just compensation, as agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation."

Section 6 of the Act of 1870, ch. 80, being the amended charter of the B. & P. Railroad Co., authorizes the taking "of any land, earth, gravel, stone, timber, streams or materials, or any improvements which may be wanted for the proper construction or repair of any of said roads, or any of their works," and requires the jury to "justly and impartially value the damages which the owner or owners will sustain by the use and occupation of the property required by the said company, and also the benefits or advantages to accrue to the owner or owners by the construction of the said road, as a set-off to the said damages, but only in extinguishment of the claim for damages, and not for the actual value of the land or other material taken, and after having made a fair and just set-off of the advantages and disadvantages arising from the construction of the said railroad, they shall estimate and determine what amount of damages has been or may be sustained by the said owner or owners respectively." HELD:

1st. That under this provision, the jury are required in all cases to estimate in the first instance, and as an essential and primary element of damages, the actual value of the land or property proposed to be taken, and then to consider what other and incidental damages will result to the owner, by reason of the use or occupation thereof for the purposes of the road, and against these latter only, are any benefits or advantages to be set-off.

2d. That thus construed, this section of the Act does not contravene the Constitutional provision.

Concessum, that under the head of benefits the land owner is not to be charged with those general benefits which he shares in common with the community at large, but only with those special benefits which accrue to him by reason of the construction of the road through his land.  

COUNSEL:
Charles Marshall, for the appellant.

The only question presented by the appeal is the constitutionality of that provision of the charter of the appellee, which authorizes the jury of inquisition, to value the benefits and advantages, to accrue to the owner of the property to be taken on account of the construction of the road, and to set them off against the damages to be awarded to him.

The Legislature had no power to pass such a law, under the provisions of Article 3, section 40, of the Constitution.

The Act of incorporation of the appellee, introduces elements into the ascertainment of the compensation of the owner of property, taken by the company, which prevent that compensation from being "just:"

It deducts from his just compensation an amount for benefits which the company could not lawfully claim from others equally benefited, but whose property is not actually taken. Little Miami R. R. Co. vs. Collett, 6 Ohio N. S., 182; Pacific R. R. vs. Chrystal, 25 Missouri, 544.

It deducts an amount to pay the [**2]  company for general benefits, for which the State had already fully compensated it by the grant of its franchises and powers, and to which as a citizen he is entitled. Giesey vs. Cin., Wil. and Zanesville R. R. 4 Ohio, N. S., 308; Opelousas R. R. vs. Lagarde, 10 La. Ann., 150; Rail Road vs. Gilson, 8 Watts, 243; Evansville, &c., R. R. vs. Fitzpatrick, 10 Ind., 120; State vs. Miller, 3 Zabriskie, 383; Hill vs. M. & H. R. R., 5 Denio, 206; Keasy vs. Louisville, 4 Dana, 154; People vs. Mayor, &c., 5 Barb., 44; Palmer Co. vs. Ferrill, 17 Pick., 58; Cushman vs. Smith, 34 Maine, 247; Winona and St. Peter R. R. vs. Waldron, 11 Min., 515; 1 Redfield on Railways, 233.

It deducts an amount to pay the company for special benefits conferred upon his property by the construction of the road, for the enjoyment of which special benefits he is, nevertheless, required to pay the company again in tolls, whenever he attempts to avail himself of the supposed benefits.

It does not require the jury, like the Act of 1825, ch. 180, to ascertain the value of the property at all. It creates but one fund for the benefit of the owner, and that is the damages, and from that fund it directs the jury to [**3]  deduct all estimated advantages, general and special.

The compensation which the jury is authorized to give under this law, cannot be said to be "just" in any sense, nor as the rule of just compensation is established by the decision in 5 Md., 324, and in the case of 9 G. & J., 480.

The law cannot constitutionally authorize the jury to deduct supposed benefits to the owner, from the amount of damages to which they believe him to be entitled by reason of the taking and use of his property by the corporation, and, in any case, the land taken must be valued. 2 Kent's Comm., (marg.,) 339, note; Jacob vs. City of Louisville, 9 Dana, 114; Rice vs. Turnpike Co., 7 Dana, 81; Woodfolk vs. N. & C. R. R., 2 Swan, (Tennessee,) 422.

Daniel Clarke, for the appellee.

It is contended that the provision which prescribes the oath to be taken by the jurors, and the mode of assessing the damages, is in conflict with Article 3, section 40, of the Constitution.

Private property in this State, prior to the Constitution of 1851, when this provision was first inserted, could not be taken for public use, nor under the right of eminent domain could this right be conferred upon a private [**4]  corporation, without making just compensation. Tide-Water Canal Company vs. Archer, 9 G. & J., 479; Binney's Case, 2 Bland, 99; Waring vs. Waring, 2 Bland, 673; Hepburn's Case, 3 Bland, 95; Williams' Case, 3 Bl., 186; Bellona Co.'s Case, 3 Bl., 442.

Section 40, of Article 3, therefore, does not make any change in the want of power of the Legislature to pass laws authorizing the taking of private property for public use without just compensation. This power the Legislature never possessed. But prior to the Constitution of 1851, when this section was first introduced, the compensation might be made either subsequent or prior to the taking of the property. And the change which this section made, was to secure to the citizen the payment or tender of the just compensation agreed upon or awarded by a jury, prior to the taking of his property. He was not to be placed in the position of being deprived of his property, and then driven to the delays of the law to secure compensation. Hoye vs. Swan, 5 Md., 237; Moale vs. Mayor and City Council, 5 Md., 314; Steuart vs. Mayor and City Council, 7 Md., 500; Hamilton vs. Annapolis R. R. Co., 1 Md. Ch. Dec., 107, affirmed in 1 Md., 553; Harness [**5]  vs. Ches. and Ohio Canal Co., 1 Md. Ch. Dec., 248; Reddall vs. Bryan, et al., 14 Md., 444; West. Md. R. R. Co. vs. Owings, et al., 15 Md., 199; State ex rel. McClellan vs. Graves, 19 Md., 351.

The 3d section of Article 40, of the Constitution, does not introduce any new rule as to the mode of arriving at the "just compensation," but only prescribes the time when the "just compensation" shall be made. "Damages" are compensation given as an equivalent for injury sustained. It should be commensurate with the injury. Sedgwick on Damages, 29, 30; Rockwood vs. Allen, 7 Mass., 254; Bussy vs. Donaldson, 4 Dallas, 206; Denter vs. Spear, 4 Mason, 115; Angell on Water-courses, 5, 473.

The 6th sec. of the Act of 1870, ch. 80, amending the Act of 1853, ch. 194, requires the jurors, in arriving at the damages:

1st. To value the damages which the owner or owners will sustain by the use and occupation of the property required by the company.

2d. Then the benefits or advantages to accrue to the owner or owners by the construction of the said road, as a set-off to the said damages.

3d. But in making the set-off, the advantages or benefits are only to go in extinguishment of [**6]  the claim for damages, and not for the actual value of the land.

4th. After making a fair and just off-set of the advantages and disadvantages arising from the construction of the railroad, they shall estimate and determine what amount of damages has been or may be sustained by said owner or owners respectively.

In carrying out the first branch of their oath, the value of the land actually taken is the first item of damage; then comes fencing; inconveniences in crossing from one part of the land to another; and a number of other items, unnecessary to be specified.

Under the head of benefits, it is not contended that the land owner is to be charged with those general benefits which he shares in common with the community at large, but only with those special benefits which accrue to him by reason of the construction of the road through his land. But what benefits the jury are authorized to off-set under this section of the charter of the company, is a question of judicial interpretation, which the land owner can avail himself of at the trial or condemnation of his property. It is not a question which determines the constitutionality of the provision.

To charge the [**7]  land owner with the special benefits conferred upon him by the construction of a railroad, as an off-set to the injury sustained, in order to arrive at the damage, exclusive of the actual value of the land or other material taken, is a just mode of giving compensation. Damages, exclusive of the value of land actually taken, constitute the difference between benefit or advantage conferred, and injury or disadvantage sustained.

Such a rule the charter prescribes, in addition to the value of the land actually taken, and the same is not in conflict with the Constitution. 1 Pierce on Am. Railroad Law, 206, 211; Jacob vs. City of Louisville, 9 Dana, 114; Opelousas R. R. Co. vs. Lagarde, 10 La. Ann., 150; Symonds vs. Cincinnati, 14 Ohio, 174; McIntire vs. State, 5 Blackf., 384; Alton & Sangamon R. R. Co. vs. Carpenter, 14 Ill., 192; Hatch vs. Vt. Central R. R. Co., 25 Vt., 66; Nicholson vs. N. Y. & N. H. R. R. Co., 22 Conn., 74, 88; Nichols vs. Bridgeport, 23 Conn., 189; Rexford vs. Knight, 15 Barb., 627; Livermore vs. Jamaica, 23 Vt., 361; Meacham vs. Fitchburg R. R. Co., 4 Cushing, 291, Upton vs. South Reading Branch R. R. Co., 8 Cushing, 600; Cushman vs. Smith, 34 Maine, 247.  

JUDGES:
The [**8]  cause was argued before BARTOL, C. J., MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*341]  MILLER, J., delivered the opinion of the Court.
This appeal is from an order refusing an injunction to restrain the appellees from entering upon the land of the appellant under color of an alleged condemnation thereof for the use of their railroad. The bill admits the inquisition, its confirmation, and tender of the damages thereby awarded, and the sole ground of complaint is, that the provision in the amended charter of the company, under which the inquisition was taken, allowing benefits and advantages to be set-off against damages, is repugnant to that clause of the Constitution which forbids the Legislature to enact any "law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." The constitutionality of this provision of the charter is, therefore, the sole question presented by this appeal, and to determine it, we must first ascertain the true construction and effect of the assailed provision, so far at least as the power of [**9]  the Legislature to enact it may, by possibility, be thereby affected.
The condemnation clause in the original charter of this company (Act of 1853, chapter 194, section 13,) authorizes the taking "of any land, earth or materials, or any improvements which may be wanted for the construction or repairs" 

 [*342]  of the road or works, and requires the jury of inquest to justly and impartially value the damages, which the owner or owners will sustain by the use or occupation of the same required by the company." The amendment (Act of 1870, chapter 80, section 6,) authorizes the taking "of any land, earth, gravel, stone, timber, streams or materials, or any improvements which may be wanted for the proper construction or repair of any of said roads, or any of their works," and requires the jury to "justly and impartially value the damages which the owner or owners will sustain by the use and occupation of the property required by the said company, and also the benefits or advantages to accrue to the owner or owners by the construction of the said road as a set-off to the said damages, but only in extinguishment of the claim for damages, and not for the actual value  [**10]   of the land or other material taken, and after having made a fair and just set-off of the advantages and disadvantages arising from the construction of the said railroad, they shall estimate and determine what amount of damages has been or may be sustained by the said owner or owners respectively."
Though it might have been more explicitly stated, it is yet quite clear to our minds that, under this provision, the jury are required in all cases to estimate in the first instance, and as an essential and primary element of damages, the actual value of the land or property proposed to be taken, and then to consider what other and incidental damages will result to the owner, by reason of the use or occupation thereof for the purposes of the road, and against these latter only are any benefits or advantages to be set-off, so that in no case does the law permit their final estimate to fall below the real fair market value of the land or other property actually taken and used.
The case before us presents only the question of constitutional power, and we are not, therefore, called upon to define what constitute these other and incidental damages, or what are the benefits and advantages [**11]  that may be set-off against 

 [*343]  them. These must depend upon the circumstances of each case, and both parties have their remedy for any misconduct or error of the jury in this respect, by exceptions to the confirmation of the inquisition before the proper tribunal. It may be remarked, however, that the counsel for the company has very properly conceded that, under the head of benefits, the land-owner is not to be charged with those general benefits which he shares in common with the community at large, but only with those special benefits which accrue to him by reason of the construction of the road through his land. Thus construed, (and that such is its true construction, we have no doubt,) the provision is free from most of the objections to its constitutionality so forcibly presented in the very able argument of the appellant's counsel. It seems to have been framed for the express purpose of avoiding any conflict with the doctrine announced by the Court of Appeals of Kentucky in Jacob vs. City of Louisville, 9 Dana 114, and more recently by the Supreme Court of Tennessee in Woodfolk vs. Nashville and Chattanooga R. R. Co., 2 Swan 422, [**12]  viz: that the just compensation to the owner for taking his property for public use without his consent, means the actual value of the property in money, without any deductions for benefits and advantages, and that the Legislature can lawfully authorize these latter to be off-set only against such incidental damages or injuries, in addition to the intrinsic value of the property taken, as may result to him from the taking thereof. In most of the other States where the question has arisen, a different doctrine has prevailed, and their Courts have held that it is competent for the Legislature to provide that benefits and advantages accruing to the proprietor, shall constitute just compensation, even to the extent of extinguishing the value of the land or other property taken. In this State, no adjudication directly and decisively affecting the power of the Legislature to make a provision going to this extent, in the charter of a private corporation, has yet been made, and it will be time enough to decide that question when it is distinctly presented. 

 [*344]  It does not arise in this case, for, as we have seen, the charter of this company contains no such provision, but carefully [**13]  avoids the objection by providing that benefits and advantages shall not be set-off as against "the actual value of the land or other material taken." We entertain no doubt of the constitutionality of the provision, and the order refusing the injunction must therefore be affirmed.
Order affirmed. 

32 of 142 DOCUMENTS 

EDWARD A. F. MEARS vs. RICHARD A. REMARE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 333; 1871 Md. LEXIS 61 

May 11, 1871, Decided 

PRIOR HISTORY:
 [**1]  MOTION to rescind an order quashing a writ of restitution.

The present proceeding is supplementary to the case between the same parties, reported in 33 Md., 246. Upon the reversal by this Court of the judgment appealed from, a writ of restitution was issued by the clerk of this Court upon the application and direction of the attorney for the appellant. The appellee, on the 14th of April, 1871, filed a petition to the Court averring that said writ had been unduly and improvidently issued, and praying that the same might be quashed; on the same day the Court passed an order quashing the writ. The appellant thereupon moved the Court to rescind said order.  

DISPOSITION:
Motion to rescind overruled, and cause remanded for further proceedings.  

HEADNOTES:

Practice -- Judgment of reversal -- Writ of restitution.

In a proceeding before a justice of the peace, by a landlord against a tenant for years, wrongfully holding over after the expiration of his term, judgment was rendered for the tenant. Upon an appeal by the landlord from this judgment to the Baltimore City Court, a summons was issued to the tenant, and returned non est. Upon application of the landlord, the Court without notice to the tenant, directed the sheriff to amend this return by stating the facts specially in regard to the service of the writ, and thereupon proceeded to the trial of the case ex parte, and rendered judgment of restitution, which was executed. This judgment, upon an appeal by the tenant to the Court of Appeals, was reversed upon the ground, that the City Court had no jurisdiction of the case, the tenant not having been returned summoned, and only one return of non est having been made. Upon the application of the tenant, a writ of restitution was issued by the clerk of the Court of Appeals. On the petition of the landlord this writ was quashed. On the motion by the tenant, to rescind the order quashing the writ, it was HELD:

1st. That the writ of restitution was not only irregularly issued, but it was void for want of a judgment in the Court of Appeals, upon which it could be founded.

2d. That the effect of the judgment of reversal of the Court of Appeals, was to leave the case standing in the City Court precisely as if no trial had occurred in that Court, and it was competent for the appellant in that Court to proceed to give the legal notice to the adverse party, and thereupon proceed to trial in the usual way.

A writ of restitution can only be issued upon the special award of the Court.  

COUNSEL:
Edward Israel and Milton Whitney, for the motion.

T. Wallis Blackistone and Arthur W. Machen, against the motion.  

JUDGES:
The motion was submitted to BARTOL, C. J., BRENT, GRASON and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*334]  ALVEY, J., delivered the opinion of the Court.
The motion to rescind the order of this Court of the 14th of April, 1871, quashing the writ of restitution issued by the clerk, upon the application and direction of the attorney of the [**2]  appellant, Mears, must be overruled. The writ of restitution was not only irregularly issued, but was simply void for want of a judgment in this Court upon which it could be founded.
The case was originally brought here by an appeal from the judgment of the Baltimore City Court, rendered in the case of an appeal from the judgment of a justice of the peace to that Court; and the only question upon which the appeal could be maintained in this Court, was the one of jurisdiction of the City Court to hear and decide the case, without due and legal notice, such as the law prescribed to be given to the appellee in such cases. That was the only question for review in this Court, and was the only one that was decided. The merits of the controversy between the parties were not before us, and could not, therefore, be passed upon. The reversal of the judgment appealed from was simply because it had been rendered without due notice; and upon such reversal the case was left standing in the City Court precisely as if 

 [*335]  no trial had occurred in that Court, and it was competent to the appellant in that Court to proceed to give the legal notice to the adverse party, and thereupon proceed [**3]  to trial in the usual way. Upon the determination of the question of jurisdiction by this Court, there was no other judgment entered than that of reversal simply; as we supposed that the effect of the reversal on such a question would be well understood by all concerned. To obviate all further misunderstanding upon the subject, however, we shall now order the cause to be remanded, that it may be proceeded with in the City Court, as if no trial had ever taken place there.
As we have said, the judgment of this Court was simply that of reversal, and no restitution was awarded, for the obvious reason that we had not the merits of the controversy before us, and had no power or jurisdiction to pass upon them; and the writ of restitution is always founded upon the special award of the Court. 2 Tidd's Practice, 1033, 1186; Ad. on Eject., 252; Klinefelter's Lessee vs. Carey, 3 Gill & John. 349, 355. And such being the case, most clearly, the clerk, upon the mere direction of the attorney, had no power or authority to issue such writ, without the previous award of the Court. If, by the practice of the English Courts, a Judge at Chambers has no power to award such [**4]  writ, as would appear to be the case, much less can it be supposed that the clerk of the Court can do it. Williams vs. Williams, 2 Ad. & Ell. 381; Ad. on Eject., 252.
Motion to rescind overruled, and cause remanded for further proceedings. 

33 of 142 DOCUMENTS 

EDWARD G. LEITCH, JR., vs. HENRY W. OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 262; 1871 Md. LEXIS 56 

March 3, 1871, Decided 

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

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

Exception: The Superior Court gave the following instruction to the jury:

That by the true construction of the Act of 1868, chapter 173, the goods of a boarder or sojourner in a boarding house, which are, by that Act, protected from distress, are the goods of such boarder, belonging to him and in his own personal use, and not the furniture or other goods in the common use of the other boarders; and if the jury shall find from the evidence that the goods distrained upon constituted the general furniture of the house, or a part of it, in the common use of all the boarders, then they are not protected from distress, though they may find that the said goods belonged to the said plaintiff, and that he was a boarder in the house at the time of the distress.

The avowee excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of the Act of 1868, ch. 173, exempting the Property of a Boarder from Distress for rent.

The property of a boarder or sojourner in a boarding house, which is exempted from distress for rent by the Act of 1868, chapter 173, is the property belonging to, and in the personal use of the boarder or his family, and not such property, though owned by him, as is in general use by the household. 

COUNSEL:
R. W. Baldwin and A. C. Trippe, for the appellant.

The Act of 1868, chapter 173, does not say goods and chattels or baggage, but "all the property of any boarder," &c. The law was enacted, not for [**2]  the benefit of the landlord, but for the benefit of the boarder, and for his benefit it should be construed. Cross vs. Tome, 14 Md., 257.

The letter of the statute is the first and fundamental guide in interpreting it. Scaggs vs. Balt. & Wash. R. R. Co., 10 Md., 268-277; Alexander vs. Worthington, 5 Md., 471; Craddock vs. Riddlesburger, 2 Dana, 205.

The goods claimed by the appellant were his by a bona fide bill of sale, executed and recorded before Mrs. Leitch entered on the premises; and the recording was notice to the appellee of their ownership being in another than his tenant. Williams, et al. vs. Brooks, et al., 11 Md., 198.

Levin Gale, for the appellee,

Referred to the case of Milburn vs. The State, 1 Md., 17, in support of the correctness of the instruction given by the Court.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*264]  ROBINSON, J., delivered the opinion of the Court.
This was an action of replevin instituted by the appellant against the appellee, who avowed the taking of the goods for rent in arrear for certain premises demised by him to one Matilda Leitch.
From the evidence, it appears [**3]  that the tenant, Matilda Leitch, kept a boarding house on the premises, and by a bill of sale duly executed and recorded, conveyed the goods taken under the distress warrant, to the appellant, her son, who, together with his family, boarded with her. The goods however seized under the distress, consisted of furniture in general use by the whole household, and not the furniture used by the appellant or his family as boarders, for his or their exclusive use, and the question is, whether the goods thus taken were liable to be distrained, or were exempt under the provisions of the Act of 1868, chapter 173.
The Act in question provides that "the following property shall be exempt from distress, to wit: Every spinning-wheel, loom or sewing-machine, which may be loaned or hired to the tenant, and every horse, carriage and harness **** in any livery stable **** and all property of any boarder or sojourner at any hotel, tavern, public and private boarding house," &c.
The appellant insists that the exemption under the Act is not confined to the goods belonging to and in the personal use of the boarder or his family, but extends to all the goods owned by him, although the same may include [**4]  the entire household furniture used by the tenant and other boarders. 

 [*265]  To this construction we cannot assent. We can very well understand why the Legislature should exempt the furniture belonging to and used by the boarder, but there is no more reason why other furniture, used by the tenant for the purposes of the hotel or boarding house, should be exempt from distress because it may happen to belong to a boarder, than if it belonged to any other person--No reason was suggested in the argument why a boarder should be more highly favored in this respect than the next-door neighbor, who may be the owner of the goods. The construction contended for would put in the power of any one boarder, by owning all the furniture in a hotel or boarding house, to defeat altogether the landlord's right of distraint. Such was not the purpose of the statute.
We think the Court was right in instructing the jury that the Act of 1868 exempted such goods only as belonged and were in the personal use of the boarder, and the judgment will be affirmed.
Judgment affirmed. 

34 of 142 DOCUMENTS 

MICHAEL HOUCK vs. LEWIS F. WACHTER, of P.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 265; 1871 Md. LEXIS 57 

March 3, 1871, Decided 

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

The facts are sufficiently given in the opinion of the Court.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Nuisance -- Obstruction of a Highway -- When right of Action arises -- What constitutes Special damage.

The obstruction of a highway is a common nuisance and being a wrong of a public nature, the remedy is by indictment; it is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage, different not merely in degree, but different in kind from that experienced in common with other citizens. In such case the actual damage constitutes the gist of the action, and must be averred and proved.

The mere fact that by reason of the obstruction, the plaintiff was obliged to travel a longer and more circuitous route, is not such special damage as to entitle him to maintain an action.

Though the plaintiff may suffer more inconvenience than others from the obstruction, by reason of his proximity to the highway, that will not entitle him to maintain an action.

The rules of law allowing such actions ought not to be extended.  

COUNSEL:
Albert Ritchie, for the appellant.

The Court erred in overruling the demurrer. The obstruction of a highway is a public nuisance, the remedy for which is indictment. There can be no private action for a public nuisance, unless the plaintiff has suffered special damage. Mayor & C. C. of Baltimore vs. Marriott, 9 Md., 160.

When special damage is the ground of action it must be set forth in the declaration. Jones vs. Hungerford, 4 G. & J., 402; Howard vs. Wil. & S. R. R. Co., 1 Gill, 311; Ellicott vs. Lamborne, 2 Md., 131; McTavish vs. Carroll, 13 Md., 429; Sedgwick on Dam., 141, 575.

There is no special damage laid. The per quod simply alleges that by means of the obstruction, the appellee was "deprived of the use of said highway." This was an inconvenience, or damage, suffered in common with all others, and therefore not special. In an action for obstructing a private way, the gravamen is the obstruction; but for obstructing a public way, the special damage is the gravamen, and it must be set forth under the per quod. Baxter vs.  [**2]  Winooski T. Co., 22 Verm., 114; Lansing vs. Smith, 8 Cow., 147; Bap. Ch. of Schenectady vs. Sch. & T. R. R., 5 Barb., 84.

Whatever is not the necessary consequence, is special damage, and must be set forth. Even if the plaintiff could go behind the per quod, there is no special damage in the averment that he had to go a "very circuitous route." A longer route might have been a smoother, and a better, and a quicker one. Therefore, (if consequential damage be sufficient) if by going a circuitous route he suffered special damage, what was it? It is not set forth, and therefore the narr. is defective.

The narr. either claims general and special damages both, or else only general damages, and in either case is bad.

The wrong complained of cannot be laid with a continuando, or "at divers times."

A permanent trespass may be laid with a continuando, and distinct, independent trespasses may be laid "at divers times," but a wrong which exhausts itself in the commission, e. g., killing a horse, an assault and battery, etc., cannot be laid with either. In a suit for a private nuisance, the plaintiff may show its continuance, because the fact of its existence is the cause of [**3]  action, and its duration an element of damage. But in a private suit, the existence or continuance of a public nuisance gives no right of action.

The special damage is the gist of the action, while the existence of the nuisance is a wrong against the public, redressed by indictment. Gould's Pl., secs. 85-95; Mitchell vs. Neale, 2 Cowp., 828; 9 Bac. Ab., Trespass I, 2.

The declaration shows no sufficient cause of action. No private suit lies except for some "extraordinary damage beyond the rest of the king's subjects." The damage must be peculiar to the party who suffers, not such as has been or may be experienced by the public generally; and it must differ in kind, not merely in degree, from that to which all are exposed. Greater proximity to the highway, or having more frequent occasion to use it, gives no ground of action. It must not only differ in kind, but it must be substantial, and not imaginary, or theoretical, or within the ill-favor of actions de minimis. It is no ground of action that a party may be incommoded, or put to a greater distance, or delayed, or turned back, or subjected to personal inconvenience. These things constitute the offence against the public,  [**4]  and it is for these that a party is indicted. But there is nothing in these things peculiar to the individual, and, therefore, there is no right of private action. Sel. N. P., (7th Am. ed.) 1120, and (13th Eng. ed.,) 1072; Hart vs. Bassett, 1 T. Jones, 156; Paine vs. Patrick, Carth., 191; Iveson vs. Moore, 1 Ld. Raym., 486; Rose vs. Miles, 4 M. & S., 101; Chichester vs. Lethbridge, 1 Burie, 71; Hubert vs. Groves, 1 Esp., 148; Greasly vs. Codling, 2 Bing., 263; Wilkes vs. Hungerford, 2 Bing., N. C., 281; Rose vs. Groves, 5 M. & G., 613; Ricket vs. Metr. R. Co., L. R., 2 H. of L., 175, (S. C., 16 Law Times, N. S.;) Winterbottom vs. Derby, L. R., 2 Exch., 316; Harrison vs. Sterett, 4 H. & McH., 540; Barron & Craig vs. Baltimore, 2 Am. Ju., 203; Stetson vs. Faxon, 19 Pick., 147; Co. Com. A. A. Co. vs. Duckett, 20 Md., 468; Thayer vs. Boston, 19 Pick., 511; Quincy Canal vs. Newcomb, 7 Met., 283; Seeley vs. Bishop, 19 Conn., 134; Abbott vs. Mills, 3 Verm., 521; Butler vs. Kent, 19 John., 223; Lansing vs. Wiswall, 5 Den., 213; Smith vs. Lockwood, 13 Barb., 209; Story vs. Hammond, 4 Ohio, 376; Barr vs. Stevens, 1 Bibb, 292.

The appellee's case is not within the most extended application [**5]  of the principle. He avers no personal injury, no damage to property, or business, no expense, and nothing but what is imposed upon every body by every obstruction, that is, if the obstruction be impassable, to go around it, or take another road.

Wm. P. Maulsby, Jr., for the appellee.

To sustain the action, particular damage must be alleged and shown; not special damage in its technical sense. Mayne on Damages, 257.

The particular damage is properly laid. The cause of action fully appears. The objection that the particular damage should be set out in a per quod, is too formal; the particular damage suffered is plainly averred. Code, Art. 75, sects. 3-7.

The averment, "at divers times," &c., is sufficiently special. The wrong complained of is not the continuance of the nuisance at divers times, but the suffering at divers times of the particular injury. Gould on Pleading, 92.

The claim is for damages for particular injury, not special damages. The words, "hath been and still is," &c., may be omitted, and sufficient claim for damages is still averred. The true principle is that any, the least injury to an individual, as an expense of time, or money, or labor,  [**6]  &c., entitles him to an action. It is a special damage as contradistinguished from the injury to the public in general, which is theoretical, or vesting in presumption of law only. 7 Cowen, 609; Iveson vs. Moore, 1 Ld. Raymond, 486; Greasly vs. Codling, 2 Bingham, 263; Rose vs. Miles, 4 Maule & Sel., 101; Wilkes vs. Hungerford, 2 Bingham, N. C., 281; Rose vs. Groves, 5 Manning & Granger, 613; 19 Pickering, 147; 1 Binney, 463.  

JUDGES:
The cause was agued before BARTOL, C. J., STEWART, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*269]  BARTOL, C. J., delivered the opinion of the Court.
This suit was brought by the appellee to recover damages for the alleged obstruction of a highway by the appellant.
The first question presented by the record, and one which, in the opinion of a majority of this Court, is decisive of the case, arises upon the demurrer to the amended declaration. The ground of the demurrer is that the declaration does not contain any sufficient averment of special and particular damage suffered by the plaintiff from the obstruction complained of, to support the action. The obstruction of a highway is a common nuisance, and being a wrong of a public nature, the remedy [**7]  is by indictment; it is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage, which is not experienced in common with other citizens. 9 Md. 160, 178. In such case, the actual damage constitutes the gist of the action, and must be averred and proved.
These principles are well settled, and the only difficulty that can arise, grows out of their application to particular cases. With respect to what constitutes such special and particular 

 [*270]  damage, the decisions do not appear to have been entirely harmonious. We think, however, the present case is free from difficulty, and by recurring to the averments in the declaration, is of simple and easy solution.
After alleging the existence of the common highway, and that it was the customary, and most direct and convenient route for the plaintiff to pass and re-pass to and from the county town, mills, market, &c., with his horses, wagons and carriages, the declaration avers that the defendant wrongfully obstructed the same, by building a fence across it, which prevented the plaintiff from driving his horses, &c., laden with the products of his farm, [**8]  and other commodities, over said highway, by reason of which the plaintiff was obliged to drive his horses, &c., laden as aforesaid, back again, and by a very circuitous road, and for a much greater distance than he otherwise would, and of right ought to have done."
Then follows the averment of special damage in the following words:
"And the plaintiff says that he had made a journey with his said horses and wagons, from his said farm, through and over said highway, to his market town, to wit: Frederick city, in said county, and on his said journey, was returning to his said farm, when he met the said obstruction, and was withheld by the defendant from removing the same, so that he could not pass, and was obliged to proceed to his said farm, from said market town, by a very circuitous route; and the plaintiff says that, at divers other times, he was greatly hindered and delayed, and put to great loss of time and money, by reason of being compelled, by means of said obstruction, to go and return, pass and re-pass to and from his said farm, by a very circuitous road, and of much greater distance to the said market town, and to mills and said court-house, than he otherwise would and [**9]  of right ought to have done, with his said horses, wagons and carriages, laden as aforesaid; and by means of shutting up and closing said highway, wrongfully prevented him, the said plaintiff, from driving and conducting 

 [*271]  his said horses, wagons and carriages, laden as aforesaid, over and along said highway, as he was used and accustomed, and of right ought. And the plaintiff says that, by the means aforesaid, he hath been, and still is, deprived of the use of said highway, to which he is entitled, and hath sustained damage to the value of one thousand dollars."
We have set out at length the averments in the declaration, in order that it may be seen whether the allegation of special damage to the plaintiff is of such a nature as to entitle him to maintain the action. It is not averred that the highway, which was obstructed, was the only way to and from his farm, or that it was necessary to enable him to pass and re-pass from his farm to mill, market, &c. The averment is, that it was the most direct and convenient route.
By its obstruction, therefore, he experienced no other damage or inconvenience, except such as was common to other citizens having occasion to pass by [**10]  that way; they, as well as himself, were obliged to go by a longer or more circuitous route.
The special damage alleged is that, having gone to Frederick city by the highway in question, as he was returning home, he met the obstruction, was withheld by the defendant from removing it, and in consequence, "was obliged to proceed to his farm by a very circuitous route."
This is nothing more than a statement of a particular instance, in which the plaintiff suffered an inconvenience which was common to the rest of the community, and is not, in our opinion, such special damage as entitles him to maintain this action.
The objection is not to the form of the averment, but is substantial, going to the very ground and cause of action, which, as was said by TINDAL, Chief Justice, in Wilkes vs. Hungerford M. Co., 2 Bing., N. C. 281, exists only "where the plaintiff has sustained some peculiar injury beyond that which affects the public at large."

 [*272]  All the authorities agree that to support the action, the damage must be different, not merely in degree, but different in kind from that suffered in common, hence it has been well-settled, that though the plaintiff may suffer [**11]  more inconvenience than others from the obstruction, by reason of his proximity to the highway, that will not entitle him to maintain an action. Stetson vs. Faxon, 36 Mass. 147, 19 Pick. 147; Thayer vs. Boston, 36 Mass. 511, 19 Pick. 511, 514; Quincy Canal vs. Newcomb, 7 Met. 283.
A great number of cases both English and American were cited at the bar and have been examined by us, in which the question has been considered, as to what will constitute such special or particular damage as to entitle a party to sue for an obstruction of a highway.
We deem it unnecessary to refer to them here particularly, or to enter upon an analysis of them. As we before remarked the decisions are not without some apparent conflict. But we have found no well considered case which sustains the judgment of the Court below on the demurrer, or justifies us in holding the damage here alleged to be sufficient.
Rose vs. Miles, 4 M. & S. 101, has been much relied on by the appellee. In that case the plaintiff was obstructed in navigating a river by the defendant wrongfully mooring a barge across it; it was held that he could maintain his [**12]  action, it being alleged that he was compelled to unload his barges and carry his goods overland by which he incurred great expense. But that case is very unlike this; here no substantial damage is alleged. The case most resembling this is Greasly vs. Codling, 2 Bing. 263, in which the plaintiff had been delayed four hours by an unlawful obstruction in a highway, and his being thereby prevented from performing the same journey as many times in a day as if the obstructions had not existed, was held to be a sufficient special or particular injury to entitle him to maintain a suit. But it appeared in that case that the plaintiff was engaged as a "coal higgler," his occupation was carrying coal upon the highway, and the 

 [*273]  damage he suffered was in the conduct of his business and of a substantial nature; and was held to be different in kind from that suffered by the public at large.
The case of Greasly vs. Codling, was decided in the Common Pleas in 1824; and was ruled upon the authority of Lord ELLENBOROUGH'S judgment in Rose vs. Miles; and we think carried the doctrine in support of such actions farther than the previous decisions would warrant.  [**13]  But the case before us cannot be brought even within the principles of Greasly vs. Codling.
In England the tendency of more recent decisions has been rather to restrict the rule regulating the cases in which this description of action may be maintained; and we agree with what was said by MARTIN, B., in the late case of Winterbottom vs. Derby, that the rules of law allowing such actions ought not to be extended.
The case of Winterbottom vs. Derby, 2 Exch. 316, decided in 1867, was very analogous to this. The plaintiff sued for damages caused by the obstruction by the defendant of a highway, being a public footway, alleging "that he was on divers days hindered and prevented from passing and re-passing over and along said footway and using the same, and was obliged to incur, and did incur, on divers days, great expense in and about removing said obstructions, in order that he might, and before he could, pass and re-pass over and along the said footway, and use the same in and about his lawful business and affairs, and was greatly hindered and delayed in and about the same." It was decided, all the Judges concurring, that the action could not be maintained.  [**14]  In the course of the argument KELLY, C. B., said: "But he is not damaged more than others of the public who may happen to pass along the way. The result of this argument would seem to be that every individual who attempted to pass along the path, could bring an action." And in rendering his judgment, after stating that the plaintiff had suffered an inconvenience common to all who happened to pass that way, the 

 [*274]  same learned Judge remarked: "I think that to hold the action maintainable, would be equivalent to saying it is impossible to imagine circumstances in which an action could not be maintained." This observation, we think, may be applied with great propriety to the present case.
In the same opinion the true principle is stated to be "that he and he only can maintain an action for an obstruction, who has sustained some damage peculiar to himself, his trade or calling."
As no such damage is alleged in the declaration in this case, we are of opinion the demurrer ought to have been sustained. The judgment must therefore be reversed; and it is of course unnecessary to express any opinion upon the questions presented by the bills of exceptions.
Judgment reversed. 

DISSENTBY:
STEWART 

DISSENT:

 [**15]  
STEWART, J., delivered the following dissenting opinion:
This was a suit to recover damages for alleged obstruction to a public road, occasioning special damage to the plaintiff.
If the road in question was a public highway, and the defendant obstructed it, he was liable not only to criminal prosecution for the injury to the public, but to the plaintiff in this action, if he suffered particular damage from the obstruction. The prosecution and conviction of the defendant for the public offence, would be no adequate atonement or indemnity to the plaintiff for any special injury he may have received more than others. Mayor and C. C. of Baltimore vs. Marriott, 9 Md. 160; Stetson vs. Faxon, 36 Mass. 147, 19 Pick. 147; Angell on Highways, sec. 285.
The special damage claimed to have been incurred by the plaintiff, on one or sundry occasions, being the ground of the action, must be distinctly alleged and proved, and where this is done, the general allegation in the declaration that the plaintiff has sustained damage, is sufficient without a more formal and particular statement. The 2d and 3d sections of 

 [*275]  Article 75, of [**16]  the Code, warrant this form of proceeding. The fifth section also of the same Article, dispensing with "time and place," where they are not material or form no part of the action, permits the plaintiff to recover for injuries occasioned by the obstruction at different times. This avoids a multiplicity of suits for several and distinct injuries arising from the obstruction, or the insertion of different counts for each injury, if more than one, and can occasion no surprise to the defendant. The declaration sufficiently alleges the special injury sued for, and the demurrer thereto was properly overruled.
The Court below, in the exercise of its sound discretion, was authorized, upon motion of the plaintiff, to strike out the third and fourth pleas; the third plea, if true, afforded no bar to the recovery sought. The defendant could have the benefit of the fourth plea under the general issue. These pleas were immaterial and could be disposed of by the Court, under the motion to strike them out, or by demurrer.
The introductory clause of the first prayer of the plaintiff, however inartificial its terms, substantially submitted to the jury the question whether the road was a public highway, [**17]  and instructed them if they believed from all the evidence it had been used by the public as a highway for twenty or more years without interruption, they should infer its dedication as a highway. The road under such circumstances is presumed to belong to the public, who acquire a right to use the same from presumptive dedication, after such an uninterrupted user. Day vs. Allender, 22 Md. 511.
The fact of dedication may be proved directly, or inferred from circumstances such as the permissive user by the public, without any act of the owner to shew he only intended a license to pass over the land, and not to dedicate the right of way. The putting up a bar or gate, or excluding by positive prohibition persons from passing, may indicate this purpose. The common course is said to be by closing the passage for one day in each year. But the erection of a gate is not conclusive 

 [*276]  evidence of prohibition, as it may have been an original qualification. Best on Pres., sec. 111; 2 Green. on Ev., sec. 644; Angell on Highways, secs. 152, 153. Whenever the animus dedicandi appears, the dedication is accomplished. The Statute of Frauds does not [**18]  apply to it. No writing is necessary. It is usually established by circumstances in pais. The user by the public ought to be unequivocal. Circumstances indicating the purpose to permit the road to be used, so long as it may suit the owner's convenience, and that it was merely a license given revocable at his pleasure, will rebut the presumption of dedication.
Presumptive dedication, from the public user is but the conclusion from facts, and is subject to be repelled in every case by evidence, shewing that such was not the intention of the owner. The circumstances are not to be tortured so as to convert the liberality of the owner, it may be, in allowing his land to be used, subject at all times to his revocation, into an indefeasible right of way. This would allow the public to take advantage of a mere act of grace and by the repetition, establish an absolute right. The intention to dedicate the road to the public, contradistinguished from its permissive use, should be apparent.
To rebut the presumption of dedication, the jury could weigh the evidence that the road, although used by the public, was one over which the public authorities exercised no official control, and [**19]  made no repairs on it; that the owner of the soil also used it, repaired it, paid the taxes thereon, and exercised acts of ownership over it, and did interrupt the public in the use of it occasionally within the twenty years. "The issue is a mixed question of law and fact to be found by the jury, under the direction of the Court, upon consideration of all the circumstances." 2 Greenleaf on Ev., sec. 662.
Whether it is the presumption of law or the inference from the facts deducible by the jury from all the evidence, the jury must find the road to have been dedicated to the public, 

 [*277]  before they could allow any damage accruing to the plaintiff from obstruction to it by the defendant. All the evidence was before the jury; the circumstances of the public user, tending to shew there had been a dedication of the road--the counter-evidence, to prove there had been no dedication. Under the instruction they must consider all the evidence, and they might infer that the road was not dedicated to the public, but was merely used by them at the discretion of the owner. I do not see how this part of the prayer could injure the defendant.
But the latter part is too vague. If the [**20]  jury should find there had been a dedication to the public, they might consider themselves bound to allow to the plaintiff damages for the obstruction, beyond the amount of the particular injury, for which he could alone recover. They might give damages for conjectural inconvenience to the plaintiff, from his immediate connection with the road, and more frequent occasion to use it than others, including probable or possible diminution in the value of his property from the interruption of convenient access thereto. Damages can never be apportioned according to the distance at which a party may reside from the road. The proximity of the plaintiff's residence to it, and its convenience to him more than to others, gives him no claim, on that account, to damages. Any allowance of that sort would be theoretic and erroneous. The plaintiff could only legally recover for any positive loss sustained. The necessity of having to take another road, or being longer on a journey in consequence of the obstruction, are not sufficient of themselves; but if the plaintiff, having, in part, made his journey over the road, not knowing of the obstruction, is turned back and compelled to proceed, by a more [**21]  circuitous route, or meeting the obstruction, is prevented from removing it, so that he may pass, this will be sufficient ground of complaint to entitle him to recover damage to the extent of the loss. Angell on Highways, sec. 285.

 [*278]  If he did not actually encounter the obstruction, and sustain special damage therefrom, the fact of the existence of the obstruction could give no right to recover for mere imaginary injury. The prayer ought to have been more specific, and should not have been granted as presented, because calculated to mislead the jury, without the limitations above stated.
The second prayer, independent of the objection to it, from its identification with the first, and the defect therein, which have been stated, was objectionable. Antecedent obstructions might have been placed in the road by the owner of the land, in order to assert his title, before there had been such user as would amount to a dedication. They might be legitimate circumstances, to be considered by the jury in determining whether there had been a dedication or not. The prayer, as presented, might mislead the jury. If the prayer had limited the inquiry to any obstruction, after it [**22]  had become a public road, from uninterrupted user for twenty years; if the jury so found from all the evidence, it would not have been objectionable.
If the third prayer did not refer to the first containing objectionable matter, it might have been granted. The fact of gates or bars, as above explained, having been placed upon the road, in itself, would not repel the presumption of dedication of the road, because the dedication might have been with such reservation.
The fourth prayer was unobjectionable. The fact that the road had not been taken possession of by the public authorities, although such a circumstance might be considered by the jury, in the inquiry as to the dedication, would not, in itself, prevent the inference of the dedication of the road to the public, although such a circumstance might relieve the public authorities from responsibility on account of any damage arising from the condition of the road.
The fifth prayer, unaffected by reference to the first, is liable to no objection, in allowing the jury in the award of damages, 

 [*279]  to consider any circumstances of violence characterizing the obstruction complained of.
In actions of tort, all the [**23]  circumstances attending it, make up its character. It may be the result of malicious feeling; or proceed from ignorance, negligence or inexcusable carelessness. It may be wanton and violent, or the result of a purpose, to maintain or assert the supposed rights of the party. The motive and conduct indicative thereof, may aggravate or extenuate the wrong, and the damage for the injury should be in proportion to its true character. Mayne on Dam., 12; Sedgwick on Dam., 455.
The sixth prayer, abstract from the first, in its explanation of the effect of the deeds offered in evidence by the defendant, might have been granted. There is no valid objection to the explanation given to the jury in the seventh prayer, as to the gates or bars on the road. Their purpose and object were legitimate subjects of inquiry by the jury in ascertaining whether there had been a dedication of the road.
The eighth prayer, referring to the pleadings and evidence, in the omission of any reference to the finding of any obstruction, or special damage, by the jury, was defective, and ought not to have been granted. Independent of the objections stated to the prayers themselves, they might have been refused,  [**24]  because of their reference to isolated facts already comprised in the first prayer. It is error to permit a fact to be culled out for special instruction in regard to its particular force and effect. This would allow a general prayer as to the effect of all the facts, considered together, in relation to the same subject of inquiry before the jury, to be offered; and afterwards, a prayer, as to the tendency of every fact comprised in the general prayer, considered by itself, upon precisely the same subject. Such a practice is irregular, and calculated to embarrass the jury.
The permission allowed counsel to read certain law to the jury, after they had been instructed as to the law of the case, and to which objection is made in the second bill of exceptions, 

 [*280]  is not the subject of appeal. Augusta Ins. & Bk. Co., vs. Abbott, 12 Md. 348.
Such a course, however, is irregular, but it must be left to the discretion of the Court below in the trial of the cause. Entertaining different views from the majority of the Court, I think the judgment below should be reversed and a new trial ordered.  

35 of 142 DOCUMENTS 

EDWARD S. JAFFRAY, and others, vs. JOHN KING, of WILLIAM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 217; 1871 Md. LEXIS 52 

February 24, 1871, Decided 

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of a Contract -- Breach -- Measure of Damages.

A mercantile house in New York, by letter, dated the 19th of February, 1869, engaged the services of K from that date to the 30th of June following, as their salesman in the city of Baltimore, at a certain rate per month. K entered upon the service and discharged its duties without complaint, until he was dismissed therefrom by a letter dated the 8th of May, 1869, on the alleged ground that he had been attending to the business of another house. In a suit brought by K against his employers to recover damages for his wrongful dismissal from their service, it was HELD:

1st. That by the true construction of the contract, the plaintiff did not agree to give his whole time to the business of the defendants, but engaged to serve them in good faith, and to the extent of his ability as salesman in the city of Baltimore, in the sale of their goods; but if doing this did not require his whole time, he could, without violating his engagement with them, occupy the remainder in any other pursuit which was not inconsistent with his contract, not injurious to their interests, and which did not impair the value of his services to them as salesman of their goods in that market.

2d. That the measure of damages was fixed by the contract -- a stipulated salary for a specified period -- and the plaintiff was entitled to recover his whole salary under the contract, from the 1st of May (the date to which he had been paid) to the 30th of June inclusive, and the defendants could not claim a reduction therefrom of the amount which the plaintiff earned subsequent to his discharge and before the 30th of June, in another employment, they having failed to show that he could not have earned it without a violation of his duty under the contract, if he had not been discharged. 

COUNSEL:
William A. Fisher, for the appellants.

By the true construction of the agreement, the appellants were entitled to the entire time and services of the appellee, and the instruction is vicious on this point.

The dealings of the appellee with Butterfield & Co. were inconsistent with his duties as a salesman for the appellants, and afforded sufficient ground for his discharge, and he is therefore entitled only to his salary up to the time of his dismissal.

The instruction given by the Court as to the measure of damages, was wholly erroneous. The narr. contained the common counts, but none for work and labor, and a count for the wrongful dismissal of the appellee, and the action was instituted before the expiration of the period of the hiring; and the evidence was applicable only to the count for the wrongful dismissal. In an action of such character, the Court could not properly instruct the jury that the appellee was entitled to any particular amount of damages. Smith vs. Thompson, 8 Com. Bench, 41; Smith on Master and Servant, 75 Law Lib., 98.

The jury should have been directed that the measure [**2]  of damages would be the contract price, reduced by what the appellee actually did earn after the dismissal, and what he might have earned by due and reasonable diligence. Smith's Master and Servant, 75 Law Lib., 95, 96; Mayne on Damages, 92 Law Lib., 108; Jones vs. Jones, 4 Md., 609; Elderton vs. Emmory, 6 Com. Bench, 178; Goodman vs. Pocock, 15 Queen's Bench, 583; McKean vs. Cowley, 7 L. T. N. S., 828; Hartland vs. Gen. Ex. Bank, 14 L. T. N. S., 863; Wright vs. Falkner, 37 Ala., 274; Sherman vs. Champlain Trans. Co., 31 Vt., 162; Castigan vs. Mohawk and Hudson Railroad Co., 2 Denio, 609.

R. Stockett Matthews, for the appellee.

The contract being a written one, speaks for itself. It must be construed according to the plain intent and meaning of the parties. There is no ambiguity in it. It is simply a contract of hiring, and does not profess to engage the exclusive time and services of the plaintiff. No evidence of custom was introduced to explain the nature and extent of similar contracts among persons engaged in the dry-goods trade, in the relation in which the plaintiff stood towards the defendants, namely, that of an agent non-resident at the home of the principal.

The [**3]  word "salesman" in the contract, is equivalent to agent--an agent for limited purposes, and with limited powers.

The instruction of the Court below was therefore right, with reference to the manifest agreement of the parties, "that by the true construction of the contract contained in the letter of February 19, 1869, the plaintiff did not engage to give his whole time to the business of the defendants, but engaged to serve them efficiently and in good faith as their salesman in the city of Baltimore."

Even if the most rigorous construction be placed upon the "agreement" of the parties, the appellee had done nothing to violate its terms, or to contravene its spirit. The Court fairly informed the jury as to the true gravamen of the issue, and left it to them to find from the evidence whether the plaintiff had done anything "in violation of his duty to, and injuriously to the interests of the defendants," and the jury found that he had not.

If the defendants had shown that the plaintiff had been personally and actually selling goods for another house, they would still have been compelled to show, not simply a literal violation of the agreement, but that the plaintiff had [**4]  failed to perform his duty in some manner, or in some way essential to their interest--in other words, that the alleged dereliction of duty was in some matter which injured them, and prevented the plaintiff from performing his proper duty to them. Fillieul vs. Armstrong, 7 Ad. & El., 557; Freeman vs. Taylor, 8 Bing., 124; Remile vs. Hall, 31 Vermont, 582; Franklin vs. Miller, 4 A. & E., 599.

Under the special count, the plaintiff could recover damages for his wrongful dismissal, and the measure of damages was the stipulated amount subject to proper deductions, if any, which would have been earned had the contract remained intact; that amount was not recoverable qua salary, but as damages in the nature of compensation for the injury sustained by the plaintiff at the hands of the defendants. And in instructing the jury that the plaintiff, if they should find him guiltless of the alleged violation of his contract, "was entitled to recover his whole salary from May 1st to June 30th inclusive, less the amount in his hands unaccounted for," the Court simply meant to indicate the least measure of damages which the jury were at liberty to award, subject to proper deductions. The measure [**5]  of damages was such a sum as the plaintiff would have earned had the "agreement" remained unrevoked by the appellants, less the amount in his hands to be credited to them.  

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

OPINIONBY:
MILLER 

OPINION:

 [*220]  MILLER, J., delivered the opinion of the Court.
This suit, begun by attachment on warrant, was brought by the appellee against the appellants, merchants of New York city, to recover damages for the wrongful dismissal of the plaintiff by the defendants from their service and employment. The contract between the parties was in writing, and is contained in the following letter, addressed by the defendants to the plaintiff, dated the 19th of February, 1869:
"Dear Sir: We hereby engage your services as salesman from this date, 'till the 30th of June next inclusive, at the rate of $ 350 per month. Your particular field will be the city of Baltimore, and you are at liberty to solicit all such dealers there as we do not already sell to. All new trade from that city, introduced by you, will go to your credit, and all orders obtained by you, whether from old or new customers, will likewise be credited [**6]  to you."
The plaintiff was dismissed from this employment, by letter from the defendant, dated the 8th of May, on the alleged 

 [*221]  ground that they had ascertained he had been attending to the business of another house. The only important testimony in the case was that given by the plaintiff himself. All the prayers offered on both sides were rejected, and an instruction granted by the Court whereby two questions are presented, the settlement of which will dispose of the whole case.
1st. What is the true construction of this written contract between the parties?
2d. Can the defendants reduce the damages in this case, by the sum of $ 200 earned by the plaintiff after his discharge, and before the 30th of June?
1st. There was no proof of usage, nor was there any other evidence aliunde to explain any of the terms of this contract, even if it were, in any respect, ambiguous, and the Court instructed the jury that, by its true construction, the plaintiff did not agree to give his whole time to the business of the defendants, but engaged to serve them efficiently and in good faith as salesman in the city of Baltimore, in the sale of their goods, and if the jury [**7]  found from the evidence that he undertook the sale of, and sold goods of other persons, in violation of his duty to, and injuriously to the interests of the defendants, they had the right to terminate their agreement with him, and that the undertaking to sell, and the sale on commission for other persons, of goods of like character with those of the defendants, to the same class of buyers with the buyers of their goods, would be an employment inconsistent with his duty and injurious to the interests of the defendants, but if they found he did not perform such services for others, then the plaintiff is entitled to recover.
This, we are satisfied, is the true construction of the contract. It is not an agreement of hiring, by which, as for a menial employment, the master or employer is entitled to the entire time and services of the servant or employee in any service he may choose to dictate, for stipulated wages, but a contract by which the plaintiff became the defendants' agent 

 [*222]  for special purposes, and with limited powers, that is, to sell by sample and promote the sale of their goods, and increase their business connections in a particular and distant market. In the discharge [**8]  of that duty, he was bound to serve them in good faith, and to the extent of his ability, but if doing this did not require his whole time, he could, without violating his engagement with them, occupy the remainder in any other pursuit he might deem advantageous to himself, provided it was not inconsistent with his contract, not detrimental to their interests, and did not impair the value of his services to them as salesman of their goods in that market. The instruction very carefully and fully defines his duty under the contract, and the jury, to whom the matter was properly submitted, upon the evidence before them, found, as they well might, that he had, up to the time of his discharge, faithfully and effectually discharged that duty, and had not performed any services for others inconsistent therewith or detrimental to the interests of the defendants. If it had been the intention to engage the entire services and the whole time of the plaintiff, and that he should not engage in any other employment whatever, it would have been very easy to have inserted in the contract a clause to that effect.
2d. On the subject of damages, the Court instructed the jury that if they found for the [**9]  plaintiff, under the previous part of its instruction, then the plaintiff is entitled to recover his whole salary under the contract, from the time he was unpaid up to the 30th of June inclusive, less the amount of the defendants' money they may find he had actually received and not accounted for. That part of this instruction which declares the "plaintiff is entitled to recover" his salary, we regard as merely an announcement that such is the true measure of damages in this case, and not a peremptory command to the jury to find any particular sum as damages. The objection to this instruction, on the part of the appellants, is, that in a case like this, where the suit is for a breach of the contract by a wrongful dismissal, the defendants may reduce 

 [*223]  the damages by what the plaintiff actually earned or might, by due and reasonable diligence, have earned after his dismissal, and before the 30th of June, and hence the defendants were entitled to a deduction for the $ 200 so earned by the plaintiff. If we assume this rule to be correct, and to apply in ordinary cases where the contract is for the whole time and services of the plaintiff, and he seeks redress in this form of [**10]  action, we yet think there was no error in the Court's instruction in this case. The measure of damages was fixed by the contract, that is, the stipulated salary for the stipulated period, and by the construction we have placed on that contract, the plaintiff was at liberty to engage in any other employment consistent with the discharge of his duty thereunder. If, therefore, the defendants sought to reduce the damages thus fixed, they must do so, not simply by showing what sum the plaintiff actually earned, or might have earned, after his dismissal, but by showing further that he could not have earned it without a violation of his duty under the contract, if he had not been discharged. On this latter point, there is, in our opinion, an entire failure of proof. We can discover no evidence in the record from which it could rationally be inferred the employment in which this $ 200 was earned, was in any way detrimental to the interests of the defendants, or that he could not have earned this small sum in the same or some other employment, between the 8th of May and the 30th of June, and still have performed, in the strictest sense, his duty to the defendants, if he had not been discharged [**11]  by them; and, as we have said the onus was on the defendants to establish this before they could demand a reduction of damages for the amount so earned.
Judgment affirmed.
ALVEY, J., dissented on the second point.  

36 of 142 DOCUMENTS 

THE UNITED STATES FIRE AND MARINE INSURANCE COMPANY, of Baltimore, vs. WILLIAM H. KIMBERLY and EDWARD KIMBERLY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 224; 1871 Md. LEXIS 53 

February 24, 1871, Decided 

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

This was an action brought by the appellees to recover upon a policy of insurance issued by the appellant. The facts of the case are sufficiently set out in the opinion of the Court. The verdict and judgment were for the plaintiffs and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of a Policy of Insurance -- When the description of the Property a Warranty and when not.

The U.S. Fire Insurance Co. issued a policy to K, which contained the following description in writing, of the property insured, "On the four-story brick warehouse situate on Wide Water st, Norfolk, Va. First floor occupied by machinery used for making barrels, with privilege of storing barrels on the premises, and other merchandize not more hazardous. Steam boiler encased in brick about ten feet from building." The policy also contained the following clauses: "In all applications for insurance of property, the applicant must furnish an accurate and just description of the same, viz: of what materials each building is constructed; whether occupied as a private dwelling or how otherwise, &c., *** whether any manufactory is carried on in the premises. *** And if any person or persons shall insure his or their building or goods, and shall cause them to be described in the policy otherwise than they really are, so that the same be charged at a lower premium than would otherwise be demanded; or if such description be false or fraudulent, such insurance shall be void and of none effect;" and "It is agreed and declared to be the true intent and meaning of the parties hereto, and of these presents, that in case the above-mentioned premises shall, at any time after the making and during the time this policy would otherwise continue in force, be appropriated or used for the purpose of carrying on or exercising the trade of soap-boiler, *** cooper, carpenter, cabinet-maker, *** or any manufactory which requires the use of fire heat; or shall be used for the purpose of storing therein gunpowder, *** or other hazardous goods, *** then and from thenceforth, so long as the said premises shall be wholly, or in part, appropriated or used for any or either of the purposes aforesaid, these premises shall cease and be of no force or effect, unless otherwise specially agreed to by this corporation, and such agreement be signed in writing in or on the policy." At the time the policy was issued, the premises were used for no other purpose than those described in the written part. Subsequently small circular saws and a work bench were introduced in the second story for making boxes. But no boxes had been made for several months prior to the fire, although it was the intention to resume the manufacture. The saws and bench were accordingly left; and a lathe had been put up on the day before the fire for the purpose of making broom handles and brush blocks, but had never been used. A loss having occurred by fire, the assured brought suit on the policy. HELD:

1st. That the written part of the policy was a description, or warranty in proesenti, and not a continuing warranty.

2d. That the introduction of the manufacture of boxes on the premises, did not finally avoid the policy, but suspended its force and effect during the continuance of the manufacture.

3d. That the use and appropriation of the building at the time of the fire were not such as to prevent a recovery on the policy.

Courts are not disposed to favor a warranty by construction, and if the terms used are fully satisfied as a description, they will not be extended to include a warranty, unless it is clearly expressed that such was the design and meaning of the parties 

COUNSEL:
I. Nevett Steele, for the appellant.

If the following language in the written portion of the policy, viz: "on a four-story warehouse. First floor occupied by machinery used for making barrels, with privilege of storing barrels on the premises," &c., constitutes an agreement between the parties, not looking merely to the inception of the policy, but continuing during the period which the insurance covers, it would seem to be clear that the establishment of a box manufactory, with its saws and carpenter's bench on the second floor, and the manufacture of large quantities of boxes and brush blocks, was a clear and substantial violation of the contract. The first question, then, which the case presents is, what is the true meaning of this clause in the policy. This Court has recently decided, in the case of the Washington Ins. Co. vs. Kelly, 32 Md.  [**2]  , 421, that a policy of insurance is not in its construction to be taken most strongly against the insurer, but is to be construed, like other contracts, with a view to the ascertainment of the true meaning and intention of the parties.

Could it have been the intention of the parties here, that this clause should be regarded as mere description, and that the insured should be at liberty, the moment after the policy was signed, to introduce machinery on all the floors of the warehouse, for any manufacturing purposes he might think proper? The mode and the extent in and to which the warehouse should be occupied by machinery for such purposes, were material to the risk, and therefore the representation on that subject was a continuing representation, which by its incorporation in the policy became a warranty. Mead vs. Ins. Co., 3 Selden, 530; Lee vs. Ins. Co., 3 Gray, 583; Wood vs. Hartford Ins. Co., 13 Conn., 533-544; Stetson vs. Mass. Ins. Co., 4 Mass., 337; Jennings vs. Chenango Mutual Ins. Co., 2 Denio, 75; Murdock vs. Chenango Mutual Ins. Co., 2 Comstock, 210; 1 Phillips on Ins., sec. 866; Sillem vs. Thornton, 3 Ell. & Black., 868, in 77 E. C. L. Rep.

If the manufacture [**3]  of boxes falls within the trade or business of a carpenter, as was held by the Court below, and the written clause of the policy is to be construed in connection with the printed stipulation in reference to that trade, the question then presents itself, what is the true construction of the words "appropriated or used," as found in that stipulation? If machinery, &c., were placed on the second floor for making boxes, and used for that purpose from time to time, as suited the convenience of the manufacturer, then there was an appropriation of part of the building for the purpose of such manufacture; and so long as the machinery, &c., remained there, with the intention on the part of the manufacturer so to use it from time to time, such appropriation of the building continued. It would be a very narrow construction to hold that the machinery must be in actual use at the moment of the fire, in order to give the insurer the benefit of this stipulation. Such a construction, instead of giving meaning to all the words used by the parties, would throw out the word "appropriated," and give effect only to the word "used." If the use of the machinery had been finally and permanently abandoned,  [**4]  a different case would have been presented, but the proposition involved in the prayers of the appellant presents the case, not of such an abandonment, but of machinery set up and kept up, and used and to be used from time to time, as the ordinary course of business in that manufacture required.

It will not be questioned that the insured is responsible for the acts of his tenant in this matter. Howell's Ex'rs vs. Balt. Eq. So., 16 Md., 386, 387; Clarke vs. Man. Ins. Co., 2 Wood. & Min., 472, 489, 494.

Henry E. Kennard and S. Teackle Wallis, for the appellees.

Even if the written clause in the policy had stood disconnected from the printed provisions above, it would have imported no warranty that the premises should not be put, during the running of the insurance, to any other uses than those indicated by its language. If the proposition of the appellants' counsel to the contrary were true, then there was an obligation on the appellees not only not to apply the premises to other purposes, but not to abandon their use for the named purposes. The failure to continue the warranted uses, would have been as much a breach of the warranty as the substitution of other and different [**5]  uses, even although such cessation had greatly diminished instead of increasing the risk.

The clause in question is really nothing more than a description of the existing employment of the premises, coupled with a permission, as to their future use in the way of storage. So far as the permission is concerned, that of course imports no warranty, as this Court has expressly decided. Md. Fire Ins. Co. vs. Whiteford, 31 Md., 221.

So far as the description goes, it imposed no obligation but that of truthfulness and good faith. It was a statement of the then character and occupation of the premises, as required by the printed conditions of the policy, and there is no pretence that it was not a true statement. New England Fire & M. Ins. Co. vs. Wetmore, 32 Ill., 221, 243, 245; Smith vs. Merch. & Traders' Ins. Co., 32 N. Y., 402; O'Neill vs. Buffalo Fire Ins. Co., 3 Comst., 124; Blood vs. How. F. Ins. Co., 12 Cush., 472; Cattin vs. Springfield F. Ins. Co., 1 Sumn., 442; Lounsbury vs. Protective Ins. Co., 8 Conn., 467; Pim vs. Reid, 46 E. C. L., 1; Budd vs. Fairmaner, 21 E. C. L., 218; Leggett vs. AEtna Ins. Co., 10 Richardson (Law,) 202; Smith vs. Merchants' Ins. Co., 29 Howard,  [**6]  (N. Y.,) 384; Lycoming Ins. Co. vs. Mitchell, 48 Pa., 372; Stokes vs. Cox, 1 Hurls. & Nor., 320, 533.

But the written clause does not stand alone. It is to be read with and interpreted by the printed clause in regard to increase of risk, which follows it in the body of the policy, and even if it were a warranty, its meaning and effect would be governed and limited by that clause. The printed clause enumerates certain employments and uses of the most hazardous character, and then provides that if the premises shall be diverted to any such, during the running of the policy, and without the consent of the underwriters, the policy shall cease and be of no effect, "so long as the said premises shall be wholly or in part appropriated or used for any or either of the purposes aforesaid." Budd vs. Fairmaner, 21 Eng. C. L., 218; Blood vs. How. Fire Ins. Co., 12 Cush., 472; Stokes vs. Cox, 1 Hurls. & Nor., 320, 533.

Apart from this clause, the effect of diverting the premises to any of the more hazardous uses enumerated, would have been to deprive the insured of the right to recover, only in case the loss was produced in whole or in part by such dedication. Jolly vs. Equitable Ins.  [**7]  Co., 1 H. & G., 295; Allen vs. Mutual Ins. Co. 2 Md., 128; Washington Fire Ins. Co. vs. Davidson, &c., 30 Md., 102.

Under the clause, the underwriters were released by the mere application of the premises to the more hazardous uses, without regard to the non-connection of the latter with the loss, provided the loss should occur during such application. The underwriters thus relieved themselves from the necessity of proving that the increased risk contributed to the loss, if they could show that the fire happened pending such risk. This was what they gained by the introduction of the printed clause, and nothing more.

The policy is to be taken altogether, and it imports that if the premises should be used for or appropriated to any more hazardous employment than that described in writing, and a loss should happen, pending such employment, the insured could not recover at all, if the employment was one of those excepted, and if it was not, they could not recover, unless the occupation contributed to the loss. The right to increase the risk was given, subject only to the penalty of having the policy suspended meanwhile.

Use and appropriation, in the printed clause referred [**8]  to, mean actual present use or appropriation--such as expose the premises to the increased risk provided against. The clause looks to and allows a more hazardous use with a suspension of the policy pending such use. It does not contemplate a forfeiture. When the use ceases actually, so that the risk ceases, the suspension of the insurance ceases and the assured recovers his rights under the policy. Md. Ins. Co. vs. Whiteford, 31 Md., 228.  

JUDGES:
The cause was argued before BRENT, MAULSBY, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*229]  BRENT, J., delivered the opinion of the Court.
This action is brought upon a policy of insurance, issued on the 28th of March, 1867, by the United States Fire and Marine Insurance Company of Baltimore, to Kimberly Bros., by which the company agreed to insure them against loss and damage, to the amount of eight thousand dollars, "on the 

 [*230]  four-story brick warehouse, situate on Wide Water street, near Church street, Norfolk, Va. First floor occupied by machinery, used for making barrels, with privilege of storing barrels on the premises, and other merchandise not more hazardous. Steamboiler encased in brick about ten feet from building.  [**9]  " This portion of the policy was written, and upon it arises the principal question presented by this appeal.
The policy also contains the following clause: "In all applications for insurance of property, the applicant must furnish an accurate and just description of the same, viz: of what materials each building is constructed; whether occupied as a private dwelling or how otherwise; where situated; the name of the present occupier; how situated with respect o other buildings. And in the insurance of goods, wares and merchandise, the place where the same are deposited to be described; also, a general description of such goods, and whether any manufactory is carried on in the premises; all of which is to be certified and attested in such manner as the nature of the case may admit. And if any person or persons shall insure his or their building or goods, and shall cause them to be described in the policy otherwise than they really are, so that the same be charged at a lower premium than would otherwise be demanded; or if such description be false or fraudulent, such insurance shall be void and of none effect."
The premises had been leased on the 1st of February, 1867, for two [**10]  years, to the firm of Baird & Roper, and at the time of issuing the policy, were used for no other purpose than those described in the written part of it. Subsequently, small circular saws and a work bench were introduced in the second story for the purpose of making boxes, and had been used for that purpose in the season, which was spring, summer and early fall; but this description of work had ceased, and no boxes had been made for from two to four months before the fire. The circular saws and work-bench were left, however, in the building, and evidence was offered, tending to show 

 [*231]  that the work was to be resumed at a future time. A lathe had also been put up, the day preceding the night of the fire, for the purpose of making broom-handles and brush-blocks, but had never been used.
The appellants insist, that the written portion of the policy is a continuing warranty, and that it was broken by the introduction of the manufacture of boxes upon the premses, during the running of the insurance.
There can be no doubt, from the apparent conflict of the authorities which have been cited, that it is sometimes very difficult to determine whether the stipulations in a policy [**11]  are descriptive only, or are intended by the parties, that the premises should continue to be used in the manner designated and in no other. But in the present case, we think the intention is very clear, and that the written portion of this policy is nothing more than a warranty in proesenti. The second clause of the policy, which we have quoted, requires the applicant for insurance to describe with accuracy the building to be insured--how occupied, the materials of which it is constructed, and where and how situated with respect to other buildings. If the description is untrue, so that a lower premium is charged than would otherwise be demanded, the policy is thereby rendered void. The use, to which this building was appropriated, that of manufacturing barrels, is among those excepted in the printed portion of the policy, and its statement was an essential part of the description to enable the insurers to fix the amount of premium to be paid for the risk. Had it been omitted, the description would have been imperfect; and as that use was continued up to the time the fire occurred, no recovery for the loss could have been had upon the policy. The clause certainly requires a [**12]  true and accurate description of the use and occupation of the property under the penalty of forfeiture, and if such description is not in the written portion, it is no where to be found in any other part of the policy. Courts are not disposed to favor a warranty by construction, and if the terms used are fully satisfied 

 [*232]  as a description, they will not be extended to include a warranty, unless it is clearly expressed that such was the design and meaning of the parties. These views are sustained by authorities entitled to great consideration. In the case of Blood vs. Howard Fire Ins. Co., 12 Cushing 472, the policy being upon a building "of wood, two stories high, formerly used as a machine shop, all of which business is now stopped and shop fastened up, and only used for the purpose of the meeting of the band, during two evenings of the week, on the second floor," it was held to be a description of the building, and not a warranty of its future use or occupation. In the case of Smith vs. Mechanics' & Traders' Ins. Co., 32 N.Y. 399, the policy was upon a "two-story framed building, used for winding and coloring yarn, and for storage [**13]  of spun yarn, with the machinery and fixtures in it," it was held, as the terms of the clause were fully satisfied as a description, they would not be construed to be a continuing warranty of future use. To the same effect are the cases of O'Neil vs. Buffalo Fire Ins. Co., 3 Comst. 122; Billings vs. Tolland County Mutual Fire Ins. Co., 20 Conn. 139; Catlin vs. Springfield Ins. Co., 1 Sumn. 434, 5 F. Cas. 310, and Joyce vs. Maine Ins. Co., 45 Me. 168. The cases in 2 Denio 75, and 3 Seld. 370, relied upon by the appellant in this case, are referred to by the Court in their opinion, in 32 N.Y. 399, and held not to be in conflict with the decision in that case.
There is another clause in the policy before us, which furnishes very conclusive proof, that the parties never understood or designed the written portion in question to be anything more than a warranty of present use. In that clause "it is agreed and declared to be the true intent and meaning of the parties hereto, and of these presents, that in case the above mentioned premises shall, at any time [**14]  after the making and during the time this policy would otherwise continue in force, be appropriated or used for the purpose of carrying on or exercising the trade, business or vocation of soap-boiler, tallow-chandler, brewer, malster, baker, rope-maker, sugar-refiner, 

 [*233]  distiller, chemist, varnish-maker, paper-maker, stable-keeper, tavern-keeper, china, glass or earthenware seller, oil and colorman, printer, bookbinder, cooper, carpenter, cabinet-maker, coach-maker, boat-builder, ship-chandler or apothecary, or any manufactory which requires the use of fire-heat, or shall be used for the purpose of storing therein gunpowder, hemp, flax, oils, pitch, tar, rosin, turpentine, spirits of turpentine, aqua fortis, straw, hay, grain unthrashed, fodder, distilled spirits, or other hazardous goods, for theatrical or other public exhibitions, steam-engine used or undergoing repairs, then and from thenceforth, so long as the said premises shall be wholly or in part appropriated or used for any or either of the purposes aforesaid, these premises shall cease and be of no force or effect, unless otherwise specially agreed by this corporation, and such agreement be signed in writing [**15]  in or on the policy." If the parties understood that the terms of the policy had already warranted against other use of the property insured, it is not perceived why this special agreement should have been entered into. There was substantially a similar clause in the policy in the case in 12 Cushing 474, already referred to. The Court says in regard to it, "this leaves no room for doubt that the sole object of the warranty in question was to ascertain the precise nature and condition of the property at the time the risk was proposed to the defendants in the application of the plaintiff, and enable them to judge of its extent and character, and the rate of premium at which they would insure it. But it is clear that they did not rely upon it as an executory stipulation, by which the plaintiff was to be bound after the contract was entered into. To guard against any increase of risk which might arise in the structure or use of the property, they relied upon a special agreement, designed for that purpose only. If they relied on the warranty, such an agreement was superfluous and useless." This reasoning applies with equal force to the case before us. But further, the two [**16]  clauses are inconsistent, if the first is to be taken as a warranty of future use, for the second does not avoid the 

 [*234]  policy absolutely by the use or occupation of the premises by any of the prohibited trades, but only suspends it during such use or occupation. They cannot both stand together with the interpretation contended for by the appellant. The only manner in which they can be recited, is by construing the first to be a present warranty of the condition of the property at the time of the application for insurance, and the second as the sole special agreement between the parties in reference to its future use. And this construction, giving efficacy to each part of the policy, we think is the correct one.
There is no doubt, that under the stipulations of the policy the insured could not have recovered, if the premises had been appropriated or used at the time of the fire, in the manufacture of boxes, as that occupation is embraced in the terms "trade, business or vocation of a carpenter." The parties, however have contracted that such prohibited use destroys or suspends the force and effect of the policy only so long as the premises shall be appropriated or used [**17]  for any of the prohibited purposes. The plain meaning of the language employed is, not that the policy is rendered void to all intents and purposes by such prohibited use or occupation, but that it is to have no force or effect only during the time the premises are so used. Or in other words that it is then suspended. When therefore the use ceases to exist, the policy is again in full force, and the insured restored to all his rights under it. New England Fire & Mar. Ins. Co., 32 Ill. 221.
But it has been argued that the building in question was in fact appropriated at the time of fire to a prohibited use, inasmuch as the saws and work-bench, which had been used for the manufacture of boxes, still remained in the building to be again used for that purpose. This is not such an appropriation as is contemplated by the policy. The thing guarded against by its stipulations is increased risk, and this would be occasioned only by a present use and occupation of the building in carrying on and conducting the prohibited manufacture. So soon as there was a suspension or abandonment of 

 [*235]  it, as there had been in this case for some months, the risk ceased. We [**18]  do not think, therefore, that there was any such use or appropriation of the building, at the time of its destruction by fire, as will prevent a recovery upon this policy. These views cover the propositions presented in the several prayers offered, and it results from them, that the Court below properly rejected the prayers of the defendant, and granted the one offered by the plaintiffs.
Judgment affirmed. 

37 of 142 DOCUMENTS 

EDWARD WORTHINGTON vs. LEONARD J. TORMEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 182; 1871 Md. LEXIS 49 

February 23, 1871, Decided 

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

This action brought by the appellee against the appellant, was instituted in the Circuit Court for Baltimore County, was removed upon the application of the plaintiff to the Superior Court of Baltimore City, and thence at the instance of the defendant, removed to the Circuit Court for Carroll County. The plaintiff who was a broker transacting business in the city of Baltimore, received from the defendant on the 9th of March, 1868, an order to purchase for him two hundred shares of stock of the Canton Company--a stock on the New York Stock Board--not to exceed $ 64.50 per share; in compliance with that order the plaintiff on the same day, telegraphed to Gray, Prince & Co., of New York, brokers, and bought the stock as directed. At the time of the purchase, Gray, Prince & Co., were carrying on a margin for the plaintiff, eight hundred shares of the same stock.

On the following day, notice of the purchase was sent by mail to the defendant, at Reisterstown, in Baltimore County, his proper post office. Some days afterward the defendant called at the office of the plaintiff and refused to recognize the transaction, but requested [**2]  him to do nothing with the stock until he (the defendant) could see Edward F. Jenkins. The plaintiff held on to the stock until the 17th instant; on that day he met the defendant in Baltimore, who, according to the plaintiff's testimony, said "he would have nothing to do with the transaction," but in his own testimony stated that "nothing was said on the subject." Immediately after the interview the plaintiff went to his office and wrote to the defendant, notifying him that he would sell the stock, without naming the place of sale, on or after the 19th instant, unless the defendant deposited with him before that time sufficient and satisfactory margin; the plaintiff also stated that he was prepared to deliver to the defendant, or his order, two hundred shares of Canton Company's stock, on the tender of the amount of the purchase money, commission and interest, and would hold the stock subject to his order, until the 19th inst. This letter addressed to the defendant at Reisterstown, was handed to the postmaster in Baltimore, who enclosed it in an envelope directed to the postmaster at Reisterstown, stating that the writer requested that he would note its delivery to the person addressed.  [**3]  The letter reached Reisterstown on the following day, but was not received by the defendant until the 24th instant. In the absence of any response to the letter of the 17th instant, the plaintiff, on the 21st, sold the stock in New York, through Gray, Prince & Co., at $ 46 a share. The defendant was not known to Gray, Prince & Co., in the transaction; they looked alone to the plaintiff for the losses. The plaintiff had in his possession on the 21st of March, two certificates of stock of the Canton Company, each for one hundred shares, ready to be delivered to the defendant.

This action was brought by the appellee to recover from the appellant the difference in the price of the stock, and the amount at which it was sold, together with his commission and interest.

First Exception: At the trial the plaintiff offered to read the evidence taken under a commission sent to New York, and properly executed and returned, and which was contained in the transcript of the record transmitted from the Superior Court; to the reading of this evidence the defendant objected; the Court overruled the objection and the defendant excepted.

Second Exception: The plaintiff offered the following [**4]  prayers:

1. If the Jury shall find from the evidence, that the plaintiff was a stock broker in Baltimore, and that the defendant, on the 9th of March, 1868, authorized him to purchase on his account two hundred shares of Canton Company's stock, and shall find that the place where said stock was ordinarily bought and sold, was at the Stock Exchange in New York; and shall further find, that the plaintiff therefrom actually purchased two hundred shares of said stock through his subagents, Messrs. Gray, Prince & Co, stock brokers in New York, and at a price not exceeding the price limited by the defendant, and that the defendant did not supply the plaintiff with funds to make said purchase, and that the plaintiff had funds and credit with his sub-agents which were applied by them in making said purchase; and if they shall further find, that the defendant, on the next day after the purchase, was informed of said purchase, and that the plaintiff notified the defendant, on the 17th of March, 1868, by letter addressed to him at his proper post office, that he was ready to deliver to him two hundred shares of Canton stock, so purchased on his account, and that unless he came forward and [**5]  paid for it, he, the plaintiff, on or after the 19th of March, 1868, would sell said stock at the risk and cost of the defendant; and they shall further find, that the plaintiff had ready for delivery to the defendant such stock, and that he did sell, on the 21st of March, 1868, at the public Stock Board in New York, two hundred shares of said stock, for and at the risk of said defendant, and that after applying the whole proceeds of said sale, there was a loss upon the said original purchase, which said loss the plaintiff did pay to his sub-agents, then the plaintiff is entitled to recover the amount of said loss, or difference in price, together with his reasonable commission for the purchase and the expenses of said re-sale.

2. That if the jury shall find, that the defendant resided near Reisterstown, in Baltimore county, and the plaintiff in Baltimore city, and that there was a daily mail from Baltimore to Reisterstown, which was the proper post office of the defendant, and that the plaintiff deposited in the post office in Baltimore, on the 17th of March, a letter containing the notice mentioned in the first prayer, then the said notice was sufficient, notwithstanding the [**6]  fact, that it was not received by the defendant until the 24th of March, 1868, and after the sale.

3. If the jury shall find that the plaintiff made a purchase of two hundred shares of stock on account of the defendant, as stated in the first prayer; and shall further find, that the defendant had notice thereof on the day after the purchase, and that he failed to call and pay for the same, and that on the 17th of March, 1868, he repudiated the purchase and refused to be bound thereby, then the plaintiff was at liberty, without further notice to him, to cause the stock to be sold at the defendant's risk, and to charge him with the loss on said re-sale.

The following prayers were offered by the defendant:

1. That if the jury find that the plaintiff, in 1868, was a stock broker, doing business in Baltimore city, and that on the 9th day of March, 1868, the defendant called at his office and directed him to buy two hundred shares of the stock of the Canton Company, at a price not exceeding $ 64.50 per share, and that the plaintiff in execution of said order, the same day telegraphed to Gray, Prince & Co., stock brokers, residing in New York city, directing them to buy two [**7]  hundred shares of Canton stock, at a price not exceeding $ 64.50 per share, and that the same day they purchased that amount of Canton stock at the price named, and that said Gray, Prince & Co., at the time, had a large general account with said Tormey, buying and selling stock for him, and were carrying stock for him, including six hundred other shares of Canton stock, upon a margin of from 5 to 10 per cent., and that said two hundred shares of Canton stock was not set apart or designated for said defendant, but was carried by Gray, Prince & Co., for the plaintiff, as his other Canton stock was, and charged in said plaintiff's general account; and if they find that all the Canton stock so held by Gray, Prince & Co., including said two hundred shares, was sold by said Gray, Prince & Co., at the time and for the price named in the evidence of John D. Prince, and that said Gray, Prince & Co., the first of each month rendered accounts to said plaintiff of their dealings, and continued to do so until the 19th of November, 1868, when they had a final settlement with said plaintiff, and that no money was paid or advanced by said plaintiff, except what was paid as margins, from time to time,  [**8]  to protect said Gray, Prince & Co., to said Gray, Prince & Co., and was applied and credited to the general account and credit of said plaintiff, then he cannot recover in this case.

2. That there is no evidence of any money having been paid by the plaintiff, prior to the institution of this suit, for or on account of the defendant, under circumstances which will entitle him to recover in this case.

3. That even if the jury find that on the 17th day of March, 1868, the plaintiff held two hundred shares of the stock of the Canton Company, which he had only purchased for the defendant and by his authority, and find that on that day plaintiff wrote the letter offered in evidence, dated 17th of March, 1868, and addressed it to the defendant at Reisterstown, and that plaintiff delivered said letter in person to the postmaster at Baltimore, on that day, informing him it was an important letter, and that he wished the postmaster at Reisterstown to note its delivery to the person addressed, and that in consequence of said directions said letter was enclosed in an envelope with the note to the Reisterstown postmaster, offered in evidence and mailed March 17th, 1868, and that according [**9]  to the postmaster's custom, when important letters were received, the letter was not sent with the defendant's mail, but a message sent by some neighbor, that there was a letter at the office for him which he could not get unless he came and receipted for it. And if they find that defendant lived about sixteen miles from Baltimore city, and about four miles from Reisterstown, which was his post office, and that they have a daily mail at Reisterstown, and a letter mailed in Baltimore on the 17th would reach Reisterstown on the 18th of March; and if they find that the defendant sent very irregularly for his mail, sometimes at intervals of three or four days, and if they find that he did not in fact receive said letter until March 24th, 1868, and if they find said stock had been sold by said plaintiff on the 21st of March, 1868, then said sale was made without a reasonable and proper notice to the defendant, and the plaintiff cannot recover in this case.

4. That if the plaintiff was justified in treating the two hundred shares of Canton Stock as the defendant's, the notice sent him was an unreasonable and insufficient one.

5. That if the stock was bought by the plaintiff without [**10]  authority of the defendant, or at a higher price than was named, there can be no recovery in this case.

6. That if the defendant authorized the plaintiff to purchase the stock, and in execution of the order the stock was purchased, it was the duty of the plaintiff to have notified the defendant of said purchase with all reasonable diligence, and without such notice defendant would not be bound to accept the stock.

7. If the jury find from the evidence that specific instructions were given by the defendant to the plaintiff on the 9th of March, 1868, that in the event of the purchase of the stock in the evidence mentioned, the plaintiff should immediately communicate the fact of purchase to the defendant, and informed the plaintiff where to send the notice; and if they shall further find that the said stock was purchased on the said 9th of March by the plaintiff, and that the plaintiff did not communicate the fact of purchase immediately to the defendant, according to the order and instructions of the defendant, then the defendant was not required to take said stock.

8. That it was the duty of the plaintiff to use all reasonable diligence to notify the defendant of his [**11]  intention to sell said stock in time to enable him to protect himself, and the letter of March 17th would not be sufficient notice, if on the 17th, at the time the plaintiff formed the intention to sell, as afterwards, during that day, he knew the defendant was in Baltimore, and he could, by the exercise of reasonable diligence, have served notice on him personally on that day.

The Court granted the first and second prayers of the plaintiff, and rejected his third prayer, and granted the fifth and seventh prayers of the defendant, and rejected his first, second, third, fourth, sixth and eighth. The defendant excepted to the granting of the first and second prayers of the plaintiff and to the rejection of his first, second, third, fourth, sixth and eighth prayers, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence -- Practice in the Court of Appeals -- Objection to a Prayer -- Purchase and Sale of Stock -- Sufficiency of Notice of the sale of Stock by a Broker.

In an action instituted in the Circuit Court for Baltimore County, a commission to take testimony was issued and duly executed and returned. Subsequently the cause was removed to the Superior Court of Baltimore City, and a transcript of the commission and return with the depositions taken thereunder, were transmitted to said Court. Afterward the cause was removed to the Circuit Court for Carroll County, and a transcript of said commission and depositions were sent to said Court. Upon a trial of the cause in the Circuit Court for Carroll County, it was HELD:

That the commission and return, with the depositions taken thereunder, formed a part of the proceedings in the cause, and a transcript thereof was admissible in evidence.

An objection to a prayer that there was not sufficient evidence to support it. will not be heard in the Court of Appeals, unless it appear that the objection was distinctly made to, and decided by the Court below.

A stockbroker in the city of Baltimore, on the 9th of March, 1868, at the request of W, residing near Reisterstown, in Baltimore County, purchased two hundred shares of the Canton Company's Stock, through his agents, brokers in New York, at $ 64.50 a share, which did not exceed the price limited by W. At the time of the purchase, the brokers in New York were carrying on a margin for the broker in Baltimore, eight hundred shares of the same stock. On the day following the purchase, notice thereof was sent through the mail addressed to W, at Reisterstown, his proper post office A few days afterward W called at the office of the broker and refused to recognize the purchase, but requested him to do nothing with the stock, until he, W, could see J. On the 17th of March, W in an interview with the broker repudiated the purchase, and on the same day, subsequently, the broker wrote to W notifying him that he would sell, without stating the place of sale, the shares of stock, on or after the 19th instant, unless a sufficient and satisfactory margin was deposited before that time. He at the same time stated that he was prepared to deliver the shares of stock to W, or his order, upon a tender of the amount of the purchase money, commission and interest. This letter addressed to W at Reisterstown, was handed to the postmaster in Baltimore, who enclosed it to the postmaster at Reisterstown, stating that the writer requested that he would note its delivery to the person to whom it was addressed. The letter reached Reisterstown on the following day, but was not received by W, until the 24th instant. The stock was sold in New York at W's risk on the 21st instant at $ 46.00 per share. In an action against W, by the broker to recover the difference in the price of the stock and the amount at which it was sold, together with his commission and interest, it was HELD:

1st. That it was not necessary that the stock which was purchased for W, should have been kept separate from other stock of the Canton Company, which belonged to the broker, or that it should have been marked so as to designate it as belonging to W.

2d. That if the stock were bought for W, and the broker or his agents had it in possession so that it could be delivered to W, upon his paying what was due therefor, the broker had done all that was required of him, and he was entitled to be paid the price of the stock and his commission, whether he himself had paid for the stock or not.

3d. That the letter of the 17th of March, addressed to W, at his proper post office. informing him that the stock would be sold after the 19th instant was a sufficient notice to bind him notwithstanding he was in the city of Baltimore on that day, and a personal notice might, by the exercise of reasonable diligence, have been served upon him.

In the case of a sale of stock by a bailee, it is not obligatory upon him to give notice to the bailor of the place of sale. 

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

At the trial the plaintiff did not produce the original commission and depositions, nor a copy thereof, but offered to read from the transcript sent from the Superior Court of Baltimore City, what purported to represent said depositions, and notwithstanding the objection [**12]  of the defendant, the Court allowed it. For this, there was no authority in law. The depositions formed no part of the record of proceedings in the cause, properly so called. The commission and depositions are collateral to the action--just as much so as if the commission had been issued out of the Court of Chancery in the exercise of the general jurisdiction in chancery. The statute, indeed, expressly puts the depositions so taken upon the footing of depositions obtained by the aid of a Court of Chancery. Code, Art. 37, sec. 15; 2 Story Eq. Jur. sec. 1513, note: Attorney Gen. vs. Ray, 2 Hare, 518.

The appellee never put himself in a condition to insist on holding the appellant responsible upon the alleged purchase of stock. Although an order was given to Gray, Prince & Co. to buy two hundred shares, not only were the latter not notified that the purchase was made on account of the appellant, but the appellee neither paid for them, nor had he such control of them as to be able at pleasure to deliver them to his principal. They were not unconditionally at his disposal, but were merely carried by Gray, Prince & Co. upon a margin. They in effect stood pledged to Gray, Prince & Co.  [**13]  , to secure the liabilities assumed on the running account between them. To entitle the broker to insist, as against his principal, upon having bought the stock for him, he must show that it is in condition to be immediately transferred to the latter, without anything more being required to be done on his own part as between himself and third parties. Rosenstock vs. Tormey, 32 Md., 169; Bostock vs. Jardine, 3 Hurls. & C., 700.

The appellee could not sell without notice. And notice means actual and personal notice, and such notice as affords the principal a reasonable opportunity of intervening to prevent the sacrifice of his property. To allow any thing different would be to authorize "a breach of good faith and common honesty." Ritter vs. Cushman, 35 How. Pr. R., 285; 7 Robertson, 294; Milliken vs. Dehon, 27 N. Y., 370; Brass vs. Worth, 40 Barb., 648; Mallory vs. Lord, 29 Barb., 454; Mackham vs. Jandon, 41 N. Y., 235, (2 Hand.); Taylor vs. Ketchum, 5 Rob., N. Y., 507.

In the present case, no notice at all was given. The letter which is relied on as having the effect of notice, was not received until the third day after the shares were disposed of. But had it been received [**14]  at the earliest possible moment, the opportunity for putting up a margin after receipt thereby afforded to a gentleman residing in the country, sixteen or twenty miles off--a few hours at the utmost--would not have been reasonably ample even in a person in Baltimore, on the spot.

The letter, as a notice of sale, was defective in not giving time and place. Genet vs. Howland, 45 Barb., 560; Wilson vs. Sittle, 2 Comstock, 44; Stearns vs. Marsh, 4 Denio, 231; Lewis vs. Graham, 4 Abbott, 106; Dykers vs. Allen, 7 Hill, 498; Davis vs. Funk, 39 Penn., 250; Richards vs. Davis, 7 Amer. Law Reg., 483; Diller vs. Brubaker, 52 Penn., 498; Stevens vs. Hurlbut Bank, 31 Conn., 146; Washburn vs. Pond, 2 Allen, 474; Sitgreaves vs. Farmers & Meehanics' Bank, 49 Penn., 359.

Orville Horwitz and William M. Merrick, for the appellee.  

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

OPINIONBY:
GRASON 

OPINION:

 [*192]  GRASON, J., delivered the opinion of the Court.
The first exception was taken to the ruling of the Court below, by which it permitted the evidence, taken under the New York commission, to be read to the jury from the transcript of the record. The commission [**15]  and return, with the evidence taken thereunder, formed part of the proceedings in the cause, and in transmitting the record, the clerk of the Court did right in also sending a transcript of them as part of the proceedings, and they were therefore admissible in evidence.
The second exception was taken to the granting of the first and second instructions of the appellee, and the rejection of the first, second, third, fourth, sixth and eighth prayers of the appellant. Two objections were urged to the first instruction--first, that there was no sufficient evidence of the readiness of the appellee to deliver the stock to the appellant, to authorize the Court to submit that question to the jury; and the second, that the notice to the appellant of the intended sale of the stock was insufficient.
1st. It does not appear that the first objection was taken to the prayer at the trial and decided by the Court below. The fourth rule of this Court, adopted under authority of the 18th section of the 4th Article of the Constitution, provides that this Court shall not deem an instruction defective because it has submitted a question of law to the jury, and that no question shall arise in this Court [**16]  as to the insufficiency of evidence to support any instruction actually granted, unless it appear from the record that an objection on that ground was distinctly made to, and decided by, the Court below. The first objection to the first instruction comes too late, therefore, when made for the first time in this Court, it not appearing to have been made in the Court below. But even if it could now be entertained in this Court, we think that there was evidence on that point sufficient to be submitted to the consideration of the jury.
The appellee offered evidence tending to prove that he had, at the request of the appellant, purchased for him in the New 

 [*193]  York stock market, on the 9th of March, 1868, through Gray, Prince & Co., agents of the appellee, two hundred shares of the stock of the Canton Company, at $ 64.50 per share, the price limited by the appellant, and that notice of the purchase was sent by mail to him the following day, to his post office in Baltimore county; that said shares of stock were kept in the possession of the agents of the appellee, in the city of New York, until the 21st day of March, when they were sold at the Stock Exchange in that city, for $  [**17]  46 per share, by direction of the appellee, for the purpose of satisfying the debt to him thus incurred. There was also proof to show that the appellee had in his possession, in the city of Baltimore, on the 21st day of March, two certificates of stock of the Canton Company, each for one hundred shares, ready to be delivered to the appellant. From this proof, the jury was at liberty to find that the appellee was ready to deliver to the appellant the two hundred shares of Canton stock, and they did in fact so find. It was not necessary that the stock, which was purchased for the appellant, should have been kept separate and apart from other stock of the Canton Company which belonged to the appellee, or that it should have been marked so as to designate it as belonging to the appellant. If the appellee bought the stock for the appellant, and either he or his agents had it in possession, so that it could be delivered to the appellant upon his paying what was owing for it, everything that was required of the appellee had been done, and he was entitled to be paid the price of the stock and his commission.
2d. The other objection to this instruction (and it was also urged to the second,  [**18]  ) is, that the notice to the appellant of the sale of the stock at his risk was insufficient, and therefore, that the appellee had no right to make the sale. There was testimony before the jury tending to prove that, on the 13th of March, the appellant requested the appellee to do nothing with the stock until he could see Mr. Jenkins, and that on 

 [*194]  the 17th of March, the appellant told the appellee in Baltimore that he repudiated the transaction, and would have nothing to do with the stock. The appellee then wrote the letter dated the 17th of March, 1868, which is set out in the record, addressed to the appellant at Reisterstown, Baltimore county, it being the post office of the appellant, and handed it to the postmaster at Baltimore, and stated to him that it was of great importance to the writer, and requested the postmaster to see that it was delivered to the person to whom it was addressed. The postmaster sent it under cover to the postmaster at Reisterstown by mail, stating that the writer requested that he would note its delivery to the person to whom it was addressed. The letter reached Reisterstown on the 18th, and was delivered to the appellant on the 24th of March,  [**19]  three days after the sale of the stock had taken place. A notice of the dishonor of a promissory note, sent by mail to the indorser at his post office, will bind him, although he never receives it; and we can see no reason why a notice sent to a bailor in the same way, to inform him of a sale of his pledge, consisting of stocks of this description, should not be a sufficient notice to bind him also. The notice in this case was handed to the postmaster, with the request that he would see that it was delivered to the person to whom it was addressed. This manner of having the notice sent, was adopted out of abundant caution, and, no doubt, with the best motives. The party to whom it was intrusted, was an officer of the government, whose especial duty it was to see that all letters mailed in Baltimore should be sent with despatch, and this letter did in fact reach Reisterstown on the 18th of March, the day after it was mailed.
It could not have arrived at that place any sooner, if it had been put into the post office by the appellant and sent off without being inclosed in a letter to the postmaster at Reisterstown. It does not appear in the proof, that the appellant either sent, or went [**20]  himself to his post office for his mail between 

 [*195]  the 18th and 24th of March, or that he was an hour later in receiving this notice, by reason of its having been sent under cover to the postmaster at Reisterstown. We, therefore, are of opinion, that there is no force in the objection urged to the manner of sending the notice. But it was also contended, that it was insufficient by reason of its not naming the place where the stock would be sold. There was evidence tending to prove that Canton stock was for sale only at the New York Stock Board, and that the appellant had knowledge of that fact, and, therefore, it was not necessary to name the place of sale in the notice, even if, in the sales of other kinds of stocks held in pledge, it is necessary to do so. But we think, that in the case of sales of stock by bailees, it is not obligatory upon them to give notice to the bailors of the place of sale. In cases of sales of some kinds of pledges, such as heir-looms, plate, and other articles of like character and description, which possess a peculiar value to the owner, or which cannot readily be replaced, it is right and necessary to give notice to the bailor of both [**21]  the time and place of sale, in order that he may have an opportunity of redeeming his pledge, or attending the sale and protecting his interests. But the same reason does not apply to cases of sales of stocks. One share is exactly similar to, and of the same value as another of the same company, and can be purchased easily and readily if desirable. For these reasons, we think that the first and second instructions were correct.
The views we have already expressed with regard to the notice of the sale, are sufficient to show that the third and fourth prayers of the appellant were properly rejected. The first prayer denied the appellee's right to recover, unless the jury should find that the stock was purchased and set apart, or designated for the appellant, and that the appellee actually paid the money for it; and the second prayer asks the Court to instruct the jury that there was no evidence of such payment, prior to the institution of the suit, as was sufficient to entitle the appellant to recover. We have already shown 

 [*196]  that it was not necessary that the stock, which was purchased for the appellant, should have been marked in his name or otherwise designated or set apart [**22]  for him, but that it was only necessary that it should have been in the possession of the appellee or his agents, ready for delivery. Nor was it necessary that the appellee should have actually paid the money for the stock to enable him to recover from the appellant. If he had funds or credit with his agents, through whom the purchase was made, and they made the purchase upon his credit and held him liable for the price, and charged him with it in their account with him, he was entitled to maintain his action against, and to recover from, the appellant. There was no error, therefore, in rejecting the appellant's first and second prayers.
The instruction asked by his sixth prayer had already been granted substantially in the instructions granted at the appellee's instance, and, therefore, the refusal to grant the instruction asked, forms no ground for the reversal of the judgment.
The eighth prayer stated, as a proposition of law, that if the appellee knew that the appellant was in the city of Baltimore on the 17th day of March, at the time the appellee formed the intention to sell the Canton stock, and afterwards during that day, it was his duty to serve the notice of the intended [**23]  sale upon him personally, if he could have so served it by the exercise of reasonable diligence. The proof in the cause shows, that the parties met in Baltimore on the 17th of March, and had some conversation, and that the appellee went to his office and wrote the letter of the 17th of March, and then tried to find the appellant, but without success. There is no proof in the record to show that the appellee knew that the appellant remained in the city of Baltimore after the time when they met on the corner of the street, where the conversation between them took place, or that he did in fact remain in the city after that time. But even if the appellee had knowledge that the appellant was visiting 

 [*197]  the city that day, he was not compelled to serve a personal notice upon him then. Hysinger vs. Baltzell, 3 G. & J. 158. This prayer was also properly rejected. We concur in the rulings of the Court below, and its judgment will be affirmed.
Judgment affirmed. 

38 of 142 DOCUMENTS 

JACOB J. BANKARD vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 197; 1871 Md. LEXIS 50 

February 23, 1871, Decided 

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

The case is sufficiently stated in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice -- Liability of Common Carriers modified by Special Contract -- Presumption of Negligence

The Court may properly refuse to allow the plaintiff's counsel to argue a case before the jury, where there is no evidence in the cause legally sufficient, from which they could legitimately find a verdict for the plaintiff.

B entered into a contract with the Baltimore and Ohio Railroad Company, for the transportation of certain live stock over its road, and in consideration of a reduction in the charge for freight, agreed to "release the railroad company from any and all claims which might arise for damage or injury to staid stock, whilst in the cars of the company, or for delay in its carriage, or for escape thereof from the cars, and generally from all claims relating thereto; except such as might arise from the gross negligence or default of the agents or officers of the company acting in the discharge of their several official duties." In an action by B, against the railroad company to recover damages for certain cattle, which were lost and injured in their transportation over its road, it was HELD:

1st. That by the contract the burden was imposed on the plaintiff of proving not merely that the live stock was injured and damaged by accident and delay occurring in their transportation, but also that these were caused by the gross negligence or default of the defendant's agents.

2nd. That the fact that some of the cattle were injured and lost by accidents on the railroad, while in the course of transportation, that considerable delays occurred in their carriage, and that they were damaged and lessened in weight and value from this cause, does not raise the presumption of negligence or default on the part of the agents of the railroad company within the meaning of the contract.  

COUNSEL:
William C. Schley and William Schley, for the appellant.

The defendant, under the Act of 1835, chapter 395, sec. 14, was bound by duty, to provide sufficient cars and engines at every depot, for the prompt transportation of all lading that might be offered; and the fact, that they had not sufficient, was prima facie evidence of neglect of duty.

The defendant had established a time table, and delay on the road in transportation, was prima facie evidence of neglect. It behooved the defendant, by clear proof, to excuse the delay. No such proof was adduced.

The contract with the Government of the United States, by which they acquired a preference in transportation, furnishes no excuse to the defendant. It is not the same as if the road had been seized by military power. Upon entering into that contract, the defendant should have made ample provision for the performance of its duty to the public; or, at least, should show that, upon deliberation, they honestly concluded, that such provision as they were making, would be ample and sufficient,  [**2]  or that it was impossible to procure a larger supply than they had actually provided, after due efforts.

The first prayer of the plaintiff raised the question as to the effect of the paper, called a release, signed by Porter, and which related to the third lot of cattle. It affirms, that if the jury should find negligence and misconduct, on the part of the defendant, its servants and agents, resulting in the infliction of the damage specified, that said paper was no bar to recovery.

This prayer ought to have been granted. There was evidence to go to the jury of negligence and misconduct, even of gross negligence and actual misfeasance. The paper is not a release. If it can operate, at all, it can only operate as a special agreement. It is, on its face, void on grounds of public policy, where a common carrier is sued, upon his common law liability, or upon his statutory duty. In a case, where the suit is founded on the special agreement itself, as the sole cause of action, the plaintiff is bound by its provisions. He cannot claim under it, and against it. McCann vs. Balto. & O. R. R. Co., 20 Md., 202. The defendant's prayer concedes that negligence, if proved, would have charged [**3]  defendant; but it asserts that there was no evidence of negligence. Even if gross negligence was necessary it is covered by the word misconduct; which implies misfeasance--not mere negligence, which might be, simply, non-feasance; but wilful wrongful action. Phillips vs. Clarke, 89 E. C. L. Rep., 156; Hinton vs. Dibbin, 2 Adl. & Ell. N. S., 646, (42 Eng. C. L. Rep., 849;) Redfield on Carriers, &c., secs. 28, 40, 152 to 167, and 168 to 179; 1 Parsons on Contracts, 711 n. (h.;) Angell on Carriers, sec. 245; 2 Greenl. on Ev., sec. 215.

The defendant's prayer is very comprehensive and open to many objections. It applied to the whole case; covered all the evidence, and all inferences which the jury might freely draw from the evidence, and denied in toto the plaintiff's right to recover.

Upon analysis of the prayer, it will be seen, that it assumes, as matter of law, that the defendant is not responsible, for any negligence or want of care, in preparation for transportation; but only for negligence in transportation; that the burden of proof of such negligence is on the plaintiff; and that there was no evidence to justify the jury, in finding a verdict for the plaintiff. It says [**4]  nothing of the effect of the paper called a release; nothing as to the preference accorded to the Government in transportation; nothing as to the insufficiency of cars and engines; nothing as to the collision.

The occurrence of delay, in prompt transportation, threw on the defendant the burden of proving, that it was not the result of negligence in preparation; or of negligence in actual transportation, on the road.

The occurrence of a collision is prima facie evidence of negligence, and requires explanation; and all persons, in the service of the company should be produced to show the facts, to overcome this presumption of fault,

John H. B. Latrobe, for the appellee.

The obligations of a common carrier may be modified by special contract. This is settled law. In this case these obligations were modified for a valuable consideration.

Had the plaintiff, in the absence of any special contract, paid the ordinary rates of transportation, the receipt of the defendants for the cattle loaded on their cars would have bound them as insurers; and so far as delay was involved, the question whether it was an unreasonable delay or not, under all the circumstances, would [**5]  have been an open one before the jury. But the plaintiff waived his rights in this respect, in consideration of a reduction in the rates. He took the case out of the category of carriers' contracts at common law. He placed it on the footing of any ordinary contract, and before he could recover, it was incumbent on him to prove a failure of the defendants in some one particular to come up to the full measure of their obligations.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, GRASON and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*200]  BARTOL, C. J., delivered the opinion of the Court.
The appellant, plaintiff below, claims damages in respect of four lots of cattle transported for him on the railroad of the appellee.

 [*201]  In lieu of formal pleadings the case was tried under an agreement, and statement of facts set out in the record.
After the evidence was concluded the plaintiff offered three prayers which were rejected, and the defendant one prayer which was granted; and upon application by the counsel for the plaintiff for leave to argue the case before the jury, the Court below refused such application upon the ground that there was no evidence in the cause legally [**6]  sufficient, from which the jury could legitimately find a verdict for the plaintiff.
Thereupon the plaintiff excepted to the rulings of the Court.
By granting the defendant's prayer, the Court instructed the jury "that by the contract between the plaintiff and the defendant, the defendant was only liable for a loss occasioned by negligence in the carrying of the cattle alleged to have been lost or injured; and that the burthen of proof of such negligence was on the plaintiff, and that there was no sufficient evidence to go to the jury to justify their finding a verdict for the plaintiff."
After giving this instruction to the jury, there was nothing left for discussion before them; and consequently there was no error in the Court's refusing to allow the plaintiff's counsel to argue the case before the jury. But the question presented by the appeal is whether there was error in granting the defendant's prayer.
It appears from the evidence that the contract between the parties in this case, was not the ordinary contract of a common carrier; but a special contract whereby the liability of the defendant was modified and limited. This is evidenced by papers, signed and sealed by the [**7]  plaintiff or his agents, called Releases and were delivered to the defendant at the time when the several lots of cattle were placed on the cars for transportation. These releases were in the following terms:
"J. J. Bankard having this day loaded into the cars of the Baltimore and Ohio Railroad Company, numbered *** 

 [*202]  the following live stock, viz. *** and the said railroad company having agreed to charge freight upon said live stock only at the rate of $ 80 for sixteen thousand pounds or less, instead of the first-class rate as fixed by the tariff of said company, I do hereby, in consideration of the said reduction of charge for freight, agree to release and do release the said railroad company from any and all claims which may or might arise for damage or injury to said stock whilst in the cars of said company, or for delay in its carriage, or for escape thereof from the cars, and generally from all claims relating thereto; except such as may arise from the gross negligence or default of the agents or officers of the said company acting in the discharge of their several official duties."
The terms of this paper are very broad and comprehensive, and materially [**8]  affect the rights of the parties in this suit. It is well settled that the obligations of a common carrier may be modified by special contract, as was decided in McCann vs. Baltimore & Ohio R. R. Co., 20 Md. 202; and in N. J. S. N. Co. vs. Merchants' Bank, 47 U.S. 344, 6 How. 344, 382, 12 L. Ed. 465; and York Co. vs. Central R. R., 70 U.S. 107, 3 Wall. 107, 18 L. Ed. 170.
By the Act of 1830, ch. 117, a supplement to the charter of the defendant, it is expressly authorized to make special contracts, "on such terms as may be agreed on by the parties" for the transportation inter alia "of horses and other living animals." There can be no question, therefore, as to the legality and binding force of the special contract made with the plaintiff in this case, whereby, for a valuable consideration, he released the defendant from liability for damage to the stock arising from accident, delay in transportation, or other causes, "except such damage as may arise from the gross negligence, or default, of the agents or officers of the said Company acting in the discharge of their several official duties." The effect of this contract [**9]  is to impose on the plaintiff the burden of proving, not merely that the live stock was injured and damaged by accident and delay occurring in the transportation, but also that these were caused by the gross 

 [*203]  negligence or default of the defendant's agents. 47 U.S. 344, 6 How. 344, 12 L. Ed. 465. In this last respect, we think, there was an entire failure of evidence, and that the Court below was right in so instructing the jury.
The proof in the cause is that four lots of cattle were carried for the plaintiff, from the Ohio river to Baltimore, one in February, 1863, and the others in March, April and May, 1864. That some of them were injured and lost by accidents on the railroad while in the course of transportation, that considerable delays occurred in carrying the cattle, and that they were damaged and lessened in weight and value from this cause.
But these facts do not raise the presumption of negligence or default on the part of the agents of the railroad company within the meaning of the contract. Those were risks which the plaintiff assumed, and for which he agreed the railroad company should not be responsible, unless they resulted from negligence [**10]  or default on the part of its agents. To establish this responsibility direct proof was necessary, or such facts and circumstances should have been shown, causing and accompanying the accidents and delays, as tended to fix upon the defendant's agents the charge of negligence or default. No such evidence is to be found in the record. On the contrary, all the proof explaining the causes of the accidents so far as any evidence on this subject was furnished, failed to establish negligence, or to make a case in which the presumption of negligence could legally arise. The fact that cars became detached or broke loose from a train on a summit, and running back collided with the train below injuring the plaintiff's cattle, is not of itself proof of gross negligence. Nor are the other facts that on one occasion a wheel broke causing damage; on another, the train ran off the track in turning round a curve, a car wheel having broken; and on another, that a collision occurred; of themselves, unaccompanied with other evidence, showing that they were caused by the neglect or default of the defendant's agents, sufficient 

 [*204]  to bring the case within the exception in the contract, so as to [**11]  render the defendant responsible. The same may be said of the delays that occurred in the transportation. By the terms of the contract, the defendant was relieved from liability for the consequences of delay, unless it arose from gross negligence, of which there is no evidence whatever. These transactions took place during the late civil war, when as the proof shows, transportation on the Baltimore and Ohio Railroad was constantly liable to interruption, not only from Confederate raids, but also by the necessary employment of the road, with its equipment, in the service of the United States Government. According to the evidence, the delays of which the plaintiff complains were owing altogether to these causes. These were well known to the plaintiff at the time he made his contracts, and he assumed upon himself the risks of such delays, and has no right to visit their consequences upon the defendant. Finding no error in the rulings of the Court below upon the prayers, the judgment will be affirmed.
Judgment affirmed. 

39 of 142 DOCUMENTS 

GEORGE SNYDER vs. CHARLES C. FULTON and ALBERT K. FULTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 128; 1871 Md. LEXIS 43 

February 21, 1871, Decided 

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

The facts are sufficiently given in the opinion of the Court. At the trial below the plaintiff offered the following prayers, which were rejected, and the instructions set out in the opinion of the Court given instead:

1. If the jury believe from the evidence that there was an unlawful and felonious assault committed, as set out in the declaration of the plaintiff, that the defendants made and published in the city of Baltimore, on the 14th of October, 1868, the article set out in the said declaration; and that the plaintiff was designated by that article, as acting in collusion with and in aid of the parties committing said assault, that then, under the pleadings in the cause, they must find a verdict for the plaintiff.

2. That by the pleadings in this case, the defendants admit that the plaintiff is not guilty of the charge alleged in the libel and set out in the declaration, and that all the evidence given by the defendants in regard to the conduct of the plaintiff in taking the vote, and his behavior towards members of the Republican party, is evidence not to defeat the plaintiff's right to recover a verdict as set [**2]  out in the first prayer, but was received, and is only to be considered by them as offered by the defendants for the purpose of endeavoring to mitigate and diminish the amount of the damages that the plaintiff is entitled to recover, if the jury find a verdict in his favor under said first instruction.

3. That if under the preceding instruction the jury should find a verdict for the plaintiff, then he is entitled to recover such damages as the jury may find he sustained from the loss of his position as newsboy on the Baltimore and Ohio Railroad; provided the jury shall find that he lost his position as a direct consequence of said publication; and in addition to the special damages, such other damages as the jury may award him as resulting to him directly from said publication; and if the jury should further find that the said publication proceeded from ill-will to the plaintiff, that then the jury may award to the plaintiff vindictive or punitory damages.

4. That if the jury find that the plaintiff, at and previous to the publication of the libel, as set out in the declaration, was a newsboy engaged in crying and selling newspapers and periodicals on the cars between Baltimore [**3]  and Washington; and that amongst the papers so cried and sold by him, was a paper called the La Crosse Democrat; and that the crying and sale of said paper was considered offensive and insulting by certain parties; and that it was in allusion to such crying and sale, that the defendants charged that in the said libel the plaintiff took every occasion to insult Republican passengers; and that, after the publication of the card of plaintiff, read in evidence, if the jury should find that said card was published, and that defendants had notice thereof, the said defendants failed to retract the said libellous publication; and that on the 1st of October instant, the plaintiff re-published the substance of the said libel without any explanation and retraction whatsoever; that then these facts are to be considered by the jury, in determining whether the defendants were actuated by ill-will towards the plaintiff, in publishing the libel aforesaid; and if the jury find such ill-will, then the plaintiff is entitled to recover vindictive damages, if the jury find the facts set out in the first instruction.

5. If the jury find from the evidence in this case, that the libel complained of in [**4]  the declaration was false and without probable cause, so far as relates to the plaintiff, then such falsehood and want of probable cause, are evidence of express malice towards the plaintiff.  

DISPOSITION:
Judgment reversed, and new trial ordered.  

HEADNOTES:

Libel -- Words actionable per se -- Liability of Editors of newspapers -- Measure of damages.

In a publication in a newspaper, it was asserted that S, a newsboy, "takes every occasion to insult Republican passengers," that he "appears to have been in collusion with ruffians," and that "on approaching the city he went around (in the cars) to take a vote of the passengers, the object being evidently to spot the Republicans, that the assailants might know who were their friends and who their opponents." On suit for libel, it was HELD:

1st. That these words published were in themselves libellous, and entitled the person charged to maintain an action.

2d. That this publication did not come within any of the classes designated by the law as privileged publications or communications.

In a libel suit the plaintiff is entitled to recover such damage as the jury may find he has sustained as the direct consequence of the publication. If the publication proceed from express malice or ill-will, the jury may award such exemplary or punitive damages as they may think the facts of the case justify.  

COUNSEL:
M. A. Mullin and Robert J. Brent, for the appellant.

The publication of a libel charging another with an indictable offence, is of itself actionable. 1 Starkie on Slander, 39, 40.

Independently of the charge of a crime at common law, the alleged collusion with the mob engaged in the felonious assault of travellers at night, would render the plaintiff liable to fine and imprisonment under the local law. Code of Public Local Laws, Art. 4, sec. 155.

An action lies for written words exposing a man to public hatred, ridicule or contempt, even without proof of special damage. 1 Kent's Comm., 620, 621.

The Court, in its instructions to the jury, erred in the question of privileged communications, and particularly in ascribing to the defendants, as publishers of a public newspaper, peculiar privileges in discussing, not only public events, but the actions and motives of individuals charged with crimes.

The instruction means that [**5]  the defendants, as editors of a newspaper, are privileged to libel an individual because evildoers have committed crimes and are not punished, provided their comment on the facts as reported to them was fairly and bona fide made "pro bono publico," although it implicates an innocent party, or is based on false information.

It is true, the Judge speaks of the right and duty of editors to publish the facts which come to their knowledge constituting the crime, and if the charge only meant to say that if the defendants had published the real facts which came to their knowledge, then they would not be liable, it would still be erroneous, as justification had not been pleaded. Rigdon vs. Wolcott, 6 G. & J., 413; Hagan vs. Henry, 18 Md., 191; 2 Greenleaf's Evid., sec. 275; Wolcott vs. Hall, 6 Mass., 514.

Even when an editor has the privilege of making fair criticism, it is held "that the privilege does not extend to calumnious remarks on the private character of the individual. Heriot vs. Stuart, 1 Esp. Cases, 437; Townsend on Slander, note, 1312.

The newspaper press has no more privileges in an assault on private character, than an individual would have. The measure of liability [**6]  is the same in one case as another, as shown in Townsend on Slander, secs. 252, 254, 255; Campbell vs. Spottiswoode, 8 Law Times Rep., N. S., 201, 3 Fost. & Fin., 421; Sheckell vs. Jackson, 10 Cush., 25; Dole vs. Lyon, 10 Johnson, 450; Woodgate vs. Ridout, 4 Fost. & Fin., 217; Darby vs. Ouseley, 36 Eng. Law and Eq., 527; Hedley vs. Barlow, 4 Fost. & Fin., 228.

On the question of damages the instruction of the Court was an emanation of the error pervading its instruction on the question of privilege. Townsend on Slander, secs. 198, 290.

Henry Stockbridge, for the appellees.

The law does not require publishers to be infallible. If they act in good faith, and with reasonable prudence, the publication is privileged, even though prompted by malice. White vs. Nicholls, 3 How., 286, 291; Cook vs. Hill, 3 Sandf., 341; Gathercole vs. Miall, 15 M. & W., 319; Kelley vs. Tinling, Law Reports, 1 Queen's Bench, 699; Wason vs. Walter, Law Reports, 4 Queen's Bench, 73; Risk Allah Bey vs. Whitehurst, 18 Law Reporter, N. S., 615.  

JUDGES:
The cause was agued before BARTOL, C. J., BRENT, GRASON, ALVEY and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*132]  BARTOL, C. J., delivered the opinion of the [**7]  Court.
This is an appeal by the plaintiff, who recovered a judgment below; and being dissatisfied therewith, asks for a reversal for certain alleged errors in the ruling of the Superior Court, in refusing to grant his several prayers, and in the instruction given to the jury.
The suit is for the publication of an alleged libel, in "The Baltimore American," a newspaper of which the defendants are editors, proprietors and publishers. The plaintiff's occupation was selling newspapers and periodicals on the railway trains between Washington and Baltimore. The alleged libel was contained in an article published in "The American," the whole article was given in evidence. After stating that passengers passing through Baltimore from Washington, on their way to Philadelphia, had been, on several occasions, assaulted and beaten by ruffians, and that the repetition of 

 [*133]  such outrages reflected discredit on the Police Department as well as on the Railroad Companies; it then refers to a particular instance in which such an outrage had been committed on a Mr. Clary, a passenger, at the President Street Depot, in Baltimore, and commenting thereon, states that "the object of this brutal [**8]  outrage was to prevent Republican clerks, and others temporarily employed in Washington, from going to Philadelphia to vote;" then adds the following, which constitutes the libellous matter complained of by the plaintiff, and set out in the declaration:
"A young man on the Washington train, who is engaged in selling papers, and who takes every occasion to insult Republican passengers, appears to have been in collusion with the ruffians. On approaching the city he went around to take a vote of the passengers, the object being evidently to spot the Republicans, that the assailants might know who were their friends and who their opponents. The scheme was successful, and on passing through the city, an ex-police officer of Washington pointed out the victims, who had unwittingly proclaimed their political predilections in favor of Grant and Colfax." The declaration alleges as special damage, that he lost his situation as newsboy in consequence of the publication, and also claims for general damages. The defendants plead "that they did not commit the wrong alleged," upon which issue was joined.
After the evidence on both sides had been concluded, the Court below rejected the five prayers [**9]  offered by the plaintiff, and instructed the jury as follows:
"To entitle the plaintiff to recover in this action, the jury must find that the writing, set out in the declaration, was published by the defendants, of and concerning the plaintiff. But if they shall also find that at or just previous to the time of the said publication, the peace of the city was repeatedly disturbed, and the rights of private persons traveling on their own lawful business between Washington and Philadelphia, violently and unlawfully invaded and violated 

 [*134]  by evil doers, who were not arrested nor punished, as detailed in the evidence, then it was the right and duty of the defendants, as publishers of a public newspaper, to publish the facts which came to their knowledge, constituting the said crime, and to comment thereon with such severity of rebuke as a flagrant breach of the peace deserves; and such statement and comment, if fairly and bona fide made with a view to the public good, was a privileged communication, free from the legal presumption of malice which attends a libellous publication not privileged; and the plaintiff is not entitled to recover. But, in order to entitle the defendants [**10]  to a verdict upon the ground of privilege, the jury must find that they were actuated by proper motives, exercising reasonable prudence in the ascertainment of the facts, and had reasonable grounds to believe the statement made by them was true, and that they made the same without malicious motives."
"If, under these instructions, the jury shall find a verdict for the plaintiff, then they are at liberty to give compensatory damages for such injury as the plaintiff may have proved himself to have sustained; and if they find express malice on the part of the defendant, or the absence of good faith or reasonable prudence, then they may give such exemplary damages as they may think such a state of case justifies."
We think there was error in these instructions, both in respect to the nature and extent of privilege ascribed to the defendants, and in the rule of damages laid down for the jury. There can be no doubt or question that the defamatory words set out in the declaration are, in themselves, libellous, and if published of and concerning the plaintiff, entitle him to maintain the action, unless the defendants are protected from liability by reason of some privilege accorded to them [**11]  by the law. To make defamatory words actionable per se, when they are written or published, it is not necessary that they should charge a party with a crime or offence which would subject him to indictment or ignominious punishment. There is a broad and just distinction, in this respect, between 

 [*135]  spoken words and words written or published. Chancellor KENT says, 1 Comm., 620: "Expressions, which tend to render a man ridiculous, or degrade him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken. So, if they tend to injure his reputation and expose him to public hatred, contempt or ridicule."
This proposition was laid down by Justice BAYLEY, in McGregor vs. Thwaites, 3 Barn. & Cres. 33. It has been affirmed, in many other cases, some of which are cited in the notes in Kent's Commentaries, above referred to, and was recognized and affirmed by the Supreme Court in White vs. Nicholls, 44 U.S. 266, 3 How. 266, 11 L. Ed. 591.
As was said by Justice DANIEL, in the case last cited: "The principle of the law always implying injury, wherever the object or effect [**12]  is the exposure of the accused to criminal punishment or to degradation in society."
The defamatory words here charged being per se actionable; the question arises, whether the publication comes within the class designated as privileged, so as to entitle the defendants to exemption from liability for the consequences, even though the charge prove to be untrue; provided they made it in good faith, believing it to be true, and had reasonable grounds for that belief, after exercising reasonable prudence in the ascertainment of the facts. This seems to have been the view of the law taken by the Court below, and embodied in the instruction given to the jury. The privilege accorded to the defendants is supposed to grow out of the fact that they were publishers of a public newspaper, and as such, had certain duties to perform towards the public which entitle them to be protected from liability to the plaintiff. In our judgment, the Court below has extended the doctrine of privilege farther than is warranted by authority, or consistent with sound reason and public policy. It seems to us that the publication before us, in so far as it contained charges against the plaintiff, does not come [**13]  within any of the classes designated 

 [*136]  by the law as privileged communications or publications. These have been very well defined by the Supreme Court in White vs. Nicholls, 44 U.S. 266, 3 How. 266, 286, 287, 11 L. Ed. 591; it is unnecessary to repeat them here; and is sufficient to say that, in our judgment, they do not apply to the present case, or entitle the defendants to the protection claimed on the ground of privilege. We do not propose here to define the exact limits of the protection which the law throws over the publishers of newspapers. In respect to them, it is said by TOWNSEND, in his work on Slander and Libel, "it is argued that the exigencies of the business of a newspaper editor, demand a larger amount of freedom. That circumstances do not permit editors the opportunity to verify the truth, prior to publication, of all they feel called upon to publish, and that they should not be responsible for the truth of what they publish. Some concessions have already been made to these arguments. At present, the law takes no judicial cognizance of newspapers, and independently of certain statutory provisions, the law recognizes no distinction [**14]  in principle between the publication by the proprietor of a newspaper and a publication by any other individual," and for this the author cites, Davison vs. Duncan, 36 Eng. L. & Eq. R. 218; Campbell vs. Spottiswoode, 8 Law Times Rep., N. S., 201, S. C., 3 Fos. & Fin. 421; we may add to these Behrens vs. Allen, before ERLE, C. J., at nisi prius, 3 Fos. & Fin. 136.
In Sheckells vs. Johnson, 10 Cush. 25, it was held by the Supreme Court of Massachusetts, "that a newspaper proprietor is not privileged as such in the dissemination of news, but is liable for what he publishes in the same manner as any other individual."
We have examined the cases of Kelly vs. Tinling, Law Rep., 1 Queen's Bench, 699; Wason vs. Walter, 4 id., 73, and Risk Allah Bey vs. Whitehurst, 18 Law Rep., N. S. 615, cited and relied on by the appellees' counsel in the argument in support of the privilege claimed for the defendants in this case. But, in our opinion, they do not support the position for 

 [*137]  which they have been cited. In Kelly vs. Tinling, it was held that there was a lawful privilege in a church [**15]  warden to discuss publicly the use to which an incumbent had put the vestry room. In Wason vs. Walter, a like privilege was ascribed to the proprietor of a newspaper, to make a faithful report of a debate in the House of Lords; and it was held, that although it might contain matter disparaging to the character of an individual, it was not actionable. But the publication is privileged on the same principle as an accurate report of proceedings in a Court of Justice is privileged, viz: that the advantage to the community at large outweighs any private injury resulting from the publication. The case of Risk Allah Bey vs. Whitehurst, was decided on the same principle. That related to a publication of the proceedings of a Court of Justice.
The opinions in these cases were rendered by the very able Chief Justice COCKBURN, and commend themselves to our admiration and approval, not less for the soundness of the legal propositions therein asserted, than for the clear and forcible manner in which they are expressed. The proposition which they maintain is, that any man, editor or private citizen, has a right honestly to discuss all matters of public interest, and to comment on and criticize [**16]  fairly the public acts of official persons. Such a proposition we do not for a moment question. So far as the publication before us was confined to the statement of the riotous and violent assaults upon passengers, and reflected upon the delinquency of the police authorities and other officials, if made in good faith and upon reasonable grounds of information, the case comes within well-recognized principles, and the publication is, to that extent, privileged. But such privilege does not extend to the right of charging the plaintiff, a private citizen, with having been in collusion with the ruffians and wrongdoers, and aiding them in selecting the victims of their intended violence, by "spotting the Republicans" for that purpose.

 [*138]  Such a charge is not within the editor's privilege; he makes it upon his responsibility as any other citizen, and is bound to establish its truth by his pleading and proof, or to answer to the party for the damage and injury he may suffer in consequence of the charge.
The rule of damage in such action is, that the plaintiff, if the verdict is found in his favor, is entitled to recover compensation for such damage as the jury may find he sustained [**17]  as the direct consequence of the publication; and if the jury should find from the evidence that the publication proceeded from express malice or ill-will to the plaintiff, then the jury may award to him such exemplary or punitive damages as they may think the facts of the case justify.
The instruction of the Court below, we think, did not state the rule with clearness and precision, and was calculated to mislead the jury. It follows, from what has been said, that in our opinion the first, second, third and fifth prayers of the plaintiff below ought to have been granted, and it was error to reject them. The fourth prayer, we think, was properly refused, for the reason that the subsequent publication by the defendants offered in evidence, and referred to in the prayer, did not, according to a fair construction of its terms, contain a repetition of the libel complained of; and it would have been error to instruct the jury that it was evidence of actual malice on the part of the defendants.
The judgment must be reversed and a new trial ordered.
Judgment reversed, and new trial ordered. 

40 of 142 DOCUMENTS 

WILLIE SWAN, by her next Friend, CATHERINE SWAN, and others, vs. WILLIAM F. FRICK, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 139; 1871 Md. LEXIS 44 

February 21, 1871, Decided 

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

Robert Swan died 6th of August, 1835. By his will he named James Swan and Dr. Smith, his executors, and made them devisees in trust, for certain specified purposes, of all his estate, charging it with the payment of his debts, and authorizing them to sell the real estate for that purpose. In the will he directed "that at the arrival of" his "sons to the age of twenty-one, then all the trusts, charges, and all the rights and powers of said trustees, and the trust and charge aforesaid for the support of my said wife shall cease and determine." The executors accepted under the will, and James Swan acted as executor and trustee. In this capacity he sold portions of the real estate to pay the debts, and stated certain accounts with the Register of Wills, by which he claimed to have made large over-payments for the estate from his own funds.

Subsequently, in 1851, after all of the children of Robert Swan had attained the age of twenty-one, James Swan filed a bill, for himself and other creditors, to have the residue of the real estate of Robert Swan, deceased, sold for the payment of the debts still remaining unpaid. A [**2]  decree was thereon passed appointing Thomas Perry to sell certain parcels of land. The sale was made accordingly and reported to the Court, James Swan being named as purchaser in the report. The sale was duly ratified by the Court. Before the deed of conveyance was made by the trustee, James Swan died. His devisees, the appellees, then filed a petition in the cause asking that the trustee be directed to convey to them as such devisees. An order to this effect was made and the deed was executed in pursuance thereof.

Some time afterward a bill was filed by the appellants citing these facts, and charging, among other things, that James Swan, being a trustee, could not purchase at the sale of the trust property; that the sale was for an insufficient consideration; that the purchase made by James Swan was for and on behalf of and as agent for the appellants, descendants of Robert Swan; and that James Swan held the property in trust for the appellants. The evidence to show that James Swan made the purchase for the appellants was contained in certain letters which are sufficiently set out in the opinion of the Court.

The Court below dismissed the bill, and from this decree the present [**3]  appeal was taken.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Voluntary Trusts.

Courts will not establish a trust on the voluntary agreement of the settlor, made without consideration, when at the time the settlor contemplated some further act for the purpose of making it complete.  

COUNSEL:
Jervis Spencer and Wm. Schley, for the appellants.

There was a plain declaration of a trust at the time of the purchase, and confirmed afterwards by the bidder, one of the defendants in this case, the son and agent of James Swan. The telling of the attorney of the infant complainant, that he bid to save the property for her, very naturally put him off his guard and prevented his taking the necessary steps to prevent the sacrifice of the property. If any consideration were necessary, (but it was not,) this was a good consideration, and it would be inequitable to deprive the complainants of the benefit of the assurances thus given. 1 Greenleaf's Ev., sec. 322; Lewin on Trusts, 30, 44.

As respects this property, Mr. Swan had an express trust under the will; but even if the doctrine, in case of an express trust, do not apply, still it is a clear case of constructive trust; and the Statute of Limitations cannot apply, certainly not as to Willie Swan, nor as to any of the appellants. Hill on Trustees, 264; Wedderburn vs. Wedderburn, 2 Keen, 722.

E. Wyatt Blanchard and Wm. F. Frick, for the appellees.  

JUDGES:
The cause was argued before [**4]  BARTOL, C. J., BRENT, MAULSBY, MILLER and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*141]  ROBINSON, J., delivered the opinion of the Court.
No question can arise, we think, in regard to the period of time fixed for the termination of the trusts created under the will of the late Robert Swan. The testator expressly declares "that at the arrival of all my sons to the age of twenty-one, then all the trusts, charges, and all the rights and powers of said trustees, and the trust and charge aforesaid for the support of my said wife shall cease and determine," and there is nothing to be found in the will either precedent or subsequent to this provision, from which it can be inferred that the testator intended under any circumstances that the trusts should continue beyond the period thus specifically designated.
The purchase by James Swan of the real estate mentioned in the proceedings was subsequent to this time, that is after the arrival at the age of twenty-one years of the three sons of Robert; and it cannot, therefore, be assailed on the ground of any supposed relation of trustee and cestui que trust. This view makes it unnecessary to decide, whether the complainants are precluded from [**5]  relying on this objection, by the decree of the Circuit Court of Allegany County, under which the property was sold.
But it was also urged, that there was a plain declaration of a trust at the time of the purchase, and confirmed afterwards by John Swan, one of the defendants, the son and agent of James Swan. The only evidence in support of this alleged trust is to be found in a letter from John Swan to his cousin, Robert, dated the 29th of April, 1856, in which he says:
"At the pressing instance of the creditors of John, Charles and yourself, Judge PERRY was forced to offer at public sale, 

 [*142]  all the property of your father's estate to satisfy the claims against it. In order to know what residue of property the above parties had thus purchased, I was present to represent my father, and then, for the first time, heard of the sheriff's proceeding against your interest. Before going, however, I saw Mr. William Price, as guardian of Willie, and informed him that it was not my intention to purchase a foot of the property, unless I saw it about to be knocked off for a very song, in which case only, I would purchase; and that whenever he could effect a sale, or I could effect one,  [**6]  at proper prices, all excess should go to the rightful owners, as I did not desire or intend to speculate upon my own connections, and that, therefore, in buying I was really rendering a service, by keeping the property for them, rather than suffering strangers to wrest it from them." These assurances, we are told, were calculated to mislead Mr. Price, the guardian of Willie, and to prevent steps from being taken to guard against the sacrifice of the property. How far a trust might be sustained as against John Swan on the ground of fraud, if it appears that relying on his promises the complainants, or their agent, had been induced not to bid for the property, and in consequence thereof, he had been enabled to buy the property at a sacrifice, it is unnecessary for us to determine. These facts are not averred in the bill, nor is there a tittle of evidence to be found in the record from which they can be inferred.

It does not appear that the complainants, or Mr. Price, the guardian, ever intended to bid for the property, or that relying on the promises thus made by John Swan, they forbore to take any steps calculated to prevent a sacrifice of the same. In fact there is nothing in [**7]  the record to show that the property did not sell for its market value. The sale was reported to the Court by the trustee, and ratified without objection, and it is averred in the answer of John Swan and not denied, that at no time since the purchase has it been possible to resell the land at an advance sufficient to cover the taxes thereon 

 [*143]  and the necessary expenses. Stripped then of all badges of fraud, the Court is called upon to establish a trust upon the voluntary agreement of the settlor, made without consideration, and who at the time contemplated some further act, for the purpose of making it complete. It can hardly be necessary to cite authorities to show that under such circumstances a trust cannot be sustained. Lewin on Trusts, 81, marg.; Bayley vs. Boulcott, 4 Russell 345; Lister vs. Hodgson, 4 Eq. Cases 30.
But it was further insisted that this alleged declaration of trust was confirmed by John Swan, and thereby became executed, and the following paragraph in the letter above referred to, is relied on in support of this position:
"Under this understanding with Mr. Price, I became the purchaser of Shandy Hall, at [**8]  $ 2 per acre, and the undivided third interest in 'Skipwith,' for about the same, such interest in these tracts as you have not sold yourself, is thus by my act saved to you; but this alone remains to you." Now in answer to this it is sufficient to say, that at the time this letter was written, John Swan had no interest whatever in the property, and that the declaration thus made by him was neither authorized, assented to nor subsequently ratified by his father, who had been returned by the trustee as the purchaser of the property. It surely will not be contended that a declaration thus made can operate so as to change an inchoate, incomplete voluntary executory trust, into an executed trust, binding upon the property in the hands of a party, who neither authorized nor assented to such declaration.
We do not deem it necessary to review the many authorities referred to in the argument, but shall content ourselves by saying that after an examination of them and many others, we have not found a case in which a trust has been established upon the evidence relied on in this record.
For these reasons we think the decree below ought to be affirmed.
Decree affirmed. [**9]  

41 of 142 DOCUMENTS 

COUNTY COMMISSIONERS OF WASHINGTON COUNTY vs. THE FRANKLIN RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 159; 1871 Md. LEXIS 46 

February 21, 1871, Decided 

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

The question involved in this cause was the right of the Washington County Commissioners to levy a tax on certain property, situated in that county, belonging to the Franklin Rail Road Company. The Company claimed exemption from taxation in virtue of certain Maryland statutes. The case was submitted to the Court below on an agreed statement of facts, and judgment was given for the Company.  

DISPOSITION:
Judgment reversed and judgment for appellants.  

HEADNOTES:

Repeal of Special exemptions from Taxation by General Act -- Construction of the Constitutional Requirement that every Law shall embrace One subject, to be described in the Title -- Construction of the Acts of 1853, ch. 135, 1856, ch. 70, and 1866, ch. 157.

The Legislature, by several Acts, incorporated a rail road Company. Under these Acts, the Company claimed to be exempt from taxation. Afterwards, the Company, being in debt, its property was sold under a Legislative Act, which constituted the individuals or corporation purchasing it, a corporate body, made certain material changes in the charter in reference to the location of the road, and reserved to the Legislature the right to withdraw or abrogate all rights and privileges "vested by this or any other Act" in the Company. The purchasing Company accepted this Act by organizing and acting under it. Subsequently, the Legislature passed an Act (1866, ch. 157,) entitled "An Act to provide for the general valuation and assessment of property in this State." In this Act was a clause repealing "all laws exempting property from valuation." HELD:

1st. That the Act of 1866, ch. 157, operated as a repeal of any exemption that may have existed in favor of the Company.

2d. That the repealing clause of this Act did not contravene the requirement of the Constitution that "every law shall embrace but one subject, and that shall be described in its title." 

COUNSEL:
D. H. Wiles, for the appellants.

D. Weisel, for the appellee.  

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

OPINIONBY:
MILLER 

OPINION:

 [*160]  MILLER, J., delivered the opinion of the Court.
The claim of exemption from taxation made by the appellee, rests upon the first clause of the fourth section of the Act of 1836, chapter 79, which provides that "the said Company, in the location, construction and use of its road, shall have and be entitled to the like rights, privileges and immunities granted to and enjoyed by the Baltimore and Ohio Rail Road Company, in the location, construction and use of its road." 

 [*161]  It is insisted,  [**2]  that by force of the terms "privileges and immunities," as here used, the same exemption from taxation was granted to the appellee that had been granted to the Baltimore and Ohio Rail Road Company by the last clause of the eighteenth section of the Act of 1826, chapter 123. But it is not necessary to inquire whether this position be sound, because assuming the exemption claimed once existed, we are of opinion it was repealed, and did not exist at the time these taxes were levied.
The agreed statement of facts shows that State and county taxes for the year 1867 were levied under the Act of 1866, chapter 157, on a ticket office, and warehouse and lot belonging to the appellee, a Company incorporated in pursuance of the Acts of 1836, chapter 79; 1853, chapter 135, and 1856, chapter 70, and organized and in existence in this State. By this, we are referred to these several laws as the source from which the present corporation, whose property is taxed, derives its corporate existence, powers and privileges. From these it appears that, by the Act of 1836, chapter 79, power and authority was given to the Franklin Rail Road Company, a corporation chartered by the State of Pennsylvania,  [**3]  and having a line of road in that State, to construct a rail road from a certain point on the line dividing the two States, to connect with the Baltimore and Ohio Rail Road and the Chesapeake and Ohio Canal, at or near Hagerstown or Williamsport, but not to intersect the Canal more than half a mile west of the latter place. The road was constructed from the State line to Hagerstown, but the Company thereby incurred heavy debts, which they were unable to pay, and their entire road in both States having become greatly dilapidated, laws were passed by each State, appointing commissioners to sell that part of the road within its limits, and providing for distribution of the proceeds amongst the creditors of the Company. The first Act, providing for the sale of the Maryland portion of the road, is the law of 1853, chapter 135, the provisions of which need not be more particularly noticed than 

 [*162]  to state that its eighth section is identical with the sixth section of the second and supplemental Act of 1856, chapter 70. By the fourth section of this latter Act, it is enacted that the purchaser or purchasers, whether individuals or a foreign corporation, when they shall have relaid [**4]  the road as therein provided, shall be and "are hereby declared a body corporate by the name of 'The Franklin Rail Road Company,' with all the powers, franchises and privileges granted" by the two preceding Acts, "and with further power and authority" to construct a railroad "from Hagerstown to and across the Potomac river at any point between" Hancock and Knoxville, thus authorizing a different route and terminus of the road from that prescribed by the original Act of 1836. It is very clear the purchasers constituting the present corporation, called "The Franklin Rail Road Company," derived their corporate name and existence from this latter Act of 1856. For their powers and privileges, reference is made to the two antecedent laws, which, for that purpose, are to be regarded as embodied in and reenacted by this Act. This is their charter by which they were created a body corporate in and under the laws of this State. By accepting it, with the benefit of the additional powers it conferred, and organizing and acting under it, they accepted all its provisions and conditions, including its sixth section, by which it is enacted, "that the Legislature hereby reserves the right to [**5]  alter, amend and repeal the provisions of this supplement, and to withdraw and abrogate all the rights, privileges and franchises vested in the said Franklin Rail Road Company by it or any other Act or Acts of Assembly of this State."
Having thus reserved, in the broadest terms, the unfettered power of alteration, repeal and withdrawal, it was competent for the Legislature to exercise it at any time, in any mode, and to any extent they chose; and by so doing, no obligation of contract is impaired, because it was an express condition of this charter that this power should be exercised at the absolute will and pleasure of the Legislature. Now, the Act 

 [*163]  of 1866, chapter 157, the very law under which these taxes were imposed by its first section, enacts, "that all property, real, personal and mixed, of all kinds and descriptions whatever in this State, shall be liable to valuation and assessment, and shall be chargeable with taxes according to the provisions of this Act," and its thirty-third section contains a clause expressly repealing "all laws exempting property from valuation." Is not this a valid exercise of the power reserved in the Act of 1856, to the [**6]  extent of effecting a repeal or withdrawal of any exemption from taxation that may ever have existed in favor of this corporation? Why not? No more appropriate place could be found for it than in a law providing for taxation of all property in the State. The intent to withdraw all exemptions, expressly subject to repeal, or within reach of legislative power, is manifest from the plain terms of the first section, and the repealing clause. The same thing also appears from the different provisions of antecedent laws on the same subject. The preceding general assessment Act of 1852, chapter 337, contained no clause repealing exemptions, and subjected to taxation only property "now by law liable to be valued and assessed," thus recognizing and protecting all exemptions then existing. Upon the question of intent there is no doubt.
But it is said, this repealing clause contravenes the requirement of the Constitution, that "every law shall embrace but one subject, and that shall be described in the title."
The title, "An Act to provide for the general valuation and assessment of property in this State," is sufficiently comprehensive in description to include a repealing clause of [**7]  this character, and such clause is also clearly within the one subject with which the law professes to deal. This objection is fully answered by the construction given to that constitutional provision in Davis vs. The State, 7 Md. 151; Keller vs. The State, 11 Md. 525; Parkinson vs. The State, 14 Md. 184; and Mayor, &c. of Annapolis vs. The State, 30 Md. 112. It is also urged, that a chartered right cannot be impaired 

 [*164]  or withdrawn except by an act purporting to be a supplement to the charter itself; that good faith and fair dealing on the part of the State towards those enjoying a charter for great public purposes, and involving large investments and interests, requires, in order to effect a valid change or repeal of the charter under a reserved power, an Act specially passed for that purpose, clearly expressing the object by title and in subject-matter. This would be a strong argument addressed to the sense of right and justice of the Legislature, but the Courts have no authority to limit the exercise of legislative power, or the mode in which it shall be exercised, further than a just [**8]  and reasonable interpretation of Constitutional inhibitions and requirements will justify. In most cases, a repeal or modification of essential and usual corporate powers and franchises, can be effected in no other way than by an Act passed for that especial purpose. But, in a case like the present, where no purpose is sought to be accomplished, save the mere withdrawal of an exemption from taxation, the right to withdraw which, at any time, was expressly reserved in the law which granted it, we can see no objection, Constitutional or otherwise, to its being done in an Act making provision for the general taxation of all property in the State, provided the language used is sufficiently plain to manifest a legislative intent to effect that object. Upon this question we have no doubt, and have, therefore, no hesitation in deciding that these provisions of the Act of 1866 effected a valid repeal of the exemption claimed, if any such ever existed.
Resting our decision entirely on this ground, and expressing no opinion upon the construction of the fourth section of the original Act of 1836, we must reverse the judgment appealed from, and enter judgment for the appellants in accordance [**9]  with the agreed statement of facts.
Judgment reversed and judgment for appellants. 

42 of 142 DOCUMENTS 

JOHN MITCHELL, JOHN V. METZELL and PATRICK HEARTY vs. NOAH LEMON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 176; 1871 Md. LEXIS 48 

February 21, 1871, Decided 

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

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Action of Trespass and False Imprisonment -- Arrest without Warrant -- Duty of the Police of the City of Baltimore to arrest persons violating the Health Regulations of the City.

A licensed nightman, in the act of violating certain health regulations of the city of Baltimore, by depositing nightsoil at a place not designated by the Board of Health, was arrested by a policeman during the night, without warrant, under the directions of said Board, and confined in the station-house until the next morning, when he was released on his own recognizance. The nightman, at the time of his arrest, was aware of the order of the Board of Health, designating particular localities for the deposit of nightsoil, but disregarded the order because it cost him more to take the ordure to those places than to the place where he was at the time depositing it. No violence or unnecessary force was used in his arrest and detention. HELD:

That an action of trespass and false imprisonment by the nightman against the officers who arrested and detained him, would not lie, the arrest having been made by direction of the Board of Health, upon whom was imposed the duty of executing all ordinances for the preservation of the health of the city; and the procurement of a warrant as a preliminary to such arrest and detention, was not necessary.

The Police Department of the city of Baltimore being charged by law with the duty of enforcing the ordinances of said city in regard to the public health, and the orders of the Board of Health in pursuance thereof, is justified in arresting, by direction of said Board, any one found violating the health regulations of the city.  

COUNSEL:
Thomas W. Hall, Jr., and S. Teackle Wallis, for the appellants.

The Court below erred in granting the plaintiff's prayer, among other respects, by submitting to the jury a question of law. In view of the Acts of Assembly conferring power upon the city of Baltimore to provide for the preservation of the public health, and of the police law, making it the duty of the police force to "guard the public health," "prevent and remove nuisances," "see that all laws relating to the public health are enforced," and "to enforce all ordinances of the Mayor and City Council of Baltimore which may be properly enforceable by a police force," and of the specific provisions of the ordinances of the Mayor and City Council upon the subject, and of the orders and regulations made by the Board of Health in pursuance thereof--whether the particular act for which the plaintiff, Lemon, was arrested, was or was not a "nuisance," which it was the duty of the police force "to prevent," and to prevent which the power of arrest might be lawfully exercised, was a question of law for the Court--not of fact for the jury. Code of Pub. Local Laws,  [**2]  Art. 4, sec. 797, and Act of 1867, ch. 367; Balto. City Code, Art. 23, title "Health," ordinances, secs. 1, 7, 33, 34, 35, 38, 39, 86, 87.

If the act committed by Lemon was a nuisance, "to prevent" which was a part of the inherent duty of the police force as such, or specially made a duty by any of the Acts or Ordinances referred to, the power to arrest clearly existed. Act of 1867, ch. 367, Pub. Local Laws, (Sup. 1867,) Art. 4, sec. 809; Baltimore City Code, title "Health," ordinances, sec. 7, (page 283;) Shafer and Wife vs. Mumma, 17 Md., 331, 336.

If the power to arrest in such cases be conceded, it was improperly left to the jury to say whether, under the special circumstances of Lemon's case, it was necessary to exercise that power. The exercise of the power was a matter within the lawful discretion of the Police Commissioners, and the orders received constitute the complete justification of the defendants, who were subordinate officers of the force. If the order be within the discretion of the superior, it is a sufficient protection for the inferior, who acts in obedience to it, although the discretion given to the superior be abused or unwisely exercised. Mitchell [**3]  vs. Harmony, 13 How., 137.

Any thing prejudicial to the public health is a nuisance. The power given to the city of Baltimore to protect the public health by all needful sanitary regulations, is as ample as any which the sovereign power can confer. Harrison vs. Mayor, &c., 1 Gill, 276. And any man's reasonable reflection will show that the removal and transportation of nightsoil in a large city, in any other way than the municipal regulations permit, or its deposit at any other than the appointed places specially provided for the purpose, is a very gross and intolerable nuisance, and one which it requires especial vigilance and effort on the part of the police to prevent, owing to the hour at which such offences are usually committed.

The police force is the executive arm of society. Its duty is prevention, not punishment. The duty to prevent carries with it ex vi termini the power to arrest. It has been authoritatively declared by this Court, speaking with special reference to the necessities of a great city like Baltimore, to have "always been understood that, under the police power, persons disturbing the public peace, persons guilty of a nuisance, or obstructing highways,  [**4]  and the like offences, may be summarily arrested and fined, without any infraction of that part of the Constitution which apportions the administration of the judiciary power strictly as such." Shafer and Wife vs. Mumma, 17 Md., 336; also, Spalding vs. Preston, 21 Verm., 12, 13, 14; Mayor, &c. vs. The State, 15 Md., 390; The People vs. Draper, 25 Barb., 374.

No appearance for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*178]  ALVEY, J., delivered the opinion of the Court.
This was an action by the appellee, a licensed nightman in the city of Baltimore, against the appellants, members of the police force in that city, of trespass and false imprisonment.

 [*179]  The appellee was arrested and confined in a station-house of the city, without process, for the violation of certain health regulations in regard to the removal and deposit of nightsoil. The facts are uncontroverted, and from them it appears that the appellee was, at the time of the arrest, in the act of violating the ordinances of the city. The Board of Health, in pursuance of an ordinance upon the subject, had designated [**5]  the places for the deposit of the nightsoil, and given notice of the fact, and no sink or vault was allowed to be cleaned, or the contents removed, unless by special permit from the Commissioner of Health. The appellee, as witness in the cause, admitted that he was aware, at the time of the arrest, of the order of the Board of Health, designating particular localities for the deposit of the nightsoil, but that he disregarded the order, because it cost him more to take the manure to those places than to the place where he was at the time depositing it. By ordinance, it is made the duty of the Board of Health to cause to be executed and observed all ordinances for the preservation of health; and, by another ordinance, it is made the duty of the police officers to execute all orders of the Board of Health, so far as they may relate to the preservation of the health of the city. Instructions were given by the Commissioner of Health to the Board of Police Commissioners, through whom the police power of the city is exercised, and to the Captains of Police, not to permit the deposit of nightsoil at other places than those designated, and to prevent its being done, by the arrest of the parties [**6]  attempting it. Among the duties of the Board of Police Commissioners, prescribed by law, (Sup. Code, Pub. Local Laws, Art. 4, sec. 809,) are those of preserving the public peace, preventing crime and arresting offenders, guarding the public health, and enforcing all laws in relation thereto, and of enforcing all laws and ordinances which may be properly enforceable by a police force. The police power thus delegated to the Police Commissioners, is executed and enforced by the agency of a regular police organization, authorized by the 810th section 

 [*180]  of the law just referred to, the members of which act under the authority and direction of the commissioners, and in obedience to the ordinances of the city. The police department being, as we have seen, charged with the duty of enforcing the ordinances in regard to the public health, and of the orders of the Health Commissioners in pursuance thereof, directions were given by that department to the policemen, among them the defendants, for the arrest of persons found violating the health regulations; and it was in consequence of such directions that the appellee was arrested and confined in the station-house. He admits,  [**7]  in his testimony, the commission of the act alleged to be in violation of the health regulation of the city; and he also admits that no violence or unnecessary force was used in his arrest and detention. On this state of case, the Court below instructed the jury that they must find for the appellee, the plaintiff, "unless they should find that the plaintiff was about to commit a nuisance, and that it was necessary to make such arrest and imprisonment in order to prevent the same." To this the appellants excepted, and whether such instruction was correct or not, is the only question presented to this Court.
There being no pretence that there was any malice on the part of the appellants, and the arrest and detention being attended with no circumstances of violence or aggravation, the instruction of the Court, instead of being what it was, should have been, that the appellee, on his own testimony, was not entitled to recover. The question was simply whether the appellee had been arrested in the act of violating the ordinances and legal regulations of the city, for which he was liable to be arrested. That he was, at the time of his arrest, in the act of violating the health regulations, [**8]  he admitted in his own evidence. Whether what he was doing constituted a nuisance, in the common law sense of that term, was immaterial; for, if his act was unlawful and subjected him to arrest, the appellants, as policemen, were justified in arresting and detaining him for hearing. The appellee was found 

 [*181]  doing what the policemen had good reason to believe he was forbidden to do; and as it was at the hour of midnight, when it would have been difficult, perhaps impossible, to recognize either the appellee or the number on his cart, what other course could the policemen have pursued than the one they did? To say that they should not have arrested and detained the offender, without first obtaining a warrant, is virtually to say that the regulations could be violated with impunity.
And as to the power of arrest and detention without warrant, under the circumstances, we think there can be no question. Express power is conferred upon the police force to prevent crime and arrest offenders. It is true, the statute does not say without warrant; but that is necessarily implied in all cases where constables and police officers can make arrests, without first obtaining a warrant [**9]  at the common law. Such officers, by the common law, have full power to arrest and detain the offender, where the offence is committed in their view, and this, whether the offence be one at the common law, or created by statute or police regulation. Indeed, without such power, it would be impossible to execute the various police regulations of a prohibitory or preventive character. For it is obvious, if it were necessary before arresting an offender, caught in the act of offending, that a magistrate's warrant should be obtained, many offences and violations of the police regulations, would be accomplished and the offender, if transient and unknown, would escape altogether. This is not contemplated either by the statute conferring the police power, or the common law. The authorities are abundant and full, not only to establish the right, but which declare it to be the duty of the officer, in such cases, to arrest and detain the party found offending until a proper hearing can be had. 2 Hale, P. Cr. 89, 97; 4 Hawk., P. C., ch. 12, sec. 20; ch. 13, sec. 6; 4 Blk. Com., 292; Lawrence vs. Hedger, 3 Taunt. 14; Rex vs. Bootie, 2 Burr 865; [**10]  1 Chit. General Practice, 617, 618; City Council 

 [*182]  vs. Payne, 2 Nott & McC. 475; Com. vs. Deacon, 8 Sergt. & Rawle 47; Spalding vs. Preston, 21 Vt. 9.
There is no doubt of the right of the city authorities to establish and enforce the regulations in question, and that being so, the only effectual way of enforcement was the preventive one of arrest. The right to detain for hearing was the legal and necessary consequence of the right to arrest; and as the party was released without any unnecessary delay, on his own recognizance, we cannot perceive that he has any ground whatever for his action. The judgment must therefore be reversed.
Judgment reversed. 

43 of 142 DOCUMENTS 

DAVID N. HENNING vs. ROSANNA VARNER, Adm'x d. b. n. c. t. a. of THOMAS HENNING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 102; 1871 Md. LEXIS 40 

February 17, 1871, Decided 

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

This appeal was taken from a decree of the Orphans' Court of Baltimore city, refusing letters of administration, d. b. n. c. t. a., on the estate of Thomas Henning, to the appellant, and granting them to the appellee. Thomas Henning, by his will, dated the 10th of August, 1830, devised and bequeathed all his estate, real, personal and mixed, to his wife, Elizabeth, so long as she remained a widow, and directed that after her death, his estate should be divided into four equal parts, provided all his children should be then living, and if any of them should die leaving heirs, such heirs should inherit their parent's share. He bequeathed to his son, Daniel, one share, one share to his son, David, one share to his daughter, Ann Maria, and one share to his daughter, the appellee. He willed that whatever his widow might be able to give to any of the children, from time to time, out of the proceeds of his estate, might be charged to them, and their receipts taken therefor, so that ultimately equal justice might be done to all. The testator directed that a sum of money, supposed to be from eight to nine hundred dollars, due to his estate [**2]  at the death of the mother of his wife, should, when received, be forthwith divided in equal shares between his wife and children; the children of the latter, who might have died meanwhile, to take in their parent's stead. He further directed that the same disposition should be made of the proceeds of sale of his slave Louisa, should his wife sell her for cause; and if any of his tenants should exercise the right of purchasing out their ground rents, the money so received should go in like manner. He appointed his wife and his son Daniel his executors. The widow deceased without having married. Prior to her death, her son Daniel died, leaving no issue. Her other son, David, also died prior to her death; he left children, of whom the appellant is one. The appellant's elder brother is a non-resident of the State. The two daughters, Ann Maria and the appellee, still survive.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Residuary Legatees.

A testator, by the first clause of his will, bequeathed his entire estate to his wife during widowhood, and directed that, at her death, the estate should be divided equally among his four children, if they were then living; and in case of the death of any of them before the widow, their children, if any, should take their shares respectively. By a subsequent provision in his will, the testator directed that a sum of money due to his estate, at the death of his wife's mother, should, when received, be forthwith divided equally between his wife and children; the children of any of the latter who might die meanwhile, to take in their parent's stead. He further directed that the same disposition should be made of the proceeds of sale of a slave, should his wife sell her for cause; and should any of his tenants exercise the right of purchasing out their ground rents, the money so received was to go in like manner; and further, that whatever his widow might be able to give to any of the children out of the estate, during her life, should be charged to their shares respectively, so that, ultimately, equal justice might be done to all. HELD:

That under this will, there were no residuary legatees.

To constitute parties residuary legatees, there must appear, from some provision of the will, its terms, or true construction, that the testator intended to bequeath to them the residue of his estate.  

COUNSEL:
S. Teackle Wallis, for the appellant.

The appellant having actually applied for letters of administration, they should have been granted to him at once. He was, at the time of his application, and at his grand-mother's death, a residuary leagatee under the will, in his own right, and being [**3]  a male, should have been preferred under the plain requirement of the Statute.

Under section 70, of Article 93 of the Code of Public General Laws, "the person entitled" has preference, where he or she actually applies, and as section 34 makes residuary legatees "entitled"--the male in preference to the female legatee--it must follow, in cases of administration de bonis non, c. t. a., that the male residuary legatee, if there be one, has the right to administration, unless, the provision in said section that, "a male legatee shall be preferred to a female," means, when in equal degree of kin. No such good reason, however, exists.

The question of "next of kin," can only arise where letters are to be granted according to and by reason of relationship to the deceased. Where the fact of relationship has nothing to do with the qualification of the administrator or with his right to administer, the degree of relationship cannot a fortiori be a subject for consideration. Here, administration is given by the law to residuary legatees, who may not be of kin to the deceased at all, and even if they happen to be of kin, they are not entitled to administer by reason of that fact, but [**4]  simply because they are residuary legatees, and because, being such, they are male or female, as the Statute indicates.

A legatee may be a residuary legatee, without the use of any particular form of words. In this case, there is certainly a testamentary disposition of a part of the estate, to take effect in advance of the death of the testator's widow--money legacies to be divided, when received, between his children and the widow, absolutely and at once. What is left, and only what is left--the residue--goes to the wife for life, with remainder as provided. No clearer residuary legacy, in effect, could be given--and if it be residuary in effect and operation, it can make no difference that it is not specifically called such.

If the appellant, in his own right, is a residuary legatee under the limitations of the will, it can make no difference that he is only one of several in like case. The Statute contemplates there being more than one, in the very provision which gives preference to the male over the female. And if the appellant is a residuary legatee at all, and takes by purchase, as such, his right is as distinct from that of the rest of his father's children as it [**5]  is from that of the appellee.

H. Clay Dallam and Wm. Schley, for the appellee.

The present case is not within the operation of section 34 of Article 93 of the Code. That section properly applies, and only applies, to a case of original administration. It does not apply to a case of administration de bonis non, such as this; and for which special provision is made by section 70.

But even if a case of administration de bonis non, be within the operation of section 34, still, the appellant, upon the true construction of the will of Thomas Henning, is not "a residuary legatee in such will;" and is not, therefore, in any view that may be taken, entitled to administration, in preference to the appellee.

A residuary legatee is he to whom the residuum of the estate is devised or bequeathed by will, and the residue is that which remains of something, after taking away a part of it; as the residue of an estate, is that which has not been particularly devised by will. 8 Comyn's Dig., 444; 2 Bouvier's L. Dictionary, 468.

Section 34 of Article 93 of the Code, should be construed in connection with sections 18, 19 and 23. Nearness of kin is carefully regarded throughout [**6]  the Act; and the provision in section 34, that "a male legatee shall be preferred to a female," means, when in equal degree of kin.

The whole testamentary law (Article 93 of the Code) must be construed together, and next of kin is always entitled to administration. Kearney vs. Turner, 28 Md., 408, 423, 424, 425.

If the will is to be construed as disposing of a residuum, then the appellee is one of the residuary legatees, and the appellant is not, for he only takes as one of the heirs of his father.  

JUDGES:
The cause was submitted to BARTOL, C. J., STEWART, BRENT, GRASON, MILLER and ROBINSON, J.  

OPINIONBY:
STEWART 

OPINION:

 [*106]  STEWART, J., delivered the opinion of the Court.
This appeal, from the Orphans' Court of Baltimore city, involves the right to letters of administration de bonis non cum testamento annexo, upon the estate of Thomas Henning.
The appellant insists that he is entitled, as one of the residuary legatees, whilst the appellee claims as the nearest of kin.
Under the 34th section of the 93d Article of the Code, where letters of administration are to be granted, with a copy of the will annexed, and there are residuary legatees and no widow, the male residuary [**7]  legatee is preferred to the female. This section has no reference to the degrees of kindred--the male, although an utter stranger, by blood, is preferred to the female, however near to the deceased by affinity or consanguinity. In such case, the daughter of the testator, although a residuary legatee, must be postponed to her nephew, the grand-son of the testator, a male residuary legatee. But this preference, according to the terms of the section, is only given where there are residuary legatees; and the appellant, to entitle him to be preferred, must show, from the true construction of the will, that he is not merely legatee, but a residuary legatee.
The bequest, by the first clause of this will, is made of all the property of the testator, to the wife, during her widowhood, with the remainder thereof, limited over, at her death, to the other parties described in the will, of which the appellant is one. Under the terms of this first clause, the testator disposes of all his estate, leaving no residue.
The subsequent provisions, as to the money due at the death of his wife's mother, when received, to be equally divided between his wife and children, or grand-children; [**8]  and the proceeds of any future purchase of ground rents, or from the contingent sale by his wife of the slave mentioned in the will, to be divided in the same manner, do not change the antecedent general disposition of his estate, so as to constitute the parties, who took under the first clause, residuary legatees.

 [*107]  Construing the will, with its various clauses, as one instrument, it does not appear, from those latter bequests in regard to any future assets, that the testator had in contemplation the disposition of any residue of his estate, or to alter the first bequest or general clause. There must appear, from some provision of the will, from its terms or true construction, that the testator intended to bequeath the residue of his estate to parties, to constitute them his residuary legatees.
A residuary legacy is a bequest of all the testator's personal estate, not otherwise effectually disposed of by his will. 6 Bacon's Abridg., sec. 1, p. 303.
We do not discover, from any of the provisions of the will, separately or conjointly considered, any intention to dispose of a residuum of his estate; and there are no residuary legatees provided for [**9]  by the will, either by its language or legal construction, within the meaning of the section of the Code referred to.
The widow, children and grand-children take the portions given to them as legatees.
The Orphans' Court committed no error in the refusal to recognize the right of the appellant as residuary legatee.
Decree affirmed. 

44 of 142 DOCUMENTS 

WILLIAM HAMILTON vs. FRED'K SCHWEHR, JOHN A. ALLERS, JOHN W. WILSON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 107; 1871 Md. LEXIS 41 

February 17, 1871, Decided 

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

In addition to the facts of the case as given in the opinion of the Court, it may be further stated that after the final ratification of the sales, the proceedings were referred to the auditor, who stated four Accounts, viz: A, B, C and D, the last upon instructions of the complainant's counsel. To Accounts A, B and C, and in part to Account D, the complainant excepted. All of these Accounts were rejected by the Court's order of the 9th of December, 1869, and the papers were again referred to the auditor, with directions to state an account upon the principles set forth in the opinion of the Court. The auditor thereupon stated and reported Accounts E and F. By Account E, stated in accordance with the opinion of the Court, the proceeds of the McHenry street lot, less commissions, costs, expenses, &c., were applied to the payment of the whole of the first mortgage of the complainant, and of a part of the second; and the proceeds of the Sterrett street lot, after deducting commissions, costs, expenses, &c., were applied ratably to the claims of the material men. Account F, stated in accordance with the written instructions of the complainant's [**2]  solicitor, applied the fund upon the same principle as in Account E, but by a difference in the apportionment of the costs, expenses, &c., in the two accounts, the amount appropriated to the payment of the second mortgage claim by Account F, was greater than the amount appropriated by Account E, and the balance distributed among the mechanics' lien creditors by Account F, was less than the balance distributed by Account E. The complainant excepted to Account E as to the manner of the allowance of costs, and further to the same Account, as also to Account F, because in each of said Accounts, the auditor did not allow the amount of the complainant's two mortgage claims in full, with interest to the day of sale, but in distributing the proceeds of sale of the two lots, which were both covered by the two mortgages, he allowed the full amount of the first mortgage only, and a proportionate amount of the second mortgage, treating the second mortgage as a deferred lien against the Sterrett street property, and the first mortgage as a lien to be satisfied out of the property on the corner of McHenry and Sterrett streets, to the total exclusion of the lien of the first mortgage on the Sterrett [**3]  street property, and excluding thereby the exceptant from the benefit of his second mortgage lien on the entire property. The complainant insisted that in stating said Accounts his claims should have been allowed by the auditor, as far as the sums to be distributed would go, out of the proceeds of sale of the Sterrett street property, in satisfaction of the sum of two thousand dollars, with interest to the day of sale, part of the first mortgage claim; and out of the proceeds of sale of the property on the corner of McHenry and Sterrett streets, for distribution, the auditor should have allowed the residue of the first mortgage claim, and the whole of the second mortgage claim, with interest thereon to the day of sale. The complainant, further excepting, insisted that the mechanics' lien creditors had no right to compel him to resort to one or other of said lots for the satisfaction of any part of his claims, much less by such election to compel him to abandon, to his loss, any claim or lien against any of the property covered by the two mortgages.

The Court, (PINKNEY, J.,) by its order of the 8th of March, 1870, finally ratified and confirmed Account E, and ordered a distribution [**4]  of the fund accordingly, and rejected Account F. From these orders of the Court, passed on the 9th of December, 1869, and the 8th of March, 1870, the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Appeal -- Costs in Equity within the Discretion of the Court -- Mechanics' lien claimants -- Marshalling of securities.

In the matter of costs, Courts of Equity in this State have a discretionary power, from the exercise of which no appeal will lie.

A decree, in other respects right, will not be disturbed, although, in the judgment of the Court of Appeals, there was an improper direction as to the party or fund charged with the payment of costs.

The doctrine of marshalling of securities, will be applied in favor of mechanics' lien claimants.

On the 2d of October, 1867, H leased to S, two lots of ground in the city of Baltimore, one on the corner of McHenry and Sterrett streets, and the other on the west side of Sterrett street, and on the same day S executed to H a mortgage of the same lots, to secure an existing indebtedness, and advances to be made, to enable S to erect certain houses on the Sterrett street lot. The advances were made, and the houses erected. On the 21st of February, 1868, S executed to H another mortgage on the same lots, to secure a further indebtedness. Between the recording of the two mortgages certain material men filed their lien claim against the Sterrett street lot. By proceedings in equity, the property was sold, but the proceeds were insufficient to pay the claims of the material men and the two mortgages. The proceeds of the McHenry street lot were sufficient to pay the whole of the first mortgage of H, and part of the second, while the proceeds of the Sterrett street lot were insufficient to pay the claims of the material men. Upon the question of the proper distribution of the fund between the respective claimants, it was HELD:

That the doctrine of the marshalling of securities applied, and the material men were entitled to the proceeds of the Sterrett street lot, on which alone they had a lien, while the proceeds of the McHenry street lot only, were applicable to the payment of the mortgage claims.  

COUNSEL:
T. A. Linthicum and W. H. A. Hamilton, for the appellant.

The lien of a mechanic or material man is an extraordinary remedy, created not by the act of the party but by the law, based solely upon the terms of the law giving the lien; and where the law defines the remedy and provides the means of enforcing it, and limits its extent or operation, all questions arising thereunder must be determined by the terms of the law itself. Carson vs. White, 6 Gill, 17; Greenway vs. Turner, 4 Md., 296; Thomas vs. Barber, 10 Md., 380; Hess, &c., vs. Brown, 10 Md., 257; Miller vs. Barroll, 14 Md., 173.

And the Act, whilst subordinating the lien claim to incumbrances, mortgages, &c., attaching prior thereto, and requiring the amount of such prior incumbrances to be deducted in the first instance, before distribution made among such creditors, makes no provision for marshalling securities in favor of such claimants where such prior incumbrancers have liens on property not affected by the lien, or to [**5]  which the liens cannot extend as in cases of mortgages upon one entire lot, upon only part of which buildings have been erected, and the lien is against the part thus built upon. Jones vs. Hancock, 1 Md. Ch. Dec., 187; McKim vs. Mason, 3 Md. Ch. Dec., 187; Denmead vs. Bank of Baltimore, 9 Md., 179; Mills vs. Matthews, 7 Md., 315.

Nor does the Act, when it undertakes to provide, as in sections 21 and 30, for liens against several buildings, arising under joint apportioned claims, contain any provision for marshalling securities in relief of the lien claimants against prior incumbrances, but directly postpones such claim.

The Statute giving the lien has provided the mode of establishing such lien, defines the property to which it shall attach, prescribes the time of its commencement, limits its extent as to the interest affected, and subordinates and postpones it to prior incumbrances, and directs the mode and manner of distribution of proceeds, and commands that prior incumbrances shall be deducted befor distribution, as authorized by the law, shall be made. And all the circumstances attending such liens having been provided for by the Act, no other relief than that given [**6]  by the Act can be extended, either in law or equity. The Statute furnishes the rule which must be complied with, both as to jurisdiction and relief. Glenn vs. Fowler, 8 G. & J., 340; McPherson vs. Snowden, 19 Md., 19; Heard vs. Stamford, Temp. Talbott, 173; 1 Story's Equity, sec. 61.

The foregoing principles would govern the claims of lien creditors were they complainants seeking to enforce their liens; and their situation is not changed by being made defendants, nor are their rights thereby enlarged.

Upon general principles of equity, the Court will, where a party has a lien upon two funds, and another a lien or interest on only one of the funds, require the first to resort to that fund against which the other has no lien, so far as may be necessary to satisfy both claims. But persons who are not common creditors of the same debtor have no right to compel the creditors of both funds to resort to one in order to increase the dividend of those who can only claim against one. 1 Madd. Chy., ch. 3, page 336; Ex parte Kendall, 17 Vesey, 527; 1 Story's Equity, secs. 642, 643, 644, 645; Woollen Ex. vs. Hillen, 9 Gill, 185.

Hamilton is the creditor of Schwehr, and holds a prior [**7]  lien under his first mortgage upon the two lots of ground, and under his second mortgage a lien upon both lots of ground, i. e. the lot at the corner of McHenry and Sterrett streets, against which the lien claimants have no lien or claim, and the lot on Sterrett street, against which the lien claims attached before the second mortgage. The lien claimants are not the creditors of Schwehr, the debtor of the complainant, and have no lien or claim created by Schwehr, but are the creditors of Schamburg only, the contractor for building the houses, against whom the complainant has no claim, and for this debt due them by Schamburg have, under the Mechanics' Lien Law, a lien upon the Sterrett street lot; and not being, with Hamilton, common creditors of Schwehr, upon the authorities above cited, they cannot compel Hamilton to take satisfaction of his first mortgage out of the McHenry and Sterrett street proceeds to the prejudice of his second mortgage, which is a valid lien on that property, unaffected by any conflicting claim of parties. Aldrich vs. Cooper, 8 Vesey, 191; Averall vs. Wade, (Lloyd & Goold,) 252; Averall vs. Wade, (Flannagan & Kelly,) 325; Boozman vs. Johnston, 3 Simons, 377;  [**8]  Watson vs. Bane, 7 Md., 117; Barnes vs. Rackster, 1 Younge & Coll., New R., 401.

The rights of Hamilton in respect of his first and second mortgages, to the proceeds of sales, are to be considered and treated as entirely independent and distinct as if the second mortgage were made to a third party; and then, in distributing the funds, the second mortgagee could, in like manner, and upon the same principles of equity as asserted by the lien claimants, insist upon having the first mortgage satisfied out of the Sterrett street property in ease of his said second mortgage--or in other words, the first mortgage stands as a lien against the whole; the lien claims affect only the Sterrett street property; the second mortgage affects both the corner and Sterrett street property, though as to the Sterrett street property subject to the lien claims; were there no intervening incumbrances on the Sterrett street property the second mortgagee would clearly have the right to have the proceeds of sale of the corner property applied to his mortgage, were the first mortgage satisfied out of the Sterrett street property, and as the lien claims on the Sterrett street property prevent the application [**9]  of the entire proceeds of that property to the first mortgage, it is apparent that the equities of the second mortgage prevent the application of the entire proceeds of sale of the corner property to the first mortgage in exclusion of the claim of the second mortgage. Hoye vs. Penn, 2 H. & G., 477; Gen. Ins. Co. vs. U. S. Ins. Co., 10 Md., 517; Reigle vs. Leiter, et al., 8 Md., 405; Dodge vs. Doub, 8 Gill, 16; Woollen's Ex'rs & Kurtz vs. Hillen's Ex'r, 9 Gill, 185; Winder vs. Diffenderffer, 2 Bl., 166; Post vs. Mackall, 3 Bl., 484; Watkins vs. Worthington, 2 Bl., 507, 532; Mills vs. Matthews, 7 Md., 315; Doub vs. Barnes, 4 Gill, 1; Griffith vs. Frederick Co. Bank, 6 G. & J., 424; Ellicott vs. Ellicott, 6 G. & J., 35; McCullough vs. Dashiell, 1 H. & G., 96.

This is a case in which the Court, without resort to the law of marshalling and contribution, can do equity and arrange the rights of the parties without doing injustice to either, by first charging the proceeds of both lots with the first mortgage, as was done in Barnes vs. Racster, and as to the residue of each lot, award the balance of the proceeds to Hamilton's second mortgage, and the lien claimants respectively.

C.  [**10]  Dodd McFarland and Sam'l Snowden, for the appellees.

It is a well-settled principle of equity, that where one creditor has a lien upon two funds, and a subsequent creditor has a lien upon only one of the funds, the prior creditor shall be compelled to exhaust that fund upon which the subsequent creditor has no lien, before coming upon the fund upon which he has a lien. 1 Story's Equity Jurisprudence, section 633.

But, where the debtors are not common to both creditors, or the funds belong to different debtors, the subsequent creditor, as a general rule, would have no right to the application of this principle, unless the relation between the debtors be such as to render it more equitable that both debts should be paid by one debtor rather than by the other, in which case equity will compel the election. Ex parte Kendall, 17 Ves., 520; Dorr vs. Shaw, 4 Johns. Ch. R., 17; Newson vs. McClendin and others, 6 Geo., 399; Wise vs. Sheppard, 13 Ill., 41-47.

Schamburg contracted with Schwehr to erect houses on Sterrett street, and he purchased materials from the appellees which were used by him in the building of the houses. The appellees not being paid, gave the notice to Schwehr [**11]  as required by law, and filed claims of lien against the property, thereby acquiring specific liens thereon. Schwehr never paid Schamburg for the materials used by him, and the proceeding of the creditors was in effect to attach the money, still in the hands of Schwehr, and due to Schamburg. It is certainly, therefore, more equitable that Schwehr, whose property received the benefit of these materials, and who has in his hands the money due to Schamburg therefor, should pay for them, than that Schamburg should, without having received any money from Schwehr, be compelled to pay the debts incurred for materials. The appellees are entitled to the same right as Schamburg himself would have had if he had filed a claim for the whole of the materials furnished, and work and labor done. Their equity is worked out through Schamburg, and as he would have had the right to compel Hamilton to elect, so they are now entitled to be subrogated to the same right. It is in fact the case put in ex parte Kendall, "for Schamburg can insist that the debt should be paid by Schwehr in the first instance," and the equity of the lien creditors supervening furnishes a ground for the interposition of the Court [**12]  in their favor.

This is not, however, the case of two creditors not having a common debtor, nor is it that of a creditor having a lien upon the property of two several debtors; but here the materials were in "contemplation of law delivered on the credit of the buildings," and the law having given to the material man a lien against the buildings which he has perfected by complying with the terms of the law, the buildings on Sterrett street became the debtor to the lien creditors, and, therefore, the claim of Hamilton and the appellees, is in fact against one common debtor, the property, the value of which was derived from materials furnished by the appellees on the credit of it, with the expectation of being paid therefor, and it certainly would be unjust that Schwehr should raise money upon mortgage of the property, built with materials furnished by the appellees, and then that the mortgagee should be permitted to interpose that mortgage to prevent the lien creditors from marshalling so as to get paid for the materials furnished by them, and contained in the houses sold. Landis vs. Roger, 59 Penn. S. R., 95; Law of Liens, sec. 96.

Nor will this principle be applied when the [**13]  rights of third parties intervene, but is not defeated by claims arising after the equity has become fixed. The N. Y. L. Ins. and Trust Co. vs. Vanderbilt, 12 Abbott, Pr. R., 458; Fowler vs. Barksdale, 1 Harper's Eq., 164; Hasting's Case, 10 Watts, 303; Aldridge vs. Forbes, 4 Jur., 20; Averall vs. Wade, Lloyd & Gould, 252; In re Mower, Law Rep., 8 Eq., 109.

That mechanics' lien claimants are entitled to the right of having assets marshalled in the same manner as any other holders of liens, would necessarily follow from the fact that they have a lien. It is admitted that, in order to acquire a lien, the terms of the law must be strictly pursued, but after the lien is acquired, no difference can be perceived between its effects and that of any other lien. The lien of a judgment upon real estate results from the fact that a statute gives a right to the creditor to excute the land to obtain satisfaction of his debt; it does not, in terms, give a lien, nor does it give a right to marshal assets, but, on the contrary, confines the right of execution to the interest of the debtor. Yet the principle of marshalling funds has been frequently applied in favor of judgment creditors. Thus [**14]  applying the principle in favor of statutory liens. Coombs vs. Jordan, 3 Bland, 284. And it has been decided that the lien of a mechanic, after it becomes perfect under the statute, stands upon the same footing as a mortgage would stand, and affects existing rights, whether legal or equitable, to the same extent. Kenny vs. Gage, 33 Vermont, 303-307; Law of Liens, sec. 45.

The statute is remedial in its character, and is to be so construed; but because it provides that prior liens shall be deducted before a distribution can take place between the creditors themselves, it does not, therefore, follow that as against those prior lienors a Court of Equity cannot marshal the assets. A judgment is a general statutory lien; a mortgage is a specific lien. A mechanics' lien claim combines the qualities of both, and is a specific statutory lien. A Court of Equity is directed "to apportion the proceeds among the persons entitled to liens, according to their respective rights." Code of Public General Laws, Art. 61, sec. 25.

In the application of the principle of marshalling, there is no difference between the different kinds of liens, whether they be statutory, equitable, or by contract;  [**15]  for the doctrine of marshalling is not a creature of the statute law, but is strictly an equitable doctrine.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, GRASON and MILLER, J.  

OPINIONBY:
BRENT 

OPINION:

 [*116]  BRENT, J., delivered the opinion of the Court.
In October, 1867, the appellant, Hamilton, leased to Frederick Schwehr, two lots lying in the City of Baltimore, one on the Southwest corner of McHenry and Sterrett streets, and the other (adjoining) on the West side of Sterrett street. On the same day, a mortgage was executed by Schwehr to Hamilton, on these two lots, to secure the payment of four thousand 

 [*117]  dollars--part of which was for a debt already due, and the other part for advances to be made, to enable Schwehr to erect five houses on the lot upon the West side of Sterrett street. Such advances were to be made as the houses progressed, and were in fact made and paid according to the terms of the mortgage.
In February, 1868, Schwehr executed to Hamilton another mortgage on the same two lots, for the purpose of securing to him a further indebtedness of two thousand five hundred dollars. After the recording of the first mortgage, and before the recording [**16]  of the second, the houses on the Sterrett street lot were commenced, and certain material men, who furnished the materials for their erection, have filed their lien claims against this lot. They proceeded in equity to enforce their lien, and Hamilton also filed a bill to foreclose his mortgages. The cases of Hamilton and the material men were consolidated and the property sold by trustees. The amount realized from the sale was not sufficient to pay the lien claims of the material men, and the two mortgages held by Hamilton. The proper distribution of this fund was prevented by objections filed to the auditor's report, and from the ruling upon them, by the Court below, the present appeal is taken.
The first error alleged is the apportionment of costs as directed by the Court below. The question of costs, as was said by this Court in the case of Mears & Moulton, 30 Md. 142, "is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie." Courts of Equity in this State always exercise a discretionary power upon the subject of costs, and if the decree is in others respects right, it will not be disturbed, even if in the judgment [**17]  of this Court there was an improper direction as to the party or fund charged with their payment.
The other question presented is the proper distribution of the fund between the respective lien claimants. It is now too well settled to admit of any question, that a person, having an 

 [*118]  interest in one only of two funds, has a right in equity to compel a party, having an interest in both, to resort to the other, if necessary for the satisfaction of both debts. 1 Story's Equity, sec. 633, and authorities there cited. That this general principle would apply to the case before us, if the only question was between the first mortgage of Hamilton and the lien of the material men, seems to be clear. The interest of the material men in the lot on Sterrett street, when perfected under the law creating their lien, is as full and extensive as that of a mortgagee. They have the same right of sale and entitled to the same priorities over subsequent incumbrances.
There is nothing in the objection that the lien is only statutory, and cannot, therefore, be enforced in any other way or to any greater extent than is given by the Act creating it. It must, beyond question, be perfected [**18]  in strict conformity with the Act, but when so perfected it may be governed by other rules and principles than those specially designated in it. The lien of a judgment upon real estate exists alone by force of statute, and that to the extent only of the interest of the debtor. It is no where provided in the statute creating it, that it shall be such a lien as Courts of Equity are to respect in the marshalling of assets. Yet the general equitable doctrine of marshalling has always been applied to a lien of that description and the propriety of doing so has never been questioned. If the doctrine is applied to mortgages and judgments, there can be no reason why it should not equally apply in favor of claimants holding a mechanics' lien.
In the case of Kenny vs. Gage, and others, 33 Vt. 302, which was in equity, the principle is recognized that a mechanics' lien stands upon equal ground with a mortgage, and affects legal and equitable rights to the same extent. In the case of The Olympic Theatre, reported in 2 P. A. Brown 284, the doctrine of marshalling was applied between mortgages upon two lots, and claimants holding a mechanics' lien on but one of them.  [**19]  The mortgages were directed to be paid out of 

 [*119]  the proceeds of sale of one of the lots, leaving the other for the payment of the lien creditors.
If, therefore, the question of distribution in this case was between the first mortgage of Hamilton only and the mechanics' lien claimants, the rule of marshalling, if necessary for the payment of both liens, would be applied, and the mortgage directed to be paid out of the fund arising from the sale of the McHenry street lot, leaving the Sterrett street lot to be applied to the payment of the creditors holding the mechanics' lien.
Is this equitable right affected by the second mortgage to Hamilton? We think not. It will not be questioned that he took the lots mortgaged subject to the lien of the first mortgage on both of them, or of the mechanics' lien on one. These liens, at the time they attached, carried with them as incidents the right of the parties respectively to such equities as would render them available and productive. Of these was the equitable right of the holders of the mechanics' lien to have marshalled the fund arising from these lots, if it was necessary to pay both their debt and that secured by the first mortgage. [**20]  This equity existed before the second mortgage to Hamilton was made, and cannot be affected or destroyed by the conveyance to him. He must, therefore, be held to have taken it subject to the prior equity of the holders of the mechanics' lien.  Hastings' Case, 10 Watts 303; N. Y. Life Ins. and Trust Co. vs. Vanderbilt, 12 Abbott's Prac. Reps., 460. But it has been insisted in the argument, that this equity will not apply where third parties are interested. This doctrine extends only to cases in which the rights of third parties have intervened before the second lien was created. All the authorities, cited in support of it, are cases of settlement of a part of the mortgaged property, in which the parties obtained liens after the settlement, and sought to put the mortgage upon the settled property, so that the unsettled portion might be unincumbered for the payment of their liens. The case of Barnes vs. Racster, 1 Younge & Collyer 401, (20 Eng. Chan. 

 [*120]  Reps.,) was very strongly relied upon by the appellant's counsel, but upon examination, it is also a very different case from the one before us. In that case there were four mortgages, the [**21]  first was given to Barnes on Foxhall, the second to Hartwright also on Foxhall, the third to Barnes on Foxhall, and No. 32, not only for a new indebtedness, but also as further security for the debt named in the first mortgage, and the fourth to Williams on Foxhall and No. 32. The Foxhall tract not being sufficient to pay the two first mortgages, Hartwright, the holder of the second mortgage, sought to put Barnes upon No. 32 for the payment of his first mortgage. This the Vice Chancellor refused to direct, but not upon any ground inconsistent with the view we have taken of the case now before us. On the contrary, his reasoning strongly intimates that the relief asked for by Hartwright, would have been granted, if the first mortgage to Barnes had been given upon both Foxhall and No. 32, although he says he expressly reserves his opinion as to what "would have been the rights of Hartwright and Williams had Barnes' security upon No. 32 preceded and not been subsequent to Hartwright's security on Foxhall." But the case is inapplicable to the present one, because unlike the security of Barnes upon Foxhall [**22]  and No. 32, the security under the first mortgage on the lots upon McHenry street and Sterrett street preceded, and was not subsequent to, the lien on the lot upon Sterrett street.
We think the decree of the Court below was right, and it will be affirmed.
Decree affirmed.
MILLER, J., dissented.  

45 of 142 DOCUMENTS 

FRANK. H. STOCKETT, JESSE SLINGLUFF, and others, vs. MARIA E. HOWARD. AUGUSTUS MATHIOT, Trustee, &c. vs. MARIA E. HOWARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 121; 1871 Md. LEXIS 42 

February 17, 1871, Decided 

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

Augustus Mathiot, trustee, and Susan M. Gale, afterwards Anspach, being joint-tenants of certain lands, demised a portion thereof to Archibald C. Gibbs for a term of eleven years, ending July 31st, 1869. The lease contained a covenant, that the lessee, at the end of his term, should be paid for his buildings and improvements, their value to be settled by arbitration. At sundry times, from 1862 to 1868, judgments were recovered against Gibbs by various parties. On the 9th of January, 1869, Gibbs executed a mortgage to Mrs. Maria E. Howard of his term, with "all the buildings, improvements, rights, estate and interest therein." Under proceedings for partition, to which Gibbs' lessors were parties, a decree was passed for the sale of the lot in question, and, before the sale, by agreement between Gibbs, the representative of the lessors and the trustee, the value of the improvements upon the demised premises was fixed at $ 5,000. The sale took place on the 3d day of June, 1869, and Gibbs became purchaser of the reversion. Subsequently to the expiration of the term, certain of the judgment creditors issued execution on their judgments,  [**2]  and laid them on Gibbs' interest in the premises beforementioned, and on the 23d of February, 1870, the same was purchased for them at the sheriff's sale by Frank. H. Stockett, Esq., one of the appellants.

Other pertinent facts will be found in the opinion of the Court.  

DISPOSITION:
Appeal of Mathiot, trustee, dismissed without prejudice, and the decree, so far as it determines the rights of the judgment creditors and the mortgagee of A. C. Gibbs, respectively, affirmed, and cause remanded.  

HEADNOTES:

Judgment Liens as Affecting Leasehold Estates -- Construction of the Act of 1861, ch. 70 -- Lien Lost by Laches -- Covenants running with the Land -- Priority of a Mortgage on Leasehold estate, to an Antecedent Judgment not enforced until the Expiration of the lease.

G held a lease of land for years, ending in July, 1869, with covenant for compensation for his buildings and improvements. At sundry times, during his term, judgments were obtained against him. In January, 1869, he mortgaged to H his term "with the buildings, improvements, rights, estate and interest therein." In June, 1869, G purchased the reversion, $ 5,000, being settled as the value of his improvements. After the expiration of his term, his judgment creditors purchased at sheriff's sale, under their executions, all the interest of G in the premises. In a suit between the judgment creditors and the mortgagee, as to their respective titles to the fund of $ 5,000, it was HELD:

1st. That the judgment creditors having suffered the term to expire before selling it under execution, had lost the liens given them by the Act of 1861, ch. 70.

2d. That the covenant to pay the lessee for improvements ran with the land, and the judgment creditors were not entitled to the sum fixed on as the value of such improvements.

3d. That by the mortgage G assigned the residue of his term, with all his interest therein, to the mortgagee, and the mortgagee was entitled to have the sum due for improvements applied to satisfy the mortgage. 

COUNSEL:
Thales A. Linthicum and Frank. H. Stockett, for the appellants, Stockett and others.

The covenant contained in the lease to Gibbs was a mere personal collateral covenant, in no wise concerning the land. Grey vs. Cuthbertson, 4 Doug., 351. The covenant is simply for a submission to arbitration, and is therefore collateral. Glenn vs. Canby, 24 Md., 127. Taking it as a covenant for a valuation by arbitration, it is not a chose in action assignable under our Act of Assembly. Under the decision in Dakin vs. Pomeroy, 9 Gill, 1, taking it as containing an agreement for the payment of money, it is still not one of that class of choses in action which are intended by the Act. But even if it were such [**3]  a chose in action as is assignable under our Act of Assembly, there are, in Mrs. Howard's mortgage, no apt words to pass it. Hence, the interest in the covenant at the time of the sale by the trustee, was in Gibbs, and he had a right to appropriate that interest to the purchaser of the fee-simple. But so soon as he acquired the fee-simple, the judgments of the appellants bound it at once.

But, assuming that the covenant runs with the land, the appellants are still entitled. The judgments bound the leasehold estate of Gibbs, and every parcel of it. The lien is co-extensive with the right to sell. Hence the lien bound the covenant equally with the land, even if they are to be considered distinct.

Were the appellants bound to issue execution? The notion of a lien is an obligation or claim annexed to some particular subject, without satisfying which the owner cannot have his property. There can be no pretence of laches against the judgment creditors. They certainly by no act of theirs surrendered their lien. Thomas vs. Vonkapff, 6 G. & J., 372; Johns vs. French, 1 Hogan, 450.

James Frame, for the appellant, Mathiot.

Robert A. Dobbin and Thomas Donaldson, for the appellee.  [**4]  

The residue of the term, and also the benefit of the covenant of the lessor to pay for the value of the improvements, passed to the appellee by virtue of the conveyance from Gibbs of January 9th, 1869. Lametti vs. Anderson, 6 Cowen, 302; Thompson vs. Rose, 8 Cowen, 266.

The judgment creditors could not obtain any lien on the proceeds of the sale because the covenant, even if connected with a freehold estate, could not be the subject of a lien of a judgment, nor could it be sold in execution. It is a chose in action and not an interest in land. A covenant running with the land is still a personal covenant, and the right of action for its breach sounds in damages. 1 Smith's L. C., (Am. Ed., 1852,) 155; Coombs vs. Jordan, 3 Bland, 284.

If such a covenant in a conveyance of freehold was an interest in lands and subject to the lien of a judgment, yet, in a lease, no such covenant could be subject to such a lien prior to the Act of 1861, for the leasehold interest itself, to which the covenant was an incident, was not subjected to it. This Act merely extended the lien of a judgment to leasehold estates; and being an amendment of the common law, ought not to be extended beyond [**5]  the meaning of its language. 1 Sup. Code, Art. 29, sec. 20; Dwarris on Statutes, 695, 712.

Even if the judgments bound the leasehold interest, and the covenant as incident to it, yet, when the leasehold interest expired, the lien was gone.  

JUDGES:
The causes were argued before BARTOL, C. J., STEWART, BRENT, GRASON, MILLER and ROBINSON, J.  

OPINIONBY:
GRASON 

OPINION:

 [*124]  GRASON, J., delivered the opinion of the Court.
The controversy in this case originated in the conflicting claims of the appellants and appellee to the sum of five thousand dollars, which was distributed to A. C. Gibbs by the auditor's account in the case of Anspach and others vs. Richardson and others, pending in the Circuit Court for Baltimore city. Gibbs held a lease for eleven years, from the 31st of July, 1858, on certain land at Galesville, in Anne Arundel county, and in the lease was a covenant that the lessors, and those claiming under them, would pay to the lessee, and those claiming under him, the value of the improvements put upon the demised premises during the term, to be ascertained by arbitration at the expiration of the term. In the case of Anspach vs. Richardson, a decree was passed for the sale [**6]  of the real estate in the proceedings in that cause described, of which the land leased to Gibbs formed a part, and is designated as lot No. 2 in the trustee's report. The parties to that cause being apprehensive that this lot would not sell for its full value, if the claim of Gibbs for improvements should remain unascertained at the time of sale, entered into an 

 [*125]  agreement with Gibbs by which the value of the improvements was fixed at five thousand dollars. At the trustee's sale, Gibbs became the purchaser of lot No. 2 for six thousand five hundred dollars, and the parties to the said cause, the trustee and Gibbs, executed a written agreement fixing the value of improvements at five thousand dollars, and stipulating that said sum should be allowed as a credit upon his purchase, and that the agreement thus made, should be submitted to the Court for its approval, and it was accordingly reported to, and ratified by the Court. A number of parties obtained judgments against Gibbs from the year 1862 to 1869, upon some of which executions were issued and levied upon the term of Gibbs in lot No. 2, and upon others of which attachments were issued and laid in the hands of the trustee.  [**7]  In January, 1869, Gibbs executed a mortgage to the appellee of his term, together with the "buildings, improvements, rights, estate and interest therein." The judgment creditors and the appellee filed petitions, with copies of the judgments and mortgage in the case of Anspach vs. Richardson, the former claiming that the sum audited to Gibbs should be distributed to them according to the priority of their judgments, and the latter, consenting to the ascertainment of the sum for improvements, but claiming that she was entitled to it under her mortgage. Mathiot, as trustee of Georgetta M. Gale, also filed his petition, setting forth that there was a balance of rent for the demised premises, due by Gibbs, and asking that so much of the five thousand dollars as was necessary for that purpose, be applied to the payment of the rent. Various other proceedings were had in the case, which it is not material to notice. All the judgment creditors, except Bucey, issued executions upon their judgments, and under them the interest of Gibbs in the demised premises was sold by the sheriff, and was purchased by Frank. H. Stockett, Esq., for them. They then filed another petition in the same equity [**8]  case, alleging their purchase of all of Gibbs' interest in the premises, and praying to be substituted 

 [*126]  in his stead, and to be permitted to comply with the terms of the trustee's sale. Upon final hearing, the Court below passed a decree allowing the claim of the appellee under her mortgage, in preference to the claims of the judgment creditors, and rejecting the claim for the balance of rent due Mathiot as trustee. From this decree the judgment creditors and Mathiot appealed.
In the argument of the case in this Court, it was contended by the counsel of the judgment creditors, that their judgments were liens upon the term of Gibbs in lot No. 2 under the Act of 1861, chapter 70, as also upon his interest in the improvements, and that, having purchased all his interest at sheriff's sale, they were entitled to have the sum allowed for improvements, applied to the satisfaction of their judgments. It was also contended that the judgments, being prior in date to the mortgage, the mortgagee took the estate of the mortgagor subject to their liens. It is true that the judgments were liens upon the term of Gibbs under the Act of 1861, and during the continuance of the term, the residue, [**9]  then unexpired, might have been levied upon and sold to satisfy them. Had this been done, the purchaser at such sale would have acquired the residue of Gibbs' term, and, as incident thereto, all his interest in the improvements. The covenant to pay the lessee and his assigns the value of the improvements, was a covenant running with the land, and would have passed to the purchaser, as an incident to the term.  Lametti vs. Anderson, 6 Cowen 308; Thompson vs. Rose, 8 Cowen 268.
But the judgment creditors did not sell under their execution until the term had expired by the limitation contained in the lease, and after it had been assigned by the mortgage to the appellee. The appellee took the term under her mortgage subject to the liens of prior judgments; but as they were liens upon the term only, they ceased to be liens when the term expired. The covenant to pay for improvements 

 [*127]  was a mere incident to the term; a chose in action, upon which the liens of the judgments could not attach, and which could not be taken in execution and sold. The judgment creditors, having suffered the term to expire before selling under their execution,  [**10]  have lost the liens given them by the Act of 1861, and are not entitled to the sum fixed upon as the value of the improvements upon the demised premises. By the mortgage Gibbs assigned the residue of his term, with all his interest therein to the appellee, and she is therefore entitled to have the sum due for improvements applied to her mortgage.
But it was contended that the mortgage is void for want of proper and legal stamps. A mortgage is not required to be stamped when the notes are stamped, to secure the payment of which the mortgage is given. Three of the notes, to secure the payment of which the appellee's mortgage was given, were for the sum of four thousand five hundred and eighteen dollars, and were given to Hamilton S. Howard in 1866, and it is fair to presume that those notes were duly stamped in accordance with the requirements of the Act of Congress, and the mortgage being sufficiently stamped to cover the remainder of the debt we think it is sufficiently stamped; and therefore it is unnecessary to decide whether or not a mortgage, which has not been stamped in accordance with the provisions of the Act of Congress is void.
The respective counsel of Mathiot, trustee [**11]  of Georgetta M. Gale, and the appellee having filed a written agreement in this Court that the appeal of the former shall be dismissed without prejudice, in case the decision of this Court shall be in favor of the title of the latter to the fund in controversy, it becomes unnecessary to decide the question raised by his appeal.
The decree of the Court below, so far as it gives a preference to the mortgagee over the judgment creditors to the fund in question will be affirmed, and the appeal of Mathiot dismissed 

 [*128]  without prejudice, under the agreement above referred to, and the cause remanded for further proceedings in conformity with this opinion.
Appeal of Mathiot, trustee, dismissed without prejudice, and the decree of the Court below, so far as it determines the rights of the judgment creditors and the mortgagee of A. C. Gibbs, respectively, affirmed, and cause remanded. 

46 of 142 DOCUMENTS 

WILLIAM R. KIRKLAND and WILLIAM VON SACKS vs. GEORGE W. KREBS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 93; 1871 Md. LEXIS 38 

February 16, 1871, Decided 

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

On the 24th of February, 1868, a scire facias was issued to revive a judgment which the appellants had recovered on the 29th of June, 1855, against the appellee. The defendant pleaded the Statute of Limitations. The plaintiffs replied that by virtue of the Acts of 1861, ch. 17, and 1862, ch. 249, known as the stay laws, they were precluded from having an execution on their judgment, from the 10th of May, 1861, to the 1st of November, 1862; and that from the date of the judgment to the issuing of the writ of scire facias, a period of twelve years had not elapsed during which it was lawful and proper for them to have had execution on said judgment.

To this replication the defendant demurred. The Court sustained the demurrer, and gave judgment in favor of the defendant upon the plea of limitations. The plaintiffs thereupon appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Scire facias -- Statute of Limitations -- Construction of the Acts of 1861, ch. 17, and 1862, ch. 249, known as the Stay laws.

A scire facias was issued on the 24th of February, 1868, to revive a judgment recovered by the plaintiffs on the 29th of June, 1855. The defendant pleaded the Statute of Limitations. The plaintiffs replied that by virtue of the Acts of 1861, ch. 17, and 1862, ch. 249, they were precluded from having an execution on said judgment, for a period of more than seventeen months, and that so the limitation of twelve years from the date of the judgment did not apply. To this replication the defendant demurred. HELD:

That the stay laws did not deprive the plaintiffs of the right to keep their judgment alive by scire facias, during the stay of execution, and having failed to do so, the lapse of more than twelve years from the time when execution could have issued, was an effectual bar to the judgment.  

COUNSEL:
Stewart Brown and F. W. Brune, for the appellants.

The stay laws, (or more particularly the stay law of 1861, which is the only one necessarily considered in this case,) during their continuance, prevented the effectual prosecution of the writ of scire facias; and as [**2]  a consequence of such suspension of remedy, the running of limitations was also suspended.

And this is so, not only upon the general principal that such is the result of a legislative prohibition of suit or suspension of the remedy, but as the proper construction of the Act of limitations itself, which provides that in order to bar the action, the "thing in action" must have been "standing" for twelve years. That is to say, in the case of a judgment, that the proper legal result of judgment, viz: execution, should have been, upon proper application, procurable during such period. Evans' Practice, 164, (2d Ed.,) 203; Salisbury vs. Black, 6 H. & J., 296; Hall vs. Cresswell, 12 G. & J., 36; Keefer vs. Zimmerman's Ex'rs, 22 Md., 274.

In the case of a judgment, the limitation runs not from the date, but from the time when the plaintiff is entitled to judicial process, i. e., execution to enforce it. Thus, if stay of execution be entered on the docket, from the expiration of the stay. Mullikin vs. Duvall, 7 G. & J., 355; Mitchell vs. Chesnut, &c., 31 Md., 521.

The operation of the stay law of 1861, on judgments generally, and on this judgment in particular (on which at the [**3]  time, scire facias was necessary before execution) was, that the statute certainly took away that which the authorities look to as an essential to cause the running of the Statute of Limitations, that is to say, "judicial process to enforce it," obtainable immediately by simple order, or after scire facias upon a judicial award. And further, the stay law not only thus rendered the proceeding practically ineffectual, even if fiat executio could have been entered, in the face of the statute, but the statute itself could have been pleaded as an effectual bar to the writ, which writ expressly calls on the defendant to show caused why execution should not issue, and the judgment on which is not that of an ordinary recovery "quod recuperet," but an award of execution "fiat executio." Campbell vs. Booth, 8 Md., 107, and 15 Md., 569; 8 Bacon's Abridgt, title Scire facias, 598; Foster's Scire facias, 73 Law Library, 11 to 16.

Arthur W. Machen and I. Nevett Steele, for the appellee.

The stay law of this State, in suspending for a limited term the right of execution and sale, did not close the Courts, nor interfere with any rights of action of creditors. The whole object of the Legislature [**4]  was to protect the property of the debtor from actual seizure and sale, at a time when the condition of affairs was such that forced sales would probably have involved ruinous sacrifices. Suits and actions, and indeed all judicial proceedings went on as before.

In the condition in which the judgment in question was at the time of the enactment of the stay law in 1861, that Act had no practical operation upon it at all. More than three years having elapsed since the date of the judgment, without any measures to keep it alive, it was not then fitted for execution. Before they could obtain execution, it was necessary for the plaintiffs to revive it by debt or scire facias. Had they thereupon so revived it, which there was nothing then to prevent, the stay law would have operated upon the new judgment, and suspended execution of it for the prescribed term. They did nothing, however. The judgment remained as it was, until the statutory period of twelve years expired, and the bar created by the Code, Art. 57, sec. 3, became complete. Mullikin vs. Duvall, 7 G. & J., 355; Mitchell vs. Chesnut, 31 Md., 54.

The stay law did not in terms interfere with the limitation in question, or [**5]  create a new exception to the running of the general statute. And there was nothing in the nature of such a stay law to operate an exception by necessary implication.

Every creditor "has a common law right to judgment, and only the express words of a statute will suffice to exclude him from that right." Sir Fitzroy Kelly, C. B. Wright vs. Jelly, Law Rep., 4 Ex., 12.

A judgment, whether dormant or active, subject to the restrictions of a stay law, if renewed by scire facias, would necessarily have been renewed subject to the same conditions: just as a judgment subject to a discharge under the insolvent law, would, when revived be taken, subject to the same condition or qualification, so that the discharge, to be availing, need not be pleaded under the scire facias. Huston vs. Ditto, 20 Md., 328.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*96]  ROBINSON, J., delivered the opinion of the Court.
A scire facias was issued on the 24th February, 1868, to revive a judgment recovered by the plaintiffs on the 29th June, 1855, to which the defendant pleaded the Statute of Limitations, and the question is whether [**6]  the statute was suspended as against this judgment during the stay of execution and sale, prescribed by the Acts of 1861, ch. 17, and 1862, ch. 249, known as the stay laws.
That the Legislature did not intend to interfere with the statutory limitations in regard to judgments we think quite clear, for although the above Acts of Assembly expressly declare that the stay thereby prescribed, shall not be computed as part of the three years within which execution may issue, we find no such provision or exemption in regard to the judgment itself. Moreover, it is well known that these laws were passed soon after the commencement of the late war, and the purpose, the sole purpose, was to protect the property of the debtor from seizure and sale, at a time when the condition of affairs was such that forced sales would have proved ruinous to the debtor.

 [*97]  But it was insisted that the operation of these laws deprived the plaintiff of the effectual prosecution of his remedy by scire facias, and that the suspension of the Statute followed as a necessary consequence upon this suspension of the remedy. Now, it is true, the term cause of action implies the right of action, [**7]  and hence certain exceptions, have been engrafted upon the Statute, not perhaps within its letter, as for instance, where there is no person capable of suing or being sued, or when a temporary incapacity to sue grows out of some particular provision of a statute. Trecothick vs. Austin, 4 Mason's Cir. Ct. Rep., 16; Dowell vs. Weber, 2 Smedes & Mars. 452; Tarver vs. Cowart, 5 Ga. 66; Murray vs. The East India Co., 5 Barn. & Ald. 204. To permit the Statute to run in such cases, where no laches can be imputed to the parties, and where it is impossible, by suit or otherwise, to prevent its operation, would not only be extremely unjust, but, in the language of the authorities, contrary to the conclusions of reason that the framers of the Statute so intended. The exceptions, therefore, in such cases, are put upon the express ground that the parties are deprived of all remedy whereby the cause of action may be kept alive.
Now, if the stay laws, in addition to the stay of execution and sale, had provided that no action by scire facias or otherwise, should be brought upon the judgment during the stay, it might be [**8]  contended that the time during which such temporary disability continued, should be excluded from the computation. But we are at a loss to understand why a stay of execution is to be considered as denying to the plaintiff the right to bring an action upon the judgment either by debt or scire facias. To the latter the defendant has the right to plead, and although generally termed a judicial writ, it is classed and recognized by all the authorities as an action. 2 Tidd's Practice, 1090; Evan's Practice. The object of a scire facias, we admit, is to obtain a judgment capable of being enforced, but subject, nevertheless, to such restraints and dealings as the law itself may impose. It was never 

 [*98]  supposed that the stay laws of 1861 and 1862 interfered with the right of action. Suits were brought as before, although the judgment, when rendered, was subject to the stay therein prescribed, and it would be unreasonable to suppose the Legislature intended to put a specialty creditor upon an inferior footing to that enjoyed by a simple contract creditor. If, then, the plaintiffs had the right to keep their judgment alive by scire facias during the stay of [**9]  execution, there is no reason why it should be exempted from the operation of the statutory law of twelve years.
The question as to whether the Statute begins to run from the date of the judgment or the expiration of the stay, can have no practical bearing upon this case, and it is, therefore, unnecessary to consider it. Here more than three years had elapsed from the date of the judgment, when the stay laws were passed, and more than twelve years from the time when execution could issue thereon, before the scire facias was sued out.
For these reasons, we are of opinion that the judgment ought to be affirmed.
Judgment affirmed. 

47 of 142 DOCUMENTS 

HENRY N. MERRYMAN vs. RACHEL RIDER, Executrix of EDWARD RIDER, deceased.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 98; 1871 Md. LEXIS 39 

February 16, 1871, Decided 

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

This was an action by the appellant against the appellee to recover an alleged indebtedness of her testator. The defendant demurred to the declaration which contained four counts. The Court sustained the demurrer, and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Pleading -- Defective counts in a Declaration.

The omission in a declaration of the averment, "For money payable by the defendant to the plaintiff," as a prefix to the counts, "For goods bargained and sold, &c.," "For work and labor, &c.," and "For money had and received, &c.," is fatal on demurrer.

In an action against an executrix, a count in the declaration, "For money found due from said deceased in his life time, on account stated," is defective in that it fails to state that the money was due to the plaintiff, and omits an averment shewing between whom the account was stated.  

COUNSEL:
R. R. Boarman and D. C. H. Emory, for the appellant.

Arthur W. Machen, for the appellee.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*99]  ROBINSON, J., delivered the opinion of the Court.
The declaration in this case contained the following counts:
1st. For goods bargained and sold by the plaintiff to the deceased in his life time.
2d. For work and labor and materials furnished for said deceased in his life time.
3d. For money found due from said deceased in his life time on account stated.
4th. For money had and received for the use of the plaintiff by said deceased in his life time.
Now it will be observed, that the averment "for money payable by the defendant to the plaintiff," required by the 75th Article of the Code, section 22, clause 2d, to be prefixed to all the common counts, though [**2]  its insertion in the first count, makes it unnecessary to repeat it, is wholly omitted in this declaration. These words are the gist of the indebitatus counts, and it has been held under the English Common Law Procedure Act, the provisions of which in this respect are almost 

 [*100]  identical with the Code, that their omission is fatal on demurrer.
Thus in Place vs. Potts, 8 Exch. 705, the declaration stated "that the defendants are indebted to the plaintiff for freights, for the conveyance, by the plaintiffs for the defendants, at their request, of goods in the ship Brilliant, and the plaintiff claims," &c., PARKE, B., said the declaration was bad on general demurrer, and that it ought to have averred that the debt was a money debt, and that it was payable before the commencement of the suit. The objection to the declaration made in support of the demurrer was the same as made in this case, namely, the omission of the words "money payable by the defendants to the plaintiff," and in Wilkinson vs. Sharland, 10 Exch. 724, POLLOCK, C. B., said the omission of these words was fatal on demurrer. See also Bullen & Leake's Precedents  [**3]   of Pleadings, 37.
But it was supposed that these cases were overruled by Fagg vs. Mudd, 25 E. L. & E. Rep. 224, where it was held that the omission of these words was not fatal to a count "for money found to be due from the defendant to the plaintiff on accounts stated between them." The demurrer was overruled in that case, because, said Lord CAMPBELL, C. J., "the account being stated, and money found to be due, it was instantly payable, and therefore there is only the omission of that which the law would imply and the form is consequently substantially framed." Instead of overruling Place vs. Potts, 8 Exch., CROMPTON, J., distinguished the two cases, "there, he said, it was held to be bad because it did not aver that the debt was a money debt, or that it was due before the commencement of the suit." WIGHTMAN, J., "the present case is different. The defendant is alleged to be indebted for money due."
If, therefore, the omission of the words "money payable by the defendant to the plaintiff" is fatal even in the ordinary case of a suit between the parties to the alleged transaction, it is obvious that these words have a much stronger significance 

 [*101]  and are [**4]  the more necessary in a suit against an executor. We are of opinion that the first, second and fourth counts in this declaration are bad on demurrer, because they do not show a money debt payable in praesenti.
If the third count is not liable to objection on the ground that the words "money payable" are omitted, upon the authority of Fagg vs. Mudd, we think it is defective, because it fails to state that the money was due to the plaintiffs, Bullen & Leake's Precedents of Plead., 37; Fenton vs. Ellis, 6 Taunt. 192, and also because of the further omission of an averment shewing between whom the account was stated. The form prescribed in the Code for this count is as follows:
"For money found to be due from the defendant to the plaintiff on accounts stated between them," and this form is identical with that pursued in Fagg vs. Mudd, 25 Eng. L. & Eq. 224. See also Breckon vs. Smith, 1 Ad. & Ell. 488; and Tucker vs. Barron, 7 B. & C. 623.
We concur with the counsel for the appellees, that in proportion as the statutory forms are concise, we should be careful to preserve all the essential [**5]  averments contained in them. "The brevity which is the object of the Statute is not attained by omitting any of the material averments in the pleading, but by expressing them all in the simplest manner. Departure from forms is only authorized so long as substance is expressed."
For these reasons the judgment below will be affirmed.
Judgment affirmed. 

48 of 142 DOCUMENTS 

ROBERT A. MCALLISTER vs. MOSES EICHENGREEN and ISAAC WHITEHILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 54; 1871 Md. LEXIS 100 

February 15, 1871, Decided 

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

The appellees sued out an attachment against Moses Colman and ----- Colman, and it was levied upon their goods; they thereupon, for the purpose of dissolving the attachment, gave a bond, the condition of which was to satisfy any judgment that might be recovered against them. The attachment case was then proceeded with and a judgment in favor of the plaintiffs was obtained. Suit was then instituted by them on the bond, under the provisions of the Act of 1864, ch. 6; they filed with their declaration a copy of the bond, certified under the seal of the Court, and a short copy of the judgment certified by the clerk, together with an affidavit of the true amount that the defendants were indebted to them. The appellant, one of the sureties on the bond, appeared and filed his pleas, which were not verified by affidavit. The Court accordingly, on the 11th of April, 1870, being the April Rule Day, upon motion of the appellees, entered judgment by default against the appellant, for want of pleas verified by affidavit, and on the same day the judgment was extended. Subsequently, at the same term, the defendant filed a motion to strike out the judgment [**2]  against him, for the reasons therein stated; the Court overruled the motion and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of the Act of 1864, ch. 6.

Suits for the recovery of damages that are liquidated, or for such ascertained amounts as the plaintiff can properly and safely swear the defendant owes him, are within the provisions of the Act of 1864, ch. 6.

A bond given to dissolve an attachment, and a judgment recovered in the attachment case, constitute a cause of action upon which suit may be properly instituted under the provisions of the Act of 1864, ch. 6, against the obligors in the bond.

And in such action the filing by the plaintiffs of a properly certified copy of the bond, with their declaration, is a sufficient compliance with the provision of the eighth section of the Act.  

COUNSEL:
William Rowland and Jos. P. Merryman, for the appellant.

Thos. J. Morris and Ed. Otis Hinkley, for the appellees.  

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

OPINIONBY:
BRENT 

OPINION:

 [*55]  BRENT, J., delivered the opinion of the Court.
The principal question presented in this case is, whether the cause of action relied upon in the declaration, is such a one as authorized the appellees to proceed under the provisions of the Act of 1864, ch. 6. The construction of that Act in this particular has been presented in several cases that have 

 [*56]  been recently before this Court,--and it may now be considered as well settled, that suits for the recovery of damages that are liquidated, or for such ascertained amounts as "the plaintiff can properly and safely swear the defendant owes him," are within its terms. It does not include actions for the recovery of unliquidated damages, but if the declaration discloses a cause of action, by which the amount claimed is certain and liquidated, the plaintiff has a right to proceed [**3]  under its provisions for the recovery of his debt.  Smithson vs. U.S. Telegraph Co., 29 Md. 162; Jones vs. Freeman, 29 Md. 273; Bouldin vs. Steibel, 31 Md. 34; Knickerbocker Life Ins. Co. vs. Hoeske, 32 Md. 317. The inquiry therefore in the present case is, does the declaration disclose a cause of action for a liquidated amount? The appellant is one of the obligors in a bond, given for the purpose of dissolving an attachment, which had been sued out of the Court of Common Pleas of Baltimore City against Moses Colman and ----- Colman, and levied upon their goods. The condition in it is, "that if the said Moses Colman and ----- Colman shall satisfy any judgment that shall be recovered in said case against them, then the said obligation shall be void, else to be and remain in full force and virtue in law." The bond was filed, and the attachment dissolved. The case was then proceeded in and a judgment obtained against the Colmans in favor of the appellees, for $ 771.75, and $ 13.60 costs. This bond and judgment constitute the cause of action, set forth in the declaration, upon which the appellees base their [**4]  right to recover. By the very terms of the bond the recovery of the judgment fixed the amount to be paid under it, and to that extent the liability of the obligors became a certain and liquidated sum. The claim of the appellees, at the time of their bringing this suit, could not in any sense be considered as unliquidated damages. A judgment had settled it beyond controversy, and a stronger case, where a plaintiff could make out an account for an amount certain, and verify the same by affidavit, cannot well be supposed.

 [*57]  But the appellants also object that a copy and not the original bond was filed with the declaration. The eighth section of the Act of 1864, provides that "the plaintiff shall not be entitled to judgment under either of the three preceding sections, unless at the time of bringing his action he shall file with his declaration an affidavit, or affirmation, *** stating the true amount that the defendant is indebted to him over and above all discounts, and shall also file the bond, bill of exchange, promissory note, or other writing or account by which the defendant is so indebted." The language of this section cannot be construed to require the original bond [**5]  to be filed in all events. Its reasonable construction is, that the plaintiff shall file such bond or other instrument of writing as will evidence the indebtedness of the plaintiff. If a copy is admissible in evidence, such copy will gratify its requirement. That a copy of the bond, sued upon in this case, was admissible in evidence we entertain no doubt. Code, Art. 37, sec. 59. It was entered into and used for the purpose of dissolving an attachment, and the original, upon being filed in that case, and approved by the Court, became as much a part of the proceedings as any other original paper in it. The plaintiffs had no right to its custody and possession, and could only demand, from the clerk of the Court in which it was filed, a copy certified under the seal of his office. In doing this, and in filing a copy, properly certified, with their declaration, we think they have brought themselves within the meaning of the section of the Act of 1864, above referred to.
The other exceptions filed in the Court below were properly abandoned at the argument, and it is unnecessary for us to notice them.
Seeing no error in the judgment of the Court below, it will be affirmed.
Judgment  [**6]   affirmed. 

49 of 142 DOCUMENTS 

THE BALTIMORE AND POTOMAC RAILROAD COMPANY vs. FIELDER MAGRUDER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 79; 1871 Md. LEXIS 101 

February 15, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Prince George's County, in Equity.

The bill in this case, filed on the 19th of March, 1869, by the appellee, alleged that he was the owner of a large tract of land in Prince George's County; that the appellant had located the route of its road through said land, and was engaged in constructing it; that in constructing the road, the appellant claimed to have the right to alter and change the bed and course of the "Beaver Dam," a stream which had run, from time immemorial, through the complainant's land, and was the only branch on which he depended for watering his stock, and which supplied an ancient mill-race, then owned by him, and which he was about to repair in order to carry on his mill.

The bill also alleged that the appellant had commenced to dig and cut a canal for the purpose of diverting the water from the bed of the said stream; and was about to cut through and entirely fill up the bed of the said mill-race which crossed the railroad at a certain point, without providing a bridge or culvert for the escape of the water, &c., and would thereby destroy the mill-race and mill.

The bill further alleged that the diversion of the stream [**2]  and the filling up of the mill-race would leave the lands of the complainant without the necessary supply of water, would destroy the value of his mill and mill-race, and that the damage would be irreparable. The bill denied the right of the Railroad company to divert the course of the Beaver Dam stream, or to fill up any portion of the mill-race, and charged that it was the duty of the company to build bridges, culverts, &c., for the uninterrupted passage of all streams which crossed the line of their road.

The bill concluded with a prayer for an injunction commanding the company, &c., to cease from diverting or altering the water of the "Beaver Dam" branch from its present bed or course through the complainant's lands, and also to desist from any attempt to shut up or destroy the mill-race running through his land at the point where the said mill-race crossed or intersected the line of the railroad.

Upon this bill the Court granted an injunction.

On the 28th day of April, 1869, the Baltimore and Potomac Railroad Company filed their answer, admitting that they were engaged in constructing their road through the land of the complainant, and averred that being unable [**3]  to agree with him for the purchase, or use, or occupation of the land wanted for the construction of their road and the works of the same, they caused a warrant to be issued; that under this warrant the jury valued and condemned certain real estate and assessed the damages which the complainant would sustain by the use and occupation aforesaid, at $ 5,225; that the inquisition was confirmed, and the damages had been paid to the complainant.

The defendants further admitted that in the construction and building of the road, they had changed the "Beaver Dam" stream or straightened the same, but they averred that in making the change they had not carried the stream outside of the limits of the land condemned, and that the proposed change was necessary for the proper construction of the road, and that under their charter and the said inquisition they had the right to make such change.

The answer denied that the proposed change would deprive the complainant of water for the use of his stock; and further that there was a mill-seat and mill-race to which the complainant could set up any claim, and that in point of fact they were depriving the complainant of the use of a race or mill-seat [**4]  by so changing the course of the stream.

The defendant further charged that the sum of $ 5,200 awarded as damages, covered all damages which the complainant would sustain by the construction of the road and works thereof; that by the reception of the damages he was estopped from claiming that the straightening of the stream in the proper and necessary construction of the road was an irreparable damage; and further that he had been compensated for whatever damage might be sustained by the construction of the road in a proper and necessary manner.

A motion was made after filing the answer to dissolve the injunction. And upon the petition of the complainant, an order was passed to take testimony to be used at the hearing of the motion.

A large amount of testimony was taken.

The case was submitted for final hearing upon the bill, answer, and proof taken under the motion to dissolve the injunction.

On the 2d of August, 1869, the Court (MAGRUDER, J.,) passed an order overruling the motion to dissolve the injunction, and making the injunction perpetual.

From this order the present appeal was taken.  

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

Right of a Railroad Company to divert a Stream of water flowing across the Line of its road -- How the Right to divert such stream may be acquired -- Admissibility of Evidence de hors the Inquisition to show that the Attention of the Jury of Inquest was directed to the proposed Diversion -- Invalidity of a Claim for damages by the Owner of the Land through which the stream flows, for Injury occasioned by its diversion.

Under a charter conferring on a Railroad company the power to acquire by condemnation, land for the construction of its road, the company have the right to divert, if they see fit to do so, a stream of water flowing across the line of their road.

The right thus to divert a stream of water, does not depend upon an express grant to be made and specified in the inquisition itself, but may be acquired by condemnation of the land, duly confirmed, and payment or tender of the damages awarded; and proof de hors the inquisition is admissible to show that at the time of taking and before they signed the same, the attention of the jury of inquest was directed to the intended diversion.

And where the attention of the jury is directed to such diversion, and the same is within the lines of the land condemned for the construction of the road, the owner of the land through which the road passes, has no remedy, either at law or in equity, for any injury that may result therefrom.  

COUNSEL:
Daniel Clarke, for [**5]  the appellant.

The Baltimore and Potomac Railroad Company has the right to divert a stream of water, either by express agreement with the owner of the land or by condemnation. Act of 1853, ch. 194, secs. 12, 13; Angell on Water Courses, secs. 457, 458, 469, 470; 1 Greenl. Cruise Dig., 37; Williams' Real Property, 12; Den vs. Wright, et al., 1 Peters' C. C. R., 64; Newsom vs. Pryor's Lessee, 7 Wheaton, 7; Canal Commissioners vs. The People, 5 Wend., 423.

The right to divert a stream of water by condemnation, may be acquired either by the inquisition of a jury duly ratified, which describes the metes and bounds of the lands condemned, and indicates on a map or profile accompanying and made part of the same, the course of the stream when so diverted; or secondly, by an inquisition of a jury duly ratified which describes the metes and bounds of the lands taken, followed by proof that at the time the inquisition was taken, the proposed diversion was pointed out and called to the attention of the jury, and that the diversion of the stream is confined within the limits of the land condemned. Beaver vs. Western Maryland Railroad Co., noted in 32 Md., among the unreported cases.

If [**6]  a stream runs within the limits of the land condemned for the use and occupation of a railroad, and the stream is diverted after it enters the land from its old channel, and is carried within the lines of the land condemned until it flows again into its old channel, such diversion is not a question of grant, but of damage. And if at the time of condemnation the attention of the jury was called to such diversion, after the confirmation and the payment or tender of the amount of damages awarded, the company has the right to make such diversion within the limits of the right of way so condemned. Beaver vs. Western Maryland R. R. Co.

Parol proof is admissible to show that the attention of the jury was called to the diversion of the stream at the time when the condemnation was made. Beaver vs. Western Maryland R. R. Co.

If the inquisition was ratified and confirmed, and the attention of the jury was called to the fact of the proposed diversion of the Beaver Dam branch, at the time of the taking of the inquisition, and the change or diversion as proposed corresponds exactly with the diversion as pionted out to the jury, and is confined within the limits of the land condemned, and [**7]  the complainant has received the amount of damages so awarded him from the company, all questions having relation to the damage done by the location and construction of the road, and the diversion of the stream within the limits of the land condemned, are terminated and concluded by such inquest, and the complainant is not entitled to an injunction to restrain the defendant from doing that for which he has been compensated in damages. Baltimore and Susquehanna R. R. Co. vs. Compton, 2 Gill, 20; Chesapeake and Ohio Canal Co. vs. Grove, 11 Gill & J., 398; Beaver vs. Western Maryland R. R. Co.

If the diversion of the stream was pointed out and called to the attention of the jury, the legal presumption is that the jury considered and allowed for all damages which the complainant would sustain either from inconvenience, &c. in watering his stock, or from injury done to his mill-seat and mill-race. Chesapeake and Ohio Canal Co. vs. Grove, 11 Gill & John., 398; Beaver vs. Western Maryland Railroad.

The evidence shows:

First. That the land of the complainant was condemned and the inquisition duly ratified and confirmed, and that he has received the amount of the damages awarded.  [**8]  

Secondly. That the attention of the jury was called to the fact of the proposed diversion of the stream, and that such proposed diversion corresponds exactly with the proposed change of stream as pointed out to the jury.

Thirdly. That the proposed change or diversion of the stream is confined wholly to a change in the course of the stream within the limits of the lines of the land condemned; and that the company does not carry the bed of the stream, when so changed, on the land of the complainant outside of the condemned land.

Samuel H. Berry, for the appellee.

The appellee is as much entitled to the water of the "Beaver Dam" stream, as to the land through which it runs, or as he would be to wood, stone, or any other material that might be thereon, and the appellant had no right to divert the stream outside of the land condemned. Act of 1853, ch. 194; Greenleaf Cruise Dig., 37; William's Real Property, 12; Den vs. Wright, et al., 1 Peters' C. C. Rep., 64; Newsom vs. Pryor's Lessee, 7 Wheat., 7; Canal Commissioners vs. The People, 5 Wendell, 423; Angell on Water Courses, 5.

By reference to the warrant, it will be seen that the appellant made application to [**9]  acquire the right to enter upon and possess, for the construction and repair of its road, and of works connected therewith, strips of land owned by the appellee, four rods in width, one-half thereof on each side of the centre line of said railroad; that the same has been located by the engineers of the company, and extends in length through and across the lands of the appellee, a distance of from three-quarters to a mile; the jury were required to value the same, and assess the damages to be sustained by the appellee by the use and occupation of said land by the company for its road. The jury condemned that extent of land alone, and awarded the sum of $ 5,225 for the damage sustained by the appellee, by the use and occupation of said strip of land for construction. This is the limit of the land condemned, and for which alone damages were awarded.

Whilst the appellant may have the right to change the course of a stream within the limits of a grant or land condemned, it must be so exercised as not to be detrimental to the rights of proprietors of the land, above or below the point at which the proposed change is made.

Courts of Chancery are the only tribunals vested with jurisdiction [**10]  to restrain parties from altering, changing, or obstructing the course of waters flowing through the lands of others, as such changes or obstructions are an injury and damage to the freehold, which could not be adequately redressed in a Court of law. White vs. Flannigan, 1 Md., 539; Lamborn vs. Covington Co., 2 Md. Ch. Dec., 409; Herr vs. Bierbower, 3 Md. Ch. Dec., 456; Cockey vs. Carroll, 4 Md. Ch. Dec., 344; Carlisle vs. Stevenson, 3 Md. Ch. Dec., 499.

There is no proof that the damages sustained by the appellee, in thus changing the course of said stream, were considered by the jury in awarding damages for the right of way through the lands of the appellee; nor is there any sufficient proof that the jury which made the condemnation as a whole, knew at the time of making up their verdict, that the proposed change in said stream was contemplated or intended to be made.

The receipt by the appellee of the damages awarded by the jury, is no estoppel to the prosecution of this suit on his part, as the damages awarded by the jury were estimated by them solely for the sixty-six feet of land condemned by them for the construction of the road.

Even should the proposed change [**11]  of said stream benefit the appellee as claimed by the appellant, (but which is denied by the appellee,) it is not a matter for the consideration of this Court; the only question for this Court to consider is, has the appellant the right under its grant in this case of sixty-six feet, to go beyond the limits of its grant to make such change, and thereby divert the water from the freehold of the appellee? 

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

OPINIONBY:
MILLER 

OPINION:

 [*86]  MILLER, J., delivered the opinion of the Court.
Since the passage of the decree from which this appeal is taken, the case of Beaver vs. The Western Maryland Railroad Company has been decided by this Court. That was a case where Beaver brought an action of trespass quare clausum fregit, against the Railroad Company for entering upon his land, and by the construction of their road, diverting a stream of water called the "Patapsco Falls" from its ancient course into a new channel, dug for that purpose, whereby the stream was cut off from a large part of his farm through which it used to flow, so that he could no longer water his stock and cattle therefrom, and use it for [**12]  the purposes of his farm as he had been accustomed to do. The company relied upon the inquisition (which had been duly confirmed and the assessed damages paid) and the fact that the attention of the jury of inquest was directed to the intended diversion of the stream, and that the same was within the lines of the land condemned, as a bar to any recovery for damages resulting from such diversion. The inquisition there does not materially differ from that in the present case. Instead of describing 

 [*87]  the land condemned precisely in the same mode as the one before us, it did so chiefly by reference to lines on a plat filed with, and made part of the inquisition, "which lines," as it states, "fully describe the piece or parcel of land required by the said Western Maryland Railroad Company" for the construction thereon of the bed of their road, but in both it is the described land that is condemned, and there is nothing on the face of either amounting to an express grant of the right to divert the stream. In that case, conflicting oral testimony of many witnesses on both sides was offered upon the question whether the attention of the jury of inquest was called to [**13]  the intended diversion, as well as whether they actually took it into consideration in estimating the damages they awarded. At the instance of the defendant the Court below instructed the jury that if they should find from the evidence, that the attention of the jurors who found the inquisition was called to the intended diversion of the stream in the construction of the railroad, and should also find that the road was constructed, and the new channel for the diversion of the stream was dug, in and upon the land within the lines of the land condemned by the inquisition, then their verdict must be for the defendant, and in reference to this instruction this Court said: "We can discover no objection to this prayer, and the only objection that is made to it in the appellant's brief, is that it should have required the jury to find that the jury of inquest estimated, in the damages allowed by it, the injury to the appellant by reason of the intended diversion of the water in the Patapsco Falls. The prayer did require the jury to find that the attention of the jury of inquest was directed to that diversion, and the legal presumption is that they estimated in their [**14]   inquisition the damages to result from such diversion. Chesapeake and Ohio Canal Co. vs. Grove, 11 G. & J. 398, 404."
That case decides first, that under a charter, similar in this respect to that of the appellant, conferring the power to acquire by condemnation land for the construction of its road, the company has the right to divert, if they see fit to do so, a 

 [*88]  stream of water flowing across the line of their road: secondly, that this right does not depend upon an express grant to be made and specified in the inquisition itself, but may be acquired by condemnation of the land duly confirmed, and payment or tender of the damages awarded, and proof de hors the inquisition that the attention of the jury of inquest was directed to the intended diversion at the time of taking, and before they signed the same: and thirdly, that if the attention of the jury was thus directed to such diversion, and the same was made within the lines of the land condemned for the construction of the road, the owner of the land through which the road passes has no remedy, either at law or in equity, for any injury that may result therefrom.
The inquisition [**15]  in the present case was regularly confirmed, and the damages thereby awarded have been paid to the appellee. The proof in the record, which we have examined with care, establishes to our satisfaction the fact that the attention of the jury was directed to the proposed diversion of the stream called "Beaver Dam Branch," (the making of which the injunction restrains,) from its old channel through the lands of the complainant, at the time of taking and before they signed their inquisition, and also that such diversion is confined within the limits of the land condemned.
The decree appealed from must be reversed, the injunction dissolved and the bill of complaint dismissed.
Decree reversed and bill dismissed. 

50 of 142 DOCUMENTS 

JOHN DOE, Lessee of DANIEL JOYNES, and ELIZABETH, his Wife, vs. REZIN SCOTT and HENRIETTA, his Wife, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 58; 1871 Md. LEXIS 33 

February 15, 1871, Decided 

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

The appeal in this case was taken by the plaintiffs from an order of the Court below, striking out the judgment by default against the casual ejector, quashing the writ of possession, and directing regular continuances from term to term to be entered. The facts of the case are sufficiently stated in the opinion of this Court.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

When a Judgment will not be Stricken out.

A judgment by default was rendered against the casual ejector, on the 4th of February, 1860. Under a writ of possession issued upon the judgment, the plaintiffs were put in possession on the 18th of May, 1860. On the 30th of November, 1869, the defendants filed a petition praying that the judgment by default might be stricken out, and they be allowed to come in and defend. They claimed title to the property, and alleged that it was unimproved, and that they had no knowledge of any of the proceedings in the suit until the day before the filing of their petition. The answer of the plaintiffs denied that the petitioners had any title to the property, and claimed that the title was in themselves, having purchased the property at a trustee's sale, and obtained a deed therefor. The answer denied also that the petitioners did not know of the judgment until the time alleged in their petition. There was no irregularity in obtaining the judgment, or in any of the subsequent proceedings; and there was no proof of fraud or deceit on the part of the plaintiffs, or of any surprise practised by or through them on the petitioners. The allegation of a want of knowledge of the proceedings on the part of the petitioners, was not sustained by the evidence; and the proof offered failed to establish their claim of title. HELD:

That the judgment should not be stricken out.  

COUNSEL:
Wm. Parkin Scott, for the appellants,

Referred to the following authorities: Munnickhuyson vs. Dorsett, 2 H. & G., 378; Klinefelter's Lessee vs. Carey, 3 G. & J., 352, 355; Sherwood vs. Mohler, 14 Md., 564; Anders vs. Devries, 16 Md., 226, 227; Green vs. Hamilton, 16 Md., 329; Kemp & Buckey vs. Cook & Ridgely, 18 Md., 138, 139; Henderson vs. Gibson, 19 Md., 238; Dennis' Lessee vs. Kelso, 28 Md., 333; Dorsey vs. Kyle, et al., 30 Md., 521, and Hall, et al. vs. Holmes, 30 Md., 561.

George H. Williams, for the appellees,

Relied on the following authorities: Klinefelter's Lessee vs. Carey, 3 G. & J., 350; Kemp & Buckey vs. Cook & Ridgley, 18 Md., 138, 139, and Dennis' Lessee vs. Kelso, 28 Md., 337.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, GRASON, MILLER [**2]  and ALVEY, J.  

OPINIONBY:
BRENT 

OPINION:

 [*59]  BRENT, J., delivered the opinion of the Court.
This action of ejectment was instituted by the appellants, in June, 1859, and the tenants in possession failing to appear, judgment by default was rendered against the casual ejector on the 4th of February, 1860. Upon the judgment a writ of possession issued in the usual form, and under it the appellants were put in possession on the 18th of May, 1860. On the 30th of November, 1869, more than nine years from the date of the judgment, the appellees filed a petition praying that the judgment may be stricken out, and that the Court will allow them to come in and defend. They assign as reasons,--their claim of title, that the property in question is still unimproved, and that they had no knowledge of any of the proceedings in the suit until the day before the filing of their petition. The answer of the appellants denies that the appellees have any title in the property, and claims that the title is in themselves, having purchased the property under a decree of the Superior Court in Equity, and obtained a deed therefor, in September, 1855, from William A. Stewart, trustee. It also denies that the [**3]  appellees did not know of the judgment until the time alleged in their petition. Upon 

 [*60]  proofs filed by both parties the motion to strike out was heard on the 19th of February, 1870, and the Court on the same day passed an order striking out the judgment by default, and quashing the writ of possession.
It is not alleged, nor does it appear, that there was any irregularity in obtaining this judgment, or in issuing the writ of possession and the proceedings under it. There is no proof of any fraud or deceit on the part of the appellants, or of any surprise upon the appellees practised by them or through their agency. The application rests solely upon a claim of title and a want of knowledge that such a judgment existed.
In the cases of Munnikuyson vs. Dorsett, 2 H. & G. 374, and Klinefelter's Lessee vs. Carey, 3 G. & J. 349, the Court refused to sanction the striking out of the judgments by default, upon the grounds that there had been too long a lapse of time. In the one case the judgment was of eight years standing, and in the other nine. In the latter case the Court, after reviewing a number of decisions, uses this language: "By [**4]  all these cases the principle seems to be affirmed that it is only where the judgment is a recent one, that the Court will interfere for the purpose of setting it aside, to enable the tenant to appear and defend his possession. But no case, it is believed, can be found where a judgment has been stricken out after such a lapse of time, and under the circumstances existing in the present case." These cases, and the authorities to which they refer, do not go so far as to hold that lapse of time, under all circumstances, is a sufficient ground for refusing to strike out a judgment of this description, but they establish the doctrine that when it occurs, a strong case upon the merits must be presented in support of such a motion. The party making it must not only allege a sufficient reason, but the allegation must be sustained by the proof in the case.
Connected with the fact, which is conceded, that this property has remained unimproved, a want of knowledge by the appellees, until within a reasonable time before the filing of 

 [*61]  their petition that a suit had been instituted for its recovery, would have great weight in determining the question before us. But the allegation is [**5]  wholly unsupported by any evidence. The parties were all competent witnesses, yet not one has testified upon this point. The affidavit of only one of them, Rezin Scott, has been filed; but it relates alone to the payment of taxes. On the other side, the testimony of Nicholas Gilliard proves that he had lived with these appellees until about nine months before the date of their petition, "and that he has frequently heard them speak of the suit of Joynes and wife, and the judgment under it referred to in the petition filed in this case." Certainly upon this state of the proof, it cannot be assumed that this allegation is true.
Upon the claim of title there is also an entire failure in the proof. The will of Jacob Gilliard, under which the claim of title is set up, contains no reference to the property in question. The lots on Harford avenue, devised by it, are all improved lots with buildings upon them, while the lot in dispute is conceded to be unimproved. The only proof that Jacob Gilliard ever owned it, is contained in the deed to the appellants from William A. Stewart, trustee for the sale of the real estate of Nicholas Gilliard, in which the property conveyed is described as having [**6]  been "purchased by the late Nicholas Gilliard of Jacob Gilliard, about the year 1824, and of which the said Nicholas died seized."
In regard to the payment of taxes on this property, the affidavits of Rezin Scott and Daniel Joynes are directly in conflict. Each of them asserts, with equal confidence, the payment of taxes upon this particular property, and exhibits certain tax bills and receipts as evidencing such payment. From the face of these bills and receipts, it is impossible to determine on what lot upon Harford avenue the parties respectively did pay taxes. The lots are certainly not one and the same; but the bills do not designate the property so as to enable us to determine which is the lot involved in this case. 

 [*62]  In this direct conflict and uncertainty of the evidence, the burden of proof being upon the appellees, it cannot be held that they have established the fact of the payment of taxes by them.
In view then of the law, which seems to be well settled, requiring a party to show good cause in support of a motion to strike out a judgment of this description, where it has been of long standing, and of the failure on the part of the appellees to support by [**7]  proof the allegations upon which their application rested, we think there was error in striking out the judgment in this case. It necessarily follows there was also error in quashing the writ of possession and ordering the case to be brought forward by regular continuances. The judgment appealed from will therefore be reversed.
Judgment reversed.
STEWART, J., dissented.  

51 of 142 DOCUMENTS 

JOHN F. WHEATLEY and ALLEN DORSEY vs. GEORGE WHEELER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 62; 1871 Md. LEXIS 34 

February 15, 1871, Decided 

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

The facts are sufficiently given in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Evidence -- Books, other than Partnership, inadmissible without extrinsic proof of entries.

W and D were partners trading as W, D & Co. By contract they entered into partnership with G. W to conduct business in other localities under the style of G. W. The course of business was for the house of W, D & Co. to make purchases for, and shipments to, the house of G. W. and to receive goods and sell them for that house. On the dissolution of the co-partnership, G. W filed a bill for an account against W and D. The subject was referred to an auditor, and the books of W, D & Co. were produced as evidence on behalf of W and D. HELD.

That these books were inadmissible to charge G. W unless the entries therein were established by extrinsic proof.  

COUNSEL:
John Johnson and Alex. H. Hobbs, for the appellants.

John S. Tyson and Th. Donaldson, for the appellee,

Cited 1 Greenl. Ev., secs. 115, 120; Welch vs. Barrett, 15 Mass., 361; Union Bank vs. Knapp, 3 Pick., 96; Reynolds vs. Manning, 15 Md., 510; Heartt vs. Corning, 3 Paige Ch. Rep., 566; and Collyer on Partnership, sec. 316, n.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*63]  BARTOL, C. J., delivered the opinion of the Court.
The appellants were co-partners carrying on business in Baltimore, under the name of Wheatley, Dorsey & Co., and on the 1st day of July, 1864, articles of co-partnership were entered into between them and the appellee, whereby a firm was created "under the name and style of George Wheeler, for the purpose of carrying on the milling business at Laurel, Prince George's County, and a general commission and trade business under the same name and style in Washington city." This partnership was to continue till the 30th day of June, 1865. The [**2]  course of business of the firm of George Wheeler as provided for by the articles and actually carried on was as follows: the house of Wheatley, Dorsey & Co., in Baltimore, purchased grain which was sent to the mill of the appellee, at Laurel, to be ground for market; and the flour and other products were sent for sale to the house in Washington, or the house of Wheatley, Dorsey & Co., in Baltimore. This latter house also purchased for the firm of George Wheeler quantities of hay which was sent to be sold by the house in Washington.

 [*64]  Among other stipulations it was agreed that the firm of Wheatley, Dorsey & Co., "should be allowed by the firm of George Wheeler, the sum of twelve hundred dollars for clerk hire, porterage, and the use of their warehouse in the conduct of the business of the firm of George Wheeler, in Baltimore."
And it was further stipulated that "all parties to this instrument are to have free access to the books of said firm of George Wheeler wherever said books may be--whether in Washington, at Laurel, or in Baltimore, at the countinghouse of Wheatley, Dorsey & Co." It was declared to be the intention of all the parties "that both the milling business at [**3]  Laurel, and the commission and trade business at Washington, are to be considered as one business, for the purposes of the partnership of "George Wheeler."
That the expenses of both businesses are to be charged to the general expense account of the house or firm of George Wheeler; and that "after the expenses of carrying on the firm of George Wheeler shall have been first deducted, the profits are to be divided in the proportion of three-eights to George Wheeler, and five-eights to Wheatley and Dorsey, the respective parties of the first and second part to the articles."
After the co-partnership thus formed had expired, the appellee filed his bill for an account of the business of the firm. A decree for an account was passed, the cause was referred to the auditor, proof was taken, and agreements of counsel were made, which it is not important now to refer to more particularly. By the final account stated by the auditor, in accordance with the decision and direction of the Superior Court, the balance found due from the appellants to the appellee was $ 1,413.05, and from the decree ratifying the account and ordering the said balance, with interest thereon from the 16th of September,  [**4]  1865, to be paid by the appellants to the appellee, or to be brought into Court to be paid, this appeal was taken.
The only ground upon which the appellants ask for a reversal of the decree, is for an alleged error of the Court below 

 [*65]  in refusing to admit in evidence the books of account kept by the house of Wheatley, Dorsey & Co.
It was virtually conceded in the argument, and indeed is manifest from the record, that unless these books were competent and admissible testimony against the appellee, or the entries therein are established by extrinsic proof, there remains no good cause for reversing the decree in his favor for the sum ascertained by the auditor; the decree being abundantly supported by the other proof which would have justified a decree for a larger sum.
We think it very clear that the books were inadmissible, and were properly excluded from the consideration of the auditor.
It is, undoubtedly, the general rule, supported both by reason and authority, that as between co-partners the books of the co-partnership business are conclusive evidence. This rule grows out of the relation between the parties who are agents for each other in the partnership transactions.  [**5]  As stated in the opinion of the learned Judge below, such books "are subject to the inspection of all the co-partners and to their instant correction if wrong, and therefore must be taken as conclusive between them." It has been held that this general rule does not apply where a co-partner is at a distance from the place where the books are kept, and has no opportunity of examining them; in such case they are not conclusive against him. Such, to some extent, was the position of the appellee in respect to the business of the firm transacted in Baltimore. He was engaged at the mill at Laurel, and had little opportunity for access to, and inspection of the books in Baltimore; under these circumstances, it might well be questioned whether he would be conclusively bound by them, even if they had been regularly kept in conformity with the articles of co-partnership.
But upon that question, we do not mean to express an opinion. The conclusive objection to the admissibility of the books relied on by the appellants, is that they are not 

 [*66]  the books of the co-partnership of George Wheeler, but the books of the firm of Wheatley, Dorsey & Co.
It was evidently the intention of the parties [**6]  and the plain import of the articles, that regular books should be kept in Baltimore, of the business of the firm of George Wheeler, there transacted: provision is made for the employment of a clerk for that purpose, and for his compensation out of the effects of the firm.
This stipulation appears to have been altogether disregarded by the appellants. It is conclusively shown by the evidence that no such books were kept, all the transactions of the firm of George Wheeler, were entered in the private books of Wheatley, Dorsey & Co., and the grain and hay purchased on account of the firm and sent to the mill at Laurel and to Washington, are charged in the books of Wheatley, Dorsey & Co. against George Wheeler, in the same manner as if he or the firm were ordinary customers of the house of Wheatley, Dorsey & Co. Those are the accounts offered in evidence by the appellants as partnership accounts. It is very clear that they were merely the private books of the appellants, and not per se admissible in evidence.
We are of opinion, after a careful examination of all the proof, that the appellants have failed to establish the correctness of the entries by extrinsic proof.
The admission [**7]  of the appellee with regard to the correctness of the account as testified to by the witness, McComas, has been explained in the testimony of the appellant, and we think goes no further than an admission of clerical accuracy in the account, and by no means establishes the correctness of the items and prices charged, which the appellee was at that time disputing.
Nor do we think the account has been proved by the witnesses, McComas and Wheatley; their testimony as to its correctness is very general, and when examined amounts to no more than hearsay, for they could not speak of their 

 [*67]  own knowledge as to the prices actually paid for the produce purchased on account of the firm of George Wheeler.
In conducting the business of the firm, in the way in which it was actually carried on, it was the duty of the appellants to take bills and receipts showing the quantity purchased for the firm, and the prices actually paid, and to have preserved the vouchers thereof for their own security, and the protection of the rights of their co-partner, and he was entitled to insist on the production of such vouchers. The entries on the books of Wheatley, Dorsey & Co., were not binding upon [**8]  him, and were properly excluded as inadmissible evidence in the cause.
Decree affirmed. 

52 of 142 DOCUMENTS 

HENRY KNELL vs. THE GREEN STREET BUILDING ASSOCIATION.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 67; 1871 Md. LEXIS 35 

February 15, 1871, Decided 

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

The facts are given in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Priority of Mortgages, recorded within six months from their date, over later Judgment liens -- Construction of the Code, Article XXIV, section 16, relating to the Recording of Mortgages.

A judgment creditor is not a purchaser or mortgagee, within the letter or spirit of Article 24, section 16, of the Code.

Where a judgment is recovered subsequent to the date of a bona fide mortgage, not recorded at the time of recovery of the judgment, but recorded afterwards within the time prescribed by law, the judgment binds only the equity of redemption, and must be postponed to the rights of the mortgagee, without regard to the question of actual notice. 

COUNSEL:
Samuel Snowden, for the appellant.

The account under the mortgage to the appellee should have been stated in accordance with the rule laid down by this Court. Robertson vs. Am. Hm. Asso., 10 Md., 397.

The mortgage is in the usual form of a Building Association mortgage. The account filed by the association contains no reference to the mortgage, and is not stated in accordance with its provisions; there is therefore no proof of any claim under said mortgage.

There is no proof that the judgment creditor had any knowledge of the existence of the mortgage of the appellee prior to the loan made by him, but the proof is that he had no notice. And the assignee of the judgment creditor is protected by the want of notice to his assignor. Hagthorp vs. Hook, 1 G. & J., 270.

The design of the registry laws is to give notice to all the world, to avoid abuses and deceits by mortgages and pretended titles, and for the protection of creditors and purchasers, and they should be so construed as to effect those objects. Nelson vs. Hagerstown Bank, 27 Md., 57;  [**2]  Johnston vs. Canby, 29 Md., 211.

John C. King, for the appellee.

A judgment creditor is not a purchaser for value, and must stand or fall by the real, and not by the apparent rights of the judgment debtor. 2 Story's Equity, secs. 1229, 1503; Whitworth vs. Gaugain, 3 Hare, 416; 2 Leading Cases in Equity, (Hare and Wallace,) 108; Jackson vs. Dubois, 4 Johns., 216; Shryock vs. Wagoner, 4 Casey, 430.

Having a right to dictate the security, if he prefers a judgment which binds all the debtor's property, whether more or less, instead of a mortgage which only covers what is specially mortgaged, he must abide by that choice, and he cannot subsequently invest either security with the attributes of the other. Marsh vs. Lee, 2 Ventris, 337; Brace vs. Duchess of Marlborough, 2 P. Wms., 491; Atlantic Ins. Co., 1 Peters, 388, 444; Keirsted vs. Avery, 4 Paige, 14; Rodgers vs. Gibson, 4 Yeates, 111; Heister vs. Fortner, 2 Binney, 40; Hart vs. Farmers and Mechanics' Bank, 33 Vermt., 252; 2 White and Tudor's Equity Cases, (Am. Ed.,) 75, 79.

Even if the judgment creditor had demanded a mortgage, it would have been a fraud in his debtor to have given it, and when she has not given [**3]  it, equity will not commit the wrong which the parties themselves never contemplated doing. Cadbury vs. Duvall, 1 Am. Law Reg., 105; Wilkes vs. Harper, 2 Barbour's Ch., 338, 355; White vs. Denman, 1 Ohio N. S., 112.

Under the provisions of the Code, while the first deed or mortgage recorded, shall take precedence, if made bona fide, &c., a party who has not availed himself of the provisions of the Act cannot claim its protection against a party who holds a bona fide deed or mortgage recorded within the time prescribed by law. Code Pub. Gen. Laws, Art. 24, secs. 13, 16, &c.; Ratcliffe vs. Sangston, 18 Md., 383.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*69]  BARTOL, C. J., delivered the opinion of the Court.
This is a contest with regard to the proper distribution among creditors of a fund arising from the sale of certain leasehold property of the common debtor, Mary Kraft.
The appellee claims as mortgagee of the specific property sold; the appellant claims as creditor upon a judgment recovered against the debtor and mortgagor, after the date of the execution of the mortgage, and before it had been recorded. The [**4]  mortgage was duly executed and acknowledged on the 19th day of June, 1868, and was placed on record on the 30th day of November, 1868. The judgment under which the appellant claims was confessed by Mary Kraft, in favor of Charles Thompson, on the 26th day of September, 1868, and was assigned to the appellant on the 24th day of December, 

 [*70]  1868. The judgment was for $ 2,000, which it appears by the proof was for money loaned by Thompson to Mrs. Kraft at the time; the judgment being given as a security therefor. On the same day Mrs. Kraft made a voluntary deed to William P. Hoopes, conveying all her property in trust for the benefit of her creditors, giving priority to "all judgments and record liens of every kind." Afterwards, on the 11th day of November, 1868, she made another deed, conveying to Henry Knell, the appellant, all her property of every kind in trust for the payment of her debts. Knell, the grantee, in the second deed, filed a bill impeaching the first deed as fraudulent; but by the decision of this Court, 31 Md. 550, the validity of the deed to Hoopes was established.
In the meantime the property was sold by Samuel Snowden, Esq., receiver, and [**5]  the fund arising from the sale being insufficient to pay both the judgment and the mortgage, it becomes necessary to decide which is entitled to priority. The question arises upon the appellant's exceptions to the auditor's report and account E, made in conformity with the opinion and direction of the Circuit Court, by which the fund is applied in part payment of the mortgage, to the exclusion of the judgment. The mortgage was duly executed, acknowledged and recorded, within six months from its date, as required by the Code, Article 24, sections 1, 13, 28.
Section 14 provides that when so acknowledged and recorded, "it shall take effect, as between the parties thereto, from its date." By the operation of this section, so far as Mrs. Kraft is concerned, the mortgage being recorded within six months after its date, as required by the Code, related back and took effect from its date, the 19th day of June, 1868. The judgment in favor of Thompson was rendered on the 26th day of September thereafter, when the only estate and interest of Mary Kraft in the property, upon which the judgment was a lien, under the Act of 1861, chap. 70, was the equity of redemption. The general rule is that [**6]  a judgment 

 [*71]  is a lien only on the debtor's interest and estate in the land; a purchaser under an execution takes only the estate belonging to the debtor in the judgment and execution.
But it is contended by the appellant, that as against a judgment creditor, without actual notice of the mortgage, that instrument operates only from the time it is recorded. In support of this position we have been referred to the 16th section of Article 24, of the Code. That section relates only to the case "when there are two or more deeds conveying the same lands or chattels real," and provides that "the deed or deeds first recorded according to law, shall be preferred, if made bona fide and upon good and valuable consideration," and the section by its terms applies "to all deeds of mortgage and to all other deeds or conveyances, to the validity of which recording is necessary." A judgment creditor is not within the letter, or spirit of this provision, and cannot claim its protection. It is intended to protect against unrecorded deeds and mortgages, the title of a bona fide mortgagee, or purchaser for value, who perfects his title, by having his deed first recorded. If the 16th section [**7]  had been designed to protect the rights of a judgment creditor, apt words for that purpose would have been employed. But he is neither in fact nor in law a bona fide purchaser, as has been often decided.
In the case of the Duchess of Marlborough, 2 Peere Wms. 491, it was said "one cannot call a judgment creditor a purchaser, nor has such creditor any right to the land; he has neither jus in re, nor ad rem."
In Rodgers vs. Gibson, 4 Yeates 111, and in Heister vs. Fortner, 2 Binn. 40, it was decided that a judgment creditor is not considered a purchaser or mortgagee within the words of the recording Act of Pennsylvania of the 18th of March, 1775. The provisions of that Act were similar to those contained in the 16th section of the Code. These decisions were followed in Cover vs. Black, 1 Pa. 493, where Chief Justice GIBSON said, in referring to Rodgers vs. Gibson, and Heister vs. Fortner, "it is true the question turned on the interpretation 

 [*72]  of the Statute; but even a purchaser would not have been protected without it; for the first conveyance of the title takes precedence [**8]  of all others, with or without notice, at the common law, and the same rule holds in England as to equities, as it does here as to those not within the recordings acts, by whose force alone it has been inserted. In each of the cases cited, the judgment was postponed to the unrecorded deed, not because the Statute had condemned it, but because it had not interposed to save it. It was postponed because no interpretation could bring it within the spirit or the letter."
As very well expressed by Justice HARE, in Cadbury vs. Duval, 1 Am. Law Reg. 109, "it is settled that a judgment creditor is neither a purchaser in the technical or limited sense in which the term is used in equity, nor in that in which it is used in the recording acts of this country, and must stand or fall by the real, and not by the apparent, rights of the defendant in the judgment."
In disposing of the question of priority in this case, we think it unnecessary to inquire whether the judgment creditor had or had not actual notice of the mortgage when he obtained the judgment. According to the well settled rule to which we have referred, the judgment binds only the equity of redemption, and must be postponed [**9]  to the rights of the mortgagee, without regard to the question of actual notice, there being no evidence impeaching the bona fides of the mortgage, and it being recorded within the time prescribed by law.
Sections 19, 20 and 21, Article 24, of the Code, have no application to the case, they refer to absolute deeds; and mortgages are in terms excepted from their operation.
In the argument on the part of the appellant, some objection was made to the allowance of the mortgage claim for alleged want of proof, and because it is not stated in conformity with the rule laid down in Robertson's case, 10 Md. 397. This last objection does not appear to have been insisted on below, it is not referred to in the opinion of the Judge of the Circuit Court, was not argued by the appellee, 

 [*73]  and we do not understand the appellant's solicitor as asking for a reversal of the decree for that reason. The fund is insufficient to pay the mortgage claim as exhibited, and it is not shown that by stating it in a different way, and according to the rule established by the case referred to, any benefit would inure to the appellant, or that he is prejudiced by the decree in that [**10]  respect. The mortgage is established by the proof; and as we concur with the Circuit Court in the opinion that the debt thereby secured is entitled to be paid in preference to the judgment held by the appellant, the order ratifying the auditor's account, from which this appeal was taken, will be affirmed.
Order Affirmed. 

53 of 142 DOCUMENTS 

MARY P. LLOYD vs. ELLEN BROOKS, PETER C. BROOKS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 27; 1871 Md. LEXIS 98 

February 10, 1871, Decided 

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

The bill in this case was filed by the appellant to enforce an alleged voluntary executed trust, and to compel John T. Morris, the alleged trustee, to restore the trust property or pay the value thereof in default of such restoration.

The facts in the case were chiefly disclosed by documentary evidence.

In January, 1866, Peter C. Brooks, by letter, desired to know whether John T. Morris would consent to act as trustee of a trust which he, his mother, Ellen C. Brooks, and Shepherd Brooks were about to create. The terms of this trust were stated and the beneficiaries named, and Morris was requested to prepare an instrument for the purpose "of securing to" the persons named as beneficiaries, two hundred and seventy shares of the Baltimore and Ohio Railroad Company, in specified proportions. Morris consented to accept the trusteeship, and on the 10th of February, 1866, sent to Peter Brooks the proposed instrument of writing, which Peter subsequently, on the 15th of February, returned, with certain corrections and additions endorsed thereon, requesting Morris to make a fair copy of the corrected paper, and to transmit the same [**2]  to him. The corrected instrument was transmitted as directed. Peter C. Brooks, on the 19th of February, 1866, acknowledged its receipt, declared that it was "satisfactory," and that it would be executed as soon as he could get certain information, which he hoped to get by the end of the week.

On the 19th of February, Shepherd Brooks held certificates of Baltimore and Ohio Railroad stock for one hundred shares. On that day he assigned these certificates to "John T. Morris, trustee," and on the same day executed a check in favor of Morris, on the Merchants' National Bank of Baltimore, for $ 20,000, which Morris was directed to apply to the purchase of additional one hundred and seventy shares of stock, which, added to the one hundred shares already assigned to him, would amount to two hundred and seventy shares, the estate to be held in trust.

On the 1st of March, Morris informed Peter Brooks (who conducted the correspondence throughout) that he had purchased one hundred and seventy shares, as directed, and had had the entire two hundred and seventy shares "transferred to himself, as trustee," in six certificates, each certificate corresponding to the number of shares held [**3]  for the six beneficiaries, respectively. This transfer was made on the books of the Baltimore and Ohio Railroad Company on the 24th of February, 1866. The bills of Charles Hinkley, broker, for one hundred and seventy shares, were rendered to "John T. Morris, trustee," and were duly paid, 23d of February.

On the 3d of March, Peter Brooks, replying to Morris' letter of the 1st instant, wrote that its contents were noted, and were correct and satisfactory. On the 19th of March, Peter Brooks informed Morris that "we have changed our plans," and directed him to transfer the two hundred and seventy shares he held to Shepherd Brooks. Morris obeyed, and on the 20th of March transferred the same, as "trustee," to Shepherd Brooks, and had certificates therefor issued in the name of the latter.

The correspondence does not show whether the "instrument of writing," which Peter Brooks caused to be prepared, was or was not executed. Morris testified that after the 3d of March, the day on which Peter acknowledged its receipt, he never saw or heard of it. The answers of Peter and of Ellen Brooks to the bill, deny that it was ever executed by them. The answer of Shepherd Brooks admits that [**4]  it may have been executed by him, pleads doubtful recollection, and asserts that if he did execute it, he did so subject to a delegated power in Peter to cancel and revoke his act.

It also appears, by the answer of Peter Brooks, that he destroyed the deed by burning.

The Court below dismissed the bill, and from this order the present appeal was taken.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Imperfect and incomplete Voluntary Trusts.

A trust is not perfectly created where there is a mere intention or voluntary agreement to establish a trust, the settlor himself contemplating some further act for the purpose of giving it completion.

B and others proposed to voluntarily convey certain stock in trust for the benefit of L and others. He accordingly wrote to M, requesting him to act as trustee, and desiring him to prepare a deed conveying the stock to himself as such trustee. M agreed to become the trustee, prepared the deed and forwarded it to B, but not being satisfactory it was returned for correction. It was corrected in accordance with instructions and returned to B, who wrote M that the assignment was now as he wished it, and would be executed as soon as he got certain information. During this correspondence certain shares of stock were bought by M with money furnished by B, and certain other shares were transferred by B to M, the stock so transferred and purchased being held by M on the books of the company as trustee, and the certificates were made to him as trustee in amounts to correspond with the quantity of stock to be taken by the respective beneficiaries under the deed. B wrote M, in reply to a letter reporting the purchase and transfer, that the contents were correct and satisfactory, but that as certain affairs were unsettled, the matter would remain as it was until further notice. Afterwards B wrote M that he had changed his mind, and directed that the stock be transferred to one of the settlors, which M accordingly did. There was no proof that the deed was ever executed by more than one of the settlors. It was never delivered, but was destroyed by B. On a bill by L against M and the settlors to enforce the trust, HELD:

That the trust was not established, inasmuch as the settlor intended to complete it by deed. 

COUNSEL:
L. L. Conrad and Bernard Carter, for the appellant.

The letters of Peter Brooks to John T. Morris, express a clear intention to create a trust, and are sufficient in form and terms to constitute a valid declaration of trust.

The transmutation of title and possession of the legal estate of the stock to the trustee, without any reservation of rights to the settlors, vested said stock absolutely in the trustee for the use and benefit of the appellant. The instant that the stock vested in the trustee the trust became an executed trust, and ipso facto the terms and limitations of the trust as declared in said letters became fixed and irrevocable.

The assignments of stock from Brooks to Morris, as "trustee," and the purchase by Morris as "trustee" of other stock, with money furnished to him for [**5]  that purpose by the settlors, the taking certificates of stock in his own name as "trustee," and the placing of the stock by him in his own name as "trustee" on the books of the company, and the final reassignment of the stock by him as "trustee" to Shepherd Brooks, after holding the same nearly thirty days, afford conclusive evidence that such was really his character, and that he was so regarded in the contemplation of himself and of the settlors.

The assignments are conveyances under seal, and the designation therein of Morris, as "trustee," by Shepherd Brooks and by Morris himself, are acts under seal which import absolute verity, and which the parties executing cannot be allowed to contradict or impeach.

Notwithstanding the settlors may appear to have at one time contemplated executing the "instrument" referred to in their letters, yet, said deed not being necessary either to the declaration or the perfection of the trust--not being essential or even competent to vest the trust estate in the trustee, its execution was not such a "further act contemplated by the settlor" as the law, justly construed, requires to be done in order to give the trust completeness. Ellison [**6]  vs. Ellison, 6 Vesey, 661; Ex parte Pye, 18 Vesey, 149; Bentley vs. Mackay, 15 Beavan, 12; McFadden vs. Jenkyns, 1 Hare, 458, affirmed, 1 Phill., 153; Patterson vs. Murphy, 11 Hare, 88; Stapleton vs. Stapleton, 14 Simons, 186; 11 Law Times R., 495; 9 Barbour, 9; Hill on Trustees, 126, &c.

Even supposing the law requiring a "further act contemplated by the settlor," to exist in the sense claimed by the defendants; yet, although the settlors in this case may appear at one time to have intended the execution of this "instrument," nevertheless, they having afterwards, by other and independent acts, absolutely conveyed the trust estate to the trustee, they must be presumed to have changed their intentions as to said instrument, and are bound by their acts which are the strongest evidence of their intentions at the time of acting.

A trustee cannot renounce his trust without the consent of the cestui que trust, or the authority of a Court of Chancery, and is liable in equity for a breach or perversion of trust. Accordingly, the appellant is entitled to a decree against John T. Morris, for sixty shares of B. & O. R. R. stock, and the profits thereof since the 24th of February, 1866,  [**7]  or for the equivalent in money of said stock and profits. Adams' Equity, 61, 63; Lewin on Trusts, 765; Story's Eq. Jur., sec. 1257; Hill on Trustees, 219; 9 Barbour, 9; 4 Johns. Ch. 136; 6 Seldon, 246.

Ed. Otis Hinkley and I. Nevett Steele, for the appellees.

It is a well settled principle that equity will not interfere to enforce or complete the title of a volunteer, or to establish against a settlor a voluntary trust, which is incomplete and imperfect. And the trust is equally incomplete and imperfect, whether there has been a sufficient declaration of trust, but no transfer of the property to the intended trustee, or a good transfer of the property, but no sufficient declaration of the trust. Hill on Trustees, 129, 130, and cases cited; 1 Maddock's Rep., 176, 185, 186; Jeffrys vs. Jeffrys, 1 Cr. and Ph., 138; Antrobus vs. Smith, 12 Vesey, 39, 45, 46; Borum vs. King, 37 Alabama, 606; Cox vs. Sprigg, 6 Md., 274, 287.

In this case the trust was never declared or created. There was merely an intention to create it and to create it in a particular way, viz: by a deed. A voluntary trust is never perfectly created where the settlor himself contemplates some further act [**8]  for the purpose of giving it completion. Where it is intended to declare the trust by deed, there must be a deed and a valid one, and preliminary statements of the settlor as to his intent about the trust, will not serve as a substitute. In no case can expressions of the settlor which indicate an inchoate, incomplete and executory intention to create a voluntary trust, be relied on and enforced as themselves declarations of the trust. Lewin on Trusts, 56; Hill on Trustees, 91; Bayley vs. Boulcott, 4 Russell, 345; Lister vs. Hodgson, Law Rep., 4 Equity Cases, 30, 35; Smith vs. Warde, 15 Simons, 56; Jones vs. Lock, Law Rep., 1 Chan. Appeals, 25; Steere vs. Steere, 5 John. Ch. Rep., 1; Harper vs. Phelps, 21 Conn., 259; Mory vs. Michael, 18 Md., 227, 240, 241.

The transfer of the railroad stock to Mr. Morris, as trustee, was made without any declaration of trust, and with the intention and purpose that the trust should be thereafter declared by a deed. This was never done.

The law is clear that if a voluntary transfer of property be made to a person as trustee, and no trust is declared, or the trust is to be thereafter declared, and no declaration is made, there is a resulting [**9]  trust for the donor. Hill on Trustees, 172, 173; Morice vs. Bishop of Durham, 10 Vesey, 527; Sidney vs. Shelley, 19 Vesey, 359, 360, 361; Brown vs. Jones, 1 Atk., 188, 191.

There was no declaration of trust in this case so long as the proposed deed remained unexecuted, is made clear by the consideration that the trust was intended to be a special one. Until the execution of the deed, the terms of the trust were uncertain, indefinite and liable to be changed by the donors. The deed was therefore necessary not only to name the beneficiaries, but to limit and define the interest they were to take, and the rights and powers they were to enjoy, and also to ascertain and fix the duties and powers of the trustee.  

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

OPINIONBY:
GRASON 

OPINION:

 [*33]  GRASON, J., delivered the opinion of the Court.
The bill in this case was filed to enforce an alleged voluntary executed trust in favor of the appellant, and to compel John T. Morris, the alleged trustee, to restore the trust property, or to pay the value thereof in default of such restoration. Was there in this case a valid executed trust which a Court of Equity [**10]  can enforce?
LEWIN, in his treatise on Trusts, page 81, marg., lays down the rule that "a trust is not perfectly created where there is a mere intention, or voluntary agreement to establish a trust, the settlor himself contemplating some further act for the purpose of giving it completion." This principle is too clear and well established to be seriously controverted. See Bayley vs. Boulcott, 4 Russ. 345; Lister vs. Hodgson, Law Rep., 4 Eq. Ca. 33, 34; Gardner, and others, vs.  Merritt, 32 Md. 78. The proof in this case shows that the appellees intended to create a trust 

 [*34]  at one time in favor of the appellant, and others, and that John T. Morris was applied to, and consented to act as trustee, and that two hundred and seventy shares of Baltimore and Ohio Railroad Stock were transferred to him as trustee; but the fact is proved beyond question that it was well understood by the appellees and Morris, that the trust was to be declared by deed, which Morris, as the attorney of the appellees, was instructed to prepare and did prepare and send on to them for execution. That deed was never executed by more than one of [**11]  the appellees and was never delivered, but was destroyed. In the cases of Bayley vs. Boulcott, and Lister vs. Hodgson, as in the case now before us, the party, who was charged with having created the trust, intended to create it by deed, and it was held in both cases that no trust had been created, because in the one case the deed was never executed, and in the other, because the deed, which was executed, did not declare the trust. It was contended by the counsel of the appellant that the letters of Peter C. Brooks to Morris constituted a sufficient declaration of trust. The simple and conclusive answer to this is, that they were never intended to be a declaration of trust, but were nothing more than instructions to the attorney for preparing the deed of trust, thereafter to be executed, by which the trust was to have been created. In the case of Jones vs. Lock, Law Rep., 1 Chan. Appeals 28, Lord Chancellor CRANWORTH says: "the question in each case is one of fact; has there been a gift or not, or has there been a declaration of trust or not?" In determining this, the acts of the party, as well as his intention in doing those acts, must be considered and regarded by [**12]  the Court. The appellees in this case, so far from intending the correspondence with Morris as a declaration of trust, would, no doubt, be greatly surprised to be now told that their instructions for the preparation of the deed of trust, had effected what they intended to accomplish by the deed, and divested them of their property and vested it in Morris for the benefit of the appellant.

 [*35]  If Morris held the stock as the agent and attorney of the appellees, it was his duty as such to transfer the stock to them upon their order to do so. If he held it as trustee, no trust having been declared, a trust resulted in their favor by operation of law and he was therefore justified in transferring it to them when directed by them to do so. The decree of the Court below must be affirmed.
Decree affirmed. 

54 of 142 DOCUMENTS 

W. TAYLOR HALL and THOMAS D. LONEY vs. FREDERICK SCHUCHARDT, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 15; 1871 Md. LEXIS 27 

February 10, 1871, Decided 

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Practice -- Nonsuit -- Trial of a cause by the Court without the aid of a Jury.

An action against the drawees of a foreign bill of exchange was, under the Constitution, (Art. 4, sec. 8,) submitted to the Court for determination, without the aid of a jury. The plaintiffs, after admission by the defendants of the signatures of the drawees and endorsers of the bill, offered evidence of its protest for non-acceptance, and notice thereof to the defendants. Objections were made to the admissibility of this testimony, and after argument, the Judge sustained the objection to the protest, and ruled that either by itself or in connection with the other testimony it was inadmissible, and that "the plaintiffs were not entitled to recover," but made no entry in the case. To this ruling the plaintiffs' counsel excepted, and asked the Court to suspend further proceedings until they could consult with their clients who resided in New York, whether they should submit to a nonsuit, with the expectation of supplying the requisite testimony, or suffer a judgment to be entered and take an appeal. To this the defendants' counsel objected, and said it was too late to move for a non pros. in a case submitted to the Court without a jury, after the Court had decided it. The Judge, however, said the plaintiffs had the right to non pros. the case, and granted the delay asked for. Subsequently, on the same day, the plaintiffs' counsel directed the entry of non pros., and a judgment of non pros. was accordingly entered by the Court. On appeal by the defendants, it was HELD:

That the ruling by the Court, "that the plaintiffs were not entitled to recover," was not a verdict either in substance or in form, but the expression of the opinion of the Judge as a Court, that the plaintiffs were not entitled to recover, to be afterwards enforced by his verdict or finding, as a jury, for the defendants, and an entry of judgment accordingly, intervening which the plaintiffs had the right to suffer a nonsuit.

The submission of a cause to the Court for trial, where the Judge acts both as Court and jury, does not deprive the plaintiff of his right to a nonsuit, and care should be taken to so conduct the trial as to afford him the same opportunity of exercising it, as if a jury were sworn. 

COUNSEL:
Alex. H. Hobbs, for the appellants.

Where a case is submitted to the Court, without the aid of a jury, its action, in the double capacity of Court and jury, is as final and conclusive, in every respect, as if a jury were duly sworn and empanneled; the Court, in such case, passes upon the law and fact simultaneously. Saulet vs. Shepherd, 4 Wall. 502; Dearing's Adm'x vs. Rucker, 18 Grattan, 426.

As the Court, on all the evidence before it, decided that the appellees, the plaintiffs below, "had no standing in Court," and were not entitled to recover, the whole case was passed upon and disposed of; and being so passed upon and disposed of, it was too late to submit voluntarily, to a nonsuit. The technical right of nonsuit cannot be exercised after the merits of the case have been determined. 3 Abbott's National Digest, 340; Brightly's Federal Digest, title "Nonsuit," 675; Stephens on Plead., 143; Long vs. Thwing, 9 Ind., 179; Doughty vs. Elliott, 8 Blackf., 406; Outhwaite vs. Hudson, 11 Eng. L. & E., 564; Robinson vs. Lawrence, 7 Eng. L. & E., 596; 7 Bacon's Abr., 219, title D; 2 Smith's Lead. Cases, mar.  [**2]  667 and 806, (6th Am. Ed.;) Lawrin vs. Hanks, 3 McCord, 559; 2 Burrill's Law Dictionary, title "Nonsuit," 755; Bowie, et al. vs. The Agricultural College, 27 Md., 276.

Stewart Brown and George Wm. Brown, for the appellees.

The appellees had the right to discontinue their case, and the judgment of non pros. was properly entered.

A plaintiff must be voluntarily present in Court before a verdict can be rendered against him, and it is at his option to allow the verdict to be rendered, or to discontinue his case.

Hence the practice of calling the plaintiff, who, after an adverse decision on the law or evidence, for the very purpose of preserving his remedy, and because of the certainty of an unfavorable result, by simply not answering, avails himself of his right. Evans' Practice, 314, 315, 400, 401, 402; 2 Kinne's Law Comp., 281; 2 Tidd's Practice, 867, 868, (mar.;) Broom's Common Law, 183, (89 Law Library, 224, marg.;) 3 Bouv. Inst., 530, 531; 1 Arch. Nis. Prius, 50, (marg.;) Stephens on Pleading, 346, a, and 143, b, (marg.;) 3 Stephen's Com., 619.

This is the common law right of the plaintiff; it must be his voluntary act; it will not be done at the instance [**3]  of the defendant, nor without the plaintiff's consent, any more than a verdict can be rendered against him unless he remains to hear it. This is the English doctrine and is expressly sanctioned by the Maryland cases. Outhwaite vs. Hudson, 7 Exch., 380; Robinson vs. Lawrence, 7 Exch., 123; Stancliffe vs. Clarke, 7 Exch., 439-446; Corsar vs. Reed, (17 Q. B.,) 79 Eng. Com. Law, 540; Elmore vs. Grymes, 1 Peters, 469; Silsby, et al. vs. Foote, 14 Howard, 222; Borden Mining Co. vs. Barry, 17 Md., 429; Grahame and Parran vs. Harris, Parran & Co., 5 G. & J., 489; Kettlewell vs. Peters, 23 Md., 317; Levy and Barry, Adm'rs, vs. Levy, et al., 28 Md., 25-32.

This being the settled law in jury cases, the Superior Court, in cases submitted to it without a jury, has deliberately and with great practical wisdom adopted a course of practice conforming as near as may be to the usual and regular course of a jury trial, carefully keeping questions of law and evidence distinct from questions of fact, hearing them in the same order as in a jury trial, and deciding separately. Thus, 1st. Ruling out or admitting evidence. 2d. Deciding any questions of law raised. 3d. Entering a verdict on the facts.  [**4]  And 4th. Entering the proper judgment on verdict.

And this ought to end this controversy, as it shows that the entry of non pros. and discontinuance was strictly in accordance with the practice of the Court.

It is the inherent right of any Court of original jurisdiction, where, in its judgment justice requires it, in nonsuiting a plaintiff, to do so without prejudice; and the Superior Court in the sound exercise of its discretion having so entered the judgment, it is not the subject matter for an appeal on the part of the defendants.  

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

OPINIONBY:
MILLER 

OPINION:

 [*18]  MILLER, J., delivered the opinion of the Court.
This cause was, under the provision of the Constitution, submitted to the Court for determination without the aid of a jury. The sole question for review is presented by the appellants' exception to the action of the Court in entering and recording a judgment of nonsuit in the case.
The action was against the appellants as drawers of a foreign bill of exchange. The material facts set out in the exception are these: the plaintiffs, after admission by defendants of the signatures of the [**5]  drawers and endorsers of the bill, offered evidence of its protest for non-acceptance and notice thereof to the defendants. Objections were made to the admissibility of this testimony, which were argued, the defendants' counsel opening and closing thereon. After the argument one of the counsel for the plaintiffs said the case had taken a rather unusual course, as the defendants' counsel had closed the argument, but that he submitted the case to the Court without further argument. The Judge then delivered an oral opinion sustaining the objection to the protest, and ruled that either by itself or in connection with the other testimony it was inadmissible, and that the plaintiffs were not entitled to recover, but made no entry in the case. At this point the plaintiffs' counsel took an exception to the ruling, 

 [*19]  and asked the Court to suspend further proceedings until they could consult with their clients, who resided in New York, whether they should submit to a nonsuit, with the expectation of supplying the requisite testimony, or suffer a judgment to be entered and take an appeal. To this the defendants' counsel objected, and said it was too late to move for a  [**6]  non pros. in a case submitted to the Court without a jury, after the Court had decided it. The Judge, however, said the plaintiffs had yet a right to non pros. the case, and as it was still open for that purpose, he would grant the delay asked for. Subsequently, on the same day, the plaintiffs' counsel directed the entry of non pros., which being brought to the notice of the Court, a judgment of non pros. was accordingly entered.
In jury trials of civil causes, after the jury have agreed and before the verdict is taken, the plaintiff is called by the clerk, and if he fails to answer in person or by counsel, no verdict is given, the jury are discharged, and judgment of nonsuit passes against him. Up to this point of time, and until the verdict is actually announced by the foreman in response to the question "what say you, do you find your verdict for the plaintiff or for the defendant?" the right to suffer a nonsuit exists, but ceases after the plaintiff has answered and the foreman announces the verdict. He is called for the purpose of allowing him an opportunity to determine whether he will take a nonsuit or hear the verdict, and he must then make his election.  [**7]  A nonsuit is in many instances of importance, because it gives the party the right to commence the same suit again, and alter its status by additional testimony, whereas if he answers and hears the verdict, he must stand on the case as then presented, and rely upon his exceptions and upon obtaining a reversal of the judgment on appeal.
The submission of a cause to the Court for trial where the Judge acts both as Court and jury does not deprive the plaintiff of his right to a nonsuit, and care should be taken to so conduct the trial as to afford him the same opportunity of exercising 

 [*20]  it as if a jury were sworn. In the case before us the Judge ruled the proffered testimony inadmissible, and thus far he was undoubtedly determining a question of law proper for the Court to decide if there had been a jury trial. But after ruling out the testimony he then said, in the same connection and as part of the same ruling, "that the plaintiffs were not entitled to recover," and this expression is seized upon and construed as a decision of the case on the facts, in making which the Judge was acting as the jury, and as being equivalent to a verdict for the defendants after [**8]  the plaintiffs had been called and had answered. Though this has been presented with much ability and force by the appellants' counsel, it is not, we think, a just and fair construction of the action of the Judge. In Evans' Practice, 402, it is said with entire correctness, that "the expressions common in English books, that the Judge directed a nonsuit, and others of similar import, mean no more than this, that the Judge expressed in that form of words his opinion that the plaintiff was not entitled to recover, and that the party submitted to a nonsuit rather than the Judge should enforce his opinion by a direction to the jury as to their verdict." If, therefore, this had been a jury trial and the Judge, after ruling out the evidence and ascertaining the plaintiffs had no more to offer, had said he was of opinion they were not entitled to recover, and would direct the jury to render a verdict for the defendants, the right of the plaintiffs then to suffer a nonsuit could not admit of doubt. Giving to this expression of the Judge a fair and reasonable construction, and considering the connection in which it was used, and the course of the trial up to that point,  [**9]  we are of opinion it is to be treated as the expression of his opinion as a Court, that the plaintiffs were not entitled to recover, to be afterwards enforced by his verdict or finding, as a jury, for the defendants, and an entry of judgment accordingly, intervening which was the right to a nonsuit. It would have been better practice, as it certainly would have obviated all difficulty in the case, if the Judge, 

 [*21]  after ruling the testimony inadmissible, had withheld any further expression of his opinion, until he had either directed a formal call of the plaintiffs, or asked of their counsel whether they would take a nonsuit, or stand on their exception to his ruling, but failure to observe this more formal procedure cannot deprive the plaintiffs of a valuable right which, in a jury trial they could have exercised after every thing here relied on as a verdict had been said by the Court. But, as we have said, this expression was not a verdict either in substance or form, and the ruling excepted to must therefore be affirmed.
Judgment affirmed. 

55 of 142 DOCUMENTS 

ELIZA A. KEERL vs. HENRY KEERL, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 21; 1871 Md. LEXIS 28 

February 10, 1871, Decided 

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

The bill in this case was filed by the appellant on the 23d of February, 1867. It stated that the complainant and Henry Keerl were married in Baltimore, on the 8th of March, 1842, both at that time being citizens of the State of Maryland; and that they lived together as husband and wife in said city until 1845, when the said Henry deserted the complainant, and subsequently became a resident of Milwaukee, in the State of Wisconsin; and was at the filing of the bill a resident of Philadelphia. The bill then stated that the husband had no property in the State of Pennsylvania, and charged that about $ 4,000 was on deposit in the First National Bank of Baltimore, subject to the order of the Court, or was in the hands of Thomas M. Keerl, as trustee, arising from the sale of certain real property under the authority of the Superior Court of Baltimore City, in a cause pending in that Court; and that the said sum was the amount of money to which the husband would be entitled as appeared by the auditor's report, awaiting ratification. The bill prayed for alimony out of this money for the complainant and her children. The bill was subsequently [**2]  amended, to show that the auditor's report had been ratified and confirmed. An injunction was issued to restrain the First National Bank and the trustee from paying the said money to the husband. Other proceedings were had not material to the issue involved in this appeal. The question on this appeal grows out of the plea of the husband to the jurisdiction of the Court, alleging that at the time the bill was filed, for three years before, and ever since, the complainant was a resident of the State of Pennsylvania, and domiciled therein; and that he was also for the same space domiciled in Pennsylvania, and there resided. The complainant filed a replication to the plea, alleging that at the time of filing the bill she was not a resident of Pennsylvania, but was a resident of the State of Maryland. A commission was issued, and testimony was taken upon the issue of residence as presented by the plea and replication.

Upon the hearing of this issue, the Court sustained the plea of the defendant and dismissed the bill. From the order allowing the plea, and dismissing the bill, the complainant appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Jurisdiction -- Alimony.

Courts of Equity in this State have no jurisdiction to decree alimony, when both husband and wife are non-residents. To give jurisdiction in such cases, one or other of the parties must be domiciled in the State.

And the fact that the husband has property within the jurisdiction of the Court, will not authorize it to decree alimony where both parties reside out of the State.  

COUNSEL:
William Daniel and William S. Waters, for the appellant.

The [**3]  origin of the jurisdiction of the Chancery Court of Maryland in cases of alimony, grew out of the necessities of the case. There were no Ecclesiastical Courts, and the Courts of Equity assumed jurisdiction upon the ground that equity would give relief in all cases where the party had no other remedy.

The jurisdiction given by the Act of 1777, ch. 12, section 14, the Act of 1841, ch. 262, and the Code, Article 16, section 14, was merely affirmative and declaratory. Its intention was not to abridge the power of the Court on the subject theretofore exercised, but to affirm it.

Courts of Equity in Maryland will exercise jurisdiction in cases for alimony, proceeding in the same way in which they exercise jurisdiction over other subjects. The conditions of such jurisdiction are that the property sought to be affected by the decree or the defendant, is within the jurisdiction of the Court. In this case the property is in the possession of persons living within the jurisdiction of the Court, and within the reach of its process.

Property gives jurisdiction in this State in the case of an ordinary creditor, and that where all the parties, complainants and defendants are non-residents.  [**4]  Code, Art. 16, secs. 61, 88, 89, 97, 98, 105.

This is also the general doctrine of the common law. Story's Conflict of Laws, secs. 549, 550, note, (Red. edition;) 2 Bishop on Mar. and Div., secs. 164, 165, (latter part;) 1 Daniel's Chancery Practice, 28; Sanford vs. Sanford, 5 Day, 533; Thompson vs. Steamboat Morton, 2 Ohio State Rep., 26; Feigley vs. Feigley, 7 Md., 537.

Alimony is an allowance out of the husband's estate for the maintenance of the wife; and where there is no estate there is no alimony. The wife in such a case is regarded as a creditor of the husband, and the suit as a suit for the collection of money, and the claim therefore bears a similar relation to property, and affects it in a similar manner to that of an ordinary creditor. Feigley vs. Feigley, 7 Md., 537, 561, 563, &c.; 2 Bishop on Mar. and Div., secs. 201, 369; Ricketts vs. Ricketts, 4 Gill, 105, &c.; 2 Story's Equity Jur., secs. 1422, 1424, &c.

Property may be within the jurisdiction where the person is not. 2 Bishop on Marriage and Divorce, sec. 170, (latter part.)

Upon the question of the residence of the appellant, it was insisted on her behalf, that the facts disclosed under the commission [**5]  clearly proved that she left Philadelphia in the early part of February, 1857, with the intention of residing in Maryland, under an engagement to teach music in the Patapsco Institute, at Ellicott city; that she actually entered upon such engagement, and gave a series of lessons on alternate days, and that her return to Philadelphia was occasioned by failing health and the difficulty of getting to the place of her employment, she residing in Baltimore, and thus compelled to travel to and from Ellicott city.

If she left Philadelphia with the intention of residing in Maryland, she acquired such a domicil as would qualify her to institute suit in a Maryland Court for alimony.

If a citizen of one State remove to another, with a bona fide intention of abandoning the former, and becoming a resident of the latter, he becomes immediately upon such removal a resident citizen of the latter, and this though there may be a floating intention of returning. Lessee of Cooper vs. Galbraith, 2 Wash. Cir. Court Rep., 546; Butler vs. Farnsworth, 4 Wash. Circuit Court Rep., 101; Story's Con. Laws, sec. 46, sub-secs. 6, 7, 8; Ringgold vs. Barley, 5 Md., 186, 192, 193; 1 Abbott's Nat. Dig., 460,  [**6]  (title Citizen.)

A change of residence with the avowed object of obtaining a right to sue in the United States Circuit Court, is not a fraud upon the law, provided the intention is to obtain a bona fide residence. Cattell vs. Pacific Insurance Co., 1 Paine, Circuit Court Rep., 594.

Levin Gale, for the appellees.

The alleged residence of the complainant in Baltimore was temporary, not occupying over four or five days according to some witnesses, and not over two or three weeks according to all. She immediately returned to Philadelphia, and has ever since resided there--and she never designed to abandon it.

The plea of the defendant was sufficient in law, because when husband and wife are domiciled in the same State or sovereignty, no other State or sovereignty can determine anything with reference to their status, whether as to alimony or divorce. Alimony, although not in this State considered as exclusively to be allowed when a divorce is applied for, is yet necessarily regulated by the same rules on this subject. Code, Art. 16, secs. 24-27; Helms vs. Franciscus, 2 Bland, 556-58; Wallingsford vs. Wallingsford, 6 H. & J., 485; Story's Conflict of Laws, 230, sec.  [**7]  a; 2 Bishop on M. and D., 351-53; Shelford on M. and D., (33 L. L., 598,) 354.  

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

OPINIONBY:
GRASON 

OPINION:

 [*25]  GRASON, J., delivered the opinion of the Court.
The first question presented upon this appeal is, whether the Courts of Equity of this State have jurisdiction to decree alimony, if both husband and wife reside beyond the limits of the State. The Act of 1777, ch. 12, incorporated into the Code, Article 16, section 14, provides that "Courts of Equity of this State shall and may hear and determine all causes for alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the Ecclesiastical Courts there." The Ecclesiastical Courts of England only decreed alimony as an incident to divorce, and in such cases as would entitle the wife to a divorce a mensa et thoro. Alimony is defined to be "a maintenance afforded to the wife where her husband refuses to give it; or where from his improper conduct she is compelled to separate from him." 2 Bishop on Mar. and Div., sec. 351, note 1; Wallingsford vs. Wallingsford, 6 H. & J. 485. It is an incident [**8]  of the marriage 

 [*26]  and is a right entirely depending upon the status of the parties, and each State has the right to determine the status and condition of those who are domiciled within its limits. The Courts of this State have therefore no jurisdiction to pass upon and determine the relative duties of a husband and wife, both of whom are residents of another State, and the Legislature never intended to confer such power by the passage of the Act of 1777, nor by the adoption of the Code. To give jurisdiction to our Courts, in such cases, one or other of the parties must be domiciled within the State. It was contended that the Court below had jurisdiction in this case because the husband, Henry Keerl, had property within its jurisdiction. To adopt such a doctrine would result in great confusion, vexation, and, perhaps, injustice, for the wife might then institute a proceeding for alimony in every State where her husband might have property, and have it decreed to her in each State, and that too, as was very forcibly said by the learned Judge who decided this case below, when "the Court within whose jurisdiction the parties are domiciled, may, perhaps, have decreed a restitution [**9]  of conjugal rights." There is no controversy as to the residence of Henry Keerl, all the proof showing that he had resided in Philadelphia for some years before, and at the time this suit was instituted; and from the proof in the record we are of opinion that the appellant was not domiciled in this State at the time she instituted the proceedings in this case. She had been living in Philadelphia for years, engaged in her profession of music teacher, sometimes leaving that city for short periods to give lessons, but invariably returning there so soon as her professional engagements were at an end. In February, 1867, her brother went to that city for her, and brought her to Baltimore with him, with the intention of procuring her a situation as music teacher at the Patapsco Institute. She did enter upon an engagement there, but soon gave it up and returned to Philadelphia, some of the witnesses say in four or five days after she had left it, and others say in two, three or four weeks 

 [*27]  after. We think that the proof establishes the fact that she had no intention whatever of making her permanent home in Baltimore, or of changing her place of domicil, but that she left Philadelphia [**10]  with the intention of returning there if she failed to make an arrangement with Mr. Archer to give lessons at his school, and at all events, so soon, if she did make an engagement there, as that engagement should terminate. It is true that it has been held by this Court that a temporary residence in this State was sufficient to constitute one a citizen for the purpose of suing or being sued; but this doctrine was applied to a residence for commercial purposes only, Field vs. Adreon, 7 Md. 209, and never was extended to a case like the one now before us.
We find no error in the order of the Court below dismissing the bill of complaint, and it must be affirmed.
Order affirmed. 

56 of 142 DOCUMENTS 

CYRUS GAULT vs. W. W. WITTMAN, Assignee of ADAM SNIVELY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 35; 1871 Md. LEXIS 29 

February 10, 1871, Decided 

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

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Mechanics' Lien Law -- When an Amendment of the Claim will not be Allowed.

A claimant under the Mechanics' Lien Law, after the expiration of the time within which the law requires him to file his claim, in order to constitute it a lien upon the building, for or about which the work was done, or materials furnished, cannot so alter or amend his claim as to change the locality of such building.  

COUNSEL:
Luther M. Reynolds, for the appellant.

Theo's B. Horwitz, for the appellee.  

JUDGES:
The cause was agued before BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*35]  BARTOL, C. J., delivered the opinion of the Court.
The object of this suit is to enforce a lien under the 61st Article of the Code, for materials furnished by the appellant 

 [*36]  for a building in Baltimore City. The lien claim was filed in the proper office within the time prescribed by the Code, and described the house as located "on the South side of Fayette street a few doors West of Gilmor street," **** "and being the Westernmost one of three new uniform houses lying between said street and the alley next thereto on the West, which said house is on the South West corner of said street and said alley."
Afterwards, and after the time had expired within which the appellant was entitled to file a claim of lien, he filed of record an amended lien for the same claim, setting forth that the previous location of the house was incorrect, and stating its true location to be "on the South East corner of Lexington street [**2]  and an alley which is called Vincent alley."
The effort of the appellant is to assert his lien against the property described in the amended claim, and the question presented is whether such an amendment comes within the 41st section of the 61st Article of the Code, which provides that "this article shall be construed and have the same effect as laws which give general jurisdiction, or are remedial in their nature, and such amendments shall from time to time and at any time be made in the proceedings, commencing with the claim or lien to be filed and extending to all subsequent proceedings, as may be necessary and proper; Provided that the amount of the claim or lien filed, shall not in any case be enlarged." This privilege of amendment is very large, and it is the evident intent of the Legislature that it shall be liberally construed, but it has some limits.
In Hess and Reid vs. Poultney and Brown, 10 Md. 257, the Court held that the requirements of the law must be substantially complied with. By the 19th section, it is made necessary to state in the claim filed "the locality of the building, and the number and size of the stories of the same, or such other  [**3]   matters of description as may be necessary to identify the same." By this provision of the Code, we consider the statement of the locality of the building as indispensably required. It is 

 [*37]  in its nature a proceeding in rem, the object is to describe the property charged with the lien, with sufficient certainty to enable parties, by searching the public records, to ascertain the existence of the lien. Without some statement of the locality of the property that would be impossible, and no security or protection would be furnished by the public records. The same consequences would follow if the lien claim could be amended in this respect, so as to allow a party after filing his claim against a house located in one part of the city, to amend it in such manner as to claim the lien against another and different house. To allow this to be done would defeat the important provisions of the Code which require such claims to be filed of record.
An amendment of this kind is in effect an entirely new claim of lien, and can only be made within the time prescribed for filing an original lien. In this case the attempt is to assert the lien as amended, against the property of the appellee,  [**4]  who purchased in good faith and without any notice of the lien, from Snively, the original owner, to whom it is alleged the materials were furnished.
The claim of the appellant as first filed, which described the property charged as located on the South side of Fayette street, gave no notice whatever to the appellee of the existence of the lien now sought to be enforced: and as the claim against the appellee's property, called the amended lien, was not filed within the time prescribed by the Code, this suit cannot be maintained.
The decree of the Circuit Court dismissing the bill of complaint will be affirmed.
Decree affirmed. 

57 of 142 DOCUMENTS 

WILLIAM CRICHTON and MALCOLM CRICHTON vs. CARMAN SMITH and CARMAN D. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 42; 1871 Md. LEXIS 31 

February 10, 1871, Decided 

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

The nature of the case together with the exceptions which were taken by the defendants, are stated in the opinion of the Court. The verdict and judgment being for the plaintiffs, the defendants on the 26th of February, 1870, the day following the entry of the judgment, made a motion for a new trial, and filed reasons, embracing the exceptions they had taken in support thereof. On the 28th of February, a copy of the docket entries in the case and the papers, were transmitted to the Supreme Bench of Baltimore City. On the 5th of May following, the motion for a new trial was withdrawn by order of the defendants' counsel. On the 9th of May, the defendants entered an appeal in the Baltimore City Court, and a record was thence transmitted to the Court of Appeals. On the 11th of May, the papers in the case were remanded by the Supreme Bench to the Baltimore City Court, together with a copy of the docket entries therein.

A motion was made to dismiss the appeal.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Regularity of an Appeal -- Admissibility of Evidence -- Pleading.

In an action in the Baltimore City Court, exceptions were taken by the defendants to the rulings of the Court. The verdict and judgment were for the plaintiffs. On the 26th of February, 1870, the day following the entry of the judgment, the defendants made a motion for a new trial, and filed reasons in support thereof. On the 28th of February, a copy of the docket entries in the case and the papers, were transmitted to the Supreme Bench of Baltimore City. On the 5th of May following, the motion for a new trial was withdrawn by order of the defendants' counsel. On the 9th of May, the defendants entered an appeal in the Baltimore City Court, and a record was thence transmitted to the Court of Appeals. On the 11th of May, the papers in the case were remanded by the Supreme Bench to the Baltimore City Court, together with a copy of the docket entries therein. On a motion to dismiss the appeal, it was HELD:

That the defendants had the right, by leave of the Court, to withdraw their motion for a new trial at any time, and this having been done, the original papers which had been transmitted to the Supreme Bench, were rightfully returned to the Baltimore City Court, whence only the record could come up; and that the appeal was therefore properly before the Court.

In an action in the Baltimore City Court, to recover damages for the alleged breach of a charter-party, a copy thereof is admissible in evidence on the offer of the plaintiffs, the same having been produced and used by the defendants as the charter-party between the parties to the suit, in a certain other cause depending in the District Court of the United States for the District of Maryland; such use by the defendants being an admission of its authenticity.

A substantial description in the declaration, of the cause of action, is all that is required under the present system of pleading in Maryland.

A deposition taken before a commissioner of the United States, and not in accordance with the provisions of the laws of this State, is inadmissible as evidence in a suit pending in a State Court.  

COUNSEL:
Bernard Carter, for the appellants.

The Court erred in admitting in evidence the charter-party,

1st. Because the declaration in the case not having set [**2]  forth with sufficient precision and certainty the terms of the charter-party referred to in it, the paper offered in evidence as the foundation of the suit, was not admissible.

2d. Because the offer of the plaintiffs was not to prove that said paper had been produced and used by the defendants in a suit in the United States Court, in a cause between said plaintiffs and said defendants; but only that it had been produced and used as the charter-party between said parties in a certain other cause, without saying between what parties said cause was.

3d. Because said paper, even if admissible at all, upon the ground that it had been produced and used by the appellants as stated, was as against them only prima facie evidence, and not conclusive as was ruled by the Court. Phil., Wilmg., & Balt. R. R. Co. vs. Howard, 13 Howard, S. C., 333.

4th. Because its mere "production and use" by the appellants in the mode stated, did not even make it admissible as prima facie evidence in this case.

The deposition of Barnabas Bray was admissible in evidence for the appellants.

1st. It appears by its face to have been taken in a cause between parties who were the identical parties [**3]  to this suit, and in an action had in another Court on the same cause of action on which the present suit was founded; and it further appears that each of said parties were present when it was taken, and the present appellees cross-examined the witness. 1 Greenl. on Ev., sec. 553; Phil., Wilmg. & Balt. R. R. Co. vs. Howard, 13 Howard, 333.

2d. It appears on the face of the deposition that the witness lived at the time the evidence was taken in Massachusetts, and was on the eve of going to sea. His deposition was, therefore, admissible, without proof, that he was at the time of trial out of the State. 1 Greenl. on Evidence, secs. 322, 323; The Patapsco Ins. Co. vs. Southgate, et al., 5 Peters, S. C., 604.

3d. It appears on the face of the deposition that it was taken in accordance with provisions of law, and it is admissible. 1 Greenl. on Ev., secs. 322, 323; The Patapsco Ins. Co. vs. Southgate, et al., 5 Peters, S. C., 604; Bell vs. Morrison, et al., 1 Peters, S. C., 351.

4th. The deposition was admissible without the production of the record in the case in the United States Court. It was admissible as a deposition as evidence, and in truth formed no part of the record [**4]  strictly. The offer of the appellants was to prove that it was the original deposition; this offer is to be construed as an offer to prove, if necessary, by the United States Commissioner in person, all the facts stated in his return. 1 Greenl. on Ev., 163, 166.

Benj. C. Barroll, for the appellees.

This appeal should be dismissed:

1st. Because, when the appeal was entered, the cause had not been remanded from the Supreme Bench.

2d. Because, by waiving and abandoning their exceptions, they agreed to consider the judgment as final.

3d. By the true construction of the Constitution, Article 4, section 33, the right of appeal from the judgment in Baltimore City Court was given up, and lost when the cause was taken for review into the Supreme Bench, unless the Supreme Bench should fail upon such review to reverse the judgment. It was an appeal to the Supreme Bench upon exceptions taken for that purpose.

4th. The object and policy of the law in allowing an appeal to the Supreme Bench, was to afford both parties an opportunity of review, to save the delay and expense of bringing the case to the Court of Appeals. When the appellant abandons his appeal in the Supreme [**5]  Bench, there is no provision made for remanding the cause to the nisi prius Court.

The provision under the 39th rule of the Baltimore City Court is, that if the appellant loses his case in the Supreme Bench, he may use his exceptions in a further appeal to the Court of Appeals. But he cannot use such exceptions if he abandons his case.

The appellees argued, if the appeal were entertained,

1st. That there were not properly any Bills of Exceptions in the record.

2d. That the evidence objected to in the first Bill of Exceptions, was properly admitted--because it was the paper which the defendant set up and used as the charter-party. And whether it was the original or a copy, it was their charter-party, and they were estopped to deny it.

3d. The papers spoken of in the second Bill of Exceptions, were properly rejected by the Court, because they were not the record. And in no event were they admissible for the purpose offered.

4th. If the defendants desired to use the testimony of Barnabas Bray, they ought to have taken it as provided for by the Code.

5th. Bray was not summoned to appear at the trial--and no foundation whatever was laid for the introduction [**6]  of his evidence.

6th. The appeal in this case brings up for revision the judgment of the Court below only, and not the interlocutory rulings.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
BRENT 

OPINION:

 [*46]  BRENT, J., delivered the opinion of the Court.
As was intimated at the argument, we entertain no doubt, that this appeal is properly before the Court. The case before the Supreme Bench of Baltimore City was solely upon the motion by the defendants, who are the appellants here, for a new trial, which motion that Court alone was authorized to hear under the then provisions of the judiciary system for Baltimore City. The party making the motion had, at any time, the right to withdraw it by leave of the Court, and this having been done, the question was as effectually settled in that Court as if it had been heard and decided. The original papers, which had been transmitted under the rules, read by agreement upon the motion to dismiss, were then rightfully returned to Baltimore City Court, where the trial had taken place and from the latter Court only could the record come up. We find no irregularity in the entry of the appeal, or in [**7]  the filing of the bills of exceptions certified to us as a part of the record. If the rules of the Supreme Bench of Baltimore City conferred the right to use them upon a motion for a new trial, it cannot be admitted that they could not therefore be used upon an appeal to this Court. The motion to dismiss will be overruled.

 [*47]  The questions presented upon this appeal are raised by two exceptions, and relate to the admissibility of certain evidence offered at the trial below. The suit was instituted to recover damages for the alleged breach of a charter-party, which the appellees aver in their declaration, was entered into between the appellants and the master of the Schooner "Union," a vessel belonging to the appellees and for whom, the master, in the making of said charter-party, acted as agent. The first exception is taken to the ruling of the Court in allowing a paper offered by the appellees, and purporting to be the charter-party, to be read in evidence to the jury, upon proof that the identical paper had been produced and used by the appellants, as the charter-party between the parties to this suit, in a certain other cause depending in the District Court of the United [**8]  States for the District of Maryland.
The paper having been exhibited and used by the appellants, in a former suit, as the true and genuine charter-party between the parties to this suit, was certainly an admission of the strongest character in favor of its authenticity, and we cannot perceive how the Court below could have done otherwise than allow it to be read in evidence. The objection, that it does not appear to have been used in a case between the same parties, is not within the principle upon which it is admissible. It is immaterial whether the parties were the same or not. The paper, as offered, is not competent evidence from any privity of parties in that cause, but from the admission of the appellants, by its production and use, that it is the agreement which they had entered into with the appellees.
The case of the Philadelphia, Wilmington and Baltimore R. R. Co. vs. Howard, 13 How., (S. C.,) 332, is a direct decision upon the point, if any authority is needed to support so plain a proposition. It is also objected that this paper is inadmissible, because its terms are not set forth in the declaration with sufficient certainty and precision. Our system of [**9]  pleading does not require more than a substantial description of the cause of action, and this has been given in the declaration 

 [*48]  before us. The charter-party declared upon is described as having been entered into between the defendants and the master and agent of the Schooner "Union,"--and its alleged breach is a failure to furnish the vessel with a cargo of guano at the island of Rodonda. The paper offered in evidence fully corresponds with this allegation. The parties are the same, and the defendants agree by its terms to furnish the vessel with a cargo of guano at the island mentioned. The objection furnishes no reason why the proof as offered should have been rejected. The admission by the defendants, that the paper was the agreement of the parties in this suit, was sufficient under the pleadings to allow it to be read in evidence to the jury.
This exception does not present the question, whether the charter-party alluded to, after being admitted in proof, is to be considered only as prima facie evidence, or whether the appellants, by their offer of it in another suit, were estopped from offering proof that it was not the charter-party into which they had entered.  [**10]  The only question upon this exception is its admissibility as evidence. If it was admissible for any purpose, it was rightfully allowed by the Court to be read to the jury.
The second exception is to the ruling of the Court in rejecting the deposition of Barnabas Bray, offered by the appellants. The objections to its admissibility are many. As a deposition it could not be read, because it was taken before a Commissioner of the United States, and not in accordance with any provision of the laws of this State. If it was offered as the testimony of a witness in a former suit between the same parties--the proper foundation was not laid for its introduction. No evidence was offered that the witness could not be reached by the process of the Court. If dead, or beyond the United States, proof to that effect should have been furnished. If he was a resident of another State, his testimony could have been procured under a commission for that purpose, issued from the Court in which the case was pending. 

 [*49]  The offer of the papers in the case, already alluded to as having been pending in the District Court of the United States for the District of Maryland, was also properly rejected.  [**11]  There is nothing in the record to show that they had any relevancy to the issues in this case, and as it is stated in the exception that they were offered "in order to introduce the deposition of Barnabas Bray," they were clearly inadmissible for any such purpose.
As the rulings in both of the exceptions are without error, the judgment of the Court below will be affirmed.
Judgment affirmed. 

58 of 142 DOCUMENTS 

WILLIAM H. CRAWFORD, COLUMBUS S. CROOK and JAMES B. CRAWFORD, trading as W. H. CRAWFORD & CO. vs. THEODORE G. AUSTIN, DELOZIER DAVIDSON, T. N. CONRAD, ISAAC MCCURLEY, JOSHUA T. YOUNG, JOHN R. RIDGELY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 49; 1871 Md. LEXIS 32 

February 10, 1871, Decided 

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

DISPOSITION:
Decree affirmed.  

HEADNOTES:

What does not constitute one a Partner -- Right of a Debtor to prefer one Creditor to another.

An agreement by a firm to pay a person a certain portion of the profits of the business, as a compensation for his services as a salesman, does not constitute such person a partner.

A debtor may prefer one creditor to another, and Equity will not inquire into the motives or inducements to such preference, if the debt preferred be in good faith, and all the property of the debtor, without reservation, be dedicated to the use and benefit of his creditors.  

COUNSEL:
Robert G. Keene and John Henry Keene, Jr., for the appellants.

Thos. J. McKaig, Jr. and E. Otis Hinkley, for the appellees.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, GRASON and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*50]  BRENT, J., delivered the opinion of the Court.
This appeal is from a decree of the Circuit Court of Baltimore City, dismissing the bill of complaint filed by the appellants, for the purpose of setting aside a deed of trust from T. G. Austin and Delozier Davidson, of the firm of T. G. Austin & Co., to T. N. Conrad and Isaac McCurley. The deed is an assignment for the benefit of creditors, with preferences and exacting releases.
The two grounds set forth in the bill, upon which the complainants rely in support of their application, are:
1st. That John R. Ridgely was a member of the firm of T. G. Austin & Co., with Austin & Davidson, and that he did not unite in the deed.
2d. That the preference of Joshua T. Young, as a creditor for $ 1,550.03, is false and fraudulent--he in fact not being a creditor of the firm at the time.
The only proof that Ridgely was a partner, is [**2]  found in the testimony of Austin and his statements, after the execution of the deed, to two of the witnesses. He seemed to consider him a partner, but the force of his statement, in that regard, is wholly destroyed, when the ground upon which it was made is disclosed in his testimony. He states in answer to the third and fourth interrogatories, that he considered Ridgely a member of the firm, because "he received a third interest of the profits of the business for services rendered as a salesman." This certainly does not constitute him a partner. Whatever may have been the impression of the witness, and his statement to others founded upon that impression, 

 [*51]  the position of Ridgely with the firm was nothing more than that of an employee. His duties were those of salesman, for which the firm had agreed to pay him one-third of their profits. On the other hand Ridgely in his testimony proves that he never was a partner; and Austin says, the articles of partnership, under which the firm of T. G. Austin & Co. was formed, were entered into by Davidson and himself only, and were unknown to Ridgely. But even if the terms upon which his services had been engaged, constituted him a [**3]  member of the firm, the proof is conclusive that he had dissolved his connection with it sometime prior to the execution of the deed, and found employment elsewhere.
In regard to the second allegation in the bill, the proof establishes beyond doubt entire good faith in the preference to Joshua T. Young. The money was loaned by him to the firm in his own name, and so entered upon their books. It was the money of Mrs. Mary L. Ridgely, which she had received, only a short time before, from the estate of her late father, and which she had placed in the hands of Mr. Young for the purpose of having it loaned out. The fact that the loan was made in his name is explained by Mrs. Ridgely, who says it was done at her request.
Another objection, taken to the validity of the deed, is that McKean, Vanhaggen & Co. were made preferred creditors in it, because Austin expected to receive employment from them. Assuming this to be the meaning of Austin's testimony, it does not invalidate the deed. Preferences are no doubt always made from secret motives or inducements operating upon the mind of the grantor, but equity does not inquire into them, if the debts preferred are in good faith, and all the [**4]  property of the grantor, without reservation, is dedicated to the use and benefit of creditors.
Decree affirmed. 

59 of 142 DOCUMENTS 

JACOB TOME vs. THE MERCHANTS AND MECHANICS' PERMANENT BUILDING AND LOAN COMPANY OF BALTIMORE CITY, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 12; 1871 Md. LEXIS 26 

February 9, 1871, Decided 

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

The bill in this case, filed by the appellant, charged that on or about the 26th of April, 1865, the appellee, Maria A. Miller, then Maria A. Kelsey, having purchased a leasehold interest in a lot of ground on Madison avenue, in the city of Baltimore, of a certain William Applegarth, and not being fully able to pay the entire purchase money, applied to the appellant for a loan of $ 6,000, which he agreed to make on condition that she would secure the same by a mortgage to him of said property--this she agreed to do; that accordingly he advanced said sum of money, which was paid to Applegarth and by him applied in satisfaction of the balance of the purchase money due to him; that thereupon said Applegarth conveyed the property to the appellee Maria in trust for the use and benefit of herself, jointly with her sisters, the appellees Sarah and Florence Kelsey, with full power to them, or the survivors or survivor of them, to sell and convey the same; that contemporaneously with the execution and delivery of said deed, the appellee Maria executed and delivered to the appellant a mortgage of said property to secure the loan so made by [**2]  him.

The bill further charged that subsequently to said mortgage, the said Sarah and Florence Kelsey, for the purpose of borrowing certain sums of money from the appellee, The Merchants and Mechanics' Permanent Building and Loan Company of Baltimore City, respectively executed and delivered to said corporation mortgages of their respective interests in said property, and that said mortgages on their face did not refer to, nor subject the same to the priority due to the aforesaid mortgage to the appellant, and that such subsequent mortgages were executed in attempted fraud of the rights of the appellant; that said loan being alleged to be overdue and unpaid, said corporation had by ex parte proceedings obtained a decree for the sale of the leasehold interest in the property aforesaid; that by said decree trustees were appointed to make such sale, and that they threatened to sell the property; that the trustees and the corporation which they represented, alleged that by the mortgage to the appellant, the appellee Maria only conveyed her one-third interest in the premises, and that the two-thirds belonging respectively to the appellees Sarah and Florence Kelsey, were in no manner [**3]  prejudiced or bound thereby; and that as to the said two-thirds the said corporation held by virtue of the mortgages to it, a good and perfect title, unaffected by the mortgage to the appellant.

The bill further charged that such proceedings, and the pretensions on which the same were based, clouded and obscured the title of the appellant, and placed in peril his loan, as the third interest of the appellee Maria would not suffice to pay the same in full. The bill prayed that an injunction might issue to restrain the appellee, The Merchants and Mechanics' Permanent Building and Loan Company of Baltimore city, and the appellees, the trustees, from proceeding to sell the mortgaged premises.

The Court (SCOTT, C. J.,) passed an order refusing the injunction.

From this order the present appeal was taken.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Prior and Junior Mortgagees.

A junior mortgagee who has obtained a decree for the sale of the mortgaged premises, under the provisions of Article 4, section 782, &c., of the Code of Public Local Laws, will not be enjoined, at the instance of the prior mortgagee, who was not a party to the proceedings in which the decree was obtained, from proceeding to sell the mortgaged premises. The sale under the decree is made subject to the rights of the prior mortgagee. 

COUNSEL:
George H. Williams, for the appellant,

Referred, in support of his application, to the following authorities: McCann vs. Taylor, 10 Md., 418; Holland vs. Mayor, &c., 11 Md., 197; Polk vs. Rose, et al., 25 Md., 153; Polk vs. Reynolds, 31 Md., 111.

No counsel appeared for the appellees.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, GRASON,  [**4]  MILLER and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*14]  BARTOL, C. J., delivered the opinion of the Court.
We concur in the opinion expressed by the Judge of the Circuit Court that the case presented by the bill and exhibits is not such as entitles the complainant to the writ of injunction as prayed, he is prior mortgagee, not a party to the proceedings instituted by The Merchants and Mechanics' Building and Loan Company, under their mortgages, and his rights are in no way affected thereby, or by any sale that may be made thereunder. These proceedings are under the provisions of the Code, vol. 2, sec. 782, et seq.: which entitle the mortgagees, the Building and Loan Company, to sell under their decree without making the prior mortgagee a party to the proceeding--and he has no right to interfere with the execution of their decree, the sale is made subject to his rights under his prior mortgage. No cloud is thereby cast upon his title; and if there be a question as to the effect and operation of his mortgage, and the extent of his rights under it, he is not entitled to interfere with the proceedings instituted by the subsequent mortgagees for the purpose of arresting them until [**5]  his rights may be ascertained and adjudicated.
In support of the bill we have been referred to McCann vs. Taylor, 10 Md. 418; Holland vs. Mayor, &c., 11 Md. 186; Polk vs. Rose, et al., 25 Md. 153; and Polk vs. Reynolds, 31 Md. 106, in which it was held the parties complainant were entitled to relief by injunction. But we think the present case 

 [*15]  does not fall within the principles decided in any of those cited, nor is there any head of equity under which the complainant is entitled to the relief prayed.
The order refusing the injunction will be affirmed.
Order Affirmed.
MILLER, J., dissented.  

60 of 142 DOCUMENTS 

JOHN NEEDLES, and others, vs. GEORGE MARTIN. GEORGE MARTIN vs. JOHN NEEDLES, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 609; 1871 Md. LEXIS 24 

February 3, 1871, Decided 

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

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

HEADNOTES:

Instructions accompanying a Will, part of the Will -- Trust void for Uncertainty and as a Perpetuity -- Limitations -- Laches -- Interest.

A testator by his will, executed on the 5th of February, 1843, bequeathed certain leasehold property and a small ground rent to his wife during her life, and after her death to certain named persons, or to the survivors of them at the time of her death, and to their heirs and assigns. He also bequeathed to them certain stock of the city of Baltimore, together with all the rest and residue of his property. Simultaneously with the execution of his will, the testator executed another paper in the form of a letter of instructions to the same persons, in which he declared his intentions in respect of the property bequeathed to them in his will -- that it should be held in special trust, and the net revenue and proceeds thereof, as fast as the same might accrue, be applied "to the education of free colored persons in the city of Baltimore." The paper also provided for filling any vacancy which might occur by the death, disqualification or resignation of any of the trustees, in order to carry into effect and perpetuate the intentions of the testator in relation to the education of free colored persons. Both papers were deposited with the Register of Wills for safe-keeping. On the day following the execution of his will the testator died; the will was admitted to probate, and the other paper with the testimony taken in relation to it, were ordered to be recorded. The widow died in January, 1850, when the trustees took possession of that part of the property in which she had had a life estate. In 1867, the leasehold property was sold by the trustees and the proceeds invested in Baltimore City Stock. On a bill filed in September, 1869, by a nephew and next of kin of the testator to have the trust thus created declared void, it was HELD:

1st. That the will and the letter of instructions executed at the same time, were intended by the testator to be taken and to operate as one complete and entire disposition of his property, and they together constituted his will.

2d. That the trust declared by the testator for "the education of free colored persons in the city of Baltimore" was void for uncertainty and as creating a perpetuity.

3d. That the claim of the complainant as next of kin, to the stock of the city of Baltimore taken into possession by the trustees, was barred by limitations.

4th. That as to the leasehold property in which the widow had a life estate, the claim of the complainant was not barred by limitations, he having filed his bill within twenty years after her death.

5th. That the complainant had not lost his right to the aid of a Court of Equity by his laches.

6th. That the complainant was entitled to interest only from the date of the filing of his bill, which gave notice to the trustees of his claim.  

COUNSEL:
E. Otis Hinkley and Henry Stockbridge, for Needles and others.

The will must stand by itself, and it is good. The very fact of executing the will and letter separately, shews the intent of the testator, that the will should stand at all events.

The mind of the testator was directed to the point of the possible invalidity of the trust, if inserted in the will, as originally intended by him, and the will was drawn separate from the letter, with the distinct purpose of making the will good in any event. There was nothing secret, the whole transaction was too plain and unequivocal as to the intent, to leave room for a doubt.

If a testator choose to make an absolute will, good in itself, entirely separate from an invalid trust which he desires to engraft on it, and purposely puts that invalid trust on another paper, no other construction can reasonably or justly be given to the act than that he intends to let the will stand if the trust be void. Why deprive the testator of testamentary power? The general rule is to let some will stand "ut res magis [**2]  valeat, quam pereat."

The trust contained in the letter is not void, either for uncertainty or for perpetuity.

There is no uncertainty as to who are colored people. The Acts of the Legislature are full of the expression. It has long been used to distinguish or point out with certainty a certain class of the population of this State. So too, free, as distinguished from a state of slavery, is a very certain definition of the persons; again, "in the city of Baltimore" still ascertains the objects of the charity. Under these, every individual intended to be benefitted could be distinctly ascertained.

As to perpetuity, the property is not put extra commercium, on the contrary it is intended to be sold, and the two houses actually were sold in 1867. Trusts are not necessarily perpetuities, because they may continue a long time, unless the trustees are restrained from selling.

The Statute of Limitations does apply.

The exception of express trusts from the operation of the Statute is grounded on the presumption that the trustee holds under that express trust, for the benefit of the cestui que trust, and not adversely to him. This is a presumption only arising from [**3]  express tenure. It may be compared to the tenure of a tenant under his landlord. But the reason of this rule ceases and so does the rule itself, in case of mere implied trusts, for the trustee then does not know his cestui que trust. In the present case it is clear that the trustees never did hold for the complainant under the implied trust, until the Court so declared. The trustees before that held adversely to the complainant under the express trust for others. White vs. White, 1 Md. Ch. Dec., 53; McDowell vs. Goldsmith, 2 Md. Ch. Dec., 370; Hertle vs. McDonald, 2 Md. Ch. Dec., 128; Young vs. Mackall, 3 Md. Ch. Dec., 398; Young vs. Mackall, 4 Md. Ch. Dec., 362; McDowell vs. Goldsmith, 6 Md., 319; Kane vs. Bloodgood, 7 Johns., Ch. Rep., 90; Angell on Limitations, sec. 174, e. s.; Piatt vs. Vattiar, 9 Pet., 415; McKnight vs. Taylor, 1 How., 167; Elmendorf vs. Taylor, 10 Wheaton, 171; Boone vs. Chiles, 10 Pet., 177.

And even in cases of express trust, if the trustee denies the right of his cestui que trust, limitations apply. Murdock vs. Hughes, 7 Smedes & Marshall, 219.

Now if limitations apply as to the city stock delivered to Needles in 1844, that part of the case is clear,  [**4]  for the limitations run from that day.

As to the leasehold estate delivered to the widow for life in 1844, her possession must be considered that of the remainder man, and limitations then commenced to run.

Laches as an equitable defence, plainly applies here.

For the complainant stood by for twenty-six years and did nothing, although he knew of the testator's death, and was then of full age and has lived in Baltimore ever since. The will and letter were both on record, and all the testimony, in fact the complainant's whole case, was open to him, and the evidence shews he was not, in fact, ignorant of his rights. He has slept on them too long. 1 Story's Equity Juris., 529; 2 Story's Equity Juris., 1520 and 1520, a, and cases there cited.

John Scott, Jr., and Spottswood Garland, for George Martin.

The letter addressed to the trustees selected by the testator is a part of his will, and as such, has been duly admitted to probate by the Orphans' Court of Baltimore city. The order of the Court as to wills of personal property is conclusive. Colvin vs. Warford, 14 Md., 550, &c.

If the order of the Orphans' Court directing the letter to be recorded be not a probate [**5]  of the will, yet a Court of Equity will declare in this case that it is a validly executed testamentary paper, certainly for the purpose of raising a trust. The evidence shows, that a testamentary declaration of trust has been executed in conformity with all the requirements of the Statute of Frauds. It could have been probated but was not.

A Court of Equity will not allow parties to take possession of property not their own, when the evidence shows, beyond doubt, the testator never intended it for their use, because they did not have the instrument proved as a will in the proper tribunal. Smith vs. Attersoll, 1 Russell, Ch. Ca., 273, 275; Earl of Inchiquin vs. French, 1 Cox, 30, 31, 32; Metham vs. Duke of Devon, 1 P. Wms., 529, and note 1; Jones vs. Nabb, Gilbert's Eq. Repts., 146; Crook vs. Brooking, 2 Vernon, 50, 106.

The property was bequeathed, and accepted on the understanding, that it was to be applied in the manner prescribed in the letter of instructions. In that case it would be simple fraud for the defendants to retain the property, to prevent which the Court will raise a trust. Barrow vs. Greenough, 3 Ves., 154; Strickland vs. Aldridge, 9 Ves., 516; Smith vs.  [**6]  Attersoll, 1 Russell, Ch. Ca., 271; Muckleston vs. Brown, 6 Ves., 52; Jones vs. McKee, 3 Penn. St. Repts., 496; Hoge vs. Hoge, 1 Watts, 213; Gaither vs. Gaither, 1 Md. Ch. Dec., 158.

The trust being raised, the Court will declare it void for uncertainty, indefiniteness, and as tending to produce a perpetuity. Warren vs. Meth. E. Church, 28 Md., 338; Wildeman vs. Mayor, &c., of Balto., 8 Md., 551; Dashiell vs. Attorney Gen'l, 5 H. & J., 392; Same vs. Same, 6 H. & J., 1.

The leasehold property came into the hands of the defendants on the death of Wells' widow, in 1850, nineteen years prior to the institution of this suit, and, as to such property, equity adopts by analogy the same Statute of Limitations as may be pleaded in the Courts of Law as a defense to an action of ejectment. In that case, less than twenty years is no bar, and it cannot be maintained that a right of action would be lost in a shorter time in equity than at law, when the doctrine of limitations has been introduced into the former Courts solely for the purpose of giving the same remedy as in Courts of Law. Dugan vs. Gittings, 3 Gill, 161; Crawford vs. Severson, 5 Gill, 443; Greenwood vs. Greenwood, 5 Md.  [**7]  , 336.

The case of Dugan vs. Gittings, 3 Gill, 161, is an express authority, that, in equity, an account of the rents and profits during the whole period of the holding of the property, provided it be less than twenty years, is incident to a decree for leasehold property, or the value thereof.

But in this case, the whole fund was held under a direct, continuing trust, expressly raised to continue and subsist in the legatees. And that limitations do not apply to express trusts cognizable only in equity, and not at law, has been repeatedly settled by our Courts. Dugan vs. Gittings, 3 Gill, 164; White vs. White, 1 Md. Ch. Dec., 56; Young vs. Mackall, 4 Md., 374, 375; Bowie vs. Stonestreet, 6 Md., 431; Hanson vs. Worthington, 12 Md., 441.

To the extent of a decree for the fund, the decision of the Court below extended. But the decision was erroneous in not allowing interest. Interest, in the way of rents and profits on the leasehold property, is given expressly by the decision of this Court in the leading case of Dugan vs. Gittings, 3 Gill, 164.  

JUDGES:
The causes were argued before BARTOL, C. J., BRENT, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
GRASON 

OPINION:

 [*614]  GRASON, J., delivered [**8]  the opinion of the Court.
This record contains cross appeals from a decree of the Circuit Court of Baltimore City, and discloses the following facts: Nelson Wells executed his last will, in due form of law, on the fifth day of February, in the year 1843, by which he bequeathed to his wife absolutely all his household furniture, and certain leasehold property, and a sub-ground rent of thirty-five dollars for her life, and after her death to John Needles, Isaac Tyson, Jr., and Edward Jessop, or to the survivors of them at the time of the death of his wife, and to their heirs and assigns. He also bequeathed to them his Baltimore City stock, amounting to thirty-five hundred dollars, together with all the rest and residue of his property. Simultaneously with the execution of his will he executed another paper, in the form of a letter of instructions to Needles, Tyson and Jessop, which was attested by the same persons who were witnesses to his will. By this paper the testator declared his intentions and wishes, with reference to the property bequeathed to them by his will, in the following language: "Being in my last moments desirous to make some provisions for the school education of free [**9]  colored children, 

 [*615]  and reposing full and entire confidence in you, I have, by my last will and testament, this day executed, bequeathed and devised to you, as a special, confidential trust, the stock I hold of the City corporation of Baltimore, say about three thousand five hundred dollars, bearing six per cent. interest. And further, by the same will and testament I have bequeathed to you, to take effect on the death of my wife Mary, all the residue of my estate. Now it is my desire and will that you will hold the same in trust, invested in such manner and in such security as you may deem most safe and advantageous, and that the net income and proceeds thereof, as fast as the same may accrue, be applied by you to the education of free colored persons in the city of Baltimore." The paper then provides for filling any vacancy which may occur by the death, disqualification or resignation of any of the trustees, by appointment by the survivors, of some judicious friend, in whom full faith and confidence can be placed, for the purpose of carrying into effect and perpetuating his intentions in relation to the education of free colored persons.
The proof in the cause shows that [**10]  the testator, several days before his death, sent for Needles and Tyson, informed them of his intention to make a will providing for the education of free colored persons in Baltimore, and requested them and Dr. Handy to have a suitable will prepared in accordance with his views, which were that all his property should be appropriated to that purpose, the one-half at once, and the other after the death of his wife. It is also proved that, having been advised that there would be some difficulty in carrying into effect such a trust, they had the will and paper in question prepared and read them to him, and that, although the testator did not at first approve of this mode of effecting his object, he eventually, after considering upon it, agreed to execute the papers and did execute them in the presence of three witnesses, who attested both papers. They were then put into one envelope, upon which was indorsed the fact that it was Nelson Wells' will, and were deposited with the Register 

 [*616]  of Wills for safe keeping. The next day the testator died, and the will and the other paper were afterwards proved in the Orphans' Court, the will was duly admitted to probate and the other papers,  [**11]  with the testimony taken in relation to it were ordered to be recorded, to have such effect as might thereafter be determined to be legal and proper. Letters testamentary were granted to John Needles, the executor named in the will, who settled the estate and handed over to the legatees, in 1844, the property devised to them respectively. The widow died about the 20th of January, 1850, when the above named parties took possession of that part of the property in which she had taken a life estate. Isaac Tyson, Jr., died and James Baynes was appointed to fill the vacancy in the number of trustees caused by his death. In 1867 the leasehold property was sold by the trustees, and the proceeds, amounting to three thousand dollars, were invested in Baltimore city stock. It appears the whole income of the property has been expended by them in the accomplishment, as far as that was practicable, of the intentions and wishes of the testator. The bill was filed by George Martin, nephew and next of kin of the testator, in September, 1869, for the purpose of having the trust thus created declared void.
The appellants filed their answers, claiming the property as their own, though admitting that [**12]  they consider themselves as morally trustees, and relying upon the Statute of Limitations, and the negligence and laches of the appellee as a bar to his claim to relief in the premises.
Proof was taken, and, upon final hearing, the Court below passed a decree in favor of the appellee for the whole property, with interest from the time of the filing of the bill. From this decree, both parties appealed.
In the argument of the cause in this Court, it was claimed by the appellants that the decree ought to be reversed upon four grounds--first, because the paper, executed at the same time the will was, formed no part of the will itself, and was not a codicil to it, and that they were, therefore, entitled to 

 [*617]  the property in their own right, and not as trustees; second, because, even if it be taken as part of the will, the trust thereby created is not void either for uncertainty or as a perpetuity; third, because the right of George Martin to recover is barred by limitations; and fourth, because he has lost his right to the aid of a Court of Equity in consequence of his long neglect and laches.
1st. It is clear, beyond all question, that the testator never intended to [**13]  give his property to the appellants for their own use and benefit, but that it was his well settled purpose and intention to give it to them as trustees only, to hold, invest and manage the same, and to apply its proceeds to the education of free colored persons in Baltimore city, and it is proved that he stated that, if there was a corporation of such persons, he would leave it directly to such corporation. In order to carry into effect his intention, after taking advice, two of the appellants had prepared the will and accompanying paper, both of which were executed at the same time and with all the formalities which the law requires to give validity to wills. They were intended to be taken and to operate together as one complete and entire disposition of his property, and, from the proof in the cause, we think it very evident that he never would have executed the one without the other. In this instrument is declared the trust upon which the legatees are to hold the property bequeathed by the will, and in it is employed the same formal language that is used in the will itself; such as, "it is my desire and will;" and we think there can be no doubt that the testator considered it a [**14]  most essential and important part of his will, and executed it as such. The Orphans' Court did right in admitting it to probate and having it recorded with the will. It is executed with all the formality requisite to make it a valid declaration of the trust upon which the legatees were to take and hold the property bequeathed to them by the will. Earl of Inchiquin vs. French, 1 Cox's Chan. Ca., 41, 42; Metham vs. Duke of Devonshire, 1 Peere Williams 529, note 1. In 

 [*618]  this case the property was bequeathed by the testator and accepted by the legatees, upon the express understanding and agreement between them, that it should be applied in the manner and to the object prescribed in the letter of instructions, and, under such circumstances, a Court of Equity will interpose to prevent them from appropriating the property to themselves, and to compel the execution of the trust, if the trust can be legally sustained. Strickland vs. Aldridge, 9 Ves. 516; Barrow vs. Greenough, 3 Ves. 154; Smith vs. Attersoll, 1 Russell's Chan. Ca., 271; Muckleston vs. Brown, 6 Ves. 52; Jones vs. McKee, 3 Pa. 496; [**15]  Hoge vs. Hoge, 1 Watts 163, 213; Gaither vs. Gaither, 3 Md. Ch. 158; Cholmondeley vs. Clinton, 2 Jac. & Walk. 147, 148.
2d. Is the trust in this case void for uncertainty or as a perpetuity? It has been decided by this Court that a devise to the "trustees of Hillsborough school to be by them applied towards feeding, clothing and educating the poor children of Caroline county, which attend the poor or charity school established at Hillsborough, in said county," was void as well on account of the uncertainty of persons, who were the objects of the testator's bounty, as because a perpetuity was created, "the poor children," &c., not being a body corporate and not able to take in succession. Dashiell, et al. vs. Attorney General, 5 H. & J. 392; Same vs. Same, 6 H. & J. 1. In the case of Wilderman vs. The Mayor and City Council of Baltimore, 8 Md. 551, it was again decided that a devise to the city of Baltimore, in trust, "for the relief and support of indigent and necessitous poor persons, who may, from time to time, reside within the limits, as now known, of the twelfth ward of said city,  [**16]  " was void as being too vague and indefinite. See also Trippe vs. Frazier, et al., 4 H. & J. 446. The trust in favor of "free colored persons in Baltimore city" is too vague and indefinite to be enforced, and is void for that reason as well as because it is a perpetuity, and, by operation of law, a trust results in favor of the next of kin of the testator, unless his claim thereto is barred by the 

 [*619]  Statute of Limitations or is lost by his own negligence and laches.
3d and 4th. As a general rule, the Statute of Limitations will not apply to cases of express and continuing trusts, for the very obvious reason that, as the title of the trustee is the title of the cestui que trust, his holding and possession will not be presumed to be hostile and adverse, and the trust being a subsisting, continuing one, no lapse of time will bar. But this rule is subject to limitations and restrictions, and whenever a trustee sets up an open, public, adverse claim against his cestui que trust, and denies that the trust any longer subsists, or where a trustee recognizes another person as cestui que trust, long possession and continued enjoyment of the property under such [**17]  recognition will be a bar in equity. Angell on Limitations, 171, 172; Robinson vs. Hook, 4 Mason's Cir. Co. Reps., 152; Farnam vs. Brooks, 26 Mass. 212, 9 Pick. 212; Kane vs. Bloodgood, 7 Johns. Chan. 123, 124. In the case now before us, the appellants never did recognize the appellee as their cestui que trust, but took possession of part of the property about twenty-four years before the filing of the bill, and have held that portion of it ever since, and applied the income thereof for the benefit of other parties. So far from having recognized him as their cestui que trust, or admitted that he had any interest in the property they held under the will, one of them informed him, shortly after the testator's death, that he was entitled to nothing under the will. During all this time, he has lived in Baltimore where the appellants resided and held the property, and in the Orphans' Court of which city the will and declaration of trust were recorded and open to his inspection. After such a lapse of time, during which it is not even alleged that he was under any disability, his right to relief, so far as the city stock taken [**18]  into possession by the appellants is concerned, is clearly barred by the Statute of Limitations.
The statute did not begin to run against the appellee's claim to that part of the property in which the widow took 

 [*620]  a life-estate, until her death, which occurred 20th January, 1850. This consisted of leasehold, and his right of recovery would not be barred by less than twenty years' adverse possession. The bill was filed less than nineteen years after the death of the widow, and, therefore, the plea of limitations, as to this part of the property, cannot prevail.
Although Courts of Equity will sometimes refuse to grant relief, where a party has been guilty of gross negligence and laches for even less than twenty years, yet we can see nothing in the circumstances of this case to justify the application of so rigid a rule to the appellee. The decree of the Court below will be affirmed in part and reversed in part, and the cause remanded in order that a decree may be passed in conformity with this opinion.
The only question presented upon the appeal of George Martin is, whether the Court below erred in allowing him interest from the time his bill was filed, instead of from [**19]  the date of the settlement of the testator's estate by the executor. It appears that the trustees have managed the estate without any view to benefit themselves, and without charging or receiving any commissions or remuneration for their services; and as the appellant has slept upon his rights for more than eighteen years, and during all that time, suffered the appellees to go on expending the income and profits from the property without claim or protest made by him, it would be neither equitable nor just to compel them to pay interest beyond the period at which they had notice of his claim, to wit, the date of the filing of the bill of complaint.
The decree of the Court below, upon this appeal, must be affirmed.
Decree affirmed in part and reversed in part, and cause remanded. 

61 of 142 DOCUMENTS 

HENRY JANES vs. EDWARD F. JENKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 1; 1871 Md. LEXIS 25 

February 3, 1871, Decided 

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Easement and Servitude -- What is not a Breach of a Covenant of Special Warranty -- Implied grant.

The owner of two adjoining lots, which may be designated as the East and West lots, leased the former for the renewable term of ninety-nine years, at a certain yearly rent, and in the lease covenanted that the lessee should have the right and privilege to make openings and place lights in the wall which he contemplated erecting on the western line of the property leased. The wall was erected and openings were made and lights placed therein, which overlooked the West lot. Subsequently the lessor conveyed the reversion in the East lot and premises to the lessee thereof, in fee, and by this deed were granted with the lot all buildings and improvements thereon erected, "and all and every the rights, alleys, ways, waters, privileges, appurtenances and advantages to the same belonging, or in anywise appertaining." Afterward the owner of the West lot conveyed the same, in fee, to a third party, the deed containing a covenant of special warranty. On an action brought by the vendee of the West lot against the vendor for an alleged breach of the covenant of special warranty, it was HELD:

1st. That the conveyance to the vendee of the East lot, passed the full right to the free use and enjoyment of the lights in the wall as they then existed, as an incident and appurtenance to the land conveyed; and as appurtenant to the premises will pass therewith to all successive owners of the property.

2d. That the vendee of the West lot took it with the servitude annexed for the benefit of the East lot, and the existence of this servitude, and the enjoyment thereof by the owner of the East lot, constituted no breach of the covenant of special warranty.

Whenever an owner has created and annexed peculiar qualities and incidents to different parts of his estate, (and it matters not whether it be done by himself, or his tenant by his authority,) so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee as accessorial to the beneficial use and enjoyment of the land.  

COUNSEL:
Arthur Geo. Brown and Geo. Wm. Brown, for the appellant.

It does not appear that the appellant ever examined the house before he purchased it, or saw or knew of the existence of the windows which overlook it, or knew of the right of Joseph W. Jenkins to open and keep them open. If such were the facts, and if they were material, the appellee should have pleaded them. The appellant was not bound to make any examination either of the title or of the premises, and had a right to rely on the warranty of the appellee, and the breach set out in the declaration was a clear infraction thereof.

As to the meaning of a covenant of special warranty, see Act of 1864, ch. 252, secs. 1, 3, 9, &c.; Rawle on Covenants, 203; Irvine vs. Irvine, 9 Wall., 617, 625; Leary vs. Durham, 4 Georgia, 601; Addison's Torts, 835.

Even if it could be presumed that the appellant knew of the existence of the windows at the time of his purchase, that fact could make no difference. The doctrine of ancient lights by prescription, does not prevail in cities in Maryland, nor in this country generally, and these lights were not ancient;  [**2]  and in the absence of a special grant, a man may build as he pleases on his own land, even though by so doing he closes his neighbor's windows. Therefore the mere existence of overlooking windows does not give notice of any right which would prevent the improvement of adjoining property. Cherry vs. Stein, 11 Md., 1; Wash. on Ease., &c., 498 to 506.

No forcible eviction was necessary to entitle the appellant to sue on the covenant. The existence of a continuing adverse right under a prior grant from the appellee, coupled with facts stated in the declaration, constituted a breach for which the appellant had a right to claim damages. Platt on Covenants, (3 Law Lib.,) 305, 332; Rawle on Covenants, 224, 241, 245 to 255, and cases cited.

Arthur W. Machen, for the appellee.

The lights, or openings in question, being in existence at the time of the appellant's purchase of the servient tenement, and the easement being of such a character that it was necessarily apparent and continuous, the purchaser took the property as it was, and the covenant of warranty only warranted it as it was. So that, if the appellee were himself still the owner of the East lot, he, or his lessees, would [**3]  be entitled to continue to enjoy the lights, notwithstanding his deed. Such a right does not depend upon the antiquity of the enjoyment as its support, nor upon anything peculiar to the doctrine of lights. It rests upon the broad and firmly established principle that where, during the time that two tenements are held in one ownership, one of them is made subject to any visible or discernible easement which is continuous in its nature, a subsequent severance of the ownership does not in any manner affect the easement, nor deprive the possessors of the dominant tenement of the enjoyment of it. An easement of this class is physically annexed to the dominant tenement. Drains, windows, visible and defined ways, support derived from an adjacent building--as where several houses have been built together in a row, are all instances of this species of permanent and self-asserting easement. Richards vs. Rose, 9 Exch., 218; Pyer vs. Carter, 1 H. & Norm., 916; Glave vs. Harding, 3 H. & Norm., 944; Pearson vs. Spencer, 1 Best & Smith, 571; Gale on Easements, (4th ed.,) 90; Washburne on Easements, 32 et seq.

The doctrine was recognized in Cherry vs. Stein, 11 Md., 24, 25.

And it is further [**4]  settled, that "those things are apparent which would be so, upon a careful inspection by a person ordinarily conversant with such matters." Gale on Easements, (4th ed.,) 89, 91; Pyer vs. Carter, 1 H. & N., 922.

If, therefore, the house of Mr. Joseph W. Jenkins is in point of fact, entitled to derive light through the openings in question from the adjacent lot, it is plain that the easement rests upon the foregoing principle; and the purchaser of the adjacent lot is bound to take notice of it, and it is impossible to say that there is anything in the case which can be construed into a breach of the covenant of special warranty.

To sustain an action on a covenant of warranty, it is necessary to aver an eviction. And no eviction is alleged in the present declaration, and it is apparent, from the nature of the case, that none could be averred. Rawle on Covenants, 308, (1st ed., 210;) Parish vs. Whitney, 3 Gray, 516; 1 Smith's Lead. Cas., 174, marg., (201, 2 top;) Rawlings vs. Adams, 7 Md., 26.

The case is not within the scope of the covenant of special warranty.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*4]  ALVEY,  [**5]  J., delivered the opinion of the Court.
The questions in this case arise upon a demurrer to the declaration of the plaintiff below, who is the appellant in this Court. The action was one of covenant, brought on a supposed breach of a covenant of special warranty, contained in a deed from the appellee to the appellant, dated the 29th of April, 1867, for a house and lot on Monument street, in the city of Baltimore.
It is shewn by the declaration, that the appellee was owner in fee of two adjoining lots, which may be designated as East 

 [*5]  and West lots, fronting on the south side of Monument street, and that, on the 4th of May, 1860, he leased the East lot to Joseph W. Jenkins, for the renewable term of ninety-nine years, at the clear yearly rent of $ 486; and in which lease was a covenant that the lessee should have the right and privilege to make openings and place lights in the wall which he contemplated erecting on the western line of the property leased; such lights to be at least five feet above any floor over which they might be opened. The wall was erected, and, in pursuance of the privilege granted, openings were made and lights placed therein, which overlooked the West [**6]  lot that was subsequently conveyed to the appellant.
After the erection of the wall, and placing therein the windows, the appellee, by deed of the 29th of April, 1863, conveyed the reversion in the East lot and premises to Joseph W. Jenkins, in fee, for the consideration of $ 8,100, and all rent then in arrear. By this deed, were granted with the lot all buildings and improvements thereon erected, made or being, "and all and every the rights, alleys, ways, waters, privileges, appurtenances and advantages to the same belonging, or in any wise appertaining."
The covenant of special warranty contained in the deed of the 29th of April, 1867, to the appellant, for the West lot, is to the effect that the appellee shall forever warrant and defend the property, conveyed to the appellant, against the claims and demands of the grantor, and all persons claiming by, through or under him. The breach alleged, is the existence of the windows in the wall erected on the western line of the East lot, overlooking the West lot conveyed to the appellant, "whereby and in consequence whereof the said plaintiff has been molested and hindered in, and excluded from, the free and unobstructed use, possession,  [**7]  occupation and enjoyment of the said property conveyed to him as aforesaid, and said plaintiff, in consequence of the premises, has likewise been, upon notice from said Joseph W. Jenkins, hindered and prevented from building up to or near to the easternmost line of 

 [*6]  his said property, and has also been prevented from selling or disposing of the same for its proper value, in consequence of said easement and incumbrance thereon."
Upon these allegations, being admitted by the demurrer, two questions are presented: First, what passed to Joseph W. Jenkins, the grantee of the Eastern lot and premises; and, secondly, if the owner of that lot be entitled to the enjoyment of the lights placed in the wall on the Western boundary thereof, does the covenant of special warranty afford the appellant, the owner of the Western lot, a remedy in damages for the existence of such an easement in his premises?
1. As to the first of these questions, it must be observed that the lights were placed in the wall at a time when the appellee was owner of the reversion in the lot, and that it was done by his express authority and agreement for a consideration. He could not, therefore, during the continuance [**8]  of the lease, and as owner of the adjoining lot, interfere with or prevent the full and free enjoyment of the easement thus created. But, by the subsequent conveyance of the reversion, whereby the leasehold estate was merged, did the right to this easement, or quasi easement, cease to exist? The lights were then in existence, and were used and enjoyed as appurtenant to the Eastern lot, and being placed in the wall by the authority and under the grant of the appellant, while he was owner of the reversion; this is not different, in principle, from the cases of the owner of two adjoining heritages, selling one, or of the owner of an entire heritage, selling and granting part; in which the law would seem to be well settled, that by the grant of the adjoining heritage, or part of an entire heritage, there will pass to the grantee all such continuous and apparent easements as may be, at the time of the grant, in use for the beneficial enjoyment of the parcel granted; and this by implication, unless words are used in the grant, manifesting an intent to exclude them. Whenever, therefore, an owner has created and annexed peculiar 

 [*7]  qualities and incidents to different parts of his [**9]  estate, (and it matters not whether it be done by himself, or his tenant by his authority,) so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee, as accessorial to the beneficial use and enjoyment of the land. Addison on Torts, 80 and 81; Ewart vs. Cochrane, 7 Jur. N. S. 925; Pyer vs. Carter, 1 H. & N. 916; Hall vs. Lund, 1 H. & Colt 676. And so the law is explicitly announced, upon full review of the authorities, both English and American, by the Court of Appeals of New York, in the case of Lampman vs. Milks, 21 N.Y. 505; it being there decided, that wherever the owner of land has, by any artificial arrangement, created an advantage or incident for the benefit of one portion, to the burdening of the other, upon a severance of the ownership, the holders of the two portions take [**10]  them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted. See also the case of United States vs. Appleton, 1 Sumn. 492, 24 F. Cas. 841, where the same principle is fully recognized and adopted by Judge STORY.
Mr. ADDISON, in his very admirable work on the Law of Torts, at page 90, has stated the law on this subject with great clearness and precision. He says: "If the owner of a house and the surrounding land sells the house without the land, a free passage for so much light and air as may be reasonably necessary for the beneficial occupation and enjoyment of the house is impliedly granted by the vendor across his own adjoining unsold land, unless the privilege is excluded by the express terms of the conveyance. The vendor, therefore, cannot build on his own adjoining land so as to obstruct the access of light and air to the windows of the house. Having 

 [*8]  granted the house, he can do no act in derogation of his own grant. And if he sells and conveys the house to one man, and the adjoining land to another, the purchaser of the adjoining land cannot [**11]  build so as to darken or obstruct the windows of the house, although such adjoining land may have been described as building-land, and the intention to build thereon may have been known to the purchaser at the time he purchased it." The author refers to the cases of Palmer vs. Fletcher, 1 Lev. 122; Canham vs. Fisk, 2 Cr. & J. 128, and Swansborough vs. Coventry, 9 Bingham 305, to which he might have added the cases of Nicholas vs. Chamberlain, Cro. Jac., 121; Robbins vs. Barnes, Hob., 131, and Cox vs. Matthews, 1 Ventr. 237, as fully sustaining the principle stated by him.
And so, "where the shell of an unfinished house was sold," continues the same author, "with openings in the wall for the insertion of windows and doors, it was held that the vendor could not, after the sale and conveyance of the unfinished structure, build on his own adjoining land, so as to obstruct the access of light and air to the spaces left for windows, or place obstacles in the way of the exercise of a right of way to the apertures intended for doors. And when two separate purchasers buy two unfinished houses from the same vendor, [**12]  and at the time of the purchase the spaces for windows and doors are marked out, this is a sufficient indication to the purchasers of the rights they are respectively to enjoy; so that they cannot subsequently interfere with each other's enjoyment of the windows and doors as marked out and impliedly agreed upon at the time of the sale." Compton vs. Richards, 1 Price 27; Glave vs. Harding, 27 Law J., Exch. 286.
In the case of Ewart vs. Cochrane, 7 Jur., N. S. 925, in the House of Lords, where an owner of two adjoining properties conveyed them to different persons, and one of the properties had enjoyed for a considerable time the privilege of a certain drain into the other, and the drain having been 

 [*9]  stopped by the owner of the premises receiving the drainings, Lord Chancellor CAMPELL, in delivering the leading opinion, said, "I consider the law of Scotland, as well as the law of England, to be, that when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to [**13]  follow from the grant if there be the usual words in the conveyance. I do not know whether the usual words are essentially necessary, but where there are the usual words I cannot doubt that that is the law;" and he refers to the case of Pyer vs. Carter, 1 H. & N. 916.
In the case before us the grant not only contained the usual words, but was explicit in granting the lot with all the rights, privileges, appurtenances, and advantages thereto belonging, or in anywise appertaining. It is clear, however, upon the authorities, that no special terms in the conveyance are necessary, but, as was said by the Court in Robbins vs. Barnes, Hob., 131, the premises "must be taken as they were at the time of the conveyance." See, also, Thayer vs. Payne, 2 Cush. 327.
The principle here asserted is well founded in the common law, and has been recognized and impliedly approved by this Court in the case of Cherry vs. Stein, 11 Md. 1. In that case the English doctrine in regard to ancient lights was rejected as being inapplicable here, because if adopted it would greatly interfere with and impede the rapid changes and improvements [**14]  constantly going on in our cities and villages. That doctrine, however, while founded in the presumption of grant, is evidenced and established by use and time only. But not so in the case of a common proprietor conveying two adjoining tenements to different persons, and the first granted tenement is at the time in the full enjoyment of windows overlooking the other. In such case the question is what passed by the grant or conveyance? The grantor being the 

 [*10]  owner of both tenements, could, for the benefit of the tenement granted, fix upon his remaining tenement any servitude he thought proper. That being so, the relative rights and incidents of the two tenements must be taken as fixed at the time of severance by the first grant; and, unless restrictive words are used, each will retain, as between the two, all such incidents and easements as are then openly and visibly attached to and used by it. And there is no exception to this rule in regard to light and air; though the right to light and air thus acquired is founded, as we have observed, in very different principles from those upon which the rejected doctrine of ancient lights is founded. The distinction is most obvious.  [**15]  
We think, therefore, that it is plain, the conveyance to Joseph W. Jenkins passed the full right to the free use and enjoyment of the lights in the wall as they then existed, as an incident and appurtenance to the land conveyed; and as appurtenant to the premises will pass therewith to all successive owners of the property. And as the grantor, after the conveyance, could not himself lawfully hinder or obstruct the light and air from those windows, and thus derogate from the grant, it is clear he could not transfer to the appellant any right to do so, and, consequently, the latter took the Western lot with the servitude annexed for the benefit of the Eastern lot. Story vs. Odin, 12 Mass. 157.
2. Then, as to the second question, whether the existence of this servitude or burthen upon the property sold to the appellant, and the enjoyment thereof by the owner of the eastern lot, constitute a breach of the covenant of special warranty? This depends upon the apparent and ostensible condition of the property at the time of sale. And as the wall had been erected, and the lights therein were plainly to be seen when the appellant purchased the property overlooked by them,  [**16]  it is but rational to conclude that he contracted with reference to that condition of the property, and that the price was regulated accordingly. The parties, in the absence of 

 [*11]  any thing to the contrary, are presumed to have contracted with reference to the then state and condition of the property; and if an easement to which it is subject be open and visible, and of a continuous character, the purchaser is supposed to have been willing to take the property, as it was at the time, subject to such burthen. That being so, the covenants in the deed must likewise be construed with reference to the condition of the property at the time of conveyance. The grantor, by his covenant, warranted the premises as they were, and by no means intended to warrant against an existing easement, which was open and visible to the appellant, and over which the former had no power or control whatever. To construe the covenant to embrace such subject would most likely defeat the understanding and intention of the parties; certainly of the grantor. Washb. on Eas., 68.
In the case of Patterson vs. Arthurs, 9 Watts 152, the question was whether an existing highway was an [**17]  incumbrance, within the meaning of the covenant against incumbrances on the land sold, and the Court said, "if there be a public road or highway, open and in use upon it (the land sold) he (the purchaser) must be taken to have seen it, and to have fixed, in his own mind, the price that he was willing to give for the land, with a reference to the road, either making the price less or more as he considered the road to be injurious or advantageous to the occupation and enjoyment of the land;" and it was considered that the covenant did not embrace such an incumbrance. So we think here, the covenant of special warranty in the deed from the appellee to the appellant, does not embrace the easement complained of. The judgment of the Court below will therefore be affirmed.
Judgment affirmed. 

62 of 142 DOCUMENTS 

THE UNITED STATES vs. JOHN H. THOMPSON, and others, Creditors of MCFREELY & HOPPER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 575; 1871 Md. LEXIS 20 

February 2, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Queen Anne's County, in Equity.

This was an appeal from an order of the Circuit Court ratifying the auditor's account which rejected the claim of the United States. The facts of the case will be found sufficiently stated in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Payment and Satisfaction.

A deputy collector of Internal Revenue for the First District of Maryland, entrusted to a certain firm revenue stamps for sale, and endorsed to them for collection certain checks which he had received from various persons for income taxes and licenses. The firm sold the stamps, collected the checks, and deposited the money in bank to their own credit, with the knowledge and consent of the deputy collector, and under a promise to pay it to him when required. On a settlement between the firm and the deputy collector, it appearing that they owed him the sum of $ 2,537, they gave him their check on a Baltimore bank, for $ 3,000, which included the above sum, and also a sum due to the collector individually. This with other checks and current notes were taken by the deputy collector to the National Exchange Bank, and he obtained on their credit from the bank a certificate of deposit for the whole amount, payable to the order of the Treasurer of the United States, to whom it was duly remitted -- it was received by him, paid by the bank, and the amount thereof duly credited on the account of the collector of the First District, in the office of Internal Revenue in Washington. Some days afterwards the $ 3,000 check of the firm was protested; subsequently, on its payment by the collector, it was returned to him by the bank, and he returned it to the firm, having first received from them their note, with sureties, for $ 2,537, the sum due the United States, and payment of the difference between the note and check. The firm became insolvent, and in the distribution of their assets, the United States claimed to be a preferred creditor for the sum of $ 2,537, with interest. HELD:

That the claim of the United States against the firm, could not be allowed, as it had been fully satisfied by the payment of the certificate of deposit of the National Exchange Bank, to the Treasurer of the United States.  

COUNSEL:
A. M. Rogers, for the appellant.

No appearance for the appellees.  

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

OPINIONBY:
MILLER 

OPINION:

 [*576]  MILLER, J., delivered the opinion of the Court.
The proceedings in this cause may be regarded, so far as the decision of the question presented by this appeal is concerned, as having been instituted for the purpose of distributing amongst their creditors the assets of the insolvent firm of McFreely & Hopper. The claim of the appellants, the rejection of which, as entitled to priority over all others, is the only matter now before us for review, appears from the evidence in support of it to rest upon facts substantially as follows:
John H. Thompson, a deputy collector of Internal Revenue for the First District of Maryland, entrusted to this firm revenue stamps for sale, and also [**2]  endorsed to them for collection checks he had received from various parties for income taxes and licenses. They sold the stamps, collected the checks and deposited the money from time to time in bank to their own credit, with the knowledge and consent of Thompson, and under promise to pay it over to him whenever he wanted it. The principal sum now claimed of $ 2,537, was found due by them on a settlement between Thompson and the firm in December, 1865, and when he called on them for it some time in February, 1866, they gave him their check on a Baltimore bank for $ 3,000, which included the $ 2,537 and a sum due Thompson individually. This with other checks and current notes amounting in all to about $ 24,000 were taken by Thompson to the National Exchange Bank, and he obtained on them from that bank a certificate of deposit for the whole amount payable to the order of the Treasurer of the United States, which he duly remitted to 

 [*577]  that officer, and it was admitted in argument that it was received by him, was paid by the bank, and the amount thereof duly credited on the account of the collector in the office of Internal Revenue at Washington. Some days afterwards the $ 3,000 [**3]  check of McFreely & Hopper was protested, and Thompson then from time to time made payments to the bank on account thereof until some time in April, 1866, when he paid the sum in full and the check was returned to him; these payments were wholly made by him out of other money collected by him as deputy collector of Internal Revenue. Subsequently, on the 1st of September, 1866, Thompson took from this firm their note, with two sureties, for $ 2,537, representing the money due the United States, and returned to them the $ 3,000 check, the difference between the note and the check having in the meantime been paid to him by the firm. There was proof that the firm knew at the time they received the stamps and checks for taxes they did not belong to Thompson as his private property, and that the money they received therefrom belonged to the United States and not to Thompson, but it is not pretended that any part of the funds distributed in this case can be identified as the money so received.
Whether it is possible from this transaction to make out the relation of debtor and creditor between this firm and the United States so that the debt shall be entitled to the priority, created and [**4]  established by the 5th section of the Act of Congress of 1797, ch. 20, as construed by the Supreme Court in the case of The United States vs. Blight's Assignees, 6 U.S. 358, 2 Cranch 358, 2 L. Ed. 304, is a question that need not now be decided, because we are satisfied that any claim the United States may have ever had against this firm growing out of these dealings with Thompson has been paid and extinguished. The check that the firm gave to Thompson for $ 3,000, covering the amount of the claim now in dispute, constituted part of the $ 24,000 paid by the bank to the Treasurer of the United States on its certificate of deposit for that amount. When the bank issued 

 [*578]  this certificate it did so in part on the faith and credit of this check, and assumed as between the United States and itself the obligation to pay and did pay the full amount of that certificate. By this means any claim the United States may have had against this firm was paid and satisfied, and from thenceforth the bank became the creditor of the parties (drawers and endorser) to this $ 3,000 check, and the latter became the debtors of the bank therefor when it was protested. It can make [**5]  no difference as respects the extinguishment of this claim as between the United States and this firm that Thompson subsequently used other money collected from Internal Revenue in paying the bank, and redeeming this check. This use of subsequent collections might give rise to a claim by the United States against the bank by the same process of reasoning and upon the same ground that the claim against this firm is supposed originally to have stood, but it cannot by possibility operate to revive this claim that has once been fully paid and satisfied to the United States. Nor does it matter in this respect what may have been the state of accounts between the United States and the collector at the time the certificate of deposit was issued and paid, or what application the Treasurer may have made of the money. It suffices for all purposes of this case that the money was duly paid over to and received by the United States. The order ratifying the account which rejects this claim must therefore be affirmed.
Order affirmed. 

63 of 142 DOCUMENTS 

REDWOOD F. WARNER, WILLIAM MISKEY and WILLIAM O. B. MERRILL, trading as WARNER, MISKEY & MERRILL, and others vs. WILLIAM T. DOVE and ANN W. DOVE, his Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 579; 1871 Md. LEXIS 21 

February 2, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Montgomery County, in Equity.

The bill of complaint in this case was a creditors' bill filed by the appellants against the appellees; its object was to annul and vacate three deeds which conveyed certain real estate to the appellee, Ann, and to subject the same to the payment of their claims. The Circuit Court passed a decree dismissing the bill. From this decree the complainants appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Equity Evidence -- Exemption of the property of the Wife from liability for the Husband's debts -- Voluntary gifts or settlements.

On a bill filed against a husband and wife by some of his creditors, seeking to vacate certain deeds of real estate which had been conveyed to the wife by third parties, and to subject the same to the payment of their claims, mere short copies of judgments confessed by the husband, and filed with the bill as exhibits, but not proven under the commission, are not sufficient proof of the husband's indebtedness as against the answer of the wife, silent on the subject.

A married woman may, with funds received from time to time from her husband, while in prosperous circumstances, and possessed of ample means to pay all his debts, purchase and have conveyed to her, in her own name, real estate, and the same cannot be subjected to the payment of the debts of the husband which existed at the date of such purchase and conveyance.

Where a husband, who is possessed of personal property only, takes a small sum from the profits of an extensive and lucrative business, and buys land which he causes to be conveyed to his wife, it is a very different thing, in view of the rule as to the sufficiency of his remaining means to pay debts, from a direct conveyance or settlement of real estate which he possessed at the time he contracted his debts. The bona fides of such a transaction, and the sufficiency of his remaining means to satisfy existing creditors, must be judged by the character and nature of the property and means he then had.  

COUNSEL:
H. W. Talbott and Alex. H. Hobbs, for the appellants.

The appellees must show affirmatively that the purchase money, mentioned in the several deeds to Mrs. Dove, was her money, not derived from her husband by gift or otherwise, but acquired by her from a different source.

At common law, the personal property of the wife, on the marriage being consummated, became the absolute property of the husband, and he could no more dispose of property thus acquired, in prejudice of creditors, than he could the property of which he was the original owner.

The several Acts of Assembly, made to protect the property of married women, do not relieve the case of the difficulty. These Acts are in derogation of the common law, are to be strictly [**2]  construed, and any one seeking protection under them must bring him or herself within their terms--must show property.

The statutes merely protect the wife's property from the debts of the husband, but in no other respect do they impair his marital rights. Schindel vs. Schindel, 12 Md., 313.

In this case the appellees were charged with having perpetrated a fraud upon the creditors of Wm. T. Dove, and evidence was offered to prove the charge; yet, with this grave charge against them, they persistently refuse to utter one word explanatory of the transaction. Wm. T. Dove professes not to know where his wife obtained the money from, (over $ 4,000;) he never inquired about the matter, but blindly took it, purchased the property and asked no questions. This is incredible.

The appellees having had the most violent suspicion cast upon them by the allegations of the bill and the testimony adduced, the law, as well as reason and common sense, will convict them by the evidence of their own silence; they have acquiesced in the truthfulness of the charge made against them. Schafferman vs. O'Brien, 28 Md., 575, 576, 577. The wife must show property in herself. 27 Md., 437, &c.

But [**3]  suppose that Dove did, from time to time, give his wife money, that could in no sense uphold these deeds. It has been decided that where a husband contracts to give and does actually give his wife her own earnings, and the earnings of her own servants, it is, nevertheless, his property in a contest between his creditors and himself. McLemon vs. Nicholls, 37 Alabama, 675; Pinkston vs. McLemon, 31 Alabama, 308.

It is to be observed that in all the purchases Wm. T. Dove conducted the negotiations, caused the deeds to be made to his wife and paid the purchase money. The vendors knew no one else in the matter; and, in the case of the purchase from Haight, the husband admitted that the farm was intended as a gift to his wife.

George Peter and William H. Tuck, for the appellees.

This is not a case of a voluntary conveyance from the husband to the wife. The deeds in question are from strangers to her. In cases of voluntary conveyances, the deeds are prima facie void, as against prior creditors, and the party seeking to hold under such deeds must refute fraud. Such was the case in 5 Gill, 560; but, in this case, the deeds are from entire strangers, and being made evidence by [**4]  the complainants filing them as exhibits with their bill, can only be vacated by such proof of actual fraud as would leave no room for doubt. Glenn vs. Grover & McColm, 3 Md., 225, &c.; Farringer vs. Ramsay, 2 Md., 365.

The first charge then which it is incumbent upon the complainants to establish by proof, is, that the money with which the lands were purchased was the proper funds of the husband. To support this charge, they have examined quite a number of witnesses, whose testimony was designed to establish two facts, but satisfactorily proves neither: 1st. That Mrs. Dove was in such indigent circumstances at the time of her marriage that the money could not have been her's; and, 2d. That William T. Dove used such language at the time of the purchases as indicated that he was acting for himself, and not as the agent of his wife. The deeds are prima facie evidence of the verity of their contents, and when they are supported by the positive answer of the defendants, the testimony to set them aside ought to be so clear and explicit as to leave scarce a doubt on the subject. Farringer vs. Ramsay, 2 Md., 365; Boyd vs. Dunlap, 1 John., Ch. Rep., 482; Glenn vs. Grover, &c., 3 Md.,  [**5]  226; Mayfield, et al. vs. Kilgour, et al., 31 Md., 244, 245.

No testimony which does not trace the fund directly to Mr. Dove, is evidence on this point; and no statements made by him, out of the presence and hearing of Mrs. Dove, are binding on her, or can be used as evidence against her, unless her subsequent assent thereto can be established. In this case, Mrs. Dove occupies the position of a third party. It is the policy of the laws of the State to protect the property of married women, which would be entirely defeated by permitting ex parte statements of the husband to affect it, and place it entirely in his power to subject it to the payment of his own debts whenever he chose to do so. Schindel vs. Schindel, 12 Md., 168.

There is no proof whatever of actual fraud on the part of Mr. Dove. And, although the slightest facts and circumstances are admissible in cases of fraud, yet all the circumstances combined must be so strong as to satisfy the mind of the fact sought to be established. Waters vs. Dashiel, 1 Md., 474; Davis vs. Calvert, et al., 5 G. & J., 269.

To set aside the deeds in question, even if the Court should come to the conclusion that the money paid for [**6]  the lands belonged to the husband, it must be further satisfied that they were made with fraudulent intent, and that the deeds, at the time of their execution, were intended to be instruments of that fraud. The evidence shows that William T. Dove was in prosperous circumstances at the time of the first purchase. If such was the fact, he had a right to make a suitable provision for his family. Williams vs. Banks, 11 Md., 198; Ellinger, et al. vs. Cowl and wife, 17 Md., 361.  

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

OPINIONBY:
MILLER 

OPINION:

 [*583]  MILLER, J., delivered the opinion of the Court.
The complainants, alleging themselves to be creditors of William T. Dove, filed a bill in equity to vacate and annul three deeds by which certain land in Montgomery County, in this State, was conveyed to his wife Ann W. Dove, and to subject the same to the payment of their claims. The first deed is from Haight and wife, dated May 12th, 1862, conveying about fifty acres for the consideration of $ 1,800; the second from Jackson and wife, dated October 17th, 1862, conveying about sixty-two acres for the consideration of $ 1,375, and the third [**7]  from Knock and wife, dated September 4th, 1864, conveying about fifty-eight acres for the consideration of $ 900. The bill charges that these several pieces of land were purchased and paid for with the money of the husband and not of the wife, and that he falsely and fraudulently, and with intent to delay, hinder, cheat and defraud the complainants and his other creditors procured the same to be conveyed by the several vendors to his wife by the deeds above mentioned. There can be no doubt of the right of these creditors to the remedy they seek, provided the allegations of their bill are sustained by sufficient proof. The defendants, Dove and wife, answered separately, but their answers were not read in evidence, and we can take no further notice of them than to see that they each deny and put in issue the charge that the property was purchased with the husband's money, and also the charge of fraud, and that the answer of the wife neither admits nor denies the indebtedness 

 [*584]  of the husband to the complainants as charged in the bill. There are several grounds on which the decree below dismissing the bill must be sustained.
1st. There is no proof as against Mrs. Dove, the [**8]  grantee in the deeds, of the indebtedness of her husband at the time these conveyances were made. The answer of the husband is not evidence against her, and the judgments confessed by the husband in 1867 on the claims of the complainants are not proved. Mere short copies of these judgments were filed as exhibits with the bill but were not proven under the commission, and that certainly is not sufficient proof of the husband's indebtedness as against the answer of the wife silent on the subject. Eyler & Matthews vs. Crabbs, 2 Md. 137. Nor would the voluntary confession by the husband of judgments on these claims in 1867, long after these deeds were executed, prevent the wife, the grantee therein, from denying the existence or validity of the claims, or relying upon the fact that they were barred by limitations before the judgments were confessed. Niller vs. Johnson, 27 Md. 6; McDowell vs. Goldsmith, 24 Md. 214.
2d. But apart from technical objections of this character, the decree may well stand upon broader and firmer grounds. As to the third deed, of the 4th of September, 1864, the proof is clear that Mrs. Dove borrowed [**9]  the money from Mr. Lyddane, to pay for the land thereby conveyed, which she applied to that purpose; and the testimony shows beyond question that no money that ever belonged to her husband was in any way directly or indirectly expended in this purchase. There is therefore no ground on which that deed can be assailed. With respect to the two other deeds of May and October, 1862, the most favorable point from which they can be assailed by the appellants, is to consider them as mere voluntary settlements by the husband on his wife, he having furnished the whole purchase money or given it to her at some time prior to their respective dates. Viewed in this light and assuming the husband's indebtedness charged in the 

 [*585]  bill to be proved, how stands the case? By the law of this State, as it now is and was at the time of these transactions, (and there is no proof in this record that the law of the District of Columbia is different,) a husband has the right and can make a valid gift of money or other property to his wife, provided it be not "in prejudice of the rights of his subsisting creditors." So far as the record discloses, the only debt he owed at the date of either of these [**10]  two deeds, was that due to the complainants, Warner, Miskey & Merrill, which consisted of a draft for $ 867. 83/100, due in September, 1862, and on which $ 201. 19/100, was paid in December following, and an open account of $ 399. 64/100. The debt to Riggs & Co., was not contracted until the 30th of March, 1863. Now it is very clearly shown by the testimony that for many years prior to this time and up to June, 1863, when he retired, Mr. Dove had been extensively engaged in large and profitable business operations of various kinds in the city of Washington; that he had large dealings with merchants in that city and in Baltimore, New York and Philadelphia, including this firm of Warner, Miskey & Merrill, with whom he had dealt extensively from 1858 or 1859; that when he quit business he was regarded as perfectly solvent, and his credit was good for any amount, at least for $ 50,000; that he left in the hands of a collector and former clerk, book-accounts and notes, all of which, others as well as himself, supposed to be good and available to an amount exceeding $ 13,000, with directions to collect the same and first pay therefrom all his debts; that he then thought himself quite easy [**11]  in his circumstances, with ample means to pay every debt he owed and leave a surplus, the interest of which would support him; that these claims have not since been collected chiefly by reason of the inattention of his agent, and also because during the war many of his debtors left the city and could not be found until the claims against them were barred by limitations; that during the time he was thus engaged in business he and his family lived comfortably, and he from time to 

 [*586]  time gave his wife money, from which a prudent woman, as she was proved to have been, could have saved more than enough to pay the consideration money of these two deeds. It does not appear that he ever owned any real estate and it is very evident this firm did not trust him with reference to his ownership of any such property, but solely on account of the business in which he was engaged, his personal credit and the personal assets or means they supposed he might have accumulated or was making in his business operations. If during the time he was thus engaged in successful business and prior to the purchase of these pieces of land, he was in the habit of giving money to his wife, which she saved [**12]  and subsequently applied in this way, or if he gave it to her outright at the date of each of these deeds, we could not, on all the proof before us, say such gifts were in prejudice of the rights of existing creditors or infer therefrom an intention on his part, or a fraudulent collusion between himself and his wife, to cheat and defraud such creditors. So if we regard the transaction as a purely voluntary settlement on the wife and an investment of his money in this mode for her benefit, the proof in our opinion is quite sufficient to relieve it from the presumption of fraud arising in such cases where any pre-existing indebtedness is shown to exist, and to gratify the requirement established by the decisions of this Court under which deeds of that character can be sustained. The evidence in our judgment shows beyond reasonable doubt that the husband at the time of these gifts was in prosperous circumstances, unembarrassed and possessed of ample means consisting of the same kind of property that he had when the debt to this firm was contracted, to pay all the debts he then owed, and that the settlement was a reasonable one. He had remaining of such property and assets more than ten [**13]  times the amount of this, the only pre-existing debt. It is to be observed, this is not a case where a party possessed of real estate and also of assets of this description conveys the former, which is unincumbered, visible, tangible and easily accessible to creditors, 

 [*587]  in settlement upon his wife and family and leaves his creditors to resort to the latter, where their remedy might be more precarious and difficult, and the property, at all events, less readily and conveniently accessible to their claims. A conveyance of that character would of necessity operate to hinder and delay creditors in the collection of their debts, and for that reason would be void though enough might be shown to remain for their eventual satisfaction, as was decided by the CHANCELLOR in Bullett vs. Worthington, 3 Md. Ch. 99. Here personal assets, debts, book-accounts and notes due him were the only property the husband had.--Where one thus situated takes a small sum from the profits of an extensive and lucrative business, and buys land which he causes to be conveyed to his wife, it is a very different thing, in view of the rule as to the sufficiency of his remaining means to [**14]  pay debts, from a direct conveyance or settlement of real estate which the party possessed at the time he contracted his debts. The bona fides of such a transaction and the sufficiency of his remaining means to satisfy existing creditors, must be judged by the character and nature of the property and means he then had, and so judging and applying the rule, we are well satisfied the proof in this case has placed the transactions complained of, if regarded simply as voluntary gifts or settlements, beyond the reach of successful attack.
Decree affirmed. 

64 of 142 DOCUMENTS 

WILLIAM MACKINTOSH, Garnishee and Claimant of property attached as of the goods, &c., of WM. ROBINSON, vs. THOMAS CORNER, B. M. CORNER and GEORGE W. CORNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 598; 1871 Md. LEXIS 23 

February 2, 1871, Decided 

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

The appellees having obtained judgment in the Superior Court of Baltimore city against William Robinson, issued an attachment thereon to the Sheriff of Baltimore county, who on the 15th of March, 1860, levied upon a farm in said county, and upon certain personal chattels. On the same day he laid the attachment in the hands of Hugh Horner, residing on the farm and who had been employed by Robinson as his manager. On the 20th of May, following, the attachment was laid in the hands of the appellant. By order of the Court the personal property attached was sold by the Sheriff. Afterwards, on the 28th of May, the appellant appeared and claimed the property attached, in virtue of a deed to him from Robinson, dated the 11th of February, 1860, which was recorded in the office of the clerk of the Superior Court of Baltimore city on the same day, and on the 13th in the office of the clerk of Baltimore county. This was a deed conveying all the real and personal estate of the grantor in trust for the benefit of his creditors. The appellant specially traversed the possession of Robinson at the time of the seizure; at the time when the attachment [**2]  came to the hands of the Sheriff, and also at the time of the issuing of the attachment.

Exception: At the trial the plaintiffs proved through the appellant that shortly after the execution of the deed, by Robinson to him, he took possession of the property by employing Horner and other hands on the place; and that this arrangement took place between the 12th and 14th of February, 1860; that he gave Horner instructions and paid him the same wages which Robinson had paid him; and that he appointed two persons to appraise the property, who made an appraisement and inventory of the personal property, shortly after the date of the assignment.

The plaintiffs also proved by the deputy Sheriff who laid the attachment, that he levied on the property, as the property of the defendant, Robinson; that he told Horner what he wanted, who made no objection, but pointed out his own horse, and claimed its exemption.

The appellant then offered to read to the jury the deed from Robinson to him. The deed was read subject to exception; and the appellant then proved that the deed was executed and delivered on the day of its date, and was recorded as endorsed thereon; and that he took charge [**3]  of the property, by notifying the parties, who had any of it in their hands. He proved the employment of Horner as his agent; and that he took immediate steps to sell, and advertised the property for sale on the 21st of March; but the sale was prevented by the seizure under the attachment.

The plaintiffs then offered in evidence certain mortgages and deeds of the real estate attached.

The plaintiffs asked the Court to instruct the jury as follows:

1st. That the deed from William Robinson to William Mackintosh, offered in evidence by the defendant, cannot operate to convey the title of the personal property named in the schedule returned by the sheriff in this case, as against the creditors of William Robinson, being such at the time of the execution of said deed.

2d. That if the jury find that said deed was executed by William Robinson with intent to delay, hinder or prevent the plaintiffs and other creditors in the collection of the debts due them by said William Robinson, then said deed is void as against the creditors of William Robinson, who were such at the time of its execution, even though said deed was executed in proper form and regularly recorded, and [**4]  even if there were a delivery of the property under it before the levying of the attachment by the sheriff.

3d. That the defendant is not entitled to the personal property named in the sheriff's schedule, from any evidence of delivery which has been offered, disconnected from said deed from Robinson to Mackintosh.

4th. That the title to the personal property mentioned in the schedule offered in evidence, did not pass to the trustee, unless the jury shall believe that there was, previous to the levy of the attachment by the sheriff, a delivery of such personal property from Robinson to Mackintosh.

5th. That the deed from Robinson to Mackintosh, as testimony tending to affect the title of the personal property described in the schedule returned by the sheriff in this case, must be disregarded by the jury.

The Court granted the first, second, third and fifth of these prayers, and rejected the fourth.

The claimant then offered the following prayers:

1st. If the jury believe that the property attached in this case, prior to and on the 11th of February, 1860, belonged to William Robinson, and that he executed and acknowledged the deed offered in evidence, and [**5]  that said deed was recorded in the office of the clerk of the Superior Court of Baltimore city within twenty days from the time of the execution thereof, and that said Robinson resided in said city, and that said deed was recorded in the office of the clerk of the Circuit Court for Baltimore county within six months from its date, and that the real estate mentioned in the schedule was situated in said county; that then said deed is a valid deed to transfer all of said property, both real and personal, to William Mackintosh, for the benefit of the creditors of said Robinson, and they must find for the claimant and garnishee.

2d. If the jury shall find the facts contained in the first prayer, and shall further find that within a day or two after the execution of the deed, the said William Mackintosh took charge of the said property, and had the same in charge when the attachment was issued, then they must find for the claimant and garnishee.

3d. That if from the evidence the jury believe that Hugh Horner was employed by William Mackintosh, trustee for Wm. Robinson, as his agent, and as such had possession of the goods and chattels in the schedule mentioned, then the possession [**6]  of the said Horner is the possession of the said Mackintosh in law.

4th. That it is incumbent on the plaintiffs to show affirmatively that the property levied upon under the writ of attachment at the time of the issuing thereof, belonged to the defendant in the judgment, William Robinson; and that unless the jury shall believe from the evidence that the said property belonged to William Robinson at the time of the issuing of the said attachment, they must find for the claimant and garnishee.

5th. That the several deeds of mortgage from Wm. Robinson to Hanson Robinson, to H. K. Chase, to Joshua K. Hitchcock, and to John Brooks, as also the deed from D. C. H. Emory, trustee, to Hanson Robinson, and from Hanson Robinson to Vincent T. Shipley, and also the proceedings for the sale of the property so conveyed by D. C. H. Emory, trustee, to Hanson Robinson; all of which were read to the jury, subject to exceptions, are not evidence and must be disregarded by the jury.

The Court granted the third and fourth prayers of the claimant, and rejected his first, second and fifth.

To the ruling of the Court, in granting the first, second and third prayers of the plaintiffs, and [**7]  rejecting the first, second and fifth prayers of the claimant, he excepted.

The verdict was for the claimant as to the real estate; but as to the goods and chattels, the jury found that they were the property of the defendant, and were so at the time of laying the attachment. Judgment was accordingly entered for the plaintiffs. The claimant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Assignment for the benefit of Creditors -- Attachment -- Practice in the Court of Appeals.

A deed conveying real and personal property to a trustee for the benefit of creditors, does not require for its validity, an affidavit by the grantee that the consideration is true and bona fide.

Where there is an assignment by a debtor for the benefit of his creditors generally, no particular creditor is concluded by taking under the assignment, from impeaching any of the debts attempted to be secured by it, and showing fraud and collusion in such of them as may stand in his way, and the payment of which would operate to his prejudice.

But the fact that some of the preferred debts provided for in the assignment are fraudulent, and therefore void, does not render the assignment itself a nullity; it is still good as to all debts that are bona fide.

Where a debtor makes an assignment of his property, real and personal, for the benefit of his creditors generally, and the deed is properly executed and recorded in due time, and a day or two after its execution, the trustee takes possession of the property, the same is not liable to attachment at the instance of a creditor.

Because a party omits to except to the ruling of the Court in granting a prayer which instructed the jury to disregard a deed of assignment as evidence, so far as it concerned the personal property included therein, he is not to be taken as having acquiesced in that ruling, and therefore precluded from claiming on appeal, a reversal of the judgment below for the errors committed in ruling upon the other prayers predicated of the assignment as in evidence.  

COUNSEL:
William Schley, for the appellant.

The first prayer of the plaintiffs asserts the absolute invalidity of the deed, as against the creditors of the grantor, to convey the title to the personal property.

The 51st section of the 24th Article of the Code does not apply to a deed of this kind. And an affidavit was not necessary, as was supposed by the appellees, to its validity. In the first place, the term "bill of sale," as used in this section, is synonymous with mortgage. It does not apply to a case where the grantor parts with the property absolutely, without any reservation of the equity of redemption; gives up both title and possession, and devotes the property, irreclaimably, to the use of other persons. Under the head "bills of sale," in the 39th and following sections, provision is made for [**8]  cases in which the owner still retains dominion over the property, contrary to the tenor of the deed; or reserves the right of redemption of the property, merely incumbering it with a charge or lien for the benefit of the grantee.

The case of Stockett vs. Holiday, 9 Md., 480, 492, 499, establishes that a deed of trust, embracing real and personal property, is not a bill of sale requiring an affidavit.

Even if the failure of Mackintosh to take personal possession, prevented him from claiming that he was himself in possession, in fact, when the attachment was laid, still it was fully proved that Robinson was not in possession after the 14th of February; and more definitely after the 2d of March; and the 39th section only applies to a case where "the vendor, mortgagor or donor," remains in possession. But the execution, delivery and recording of the deed in Baltimore city, (the domicil of Robinson,) operated a legal transmutation of possession to Mackintosh; and the subsequent possession of Horner, as his agent, clothed Mackintosh with possession in fact.

The granting of the plaintiffs' third prayer was error; it affirmed, in fact, that no evidence of delivery was offered.  [**9]  It assumed that the deed, without actual corporal delivery, was invalid; and affirmed that there was no evidence of delivery independently of the deed. There was proof not merely of constructive delivery but of actual transmutation of possession. Hall & Loney vs. Richardson, 16 Md., 396; Clary vs. Frayer, 8 G. & J., 418; Atwell vs. Miller, 6 Md., 18; Van Brunt vs. Pike & Ward, 4 Gill, 270.

The plaintiffs' second prayer really affirms that a debtor reserving nothing, is not at liberty to make a deed of trust otherwise unobjectionable, if his intent was to thwart a selfish, remorseless creditor, in his eager efforts to get priority. This prayer is not law, and was improperly granted.

The plaintiffs' fifth prayer, which was granted, instructed the jury that the deed was invalid as to the personal property. This was certainly erroneous.

Arthur W. Machen and S. Teackle Wallis, for the appellees.

The 39th section of the 24th Article of the Code explicitly declares that "no personal property of any description whatever, whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property thereof be transferred to any purchaser,  [**10]  mortgagee or donee, UNLESS by bill of sale, or mortgage, acknowledged and recorded" as therein provided; the 51st section of the same Article declares that no bill of sale, or mortgage, of personal property shall be valid, except as between the parties, unless the bargainee, vendee or mortgagee, (Act of 1847, ch. 305; Act of 1846, ch. 271,) or some one of them, shall make the affidavit required to be made by mortgagees of real estate; it is clear that every instrument contemplated in the 39th section is within the purview of the 51st section--all the sections indeed, 39-51 inclusive, are annexed together by the general subtitling "bills of sale;" and it is, therefore, the necessary result of the statute law of the State, that without, or until, a visible and actual transfer of the possession has taken place, the property in chattels personal cannot pass as against creditors, without a bill of sale, acknowledged, sworn to and recorded as provided in the law. Bryan vs. Hawthorne, 1 Md., 519, 524.

At common law the property in a chattel might, as against third persons as well as inter partes, be conveyed either by an actual delivery of the article to the donee, or by a deed of gift.  [**11]  But the effect of the Act of 1729, ch. 8, sections 5, 6, was so far to alter the common law in Maryland as to make delivery necessary in all cases, (as against third parties,) unless the deed was acknowledged and recorded as required by the Act; to which the Act of 1846, ch. 271, (Code, Art. 24, sec. 51,) superadded the further requisite of an affidavit. Irons vs. Smallpiece, 2 B. & Ald., 551; Shower vs. Pilk, 4 Exch., 478; Bryan vs. Hawthorne, 1 Md., 519.

The provisions of these statutes--the Act of 1729, ch. 8, secs. 5, 6, and 1846, ch. 271--when applicable, operate as much in favor of judgment creditors as of bona fide purchasers. The former statute was declared to have been intended for the protection of creditors. Gough vs. Edelen, 5 Gill, 103. The two together establish a rule of conveyance for the protection of all persons, except the grantor. Cockey vs. Milne's Lessee, 16 Md., 207.

The term "Bill of Sale," which is of high antiquity, and had a well understood signification before the passage of the Act of 1729, comprehends every deed by which property in goods and chattels is conveyed; it is synonymous with "assignment by deed of chattels personal."

In Fouke [**12]  vs. Fleming, 13 Md., 392, the Court of Appeals evidently held that a deed of trust of chattels, acknowledged and recorded in accordance with the Act of 1729, but unaccompanied by delivery, and destitute of the affidavit, would have been ineffectual but for the (temporary) repeal of the Act of 1846 by the Act of 1856, ch. 154.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*605]  ALVEY, J., delivered the opinion of the Court.
This is an appeal from a judgment of condemnation in an attachment proceeding, wherein the appellant made claim to the property attached, as trustee for the benefit of the creditors of the defendant, by virtue of a deed of trust executed on the 11th of February, 1860.
The deed is one that conveys all the property of the debtor, and provides for creditors generally, after the payment of the trust expenses, and all lien debts, giving preference to those only who will release the debtor within a given time. Such deed, by the 13th section of Article 48 of the Code, is declared valid, and is not liable to be set aside either at the suit of any insolvent trustee, or at the suit of any creditor. The preference [**13]  given is such as is not only allowed by statute, but by 

 [*606]  the common law; it being well settled that a debtor in embarrassed circumstances may prefer one creditor to another; and the exaction of a release is but a condition upon which such preference is made.
But with regard to the deed in this case, it is supposed that because there is no affidavit appended to it of the bona fides of the consideration, it is therefore void as to the personal property, as against creditors, under the 51st section of the 24th Article of the Code. That, however, is a mistake. The requirement of the affidavit is only in those cases of transfer of personal property contemplated by the 39th section of the same Article, where the vendor, mortgagor or donor shall remain in possession of the property conveyed, and the conveyance is adverse to the creditors generally of the grantor. The affidavit in such case being required for the protection of creditors, and bona fide purchasers without notice, there could be no reason in requiring it to a conveyance like the present. In cases of this character the consideration for the assignment is the preexisting obligation to pay debts generally, and [**14]  there needs no proof of its bona fides or sufficiency, and is not therefore within the meaning and intent of the law. As against the trustee, claiming for the benefit of all the creditors, certainly no creditor of the grantor can allege himself to be prejudiced by the want of the affidavit. The deed is for his benefit, in common with all the other creditors; and although preferences are made in the order and priority of payment, no particular creditor is concluded by taking under the assignment from impeaching any of the debts attempted to be secured by it, and showing fraud and collusion in such of them as may stand in his way and the payment of which would operate to his prejudice. Hence, if it be true as alleged in this case, that the prior mortgage debts are collusive and fraudulent, and should not therefore be paid, it will be competent to the appellees, and others in like position, to show such fraud and collusion, and thus defeat those claims as against the trust fund arising under 

 [*607]  the assignment. But it by no means follows that because some of the preferred debts may be fraudulent, and therefore void, that the assignment itself, intended as it is for the benefit [**15]  of all the creditors, should be declared a nullity. Some of the debts claiming priority of payment may be founded in fraud, and still the general assignment be good as to all debts that are bona fide. Indeed, it is the duty of the trustee under such an assignment, as it is the duty of an insolvent trustee, to resist and defeat all claims founded in fraud, and which would operate to the prejudice of bona fide creditors; it not being supposed that the trustee accepts such a trust except for real and bona fide creditors.
That such an assignment as the present is not within the meaning of the 51st section of the 24th Article of the Code, in regard to the affidavit, has been recently decided by this Court, in the case of Hoopes vs. Knell, 31 Md. 550; and as the instrument has been regularly executed, acknowledged, and recorded in due time to be effective to convey title to personal property as well as real, the personal effects thereby embraced were not subject to attachment and condemnation, at the suit of the appellees, creditors of the grantor at the time of making the assignment, and therefore the judgment appealed from is erroneous; the question of [**16]  the particular errors upon which such judgment is founded being presented to this Court by the prayers which were granted or refused by the Court below.
The first and second prayers of the appellees, which were granted, were both clearly erroneous. The first is based upon the theory that the deed of assignment is intrinsically void for the want of the affidavit; and the second is founded upon the equally fallacious theory that such an assignment could operate to hinder and delay creditors, within the Statute of 13 Elizabeth.
The first, second and fifth prayers of the appellant, which were rejected, were all correct as applicable to this case and should have been granted.

 [*608]  But, notwithstanding, the errors committed by the Court below in reference to these several prayers, and to the rulings in regard to all of which the appellant excepted, it is contended, that because he did not also except to the ruling of the Court in granting the appellees' fifth prayer, whereby the jury were instructed to disregard the deed of assignment as evidence, so far as it concerned the personal property, the appellant is to be taken as having acquiesced in that ruling, and is therefore precluded [**17]  from claiming a reversal of the judgment for the errors committed in ruling upon the other prayers, predicated of the assignment as in evidence. To this proposition, however, we cannot accede. It is no doubt true, if it appears that a party has conceded the correctness of an instruction, or a proposition of law, and the case has been tried in accordance with it, he will not be heard in this Court to controvert what he has admitted and made the rule of decision in the Court below. But such is not the condition of this case. Here, it is true, the appellant does not appear to have excepted to the granting of the fifth prayer of the appellees, but it is equally true that it nowhere appears that he conceded the correctness of the Court's ruling in that respect. And though a party may not except to all the rulings in which there is error, it is not to be said that he shall therefore be denied the benefit of the exceptions that he does take. It is very clear that if the appellees' first and second prayers had been rejected, and the first and second of the appellant's granted, the fifth prayer of the appellees could not have been ruled as it was by the Court below. The granting of that prayer [**18]  was, therefore, but the result of the errors of which the appellant complains, and for which he is clearly entitled to have the judgment of the Court below reversed.
Judgment reversed. 

65 of 142 DOCUMENTS 

JAMES M. LESTER, and Wife vs. THE HOWARD BANK. ORVILLE HORWITZ, Assignee vs. THE HOWARD BANK, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 558; 1871 Md. LEXIS 18 

January 31, 1871, Decided 

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

The facts of the case sufficiently appear in the opinion of the Court.

The appeal was taken from an order of the Circuit Court overruling exceptions to the auditor's account, and ratifying the same.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Loan by a Bank in violation of its Charter -- Enforcement of a Contract prohibited by Statute.

A provision in the charter of a bank, prohibiting any director or other officer, under penalty of fine or imprisonment, from borrowing money from the bank, does not exempt a director from liability for money loaned to him in violation of the prohibition.

Contracts made in violation of a statute, are not necessarily incapable of enforcement because of their illegality. Whether the Courts will enforce them or not, is a question of public policy, and they will be enforced when it may be adjudged that such policy requires their enforcement.  

COUNSEL:
Orville Horwitz and Benj. C. Barroll, for the appellants.

The loan having been made to Purvis while a director and the president of the bank, was in clear violation of law, and of the charter of the bank, and cannot be enforced; it is not a legal, valid claim or contract; it is, as a contract, null and void.

When a bank makes a loan in violation of its charter, it is null and void--it cannot be enforced by either party. Albert vs. Mayor and City Council, 2 Md., 159; Merrick vs. The Trustees of the Bank of the Metropolis, 8 Gill, 64; Bayne vs. Suit, 1 Md., 85; Hall vs. Mullin, 5 H. & J., 190.

The illegality of this contract arises out of the 10th section of the charter, in these words: "No director or other officer of said corporation shall borrow any moneys from said corporation; and if any director or other officer shall be convicted upon indictment of directly or indirectly violating this [**2]  section, he shall be punished," &c. It is admitted, in the answer of the bank, that the loan was to Purvis, and that he was an officer of the bank. That the charter was violated, is not, therefore, in dispute.

Does this illegality in the contract, avoid it and make it incapable of enforcement in a Court of Equity?

The bank's counsel contend that it is not mandatory, but directory. The clause in the charter is prohibitory; the bank cannot legally loan its funds to its officers in direct violation of its charter. The bank cannot recover upon a contract so tainted with illegality. A State Court cannot so stultify itself as to enforce a contract which the State has forbidden to be made--"ex turpi contractu non oritur actio." The relation of debtor and creditor never arises under a loan made in direct violation of law. It was not only in violation of the charter, but against the known and declared public policy of the State. Const. 1851, Art. 3, sec. 45.

On behalf of the claim of Mrs. Lester: Mrs. Lester is not a complainant in the cause--she is brought into it by the process of the Court--and in her answer takes strong ground against the pretensions of the complainant. She [**3]  is a co-defendant with the bank--resisting the claims of Purvis and the illegal claim of the bank. She did not seek the aid of the Court; and the Court is now called on to adjudicate her rights with the bank, they being co-defendants, claiming a fund in Court.

Although there is conflicting evidence, the Court will find that the bank had notice of her interest in the property as half owner before the loan was made to Purvis.

Purvis was president of the bank, and swears that the bank had such knowledge.

The bank, who made the loan, and the president of the bank, by whom the money was borrowed, are in pari delicto, and this is so, notwithstanding the penalty is imposed on the borrower alone. Cannan vs. Bryce, 3 B. & Ald., 179; M'Kinnell vs. Robinson, 3 Mees. & Wells., 441; Pearce vs. Brooks, Law Rep., 1 Exch., 217; Joy vs. Campbell, 1 Sch. & Lef., 339; Evans vs. Richardson, 3 Merrivale, 470.

Where a statute is passed or a charter granted, containing prohibitions founded on public policy, contracts in violation of those prohibitions, are void, and both parties to said contracts are in pari delicto. Leavitt vs. Palmer, 3 Comstock, 19.

If the above proposition were [**4]  modified at all, it would be in favor of the complainant, who represents, not only Purvis, the president of the bank, but creditors also--parties entirely innocent of the transaction in question, and who are favored in a Court of Equity.

The trustee, under a deed for the benefit of creditors, holds a double relation. He is clothed with the title of the grantor, so as to enable him to enforce all his rights, at the same time that he represents the interests of the creditors, whose rights he is bound to protect and enforce.

The note executed by Purvis to the bank, and the loan by the bank to Purvis, were void transactions, as against the public policy of the State, and the express provisions of the charter of the bank, and in the distribution of the funds of the insolvent, the innocent creditors will be preferred to those whose debts arise ex turpi causa.

Edward Duffy and Henry Stockbridge, for the appellees.

Although a statute prohibits an act or contract and imposes a penalty therefor, yet it does not follow that the act or contract is void--that depends upon the construction to be placed upon the whole statute. Harris vs. Runnels, 12 Howard, 84, 85, 86; Shoemaker [**5]  vs. Nat. Mech. Bank, 31 Md., 401.

The prohibition, or limitation of power in this section is not directed against the bank, but against the officers. There is nothing then from which an inference can be drawn that the loan was void.

The manifest object of the prohibition against the officers was to protect the stockholders. Now the doctrine of the appellants is that if the directors borrowed all the capital of the bank, the act being malum prohibitum and void, the bank (that is the stockholders) could not recover its capital, and the very provision passed to protect their money robbed them of it.

Conceding that the bank and the director were both in fault, yet first, the law was intended to protect the former from fraud or aggression of the latter, and secondly, the director is the more guilty of the two, the prohibition and the penalty being directed against him, and the parties therefore are not in pari delicto. Now where a party to a forbidden contract not malum in se is in either of these positions he is entitled to recover. Tracy vs. Talmadge, 14 N. Y., 179 to 191, recognized in Maryland Hospital vs. Foreman, 29 Md., 531; Bates vs. Bank of the State of Alabama,  [**6]  2 Ala., 462, 463, 464, 1 Story's Eq., sec. 300; Curtis vs. Leavitt, 15 N. Y., 1; White vs. Franklin Bank, 22 Pick., 186, 187, 188; Shoemaker vs. Nat. Mech. Bank, 31 Md., 402, 403.

But suppose the parties were in pari delicto, the Bank is defendant and potior est conditio defendentis. 1 Story's Eq., section 298.

And Lester and wife occupy the position of complainants as well as Horwitz. Carter vs. Denison, 7 Gill, 158, 159.

Even if the bank alone were the guilty party, yet their claim must be allowed because the complainant seeking relief in equity must do equity. 1 Story's Eq., sec. 64 e, 301.

These points apply as well against the complainant as assignee for creditors, as against Purvis himself, because the assignee and the creditors stand in Purvis' place. Curtis vs. Leavitt, 15 N. Y., 44, 45-51; Shoemaker vs. Nat. Mech. Bank, 31 Md., 403. And they apply against Mrs. Lester, because she also claimed under Purvis, and because Purvis acted under her authority.

The complainant is estopped from alleging that the contract for the loan is illegal, because he affirms the contract by his bill. Story's Eq. Plead., secs. 23-27, 28, 37 a; State vs. Bank of Maryland,  [**7]  6 G. & J., 216, 231.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*562]  ROBINSON, J., delivered the opinion of the Court.
The rule of law is well settled that no action will lie to enforce a contract malum in se, nor if executed, to recover money paid under it. In all such cases, the maxims "ex turpi causa non oritur actio" and "in pari delicto potior est conditio defendentis et possidentis" apply.
In regard to contracts not immoral, or criminal in themselves, but prohibited by statutory law, the same general rule may be said to apply, not however universal in its application, but subject to certain exceptions as binding in authority as the rule itself. Public policy, it must be borne in mind, lies at the basis of the law in regard to illegal contracts, and the rule is adopted not for the benefit of parties but of the public. It is evident, therefore, that cases may arise even under contracts of this character, in which the public interests will be better promoted by granting than by denying relief, and in such the general rule must yield to this policy. Hence Judge STORY admits that even [**8]  between parties "in pari delicto" relief will sometimes be granted if public policy demands it. 1 Story's Equity Jur., secs. 298-300.

 [*563]  Other cases are to be found arising under contracts made in violation of a statute, in the application to which of the general rule, Courts have been governed by the plain and obvious purposes of the law; and in such it has been repeatedly held that an action would lie against a party receiving money under such a contract upon a promise implied by law to refund it.
Thus in Smith vs. Bromley, Doug., 697, note, Lord MANSFIELD said: "If the act is in itself immoral, or a violation of the general laws of public policy, there the party paying shall not have this action. *** But there are other laws which are calculated for the protection of the subject against oppression, extortion, deceit, &c. If such laws are violated, and the defendant takes advantage of the plaintiff's condition or situation, there the plaintiff shall recover."
This was followed by Jacques vs. Golighty, 2 W. Black. 1073, where an action was brought to recover money paid to the defendant as a premium for issuing lottery tickets, in [**9]  contravention of the Statute 14 Geo. III, ch. 76, and in which it was insisted that the plaintiff being particeps criminis was not entitled to recover, but BLACKSTONE, J., overruled the objection, and gave judgment for the plaintiff. The same principle was affirmed in Browning vs. Morris, 2 Cowp. 790, in which Lord MANSFIELD says, "It is very material that the statute itself, by the distinction it makes, has marked the criminal, for the penalties are all on one side; upon the office keeper." And in Williams vs. Hedley, 8 East, 378, where an action was brought to recover money which had been paid by the plaintiff to the defendant to compromise a qui tam action brought by the defendant against the plaintiff, contrary to the provisions of a certain statute, it was held that the principle in pari delicto did not apply, because it was the purpose of the statute to punish the party who sues in order to extort money, and not the person who might be the victim of such extortion. This appears, said Lord ELLENBOROUGH, "to have been the true sense and intention of the Legislature."

 [*564]  Whether the action was maintained in these [**10]  cases upon the ground that the principle of "pari delicto" did not apply, because the contracts were prohibited by statutes passed for the purpose of preventing one set of men from taking advantage of the necessities of others, or upon the broader ground taken in some of the American cases, that the statutes designated the criminal by prescribing punishment against one party to the contract only, is, in our view, and for the purposes for which they are referred to, quite immaterial. They prove conclusively that one common consequence does not attach to every contract made in violation of positive law, and further than this, that in determining the question as to whether the maxim of pari delicto will operate as a bar to relief, Courts will look to the statute itself--the object and purposes for which it was passed, in order to ascertain, in the language of Lord ELLENBOROUGH, "the true sense and intention of the Legislature."
And accordingly in Harris vs. Runnels, 53 U.S. 79, 13 L. Ed. 901, 12 How. 79, the Supreme Court, whilst acknowledging as a general rule, that contracts made in contravention of statutory law are void, admit that the rule is subject [**11]  to many exceptions, made upon distinctions very difficult to be understood consistently with the rule, "so much so," say the Court, "that we have concluded before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty only for doing a thing which it forbids, that the statute must be examined as a whole to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not so to be. In other words whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, that it is not to be taken as granted that the Legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a Court of justice. In this way the principle of the rule is admitted without at all lessening its force, though its absolute and unconditional 

 [*565]  application to every case is denied." The Court further add, "That when the statute is silent and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void."
Under the rule thus laid down, which we [**12]  regard as just and reasonable, the rights and remedies of parties growing out of prohibited contracts are to be determined by the construction of the statute itself according to the well established rules of interpretation, and if it shall appear that it was not the intention of the Legislature to declare the contract void, although made against the prohibition this intention will be gratified, even if it should contravene some general rule of law.
With this rule to guide us, let us look at the facts in this case. The Howard bank, it appears, on the 4th day of October, 1864, agreed to sell to James F. Purvis, its then President and one of its directors, certain property situate in the city of Baltimore, for the sum of twenty-eight thousand dollars, and on the 12th day of July, 1866, Purvis borrowed of the bank the sum of twenty-five thousand dollars, the said sum to be expended in building houses and otherwise improving the property. On the day of the loan, Purvis executed a paper by which he agreed to make the payment of said sum a lien on the property, and further, that he would not demand a conveyance of the legal title, until the twenty-five thousand dollars in addition [**13]  to the twenty-eight thousand dollars due as purchase money, were fully paid.
Afterwards Purvis made an assignment of all his property, for the benefit of his creditors, to Orville Horwitz, Esq., who on the first day of July, 1867, filed a bill against the bank holding the legal title, setting forth the above agreements, and praying for a sale of the property in question. Without waiving any of their rights, an agreement was entered into by all the parties that the property should be sold and the fund take its place, and the proceeds of sale being in a Court of Equity for distribution, an account is stated, in which the 

 [*566]  auditor, after allowing the bank its original claim of twenty-eight thousand dollars on account of unpaid purchase money, applies the balance to the payment, first of the loan of twenty-five thousand dollars, and the surplus to Mrs. Lester.
To this account the assignee of Purvis, and Lester and wife have excepted, on the ground that the loan to Purvis and the agreement made to secure the payment of the same were illegal and void, Purvis being at the time an officer and director of the bank, and the following prohibition in its charter is relied [**14]  on in support of this exception: "That this Act is passed on the condition *** that no director or other officer of said corporation shall borrow any money from said corporation, and if any director, &c., shall be convicted, &c., of directly or indirectly violating this section, he shall be punished by fine and imprisonment." The construction thus contended for amounts to this, the directors and officers may combine, and in violation of the express provisions of the charter and in utter disregard of the duties of their trust, loan to each other the entire assets of the bank, and then in a suit brought against them by their successors in office, representing innocent stockholders and creditors, set up this betrayal of their trust and violation of law as a defence to the action. Not that the section relied on so declares in express terms, or that it ever entered the minds of the Legislature that such a construction could be put upon it, but because of some general rule of law which says that illegal contracts cannot be enforced.
Now if the section in question, had further provided that nothing therein contained should exempt a director or officer from liability on account of such [**15]  loan, we take it for granted, that no one would question the power of a Court to enforce it. So on the other hand, if we are satisfied that such was the intention of the Legislature, upon a fair construction of the section according to the well settled rules of interpretation, it must be gratified and have the same operation and effect, as if it had been declared in express terms. What then was the 

 [*567]  purpose of the law when it declared that no director or officer should borrow of the bank? and "if any director," &c., "shall be convicted," &c., "of directly or indirectly violating this section he shall be punished by fine and imprisonment." We say to protect the stockholders, depositors and creditors of the bank, against the temptation to which the directors and officers might be exposed, and the power which as such they must necessarily possess in the control and management of the bank, and the Legislature unwilling to rely upon the implied understanding that in assuming this relation they would not acquire any interest hostile or adverse to the most exact and faithful discharge of duty, declared in express terms that they should not borrow, &c., of the bank. If, however,  [**16]  the views of the appellants be correct, this section instead of being a security to the stockholders and creditors, becomes the instrument of their ruin, and instead of operating as a restraint upon the directors, it exposes them to the greatest of temptations, by relieving them from all responsibility, save the uncertainty of a criminal prosecution. To this construction of a statute, the object and purposes of which to our minds are plain, and which by its very terms marks the criminal, we cannot assent. We are of opinion, therefore, that the bank acquired a lien upon this property by the agreement of the 12th of July, and that this lien attaches upon the proceeds of sale in the hands of the assignee.
The principles which underlie our decision in this case, are not in conflict with cases heretofore decided by this Court and relied on by the appellants. In many of them, it is true, the general rule of law denying relief under illegal contracts is stated very broadly, but it will be found upon an examination, that the construction of the several statutes under consideration, did not justify the Court in exempting contracts under them, from the operation of the general rule.
In [**17]  Albert and Wife vs. Savings Bank, et al., 2 Md. 159, it was said, that a loan to a director could not be recovered, 

 [*568]  but the suit was brought to recover certain stock belonging to a cestui que trust, which the trustee had pledged to secure a loan made to a firm of which he was a member. The Court held that the loan being in violation of the charter of the bank, if any injury accrued to a third party from its acts, it ought to be held liable. What the trustee did, say the Court, "was a wrong on the rights of the appellants, and if the bank in contempt of the limitation imposed upon it by its charter, aided him in the perpetration of the fraud, there is no reason either of public policy or in law which should exempt it from responsibility for the injury occasioned by its co-operation." But in this case, the Court admit that the trustee who had borrowed the money, might be estopped from denying the legality of the transaction. It cannot be said, therefore, that the precise question now before us, was decided in that case.
The exceptions on the part of Lester and wife, stand on no better footing. It is true, she agreed to purchase of Purvis one-half [**18]  interest in the property, for the sum of fourteen thousand dollars, and that this agreement was prior to the loan, but no part of the purchase money was paid by her, and although there is some conflict in the testimony, we think it entirely fails to prove notice on the part of the bank of this alleged sale. Moreover by the agreement of the 13th of April, 1866, Lester and wife acknowledge that Purvis had expended large sums of money in improving the property, by the erection of houses thereon and otherwise, and expressly empower him "to sell and dispose of the property so improved" in order to re-imburse himself, &c. The loan to Purvis was subsequent to this agreement, and the money thereby obtained we are satisfied was expended by him in pursuance and according to the terms of said agreement. We see no reason, therefore, why the proceeds of sale, after the payment of the twenty-eight thousand dollars unpaid purchase money, should not be applied to the payment 

 [*569]  of the loan of twenty-five thousand dollars, to secure which, the property was specifically pledged by Purvis.
For these reasons we think the order below ought to be affirmed.
Order affirmed.
ALVEY,  [**19]  J., dissented.  

66 of 142 DOCUMENTS 

ARTHUR O'NEILL, ANN O'NEILL, and others vs. MICHAEL SMITH, Administrator c. t. a. of JAMES O'NEILL, deceased.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 569; 1871 Md. LEXIS 19 

January 31, 1871, Decided 

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

On the 2d day of July, 1864, the Orphans' Court of Baltimore City passed an order admitting to probate what was alleged to be the nuncupative will of James O'Neill, deceased, under which Mary Smith, the wife of the appellee, claimed as sole legatee. The will consisted of three affidavits made before the Register of Wills, on the 25th of June, 1864, by John Kelly, Robert Kelly and Anna Reiley--John and Robert being the sons, and Anna the sister, of the legatee under the will.

John Kelly, who resided with the appellee, his step-father, with whom James O'Neill boarded, testified that, being at home on the 7th of June, 1864, he was sent for to go to the chamber of O'Neill, which he did; that thereupon O'Neill arose from his bed, went to his trunk and got a book out, and gave it to Mary Smith, saying: "This is all that I have, and I give it all to you; you have been so kind to me since I have been sick;" that O'Neill called upon the affiant and his brother Robert and Anna Reiley to be witnesses to what he had said, "this is my will."

Robert Kelly testified that, being at the house of the appellee, on the 7th of June, 1864,  [**2]  and being called by some person, he went into the chamber of O'Neill, who beckoned for him to come near his bedside, which he did; that O'Neill had a portfolio on his bed, which he opened and looked over and then said to Mary Smith, handing the portfolio to her--"here is all that I have got or own; you have been very kind to me; this is all that I have got, and I give it all to you; let these be your witnesses," pointing to John Kelly and Anna Reiley.

Anna Reiley testified that she called at the house of the appellee on the 7th of June, 1864, and was asked by Mary Smith to go up stairs and see James O'Neill, with whom she had been acquainted slightly for ten years past; that O'Neill handed a key to Mary Smith, with which she opened his trunk, at his request, and handed him the papers therein; that O'Neill thereupon handed the papers back to Mrs. Smith and said: "All my share is yours; you have always been kind to me; I have come to your corner to die, and leave all my share or all I got to you;" and said to the deponent, and to Robert and John Kelly, who were present in his chamber: "Take notice to this, sharp, that all I have I leave to Mary Smith."

James O'Neill died on [**3]  the following day. Letters of administration upon his estate, with the will annexed, were granted to the appellee, who proceeded to distribute the estate.

On the 27th of April, 1866, certain heirs-at-law of James O'Neill, and non-residents, filed a petition in the Orphans' Court praying that the proceedings theretofore had in the matter of the estate of James O'Neill might be opened, and the case again examined and heard; that the letters of administration granted to the appellee might be revoked, and that the petitioners, as heirs-at-law of the said O'Neill, be allowed to receive their respective proportions of his estate.

The appellee answered this petition on the 22d of April, 1867. The answer admitted that O'Neill died possessed of certain personal estate, but denied that he was possessed of any real estate. It also admitted the granting of letters of administration to the respondent, and charged that the nuncupative will of James O'Neill was properly admitted to probate, and that it was then too late to have the proceedings reopened, and the matter of the will of the deceased reexamined. On the 30th of April, 1869, the Court passed an order dismissing the petition. From [**4]  this order the present appeal was taken.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Nuncupative Wills -- Delay or Laches as a defence.

An oral disposition of property on the day immediately preceding his decease, by one who had been an invalid for fifteen years, and for eight months previous to his death had been confined to the house, gradually yielding to the ravages of consumption, had been admonished by his physician that recovery was hopeless, and who died in the full possession of his faculties, will not be recognized as a nuncupative will.

An alleged nuncupative will was admitted to probate by the Orphans' Court, on the 2d of July, 1864, and letters of adminstration, with the will annexed, were granted, and the estate of the deceased distributed. No summons or order of publication for the heirs-at-law of the deceased was directed by the Orphans' Court. On the 27th of April, 1866, a petition was filed by certain heirs-at-law of the deceased, non-residents, assailing the validity of the will. The administrator, in his answer, objected that it was too late to have the matter of the will reopened and reexamined. HELD:

That there was not such delay or laches on the part of the petitioners as to preclude them from impeaching the will.  

COUNSEL:
N. M. Busey and Henry Stockbridge, for the appellants,

Referred to the following authorities: Lemann vs. Bonsall, 1 Add. Eccl. Rep., 389; Prince vs. Hazleton, 20 Johns., 501; Priscilla Yarnall's Will, 4 Rawle, 46; Boyer vs. Frick, 4 Watts & Ser., 360; Werkheiser vs. Werkheiser, 6 Watts & Ser., 184; Haus vs. Palmer, 21 Penn., 296; Dorsey vs. Sheppard, 12 G. & J., 192; Welling vs. Owings, et al., 9 Gill, 470.

John C. King, for the appellee,

Relied on the following cases: Brayfield vs. Brayfield, 3 H. & J., 208; Dorsey vs. Sheppard, 12 G. & J., 199; Dockum vs. Robinson, 6 Foster, N. H., 372; 1 Redfield on Wills, 192; Hubbard vs. Hubbard, 4 Selden, 196; Baker vs. Dodson, 4 Humph., 342; Parsons vs. Parsons, 2 Greenl., 298.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*572]  ROBINSON, J., delivered the opinion of the Court.
Whatever may have been the carlier rule of law in regard to nuncupative wills, at a time when the art of writing was known to comparatively a few persons, it was well settled, we think, even prior to the Statute [**5]  of Frauds, that to be valid, "they must be made in the last extremity, when the testator did not expect to recover, and had not time to make a more deliberate will or a will in writing." 1 Redfield on Wills, 185.
So early as the reign of Henry VIII, a nuncupative will was defined by Perkins to be properly when the testator "lieth languishing for fear of sudden death, darest not to stay the writing of his testament, and, therefore, he prayeth his curate and others, his neighbors, to bear witness of his last will, and declareth by word what his last will is," and this definition is substantially adopted in Bacon's Abridgment, Wood on Conveyancing, and other standard writers.
By the Statute of Frauds, further restrictions were thrown around the making of wills of this character, and to such an extent, says Sir WILLIAM BLACKSTONE, "has the Legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse, and hardly ever heard of, but in the only instance where favor ought to be shown to it, when the testator is surprised by sudden and violent sickness."
Now, the 306th section of Article [**6]  93 of our Code, is but a transcript of the 19th section of 29 Charles II, and the words "last sickness" in the Code are to be interpreted and 

 [*573]  understood according to the well known construction put upon these words under the British statute.
We do not purpose at this late day to review the law on this subject, because this has already been done in a very satisfactory manner by Chancellor KENT, in Prince vs. Hazleton, 20 Johns. 502, a case involving a large amount of property and argued on both sides by distinguished counsel. After a well considered examination of the authorities, the Chancellor says:
"I feel myself warranted in concluding, that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. * * The last sickness, in the purview of the statute, has been always understood to apply to the last extremity mentioned in the books, and it never was meant to uphold these wills, made when there was no immediate apprehension of death, and no inability to reduce the will to writing." These views are fully adopted [**7]  in Priscilla Yarnall's Will, 4 Rawle 46; Haus vs. Palmer, 21 Pa. 296, and in fact in almost every State where the 19th section of 29 Charles II, has been adopted.
From these authorities it is clear that the general rule requiring wills to be in writing, was intended to be as universal as was possible; and the exception thereto in favor of a nuncupative will was allowed only in cases of necessity, where the testator surprised by approaching death has not the time or opportunity to make a written will. Thus tested, how stands the will in this case?
The alleged testator it seems was an Irishman by birth, but for many years a resident of the city of Baltimore, and for some time prior to his death a boarder in the house of Michael Smith, the wife of whom, is the party claiming under this will. He had been, according to the testimony of his physician, an invalid for at least fifteen years, and for eight months previous to his death confined to the house, 

 [*574]  gradually yielding to the slow but sure and steady approaches of that most fatal of all diseases, pulmonary consumption. The nuncupation was made in the early part of the forenoon [**8]  of June the 7th, and on the day following, in the full possession of his senses the testator died.
Here there is an attempt to set up a nuncupative will for a party living in a populous city, languishing for months under a disease the fatal termination of which was certain--admonished by his physician that recovery was hopeless--living a day at least after the alleged nuncupation and according to the testimony, in the full possession of his senses to the hour of his death. It must be admitted that there was ample time and opportunity to make a written will, and to sustain a nuncupative will under such circumstances, would obliterate all distinctions which the law has wisely drawn between written and unwritten wills, and open wide the door to frauds and perjuries, to prevent which, the Statute of 29 Charles II, was passed.
The only remaining question, is whether the appellants by reason of any delay or laches on their part, have lost their right to assail this will; without intending to admit, that mere lapse of time would operate as a bar in any case, we are of opinion that the appellants are not precluded by any supposed delay from contesting the validity of this will.  [**9]  
They were non-residents, and the Orphans' Court neither directed summons nor order of publication for the heirs-at-law, and they had not therefore either actual or constructive notice. The petition was filed within twenty-two months after the death of the testator, and for aught that appears to the contrary as soon as they had notice of the alleged will. Surely under such circumstances they cannot be said to have lost their right to impeach the will in question.
For these reasons the order of the Court below will be reversed and the cause remanded.
Order reversed and cause remanded. 

67 of 142 DOCUMENTS 

JOHN BOWES vs. GEORGE ISAACS and MORRIS KAHN, use of ALEXANDER SMITH. GEORGE ISAACS and MORRIS KAHN, use of ALEXANDER SMITH vs. JOHN BOWES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 535; 1871 Md. LEXIS 16 

January 26, 1871, Decided 

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

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Unauthorized correction of a Mistake by a Clerk -- From what an Appeal will not lie.

A judgment having been confessed on the 7th of January, 1869, in the Superior Court of Baltimore City, on the 15th of the same month certain persons appeared before the clerk of the Court, at his office in the Court-house, and as sureties confessed judgment in the usual way, to be levied of their goods, chattels, lands or tenements, in case the defendant did not pay the said original judgment on the 7th day of June next. The blank form of supersedeas was signed by the sureties, and attested by the clerk. The clerk in filling up the blank which was thus signed by the sureties, inadvertently wrote "June," instead of "July;" subsequently on discovering his mistake, he changed the last two letters "ne" to "ly," so as to make it read "July." On motion by one of the sureties to strike out the supersedeas judgment, it was HELD:

That the correction made by the clerk was not warranted by law, and the judgment should be stricken out.

A motion by a superseder to strike out the judgment of supersedeas having been overruled, an appeal was taken by him from the order of the Court refusing to strike out. Subsequently the appellant filed a petition asking the Judge to certify to the Court of Appeals, as part of the record in the appeal he had taken, an affidavit of his counsel made some time after the motion to strike out had been decided, and also one of its rules. The Court refused the petition. From this action of the Court no appeal will lie 

COUNSEL:
John Henry Keene, Jr., for the appellant.

The Act of 1860, ch. 132, (Art. 18, sec. 23 of the Code,) clothed the clerks of the Circuit Courts in the several counties, of the Superior Court of Baltimore city, and the Common Pleas, with power and jurisdiction to take supersedeas of judgments and decrees in their respective Courts, and their acts to be valid must appear to have been performed in strict conformity with the modes appointed by the Legislature.

Section 47 of Article 51, of the Code, provides that the stay of execution on a supersedeas, taken under the preceding sections, shall be computed from the date of the supersedeas. The supersedeas being confessed upon the 15th day of January, the stay should have been to the 15th day of July, which is another irregularity and a defect apparent upon the face of the judgment.

The clerks of the Courts, in the performance of mere clerical duties, act in a ministerial capacity, and in legal contemplation are only the arm or amanuensis of the Court--a sort of branch of the legal service--as such, their acts are performed under the Court's eye, and by [**2]  its authority, and are subject to its control, and when defectively or improperly executed, upon application to the Court will be corrected as clerical misprisions, but the authority of the Courts to make such corrections extend only to the correction of errors which transpire in the course of the business of the Court, wherein the clerk acts as the amanuensis of the Court; but this authority of the Court does not and cannot be pretended to exist or to be exerted so as to extend to the correction of those proceedings wherein the clerk is clothed by statute with special powers, in the execution of which (under the 23d section of Article 18, of the Code,) he exercises independent functions, and is a separate and distinct tribunal, and as such is not subject to the review, inspection, visitation or control of any higher authority. Greff vs. Fickey, et al., 30 Md., 75; Mayor and City Council vs. The County Comm'rs Balt. Co., 19 Md., 564; Weighorst vs. The State, 7 Md., 450.

No authority can be adduced to support the doctrine laid down by the Superior Court, that after the stay had expired, the clerk could alter the face of the supersedeas judgment; on the contrary, that doctrine is [**3]  in the teeth of the uniform decisions of this Court. Dilley vs. Shipley, 4 Gill, 52; Greff, et al. vs. Fickey, et al., 30 Md., 75; Chandler vs. Fisher, 11 Md., 333; Montgomery vs. Murphy, 19 Md., 577, 581; Cornish vs. The State, 15 Md., 211; Watkins vs. The State, 14 Md., 412; Ford vs. The State, 12 Md., 514.

The functions of the clerk being of a quasi judicial character, their validity must appear from the proceedings themselves, and no evidence aliunde can show jurisdiction which doth not appear ex facie.

J. Alexander Preston, for the appellees,

Argued that the clerk was right to correct his mere clerical error in order to make the record conform to the truth, and referred to the following authorities: Weighorst vs. the State, 7 Md., 442; McCoy vs. Bayle, 10 Md., 391; Lovejoy vs. Irelan, 19 Md., 56.

The motion to strike out the judgment having been disposed of by the order of the 25th September, 1869, and an appeal from said order having been prayed on the 27th day of September, 1869, the affidavit of Mr. Keene, filed the 2d day of October, 1869, could affect the case, only, by introducing other evidence into the record, to be sent to the Court of Appeals, than [**4]  that which was before the Court at the time the "motion" was heard. As the affidavit could not be used for such a purpose, the action of the Court below was proper. Greff, et al. vs. Fickey, 30 Md., 72; Horner vs. O'Laughlin, et al., 29 Md., 465.  

JUDGES:
The causes were argued before BARTOL, C. J., BRENT, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*537]  MILLER, J., delivered the opinion of the Court.
The first appeal in this case is from the judgment overruling the appellant's motion to strike out the supersedeas.
The record shows that the appellees, Isaacs and Kahn, recovered a judgment on the 7th of Jan'y, 1869, in the Superior Court, against Judson H. Smith, which, as the docket entries therein state, was superseded by a supersedeas, filed on the 15th of Jan'y, 1869, with the appellant and Andrew 

 [*538]  B. Wise, "sureties, due 15th July, 1869." The form of the supersedeas as it now appears in the record shows that the sureties on the 15th of January, 1869, appeared before the clerk of the Superior Court at his office in the court-house, and confessed judgment in the usual way to be levied of their goods, chattels, lands or tenements in case [**5]  the said Smith did not pay the said original judgment, "on the 7th day of July, next," and it is signed by the sureties and attested as taken and subscribed before the clerk. The chief ground on which the appellant relies is that in the form of the supersedeas as it stood at the time and prior to making his motion, it was expressed that the confessed judgment should be executed "on the 7th of June, next," and that the word "June" has since and without proper authority been altered to "July." The motion appears to have been heard on affidavits filed on the part of the appellant and on the statement of the clerk made at the time of hearing, and the Judge in his opinion, says: "It appears by the evidence and by the admission of facts that the superseding defendants appeared before the clerk and were informed that the supersedeas would be for six months from the date of superseding the same, and the usual terms of the confession of judgment as prescribed by the Code were repeated to them in which the dates were correctly stated, and they signed the blank form as is customarily done at the clerk's desk, he making the correct docket entry at the time.  [**6]  But in filling up the blank, signed by them, he inadvertently wrote June instead of July, and on discovering his mistake changed the last two letters ne to ly," and being of opinion the clerk had the right to correct his mere clerical errors so as to make the record conform to the truth, he overruled the motion.
With every disposition to sustain if possible this action of the Court below, meeting as it apparently does the justice of this particular case, we can find no warrant in law for so doing. By the Code, Article 18, section 23, it is provided that the clerks of the Circuit Courts of the several counties, 

 [*539]  of the Superior Court and Court of Common Pleas of Baltimore city, "shall have the power and jurisdiction to take supersedeas of judgments and decrees in their respective Courts, as a justice of the peace has by law, and the supersedeas so taken shall have the same effect as if taken by a justice of the peace; and every security in a supersedeas of a judgment rendered in the respective Courts, and superseded before the clerks of said Courts shall sign the same, and if they cannot write, make their marks, to be attested [**7]  by the clerk; and the several clerks shall be entitled to a fee of twenty-five cents for each supersedeas." The mode in which a justice of the peace may take supersedeas of such judgments, is prescribed by the Code, Article 51, section 45, where the form of confession is set out, (which however by section 49, need not be followed precisely, provided substance and meaning are preserved,) and this confession shall be signed by the justice before whom the same is made and forthwith returned to the clerk of the Court in which the judgment was rendered who shall record the same. The substantial requirement of Article 18, section 23, is that the supersedeas shall be signed by each security at the time of his confession, in order that the extent and nature of the obligation into which he then enters may be evidenced by the written document and his signature thereto. This when filed in Court operates a stay of execution on the original judgment and is itself a judgment on which execution may issue under the Court's order and authority. But in taking the supersedeas and in requiring it to be signed and approving of the sufficiency of the sureties, (Code, Article 18,  [**8]  section 24,) the clerk does not act as clerk of the Court in which the original judgment was obtained or under the eye and authority, and as the hand thereof, but by virtue of a special power and authority conferred on him by law to be exercised at any time in or out of Court, and in or out of term time. Over his omissions or mistakes, when thus acting, the Court has no supervisory or discretionary power of correction as over entries made by 

 [*540]  him in the regular discharge of his duty as clerk, and where he merely acts as the hand or amanuensis of the Court; and hence cases affirming the well settled power of Courts to correct clerical errors in their own entries, writs or other proceedings, can have no application to this case. The law requires the clerk in taking a supersedeas to proceed in the same way as a justice of the peace was required to act in like cases, before this section 23 of Article 18, became a part of the Code, (as it for the first time did, in its present form, by the Act of 1860, chapter 132,) save that he should see that each security signed the same at the time it was taken. If it had been required by section 45 of Article 51, that the supersedeas [**9]  should be signed by each security and the justice had returned to the clerk a form signed in blank or with erroneous dates, it would scarcely admit of argument that the Court would have no power to order or allow the justice afterwards to fill up or correct the same according to his recollection of what took place at the time it was taken, or that the justice would have any authority to do so on his own motion; and if not, there is no reason why such action by a clerk in case of a supersedeas taken by him should be treated with more favor.
The substantial requirements of the law would be disregarded by allowing a supersedeas to be first signed in blank, and afterwards filled up, and then mistakes of essential dates corrected by the mere recollection of the clerk. The statute, by requiring the form of confession to be signed by the securities, must have intended to prevent the establishment or continuance of a practice so loose and dangerous as this, and no such practice, if any such exists, can receive our sanction. The very case before us is an instance of how little reliance can be placed on recollection, and affords an illustration of the wisdom of the law in requiring [**10]  the confession to be complete when signed. It is conceded the case comes within the first branch of section 47, Article 51, which requires the six months stay to be computed from the date of the supersedeas, 

 [*541]  and yet, after the correction now made, which the clerk supposed covered all errors, there is still a fatal defect in the date of the 7th instead of the 15th of July, on which latter day only would the six months from the date of the supersedeas expire. We are clearly of opinion, upon the facts stated by the learned judge in his opinion, that this supersedeas was not taken in conformity with law, and should, therefore, have been stricken out on the appellant's motion. The path of duty and mode of procedure is so plainly pointed out by the law, that there can be little excuse for erring therein. The clerk must first be satisfied of the sufficiency of the superseders as provided in Article 18, section 24, and then fill up with the proper dates and amounts, and names of parties, the blank form of confession prescribed by the Code, Article 51, section 45, or one similar in substance and meaning, and read it over to the parties, who, if they consent thereto,  [**11]  must then sign it, or, if they cannot write, make their mark, attested by himself. This is a very simple procedure, and when done, the supersedeas is perfected to operate for the purpose for which the law designed it, and it cannot afterwards be mutilated or corrected out of the presence, and without the assent of the parties who signed, either by the clerk or any one else. Mistakes, if any there be therein, must be corrected, if at all, on application to the proper forum, and in the proper mode, by a bill in equity, and not by motion to the Court as for the correction of clerical errors made by its own officer in its own proceedings. The judgment on this appeal must be reversed.
Judgment reversed. 

DISSENTBY:
MAULSBY 

DISSENT:

MAULSBY, J., dissented.
The second appeal must be dismissed. It purports to have been taken from a refusal of the Court after the motion to strike out had been decided, to take any action on a petition of the appellant asking the Judge to certify to this Court, as 

 [*542]  part of the record in the preceding appeal, a certain affidavit of his counsel made some time after the motion had been decided, and also from the refusal of the Court to certify [**12]  to us one of its rules. We are utterly at a loss to perceive how an appeal can be held to lie from this action of the Court. We have nothing to do, as affecting that judgment, with what occurred after the judgment overruling the motion was pronounced. In deciding that appeal, we are confined to the record of what took place up to the time of the judgment appealed from. But even if the matter were before us for review, there can be no doubt of the entire propriety of the action of the Judge in the premises as explained in his second opinion.
Appeal dismissed. 

68 of 142 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY, vs. THE STATE OF MARYLAND, use of BRIDGET E. TRAINOR, WILLIAM H. TRAINOR, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 542; 1871 Md. LEXIS 17 

January 26, 1871, Decided 

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

This was an action against the appellant, brought in the name of the State for the use of the widow and children of John Trainor, deceased, to recover damages for his death. The deceased was employed as a spiker, by the appellant. He was paid at the rate of a dollar and fifty cents a day, payable at the end of each month, less any time he might have lost during the month; he was liable to be discharged at any time, on which event he would be paid up to the time of his discharge. His business was to go twice a day over his beat, which extended from the four mile house on the Baltimore and Ohio Rail Road, to the nine mile stone near the Relay House, to see that the track was in order.

On the afternoon of the 14th of July, 1868, about six o'clock, Trainor, having completed his work, was walking on the rail road track from the Relay House in the direction of Elkridge Landing, where he lived; when very near the Thomas viaduct, which crosses the Patapsco river about a hundred yards beyond the Relay House, and just before reaching what is known as the cattle guard--a deep trench at the beginning of the viaduct, to prevent cattle going thereon--he [**2]  was struck by a train coming from Baltimore and going in the direction of Washington, knocked down and so severely injured that he died the next day. The train which killed Trainor was an extra train sent out from Baltimore by the agents of the appellant, to bring back a pic-nic party from some point on the Washington road.

Exception: The plaintiff offered the following prayers, which the Court granted:

1st. If the jury find from the evidence, that on or about the 14th of July, 1868, John Trainor was killed by the locomotive and cars of the defendant while operated by its agents on its road, and that the equitable plaintiffs are related to him in manner as set forth in the pleadings herein, and that the said killing resulted directly from the want of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased, directly contributing to the accident, that then the plaintiff is entitled to a verdict, unless at the time of such killing, the jury should find that the said Trainor was in the employment of said defendant.

2d. Even if the jury believe that the said Trainor was guilty of the want of [**3]  ordinary care and prudence in walking on the track of the defendant, under the circumstances testified to before them; yet if the jury further find, that if the agents of the defendants had used, in and about the running of the train that injured him, ordinary prudence and care in giving reasonable and usual signals of its approach, and in keeping a reasonable look-out, that the said accident would not have occurred, then the plaintiff is entitled to recover, provided they find the other facts set out in the first instruction of the plaintiff.

3d. If, under the instructions of the Court, the jury should find for the plaintiff, then, in assessing the damages, they are to estimate the reasonable probabilities of the life of the deceased, Trainor, and give the equitable plaintiffs such pecuniary damages, not only for past losses, but for such prospective damages as the jury may find that they have suffered, or will suffer, as the direct consequence of the death of the said Trainor; that for his children, these prospective damages may be estimated to their majority, and as to the widow, to such probability of life as the jury may find reasonable under the circumstances.

The defendant [**4]  offered the following prayers:

1st. If the jury believe from the evidence that the decedent, Trainor, was an employee of the defendant at the time of the injury complained of, and that he was injured by the negligence and carelessness of the other employees of the defendant; yet, the plaintiffs are not entitled to recover, unless they shall satisfy the jury by evidence that the defendant did not use reasonable care in procuring, as co-employees of the decedent, faithful and competent persons in their respective employments, and in procuring for its operations sound machinery upon the train causing the accident.

This prayer the Court refused as offered, but granted, after amendment, by inserting after the word "operations," "sound machinery of suitable construction adapted for the train causing the accident."

2d. If the jury believe from the evidence that John Trainor was employed, and had been for months previously, as a spiker upon the road by the defendant; that the terms of employment were, that he was to go over his beat twice every day, and that it was for no definite period, but to continue until discharged by the company, which the company was at liberty to do [**5]  at any time, and that the said Trainor was paid every month for so many days, only as he was actually employed, and was liable to be called on for extra work, with an allowance of extra pay therefor; and if the jury shall believe that on the day of the injury to him, he had performed his regular duty, and had not been discharged by the company at the time of said injury, and had left work but a short time before said injury, then the said Trainor, at the time of said injury, was an employee of the defendant within the meaning of the first prayer, though the jury may believe, that at the time of the injury, he had left his work and was going elsewhere on his private business.

This prayer was rejected.

3d. If the jury believe from the evidence that the decedent, John Trainor, was on the railway track of the defendant, and on or near the cow-break, at the entrance of the viaduct of the defendant, at the time of the accident complained of, and that he was not a passenger on the train; and shall further believe that the company had given public notice, set up at the said viaduct, warning persons not to cross it, then the defendant is not liable in this action, though its agents [**6]  might, by extraordinary care, have avoided the injury, if they shall believe that it was the result of accident, and not of wanton purpose on the part of the defendant or its agents; even though the jury may believe further that he was not an employee of the company at the time of the accident.

Rejected as offered, but granted with the following addition: "Provided the jury should find that, by the exercise of ordinary care and prudence on the part of the defendant's agents, the accident could not have been avoided."

4th. That, so far as relates to the decedent, John Trainor, the defendant, in the use of its train was only bound to use such diligence and care as prudent and discreet persons would use and exercise on such occasions; and if, owing to the absence of such diligence and care, John Trainor was injured, he is still not entitled to recover, if he contributed to bring the injury on himself by his own negligence and want of reasonable care, even though the jury may believe he was not an employee of the defendant at the time of the accident.

Rejected as offered, but granted with the following addition: "Provided that such negligence and want of care by decedent [**7]  could not have been avoided by the use of ordinary care on the part of the agents of the defendant."

5th. If the jury believe from the evidence, that the defendant was in the ordinary use of its railway and trains; that by the usual signal of its whistle before reaching the Relay station, it gave notice that the train was bound upon the Washington Branch of its road; that said whistle was within the range of ordinary hearing by persons at the viaduct, and was well known to employees of the company, of whom decedent was one; that the train was proceeding at an ordinary speed when the injury occurred; and shall further believe that the agents of the company on the train did not see the decedent on the track, then they must find for the defendant, if they further believe that the said decedent was on or near the cow-break at the entrance of the viaduct, and on the track upon which a train from Baltimore would pass to Washington, and might, by reasonable caution and care, have avoided the train and prevented the accident.

This prayer the Court rejected as offered, but granted, after amendment, by inserting after words "decedent on the track," "and by the use of ordinary care [**8]  and prudence could not have seen him there in time to have avoided the accident."

6th. If the jury shall believe from the evidence, that at the time of the happening of the accident, the man Trainor was an employee in the service of the defendant, then the plaintiff is not entitled to recover in this action, even though the jury shall believe that said Trainor came to his death through the negligence of one or more of the employees upon the train causing the accident, unless the jury shall also believe from the 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 sound machinery and faithful and competent employees; and the plaintiff has offered no evidence from which the jury might find that the defendant did not use such reasonable care.

This prayer the Court rejected.

7th. If the jury believe from the evidence that the company had put up in legible characters the following notice at the entrance of the viaduct: "All persons are hereby warned not to walk upon or over the viaduct. Any such trespass will greatly endanger their lives. The width of [**9]  the roadway admits of no foot-path, and both tracks are subject to use at all times by locomotives and trains in both directions." And if they shall further believe that the decedent, knowing of the said notice or its substance, was at or near the said viaduct with purpose to pass over the same, or was on the railroad track near the said viaduct, and was walking thereon, and not at a public crossing of the same, then the proof of negligence on his part is conclusive, and if he was injured in consequence thereof, he is not entitled to recover.

This prayer the Court rejected as offered, but granted, as amended by the following addition: "Provided, that the agents of the defendant were using ordinary care and prudence in the running of the train, and could not, by the use of such ordinary care and prudence, have prevented the accident."

The defendant excepted to the granting of the plaintiff's prayers, to the rejection of its prayers, and to the modifications made to its first, third, fourth, fifth and seventh prayers by the Court. The verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Contributory Negligence -- Proximate Cause -- Assessment of Damages.

Damages may be recovered against a rail road company, for the killing of a person who was employed by it at a stipulated price per day, but who was not in its service at the time of the killing, if the killing resulted directly from the want of ordinary care and prudence on the part of the agents of the company, and not from the want of ordinary care and prudence by the deceased, directly contributing to the accident.

And if it appear that the accident would not have occurred if the agents of the rail road company had used, in running the train which occasioned the killing, ordinary prudence and care in giving reasonable and usual signals of its approach, and keeping a proper look-out, the company is liable even if the deceased were guilty of the want of ordinary care and prudence in being on the rail road track at the time of the accident.

In an action against a rail road company to recover damages for the killing of a person, brought by the State in behalf of the widow and children of the deceased, the jury in assessing the damages should consider the reasonable probabilities of the life of the deceased, and award damages not only for the past losses of the equitable plaintiffs, but for such as they will suffer, as the direct consequence of the killing -- the prospective damages for the children to be estimated to their majority, and those for the widow upon the probable duration of her life.  

COUNSEL:
Ferdinand C. Latrobe, for the appellant.

If [**10]  there was a want of ordinary care on the part of Trainor in walking on the railroad track, although it may not in itself have altogether produced the injury, yet if the accident would not have happened had there not been such a want of ordinary care, then from the nature of the accident, the negligence of the decedent was of such a character, that although it may have been commingled with negligence on the part of the defendant's agents, yet the negligent acts of the two parties were not susceptible of apportionment, and therefore the plaintiff could not recover. The Northern Central Rail Road Company vs. State, use of Geis, 31 Md., 358; Witherly vs. Regents' Canal Co., 104 E. C. L. R., 2.

The second prayer of the plaintiff ignores the principle, that a want of ordinary care on the part of the deceased by which the accident was caused, would prevent the plaintiff's recovery. If it was a want of ordinary care and prudence on the part of Trainor, to walk upon the track under the circumstances, there being no actual necessity for his so doing, and if the accident would not have happened had it not been for such a want of care, then the walking on the track was the direct, or proximate,  [**11]  or immediate cause of the accident, and was such a contribution to his own injury as will prevent the plaintiff's recovering. The right to recover is dependent upon the deceased having made use of ordinary care to avoid the accident, and if he was a contributor to his own misfortune by his own negligence, no recovery can be had although the defendant by the use of greater diligence might have prevented the accident. Baltimore and Ohio R. R. Company vs. State, use of Miller, 29 Md., 262; Baltimore and Ohio R. R. Company vs. State, use of Freyer, 30 Md., 52; Northern Central R. R. Company vs. State, use of Geis, 31 Md., 358.

The plaintiff's third prayer was objectionable because it instructed the jury to consider only the probability of life of the widow of Trainor, without taking into consideration a possible termination of widowhood by another marriage, when she would be relieved from loss through the death of Trainor. The statute limiting the damages to the actual loss, this possibility should have been estimated by the jury in awarding damages.

The first prayer of the defendant as offered should not have been rejected; its language requiring the defendant to use reasonable [**12]  care in procuring, "Sound machinery upon the train causing the accident," fully complies with the law. The addition made by the Court was unnecessary, and although not very material, was yet calculated to mislead the jury, by leading them to suppose that some particular kind of machinery was required specially for operating the train causing the accident. Shauck vs. The Northern Central R. R. Company, 25 Md., 462.

The second prayer of the defendant requested the Court to instruct the jury as to what constituted the relations of employer and employe, and the proposition stated in the prayer was so plain that the Court should have stated it as law to the jury. The fact that Trainor had completed his day's work, did not, in the absence of a discharge, release him from the relation of employe. Tunny vs. Midland Railway Co., 12 Jurist, N. S., 691; 1 Redfield on Railways, 527 and note on page 534; Wonder vs. B. & O. R. R. Co., 32 Md., 411.

The rejection of the third prayer of the defendant as offered, and granting it with an amendment was erroneous. The third prayer of the defendant as offered was in compliance with the law. The evidence shows that the intention of the deceased [**13]  was to cross the viaduct. By so doing he was clearly violating a reasonable regulation of the defendant brought to his attention by the notice placed there in a conspicuous position forbidding persons from crossing and warning them of the danger of so doing. It was, therefore, conclusive evidence of negligence on his part if he was injured while intent upon violating this regulation, and the plaintiff was not entitled to recover. Baltimore City Passenger Railway vs. Wilkinson, 30 Md., 225.

The amendment made by the Court to this prayer, renders vague and uncertain what instruction the Court really intended giving to the jury.

The rejection of the fourth prayer of the defendant as offered, and granting it with an amendment, was erroneous. As offered it complied with the law, and is in fact the very language of the Court of Appeals in the case of Bannon vs. The Baltimore and Ohio R. R. Co., 24 Md., 126. It is also in compliance with the law in the case of The Northern Central R. R. Co. vs. The State, use of Geis, 31 Md., 357.

The prayer as amended by the Court was vague and uncertain in meaning, and was certainly calculated to mislead the jury on account of the difficulty [**14]  in properly construing its meaning.

The fifth prayer of the defendant instructed the jury that their verdict must be for the defendant if the decedent could have avoided the accident by the exercise of reasonable caution and care. The amendment made by the Court was not required by the law of Maryland. Northern Central R. R. Co. vs. State, use of Geis, 31 Md., 357; Baltimore & Ohio R. R. Co. vs. State, use of Miller, 29 Md., 262.

The rejection of the defendant's sixth prayer was erroneous. The defendant was certainly entitled to the judgment of the jury upon the question, whether or not the man Trainor was an employe, in fact by the rejection of the defendant's second prayer, the Court submitted that question to the jury. And if the jury should find that he was an employe, then the law asked for by the prayer was in accordance with the ruling of the Court of Appeals in the case of Wonder vs. The Baltimore and Ohio Rail Road Company, 32 Md., 411.

There was no evidence in this case from which the jury might find that the defendant had not used reasonable care in procuring for its operations sound machinery and faithful and competent employes.

The Court should have [**15]  instructed the jury that the facts stated hypothetically in the seventh prayer if found by the jury constituted in law such negligence on the part of the decedent as would bar the plaintiff's recovery.

Michael A. Mullin and Robert J. Brent, for the appellee.

To determine whether at the time of the accident Trainor was in the employment of the defendant, the contract between them must be considered. Trainor was hired at a stipulated price per day, payable at the end of the month, and liable to be discharged at any time. At the time of the accident he was not in the service of the company, he had concluded his day's work and was going in the direction of his home. Rex vs. Pucklechurch, 5 East, 384; Rex vs. Mitcham, 12 East, 352; Robertson vs. Jenner, et al., 15 Law Times Reports, N. S., 514; Schouler's Dom. Rel., 607; Wyngert vs. Norton, 4 Mich., 286; Russell vs. Hudson River Rail Road Company, 5 Duer, 39.

Even if the decedent were, at the time of the injury, an employe of the defendant, the latter under the evidence before the jury is still responsible. The general rule is that when injury is inflicted on one servant by the negligent act of his fellow-servant, the common [**16]  master is not responsible, provided the master exercise all reasonable care in procuring for his operations sound machinery and capable and competent employes. Priestly vs. Fowler, 3 Mees. & Wels., 1; O'Connell vs. B. & O. R. R. Co., 20 Md., 222; Cumberland Coal and Iron Co. vs. Scally, 27 Md., 603.

In this cause there was evidence that the conductor of the train was regularly employed on the main stem; he himself states he did not recollect how long before he had acted as conductor on the Washington Branch, except that he had run down several times during Mr. Lincoln's administration; a man who, from his testimony, knew nothing, and from his opportunities could not be expected to know anything of the service on which he was sent. What is said of the conductor can be doubly said of the engineer, who, according to his own statement, was not employed on the road at all; was merely employed in making up trains in the depot yard, and had not been on the Washington Branch for four years before. The brakemen were also unaccustomed to the Washington Branch.

There was also evidence of defective machinery used. The engine sent out by the company was a freight engine, used for regulating [**17]  around the depot yard, consequently had no pilot or cowcatcher, as is usual with engines used on the road.

Assuming that Trainor, at the time of the injury, was not a servant of the company, there was evidence of such negligence on the part of the defendant, and absence of negligence on the part of the deceased to support the action, and the instruction given by the Court was correct. Northern Central Railway Co. vs. State, use of Price, 29 Md., 435, 436, 437, and the cases there cited with approbation.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*553]  MAULSBY, J., delivered the opinion of the Court.
Much of the law applicable to this case is well settled, and is stated with clearness and precision in Northern Central Railway Co. vs. State, use of Price, 29 Md. 420, thus, "if the negligence of the defendant was the proximate, and that of the deceased the remote, cause of the injury, the action is maintainable, notwithstanding the deceased may not have been entirely without fault."
Tested by this rule we can perceive no error in the plaintiffs' first and second prayers which were granted by the [**18]  Court below. It is objected by the appellant to the first prayer, that it admits that there may have been mutual or concurrent negligence, and that it leaves to the jury to exactly ascertain how much each party contributed, by his negligence, to the production of the injury, in which case it would be impossible to apportion the damages, and that it is therefore obnoxious to the rule announced in Northern Central Railway Co. vs. State, use of Geis, et al., 31 Md. 357. In that case the rule invoked by the appellant is stated to be that an action will not lie where the negligence imputable to both parties was concurrent, and co-operated to produce the injury complained of. There can be no difficulty in distinguishing between negligence of both parties immediately concurring to, and co-operating in, the production of the injury, and the proposition of the prayer that if the killing resulted from the want of ordinary care of the defendant, and not from the want of ordinary care of the deceased, directly contributing to the injury, the action lies. The second prayer contains, substantially, the same legal proposition with the first, and the appellant's objection is substantially [**19]  the same. It is argued that if the deceased walked on the track, and his walking on the track was want of ordinary care, and the accident would not have happened if he had not walked on the track, then such walking was the proximate cause of the accident, and the plaintiff cannot recover. This argument does not justly apply the rule in 29 Md. 420. By "proximate 

 [*554]  cause" is intended an act which directly produced, or concurred directly in producing, the injury. By "remote cause" is intended that which may have happened, and yet no injury have occurred, notwithstanding that no injury could have occurred, if it had not happened. No man would ever have been killed on a railway, if he had never gone on or near the track. But if a man does, imprudently and incautiously, go on a rail road track, and is killed or injured by a train of cars, the company is responsible, unless it has used reasonable care and caution to avert it, provided the circumstances were not such when the party went on the track as to threaten direct injury, and provided that being on the track he did nothing, positive or negative, to contribute to the immediate injury. Any attempt to make plainer [**20]  the rule laid down in the case referred to, than it is made by the language of the Judge who delivered the opinion, is more likely to obscure than to illustrate it.
Nor can we appreciate the force of the appellant's objection to the plaintiff's third prayer. It is, that instead of allowing the jury, in estimating damages, to consider the probability of life of the widow of deceased, it ought to have limited them to a consideration of the probable continuation of her widowhood, and that they should have been required to measure the period when, in their opinion, she would marry again, and allow damages to that period only.
Such a contingency this Court cannot recognize as a fit element to enter into a verdict in such a case. We think that the prayers of the appellee were properly granted.
The first, second and sixth prayers of the appellant are based on the hypothesis that the deceased was an employee of the appellant at the time of the injury which resulted in his death. The propositions contained in these prayers could arise only on the idea that he was in the course of discharging the duties of his employment when the injury occurred. The proof on both sides is that he was not,  [**21]  at the time of the injury, so occupied, but that his duties to 

 [*555]  his employer having been discharged, he was on his way to his home. His employment was as a spiker, and his duty was to go over the track twice a day from the four mile house to the nine mile stone, to see that it was in order. At six o'clock in the evening his duty ended, to be resumed the next morning, unless discharged in the meantime. When the injury occurred, he was not on the track between the four mile house and the nine mile stone, but had finished his day's work, laid aside his tools, and was proceeding along, or on the track of, the Washington Branch road, towards his home on the opposite side of the Patapsco river. This being the undisputed evidence on this subject, it is unnecessary that we shall consider these prayers further than to say there is no proof to sustain them, and therefore they are abstractions in this case, and for this reason were properly rejected.
The third and seventh prayers of appellant present substantially the same question, that if the deceased was at the entrance of the viaduct, in the language of the third, or at or near the viaduct with purpose to walk over the same, or [**22]  was on the rail road track near said viaduct, and walking thereon, and not at a public crossing of the same, in the language of the seventh, when the injury occurred, and that the appellant had given public notice, set up at the viaduct, warning persons not to cross it, and that the injury was the result of accident, and not wanton, then the plaintiff is not entitled to recover. These prayers were rejected as offered, but granted with additions putting it to the jury to find that the defendant was using ordinary care, and that by the use of ordinary care it could not avoid the injury.
There are no circumstances under which the defendant could be relieved of the duty of using ordinary care. What constitutes ordinary care may vary with varying circumstances, but, as a general rule, it is for the jury to determine, and we discover nothing to relieve this case from the operation of the general rule. The proposition of the prayers 

 [*556]  as offered, is that the public notice or warning, set up at the viaduct, is a bar to recovery, and relieves the defendant from the use of ordinary care on and about the viaduct, and from liability for any injury that might occur, at or on the viaduct, [**23]  from the want of ordinary care on its part.
That proposition is not sound. The notice or warning was proper to be considered in determining the question of care, but was not, in itself, a fact which dispensed with the necessity of using care. An illustration can be found in the fifth and eighteenth rules or regulations of the appellant for the conduct of its trains. The fifth rule requires the passenger engineman, on his approach to all bridges (amongst other things) to sound his whistle clearly and distinctly, and cause his fireman to ring the bell. There may be other purposes in this requirement, but manifestly one purpose is to give warning to persons who may, however improperly, be on a bridge. The eighteenth rule requires the enginemen, while running trains, to keep a sharp lookout for cattle and live stock on the way, and on observing any on or about the track, to reduce speed, and use great care to avoid injuring them. It would be great injustice to the appellant to construe its regulations as intending to evidence greater tenderness towards cattle and other live stock, than towards human life or limb. These rules manifest the sense of the appellant as to what constitutes [**24]  proper care, and the standard, which it thus establishes for itself, is correct. If they could be construed as establishing a rule of care and caution, solely for the protection of its own property and interests, which however is forbidden by the language of the eighteenth rule, still others are entitled to the benefit of the same rule. That which constitutes ordinary care for its own interests, constitutes it as well for others. And as the setting up a notice or warning, according to the appellant's own estimate, is not sufficient care to relieve it from other acts of care, in addition, as sounding the "whistle clearly and distinctly," and causing the "fireman to ring the bell" on approaching a bridge, there 

 [*557]  could be no propriety in relieving it from the duty of observing its own rule of care, which was the effect of the prayers. The third and seventh prayers were properly rejected, without the additions of the Court, and they, properly construed, and as now corrected by the agreement to amend, presented the law correctly. The appellant was not injured by them.
The fourth prayer was erroneous in that, it failed to require the supposed contribution by the deceased to bring [**25]  the injury on himself, by his own negligence and want of proper care, to be found to be the proximate cause of the injury. If the hypothetical negligence of the deceased were the remote cause of the injury, and the negligence of the appellant the proximate cause, the former did not bar the right to recover.
The addition of the Court substantially met this proposition, but without the addition the prayer ought to have been rejected, and with the addition it could operate no injury to the appellant.
The fifth prayer was based on the proposition that the only duty incumbent on the appellant, in the use of ordinary care, was to give the usual signal, that its train was bound upon the Washington branch of its road, by sounding the whistle before reaching the relay station. The proof of the appellant is that the cattle guard at the entrance on the viaduct, or bridge, at or near which the injury occurred, is eighteen hundred and eighty-four feet distant from the switches. That the whistle was sounded, according to one witness, (Burton,) about six hundred yards east of the switches, the injury having occurred in the opposite direction, and by the other (Palmer) about two hundred yards.  [**26]  Both these witnesses, one of whom was the conductor, and the other was the engineman, prove that the whistle was not sounded, nor the bell rung on the approach of the train to the viaduct. The injury occurred at or within a few feet of the entrance on the viaduct. There was testimony that it was usual for all passenger trains to blow the whistle between the switches and the viaduct. The fifth rule required not only that to be done, 

 [*558]  but also the bell to be rung. The prayer asserted that a much less degree of care was sufficient. This statement of the proof sufficiently demonstrates the error of the prayer. Without regard to the addition made by the Court, it was properly rejected, but that stated the law as favorably to the appellant as it had a right to require.
Judgment affirmed. 

69 of 142 DOCUMENTS 

THE FIRST NATIONAL BANK OF PLYMOUTH, PENNSYLVANIA vs. AUGUSTUS M. PRICE, BENTLEY C. BIBB, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 487; 1871 Md. LEXIS 12 

January 20, 1871, Decided 

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A Penalty can only be enforced within the State, where the Law which imposes it, is enacted.

Under a statute of Pennsylvania, it was provided that the total amount of the debts and liabilities (other than the capital stock) of certain companies, should never exceed the amount of their capital actually paid in; and if any debts or liabilities should be contracted exceeding the said amount, the directors and officers contracting the same, or assenting thereto, should be jointly and severally liable, in their individual capacities for the whole amount of such excess, and the same might be recovered by action of debt as in other cases. HELD:

That the liability imposed upon the directors and officers of such corporations, is in the nature of a penalty, and can only be enforced within the limits of Pennsylvatia.  

COUNSEL:
Wm. S. Waters and Geo. W. Woodward, for the appellant.

The law of the place where the contract is made, or the obligation incurred, gives the force and efficacy to the contract. The particular facts have such effect to bind parties as is prescribed by the lex loci. Story's Con. Laws, secs. 266, 558, &c.; Thrasher vs. Everhart, 3 Gill & Johns., 242; Trimbey vs. Viginer, 1 Bing. N. S., 151; Sackett's Harbour Bank vs. Blake, 3 Rich. E., 225.

The Court of no State, however, will enforce penalties inflicted by the laws of other States, and the only question is: Is the responsibility incurred by the acts of the directors, stated in the declaration, a penalty inflicted by the laws of Pennsylvania? Story's Con. Laws, sec. 619, &c.

The responsibility of the directors arises out of their making or assenting to the contract, and is simultaneous with it. It does not arise from anything collateral to it, or from any subsequent act or breach of, or failure to discharge duty. The law simply declares that the amount of the debts of the corporation (other than the capital stock) shall never exceed "its capital [**2]  actually paid in." It is against law that it should be so. And if a director, where this is the case, contracts a debt or assents to such contract, he shall be individually liable? Why liable? Because he has made or assented to a contract as agent for a principal, under circumstances which make him personally liable for the debt. The law is, in effect, this: If you, as agent, contract or agree to bind your principal for a debt when the principal is insolvent, you shall be bound yourself. The obligation has all the essential elements of a contract, and is in no sense a penalty imposed as a punishment for crime. Primarily, the party who makes the contract is bound to perform it; and if, in contracting, he represents himself as agent, he must produce a principal, or be bound himself. The responsibility here incurred is allied to this. Morgan vs. N. Y. & A. R. R. Co., 10 Paige, 290; An. & Am. on Corp., secs. 579-604, 605-611; Corning vs. McCullough, 1 Com., 66, 68, 70, 71; Ex parte Van Riper, 20 Wend., 616; Van Hook vs. Whitlock, 3 Paige, 415; Allen vs. Sewell, 2 Wend., 339; Marsh vs. Clark, 17 Mass., 334.

Individual liability is in contrast with corporate liability. Prima facie,  [**3]  all the stockholders and directors would be liable for all the debts of the company. A corporation is but a partnership qualified by law. The stockholders and directors are partners, and responsible as such, except in so far as the statute relieves them from this position. It is not the statute which creates the liability. The liability existed at common law, except in so far as the statute restricts it. Bayley vs. Bancker, 3 Hill, 189, and cases previously cited.

John Carson and John Stewart, for the appellees.

The liability imposed upon the directors and officers of certain corporations, by the statute under which the appellees are sought to be held responsible, does not arise ex contractu; the statute is penal in its character, and imposes a penalty for its violation; the action is, therefore, to recover a penalty given under a Pennsylvania statute, and cannot be enforced in Maryland.

The Courts of Pennsylvania have held similar laws as penal provisions. Harrisburg Bank vs. Commonwealth, 26 Penn., 451.

Analogous statutory provisions making officers and directors of corporations liable for all the company's debts, when they contract debts in excess of capital [**4]  stock, or fail to file certificate, or publish an annual statement, have all been held to be penal statutes, creating no liability ex contractu. State vs. B. & O. R. R. Co., 12 G. & J., 432; Garrison vs. Howe, 17 N. Y., 458; Lawler vs. Burt, 7 Ohio State Rep., 341; Kritzer vs. Woodson, 19 Missouri, 329, 330; Cable vs. Cune, 26 Missouri, 380; Boughton vs. Otis, 21 N. Y., 261; Chambers vs. Lewis, 28 New York, 454.

The Courts of Pennsylvania, in reference to the liability imposed by the statute in question, say that the director is a wrong-doer; that he has no right to recover from the company; that there is no right of contribution between the directors, and that the liability is imposed for neglect of duty. Hill vs. Frazier, 22 Penn. State Rep., 320; Brinham vs. Wellersburg Coal Co., 47 Penn. State Rep., 43.

To the same effect are the following cases: Andrews vs. Murray, 33 Barb., 354; Shaler & Hall Quarry Co. vs. Bliss, 34 Barb., 309; Squire vs. Brown, 22 Howard Pr. Rep., 45; Stow vs. Fenno, 6 Allen, 579; Pearson vs. Skalton, 1 Mee. & W., 504.

That the liability is statutory, ex delicto, and not ex contractu, and is to recover a penalty, and that such penalty can only [**5]  be enforced in the State enacting the statute, has been expressly decided by the States of New York, New Jersey, Massachusetts and New Hampshire, in the following cases, all of which are identical with the case at bar: Halsey vs. McLean, 12 Allen, 438; Erickson vs. Nesmith, 4 Allen, 233; Derrickson vs. Smith, 3 Dutch., 166; Bird vs. Hayden, 1 Robertson, 383; Merchants' Bank vs. Bliss, 1 Robertson, 391; Erickson vs. Nesmith, 46 New Hamp., 371, 378.

It was contended, in behalf of the appellant, that the New York cases lay down another doctrine, viz: that where the stockholders or directors of a corporation are liable for the debts of the company, under its charter, or by the terms of the law authorizing the charter, there they are responsible at common law under their original liability, and that it is only a quasi corporation.

Admitting, for the sake of the argument, the correctness of the New York cases, they do not apply to this case; they were all cases where the stockholders or directors were liable for all the debts of the company. Under this Pennsylvania statute, the directors are not liable at all for the debts of the company, eo nomine; they are only liable for the [**6]  excess of debt over capital, and that excess may be much more or less than the debt sued on; secondly, it is not merely the directors, who contract the debts, who are responsible for the excess aforesaid; any director afterwards assenting thereto is liable under the statute; the debt qua debt cannot be recovered under this statute--only the excess. The New York cases, therefore, even if good law, do not apply to the case at bar.

The law of the New York cases is not the law of Pennsylvania; there the Court holds a liability as given by this statute to be a penal one. They also hold the liability to be statutory and not at common law. They also hold their own construction of their laws to be conclusive; and no rule of comity requires the liability to be more extensive in Maryland, where the statute does not operate proprio vigore, than it is held to be in Pennsylvania, where it is declared to be statutory and penal. Halsey vs. McLean, 12 Allen, 438.

The statute system of another State, in reference to the liability of stockholders and directors of foreign corporations, will not be enforced in this State. Erickson vs. Nesmith, 4 Allen, 233; Halsey vs. McLean, 12 Allen, 438;  [**7]  Erickson vs. Nesmith, 46 New Hamp., 371, 378.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*491]  BARTOL, C. J., delivered the opinion of the Court.
This suit was instituted by the appellant against the appellees, as officers and directors of "The Consumers' Union Coal Company," a corporation created under the laws of the State of Pennsylvania.
The case comes before us upon general demurrer to the declaration, and the only question to be decided is whether the liability for the debts of the corporation imposed upon the officers and directors by the law of Pennsylvania, of March 30th, 1860, can be enforced by an action of debt in this State?

 [*492]  The provisions of the statute, which are substantially set out in the declaration, are as follows:
"In order the better to limit and restrict the amount of liabilities to the actual capital of all companies formed under the Act, to enable joint tenants, tenants-in-common and adjoining owners of mineral lands in this commonwealth, to manage and develop the same, approved the 21st day of April, 1854, and to provide for the protection of both the creditors and stockholders [**8]  thereof, the total amount of the debts and liabilities (other than its capital stock) of any such company, shall never exceed the amount of its capital actually paid in; and if any debts or liabilities shall be contracted exceeding the said amount, the directors and officers contracting the same, or assenting thereto, shall be jointly and severally liable, in their individual capacities, for the whole amount of such excess, and the same may be recovered by action of debt as in other cases."
It is alleged in the declaration that the indebtedness of the corporation to the appellant was, at the time the same was contracted, "in excess of the capital stock actually paid in, and that the defendants were then directors and officers of the corporation and assented to the contracting of said debts."
The case stated comes within the provisions of the statute, and if this suit had been instituted in Pennsylvania, there could be no doubt of the right of the plaintiff to recover. But the question here is, can the liability imposed by the statute be enforced out of the limits of Pennsylvania? This depends upon the nature of the liability, and the manner in which it is created. Does it arise upon [**9]  contract? or is it in the nature of a penalty created by the statute, and imposed upon the defendants as wrong doers?
The decision of the case turns upon the proper solution of these questions; for while a contract made in one State, is enforced in other States agreeably to the law of the State where it is made; it is well settled that no State will enforce penalties imposed by the laws of other States; such laws are 

 [*493]  universally considered as having no extra territorial operation or effect.
These general principles were conceded in the argument, and we need not cite authorities in their support.
To ascertain the nature of the responsibility here sought to be enforced, and to determine whether it arises upon contract, or is one imposed by the statute by way of penalty, we must at last refer to the provision of the statute itself and ascertain its true construction and effect.
Before doing this we will refer to some of the cases cited in argument, in which the Courts of other States have considered the nature of the liability of stockholders and officers of corporations growing out of statutory provisions similar to the one before us.
It has been decided by the Courts [**10]  of New York in several cases, and seems now to be there well settled, that where by a statute it is provided that the individual corporators shall be jointly and severally liable for the debts of the corporation, such liability is not in the nature of a penalty, but may be enforced as a contract. Corning vs. McCullough, 1 Coms. 47; Allen vs. Sewall, 2 Wendell 338; Moss vs. Oakley, 2 Hill 265; Bailey vs. Bancker, 3 Hill 188; Hager vs. McCullough, 2 Denio 119; other cases might be cited to the same effect.
In Ex parte Van Riper, 20 Wend. 614, it was held that such a liability arising under an Act of incorporation of the State of New Jersey might be enforced by a suit in the State of New York.
The ground upon which those decisions rest as succinctly stated by Judge BRONSON in Corning vs. McCullough, is that in such cases "the stockholders stand substantially upon the same footing as though they had been partners, or an unincorporated association; that they were answerable to the creditors of the company as original and principal debtors, though the creditors [**11]  were first to exhaust their remedy against the corporation."

 [*494]  These cases have been relied on by the appellant in argument as analogous to this, and it is contended that the liability of the defendants in this suit is of the same kind.
On the other hand it has been contended by the appellees' counsel, that the liability imposed by the Pennsylvania statute, now under consideration, and which is here sought to be enforced, is not an original responsibility for the debts of the corporation eo nomine; but is one imposed by the statute for a violation of its provisions, or a breach of duty on the part of the directors, in contracting debts of the corporation "exceeding the amount of its capital actually paid in." The liability is "for the amount of such excess," and therefore it is contended that it springs not out of the contract of the parties, but is in the nature of a penalty imposed by the statute.
In support of this view we have been referred to a number of cases, in which it has been held that where a statute enjoins a duty to be performed by the officers of a corporation, and in case of a failure on their part to perform such duty, makes them individually liable [**12]  for the debts of the corporation, such liability is in the nature of a penalty.
To this class of cases belong Garrison vs. Howe, 17 N.Y. 458; Andrews vs. Murray, 33 Barbour 354; Shaler and Hall Quarry Co. vs. Bliss, 34 Barbour 309; Boughton vs. Otis, 21 N.Y. 261; Squire vs. Brown, 22 How. Pr. 45; Halsey vs. McLean, 12 Allen 438; Lawler vs. Burt, 7 Ohio St. 340; Derrickson vs. Smith, 3 Dutcher 166; The Harrisburg Bank vs. Commonwealth, 26 Pa. 451.
In Halsey vs. McLean and Derrickson vs. Smith, it was held that in such cases, the liability can only be enforced in the State enacting the statute.
In each of these cases the suit was brought against the trustees of a manufacturing corporation created under the law of New York, which required the corporation to make and publish a report at a certain time annually, signed and verified as prescribed, stating the amount of its capital and 

 [*495]  of the proportion actually paid in, and the amount of its existing debts; and enacted that "if any of said companies [**13]  shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made."
In construing the statute, the Supreme Courts of Massachusetts and New Jersey, decided that the liability of the trustees, was in the nature of a penalty imposed on them for a violation of official duty, and could not be enforced out of the limits of New York.
The counsel for the appellant in their argument endeavored to distinguish the cases of Halsey vs. McLean and Derrickson vs. Smith, from the case before us, upon the ground that under the New York statute the liability of the trustees was not contemporaneous with the creation of the debts; but arose from a subsequent breach or failure of duty on their part.
This is true so far as regards the existing debts of the corporation created before the failure to make the report. But the statute makes them liable in the same way for any debts they may contract after the failure to report, and before such report shall be made; it is clear that under this last provision the liability of the trustees would arise at the time [**14]  of creating the debts; and yet in the cases no distinction is made as to the nature of the liability under the statute for existing debts, and for such as might be contracted after the breach of duty had been committed.
It is manifest that the responsibility imposed by the statute upon the trustees is of the same kind for both classes of debts; and that it arises not out of the contract by which the debts are created, but from matters entirely collateral thereto, and resting entirely on the provisions of the statute.
In Lawler vs. Burt, 7 Ohio, 341, the suit was by a creditor of the corporation against the individual stockholders to enforce a liability, which arose as follows:

 [*496]  By a statute of March, 1839, it was enacted that every corporation, except an incorporated bank, that shall issue notes designed to circulate as money, shall be deemed an unauthorized bank, within the meaning of the Act of January 27th, 1816.
By the 11th section of the Act of January 27th, 1816, it was enacted that every stockholder, shareholder or partner hereafter interested in any such bank, shall be jointly and severally answerable in their individual capacity for the [**15]  whole amount of the bills, bonds, notes and contracts of such bank, &c.
By the 12th section the holder of the notes was authorized to institute suit and recover judgment thereon against any part or the whole of the persons who were interested in such bank at the date of such notes, &c.
The case came within these provisions and the plaintiff sued as holder of the notes. The defendants plead the Statute of Limitations, and the question before the Court was whether the case fell within those provisions of the statute relating to actions upon contracts, or those which limited the time for suits to recover penalties and forfeitures. It was decided that the liability was in the nature of a penalty and did not arise upon contract. That case was in principle very analogous to the case before us. There it was argued that the individual responsibility of the defendants upon the notes existed under the statute at the time of their issue, and that they were bound in the same manner as if they had been the makers of the notes. But that argument did not prevail, the Court held that the liability under the statute was for a tort and not in contract.
The case of Kritzer vs. Woodson, 19 [**16]  Missouri, involved the question of the nature of the liability of directors of a corporation, under a statutory provision, exactly like the one before us. The statute declared "that the whole amount of debts of any corporation, except banking companies, shall not exceed the amount of its capital stock actually paid in, and in 

 [*497]  case of any excess, the directors under whose administration it shall happen, shall be jointly and severally liable, to the extent of such excess, for all the debts of the company then existing, and for all that shall be contracted, so long as they shall respectively continue in office, and until the debts shall be reduced to the said amount of the capital stock."
The suit was against the directors to recover the excess, and the Court decided that the liability imposed by the statute was in the nature of a penalty. The question arose, as in Lawler vs. Burt, under the plea of the Statute of Limitations and was decided in the same way. That decision, as it was made upon a statute in the same terms as the one now under consideration, is directly in point, and so far as it may be taken as authority supports the position of the appellees in this [**17]  case.
We will conclude our reference to decided cases by citing the decision of the Supreme Court of Pennsylvania in Hill vs. Frazier, 22 Pa. 320. That being the ruling by the Court of last resort in the State in which the statute before us was enacted, upon the construction of a statutory provision somewhat analogous, is entitled to great weight in determining the present case.
There the suit was brought against a director of a manufacturing company to recover a debt due by the company.
By section 14 of the Act of April 7, 1849, it was provided that "dividends of so much of the profits of any such company, as shall appear advisable to the directors, shall be declared in the months of June and December annually, and paid to the stockholders or their legal representatives, at any time after the expiration of ten days from the time of declaring the same; but the dividends shall in no case exceed the amount of the net profits actually acquired by the company, so that the capital stock shall never be impaired thereby, and if any dividend shall be declared and paid which shall impair the capital stock of said company, the directors consenting thereto shall be jointly [**18]  and severally liable in their individual 

 [*498]  capacities for all the debts of the company then existing, and all that shall thereafter be contracted so long as they respectively continue in office." (Then follows a proviso not material to be noticed.) Purdon's Digest, 692, 693.
In Hill vs. Frazier the question of the nature of the liability of a director under this statute was considered. The plaintiff was a creditor of the company, and had assigned his claim to Eldred, for whose use the suit was instituted. It was contended on the part of the defence that being for a penalty the claim was not assignable, to this it was answered by the Court, (page 324,) "that we see nothing in the nature of the claim itself which prevented the holder from assigning it. It was not, as the defendant insists, a mere penalty. It was a debt due from the company to Frazier, which he might transfer like any other debt, and the assignee was entitled to all the remedies for its recovery which the original creditor would have had." This point involved the right of the assignee, and it was decided that the thing assigned was not a mere penalty, but a debt of the company, in its nature assignable. [**19]  
In the same case a question arose as to the competency of the stockholders as witnesses for the plaintiff; and in disposing of that question the Court considered the nature of the defendant's liability, and decided that they were incompetent, because by a recovery against the defendant "they would be forever clear of it." "The defendant," say the Court, "has no right of subrogation. He is sued as a wrongdoer, and wrongdoers have no recourse over against those in pari delicto, or against any body else." (Page 323.)
That decision conclusively shows that the Court in construing the statute before them, held that the liability of the director was not one arising upon contract, but one imposed upon him by the statute as a wrongdoer, and therefore in the nature of a penalty.
When we examine the provision of the statute now under consideration we are struck with the very close analogy between 

 [*499]  it and the law construed in Hill vs. Frazier; there the liability of the director arose from his consenting to the declaring of a dividend exceeding the amount of the net profits actually acquired by the company; here the liability arises from consenting to contract debts exceeding [**20]  the amount of the capital stock actually paid in. In each case the liability is one created entirely by the statute and imposed on the directors as wrongdoers.
It appears in the report of Hill vs. Frazier that the debts of the company there sued on were contracted after the unlawful dividend had been declared; and therefore the liability of the defendant under the statute accrued at the time the debts were contracted. The case is in many respects very analogous to this; and we think is a strong authority in support of the conclusion we have reached as to the true construction of the statute of March 30th, 1860. By that law the directors are forbidden to contract debts of the corporation exceeding the amount of its capital stock actually paid in, and if they do so they are made liable individually for the excess. This liability does not arise upon any contract to which the directors are parties; but is altogether statutory imposed on them as wrongdoers, and in its nature penal, and as such can only be enforced within the State where the statute operates.
In our opinion the judgment of the Court below is correct and ought to be affirmed.
Judgment affirmed. 

70 of 142 DOCUMENTS 

SAMUEL R. BUFFINGTON, Trustee, vs. ANNIE L. DAVIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 511; 1871 Md. LEXIS 14 

January 20, 1871, Decided 

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

DISPOSITION:
Motion to dismiss the appeal overruled, judgment reversed and new trial awarded.  

HEADNOTES:

Statute of Limitations -- Erroneous Instruction.

To remove the bar of the Statute of Limitations; which was pleaded in an action on a promissory note, it was shown that the attorney for the plaintiff had written to the defendant, calling her attention to the note, particularly describing it, and stating that the plaintiff, as trustee, was compelled to take some action either to have the claim liquidated, or placed in such form as to avoid the bar of the Statute of Limitations. To this letter the defendant replied, expressing her regrets that she could not remit the amount due, and stating the causes of her inability to do so. She, at the same time, requested the plaintiff's attorney to communicate with her agent, who had a power of attorney, and the entire management of her estate, and would do all that the ruined condition of her fortune would permit. HELD:

That the letter of the defendant contained an acknowledgement of a present subsisting debt due by her to the plaintiff, which was sufficient to remove the bar of the Statute.

Where in an action on a promissory note by an endorsee against the maker, the defendant pleaded never was indebted, never promised, and limitations, and the genuineness of the signature to the note and of the endorsement thereon was admitted, and no evidence was offered by the defendant, an instruction by the Court that the evidence offered by the plaintiff was insufficient to remove the bar of the Statute, and the verdict must be for the defendant, generally, was erroneous; if the evidence offered to remove the bar of the Statute was insufficient, the jury should have been instructed to find for the defendant, upon the issue on the plea of limitations only.  

COUNSEL:
J. D. Ferguson and John A. Inglis, for the appellant.

John P. Poe, for the appellee.  

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

OPINIONBY:
GRASON 

OPINION:

 [*512]  GRASON, J., delivered the opinion of the Court.
The first question to be considered in this case is presented by the motion to dismiss the appeal, which is based upon the ground that the bill of exceptions was not prepared and submitted to the Judge at the same term of the Court at which the case was tried. The 36th Rule of the Superior Court of Baltimore city provides that "every bill of exception taken to the ruling of the Court, in the progress of the trial, must, if required by either party, be prepared and settled before the verdict is rendered; and in every case, unless otherwise allowed by the Court, the bill of exceptions shall be prepared and submitted to the Court during the sittings of the term at which it shall have been taken." This case was tried in the Court below at the September Term, and the bill of exceptions was not prepared and submitted to the [**2]  Judge until the January Term succeeding; but it appears from the record that the appellee did not require that the bill of exceptions should be prepared and submitted to the Judge before the verdict was rendered, and that the appellant asked for time to prepare the same, and that the time was allowed by the Court for that purpose, and that the exception was prepared and submitted to the Judge for his signature about a month afterwards, and that it was then signed and sealed as of the date of the trial. The bill of exceptions appears to have been prepared and submitted to the Judge in accordance with the provisions of the 36th Rule, and the motion to dismiss the appeal must therefore be overruled.
The second question to be considered is raised by the instruction given by the Court below to the jury, "that the evidence offered by the plaintiff in support of the issue joined upon the defendant's third plea is not sufficient in law to remove the bar of the Statute of Limitations, and that their verdict must therefore be for the defendant." The suit was brought upon a promissory note of the defendant to C. R. Brewster or order, for twelve hundred dollars, and was dated 16th March, 1861.  [**3]  The defendant filed three pleas: first, 

 [*513]  that she never was indebted as alleged; second, that she did not promise as alleged; and third, the Statute of Limitations. The signature to the note and the endorsement thereon were both admitted to be genuine. The only proof, therefore, offered by the plaintiff related to the new promise alleged to have been made by the defendant, and consisted of two letters addressed by the plaintiff's counsel to the defendant and her agent in Mississippi, both dated 16th November, 1868, and the replies thereto. The first called the defendant's attention to the note, particularly describing it, and stated that Mr. Buffington, as trustee of Mrs. Elizabeth Kelton, was compelled to take some action, either to have the claim liquidated, or placed in such form as to avoid its being barred by limitations. To this letter the defendant replied the same day, and stated that she "regrets that in replying she cannot remit the amount due Mrs. Kelton. But year after year of disastrous failure in the crops, added to heavy losses incident to the late struggle of the South for freedom, have wrecked her fortune, and for two years passed she has lived upon the [**4]  sale of jewels." She then asks the counsel of the plaintiff to communicate with Col. F. J. Shaffer, of Mississippi, who, she states "has a power of attorney and the entire management of her affairs," and that "he is an honorable and high-toned gentleman, and will do all that the ruined condition of Mrs. Davis' fortune will permit." It will be seen that this letter, which was admitted at the trial to be authentic, clearly and unequivocally admits a then present subsisting debt, due by the defendant to the plaintiff, regrets her inability to make immediate payment, explains that such inability was caused by failure of crops and losses caused by the late civil war, and then refers the plaintiff to her agent and attorney, and manager of her affairs in the State of Mississippi, not for the purpose of having that agent to decide whether the note is valid, the debt due, or the defendant is liable at law for its payment, but for information as to her means and the time within which it would probably be paid, and with the assurance 

 [*514]  that he was an honorable man and "will do all that the ruined condition of Mrs. Davis' fortune will permit." She does not set up any defence, either [**5]  legal or moral, to the payment of the note. The law is well settled in this State that the acknowledgment by the defendant of a present subsisting debt, or a promise to pay, is sufficient to remove the bar of the statute. Oliver vs. Gray, 1 H. & G. 204, 216; Ellicott vs. Nichols, 7 Gill 85, 98; Keplinger vs. Griffith, 2 G. & J. 296, 301; Frey vs. Kirk, 4 G. & J. 509, 522; Stockett, Adm'r of Locke vs. Sasscer, 8 Md. 374; Higdon Adm'r vs. Stewart, 17 Md. 105, 111; Felty, Adm'r of Young vs. Young, 18 Md. 163.
The acknowledgment by Mrs. Davis, in her letter to the plaintiff's counsel, of a then present subsisting debt, (that letter being unexplained and uncontradicted by any other evidence,) was sufficient to remove the bar of the Statute; and no statement or declaration of Mrs. Davis' agent could in any manner affect, change, or relieve her from her liability. But the letter of the agent admits the execution of the note by the defendant; that it has not been paid, that Mrs. Davis has the inclination to pay, but is not in a condition now to [**6]  gratify that inclination, and offers no valid objection, either legal or moral, to its payment. The instruction of the Court below to the jury was therefore erroneous.
But it was contended by the counsel of the appellee that, even if there was error in the instruction, the judgment ought not to be reversed, because the verdict was a general one and necessarily included a finding in favor of the appellee upon all the issues.
In this case the genuineness of the signature to the note and of the endorsement thereon was admitted at the trial, and no evidence whatever was offered by the appellee. It is, therefore, perfectly clear that, although the verdict was a general one, it could only have been rendered in favor of the appellee upon the issue joined on the third plea, which was a plea of limitations. In this respect also there was error in the instruction given by the Court below, for if the evidence 

 [*515]  offered by the appellant in support of the issue joined on the third plea was insufficient to remove the bar of the Statute, the jury ought to have been instructed to find for the appellee upon that issue and not for the appellee generally. The judgment must be reversed and [**7]  the cause remanded for another trial.
Motion to dismiss the appeal overruled, judgment reversed and new trial awarded. 

71 of 142 DOCUMENTS 

JOHN T. JOHNS vs. DOE, on the demise of THOMAS HARRIS HODGES and SARAH W. HODGES, his Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 515; 1871 Md. LEXIS 15 

January 20, 1871, Decided 

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

This was an action of ejectment brought by the appellee against the appellant, to recover one undivided third part of a lot of ground in Saint Paul street, in the city of Baltimore. Both parties claimed under Rich'd Johns, who died in June, 1869, seized in fee of the land in question, which he acquired by purchase, and which was conveyed to him by deed of the 11th of June, 1867. Richard Johns left a last will and testament duly executed to pass real estate, on the 13th of July, 1849, in which after making provision for his two sisters, Mary W. Love and Sarah W. Hodges, by specific devises, he gave all the rest and residue of his estate, real, personal and mixed to his brother, the appellant. The will itself was silent as to the property which the testator might thereafter acquire.

At the trial prayers were offered presenting the question, whether the land in controversy passed under the will of Richard Johns to his residuary devisee, or descended to the heirs-at-law of the testator, as property of which he died intestate.

The Court adopted the view of the plaintiff, that the will did not operate on the after-acquired real [**2]  estate of the testator, and instructed the jury accordingly.

The verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of section 309 of Article 93 of the Code of Public General Laws -- Last Will and Testament.

A will executed before the 1st of June, 1850, is not embraced within the provision of the 309th section of Article 93 of the Code of Public General Laws, and real estate, of which the testator died possessed, acquired subsequently to the date of the will, will not pass to the residuary devisee, but will descend to the heirs-at-law of the testator, as property of which he died intestate. 

COUNSEL:
Arthur W. Machen, for the appellant.

The intention of the testator that the property should pass is manifested by the comprehensive terms of the residuary clause: "All the rest, residue and remainder of my estate, real, personal and mixed;" and in retaining a will of such tenor to the time of his death, unrevoked, he plainly showed that he did not mean to die intestate as to any part of his property. But the appellee contends that this intention cannot have effect, owing to the fact that the lot of ground in question was not owned by the testator at the time of the making of the will, but was purchased subsequently. And although the old rule of law, thus operating to defeat the intention of testators, was annulled by the Act of 1849, ch. 229, which undoubtedly, while it existed, made the will in question capable of passing all the lands the testator should be seized of at the time of his death, they claim that the Act of 1849 itself was repealed by the Code, and the rule of the common law revived as to all wills executed [**3]  before the first day of June, 1850.

On behalf of the appellant it is contended, that the Act of 1849 has not been repealed, but is substantially re-enacted in the Code. This is the only issue in the case.

The Act of 1849, chapter 229, consisted of three sections. The first section found a place in the Code as section 309 of Article 93. Although a slight change of the phraseology of the latter part of the first section was made in condensing it for the Code, it was conceded in the Court below, that the original first section of the Act of 1849 and the section 309 of Article 93, which is its representative in the Code, are identically the same so far as the present question is concerned.

The Act of 1849, chapter 229, has been interpreted by this Court, and by a series of decisions, it has been held that the law embraced wills made before, as well as after the 1st of June, 1850. Magruder and Tuck vs. Carroll, 4 Md., 335; Alexander vs. Worthington, et al., 5 Md., 471; Wilson, et al. vs. Wilson, et al., 6 Md., 487.

While admitting that these decisions establish the construction to be given to the Act of Assembly, it is contended by the appellee, that they do not apply [**4]  to the interpretation to be given to the section of the Code, for the reason that the second section of the Act of Assembly has not been incorporated into the Code, and that it was this section, which in aid of the first, caused the construction to be placed upon the first which was given to it by the Court of Appeals.

In other words, conceding that if the second section, like the first, were in the Code, the old construction of the first section would continue, the appellee claims that the fact of the omission of the second section requires, or authorizes, a different construction to be put upon the section as it stands.

Section two of the Act of Assembly could have no proper place in the Code. Its whole object being to provide for the case of persons who should die between the passage of the law (the 22d day of February, 1850,) and the 1st day of June, 1850, and all that class of cases being definitely and forever disposed of as soon as June 1st, 1850, was reached and passed, it would have been idle, and worse than idle, to re-enact it in 1860.

The omission of the obsolete second section being thus accounted for, is there any principle of law which justifies an alteration [**5]  of the meaning of the first section? The second was as obsolete, and as much a nullity for all practical purposes, in 1859, as it was on the 14th of February, 1860, after the Code went into effect. But does the other section which had, down to the adoption of the Code, a well understood construction, fixed by a series of decisions of the Court of Appeals, lose its old meaning upon being made a part of the Code? The Code is not to be interpreted as a new law; the judicial construction which had been given to the original statute was as much a part of it as its letter; and when the statute was substantially adopted into the Code, it was adopted with the received construction, and now retains the same meaning and effect.

From 1854 to 1860, it was universally understood that by the law of Maryland, as altered by the Act of 1849, every last will, no matter when executed, of every testator then living, was capable of passing all the lands of the testator, whether acquired before or after the making of the will. The Act not only established a new rule of property, but, by abolishing the former and purely technical rule, brought the law into conformity with the ordinary reason of mankind,  [**6]  and promised to gratify the intention of testators which the common law had too often defeated. Perhaps no change in the law was ever more called for, or more acceptable.

The argument upon the other side, and the ruling of the learned judge below, rest on the postulate, that the same method of interpretation is to be pursued in respect to a Code as to a new statute; but there is a great weight of authority against this assumption. Taylor vs. Delaney, 2 Caine's Cases in Error, 151; Yates' Case, 4 Johns., 359. In the matter of Brown, 21 Wend., 319; Douglass vs. Howland, 24 Wend., 45, 48; Gaffney vs. Colville, 5 Hill, 574; Goodill vs. Jackson, 20 Johns., 722; Dominick vs. Michael, 4 Sandf., 409; Ash vs. Ash, 9 Ohio, N. S., 387; Conger vs. Barker, 11 Ohio, N. S., 13; Duramus vs. Harrison, 26 Ala., 330; Sartor vs. Branch Bank at Montgomery, 29 Alabama, 583; Bank of Mobile vs. Meagher, 33 Ala., 622; Code of Alabama 1853, p. 59; Panamore vs. Taylor, 11 Grattan, 220, 242; Code of Virginia 1849, p. 800; Greenwood vs. Greenwood, 28 Md., 369; McKee vs. McKee, 17 Md., 359; Bank for Savings vs. The Collector, 3 Wall., 495, 413.

Stewart Brown and Geo. Wm. Brown, for the appellee.

The [**7]  first section of the Act of Assembly of 1849, did not stand alone; there was another additional provision, viz: the second section. And this Court found it necessary, in ascertaining the intent of the Legislature, to give effect to this section also, and it held that these were not independent provisions, but that they must be construed together, and that thus taken together, they constituted a new rule of construction for wills, which rule, beginning to operate on the 1st of June, 1850, would apply as well to wills made before as to wills made after that date.

This was the result of their decisions, in effect, interpreting the second section (in connection with the first,) as if it had read:

"And this Act shall apply to the wills made before the passage of this Act, of all persons who die after June 1, 1850."

The rule of construction contended for by the appellant is wholly inadmissible, because it maintains that a clear and explicit provision of the Code shall be construed to have a meaning entirely at variance with its plain language, by an unauthorized interpolation therein of a legal inference drawn from the second section of the Act of 1849, ch. 229, although the [**8]  section itself is repealed by the Code, and although the correctness of the inference was so doubtful that the Supreme Court of the United States and the Court of Appeals of Maryland, arrived at diametrically opposite conclusions in regard to it.

If this is the correct view of the Act of 1849, and of the effect of the judicial interpretation thereof, then the appellee maintains that the Legislature, in adopting the Code, (wherein the language of the first section of said Act is not only modified, but the second section is entirely left out,) intended to change the law in this respect.

Sufficient reason, indeed, can be found for this change in the controversy between this Court and the Supreme Court of the United States, of which the codifiers and the Legislature were well aware. And, besides, it was the declared and intended effect of the Code in the Act adopting it, that the Code should be, not a mere revision of the statutes, like those of some States, with the object of simplifying and altering the language without intending to alter the law, but that it should be "in lieu of and as a substitute for all the Public General and Public Local Laws heretofore passed." Act of [**9]  1860, ch. 1; Mayor, &c., of Frederick vs. Groshon, 30 Md., 436.

In view of such a material change in the language of a statute, as that now under consideration, and with such well grounded reason for such a change, it will not do to invoke a principle applied by some New York cases to their revised statutes, (which statutes do not expressly repeal previous legislation,) viz: that in a reenactment of an old statute or a revised Code, "a mere change of phraseology shall not be deemed a change of the law, unless such change of phraseology evidently purports an intention in the Legislature to change the law." For even if this could be applicable to such a Code as ours, (with a declared intention of repealing everything not embodied therein;) such a principle, according to the leading case, which all the rest have followed--Taylor vs. Delaney, 2 Caine's Cases in Error, 143, 151--is expressly stated to be applicable only to a case of doubt, in the construction of the new statute or Code; and the provision of the Code before us can itself raise no doubt. Leonard vs. Wiseman, 31 Md., 204.

For the same reason it will not do to say, that the repeal of the second section makes no difference,  [**10]  because, inasmuch as the time had elapsed during which it was to operate, there was no reason why it should have been inserted in the Code.

Because, even if this were so, looking at the second section independently, and as simply embodying and providing for an excepted case, yet, if the Legislature intended to make it clear that the judicial interpretation of the Act of 1849, should be incorporated into the Code, it was necessary and proper for the Legislature to have added to what is now there, if not the language, at least the judicially declared effect of the second section, viz: "That this provision should apply to wills made before June, 1850."

And if these views are correct, the judicial interpretation of the Act of 1849, can have no bearing upon the Code, changed, as it is, in language and substance, and the decisions made upon said Act, can only serve to illustrate the change that has been made, and demonstrate the propriety of such change.  

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

OPINIONBY:
STEWART 

OPINION:

 [*521]  STEWART, J., delivered the opinion of the Court.
Richard Johns, by his will, duly made and executed the 13th of [**11]  July, 1849, devised to his brother, John T. Johns, all the residue of his estate, real, personal or mixed.
He acquired the property in dispute by deed of the 11th of June, 1867, and died in June, 1869.
John T. Johns, under the will, claims the entire property as the residuary devisee of his brother, and the ejectment was 

 [*522]  brought in this case, against him, for an undivided third part, claimed by his sister, as one of his heirs-at-law, upon the ground that Richard Johns died intestate as to this property, and that it descended to his heirs-at-law.
By the law existing when this will was executed, the real estate acquired by the testator afterwards, was not controlled by the will, but descended to his heirs-at-law.
The Act of 1849, chapter 229, changed the law in this respect, and after the 1st of June following, except where wills had been executed before this law, by persons dying prior to the 1st of June, 1850, they were to be construed with reference to real or personal estate, to take effect as if made on the day of the death of the testator, unless a different intention was manifest from the will.
The Court of Appeals of this State, and the Supreme Court of the [**12]  United States, entertained different views as to the construction of this Act. See Magruder vs. Carroll, 4 Md. 335; Alexander vs. Worthington, 5 Md. 471; Wilson vs. Wilson, 6 Md. 487; Carroll vs. Carroll's Lessee, 57 U.S. 275, 14 L. Ed. 936, 16 How. 275.
It was held by this Court, that the provisions of the Act extended to all wills, except those excluded by the 2d section.
Thus stood the law, as interpreted by this Court, when the 93d Article, section 309 of the Code, was adopted. It is maintained by the appellee, that this provision changed the rule of construction as to wills made before the 1st of June, 1850. This was the view of the Court below, the correctness of which we are required to determine in this case.
As the testator executed his will prior to the Act of 1849, and died after the 1st of June, 1850, the will is subject to the operation of the rule of construction, unless that rule has been modified by the provision of the Code.
There is no doubt, if Richard Johns had died before the enactment of this provision of the Code, and after the 1st of 

 [*523]  June, 1850, under the decisions [**13]  of this Court, the rule would be applicable to his will; but, as he survived, and acquired the property in dispute after the enactment of the Code, and the execution of his will, it must be interpreted by the legislation existing at the time of his death, when his will, before ambulatory, became operative.
It appears that by reason of the 2d section of the Act of 1849, the Court of Appeals was induced to decide that the law applied to all wills, and not alone to those made after the 1st of June, 1850, when the rule of construction was to be applied.
The language of 93d Article, section 309, of the Code, is not precise nor full, but leaves much for construction.
It is apparent, whatever may be its interpretation, that from its prescribing the 1st of June, 1850, as the time from which it was to operate, that reference was had to the Act of 1849, by which the same time had been prescribed for its rule of construction to apply. This coincidence of dates, as to the same subject-matter, under all the circumstances, was not accidental.
There is no doubt, in the construction of the Code, careful examination of the preexisting legislation, and the judicial construction thereon, is necessary.  [**14]  
The Code was declared, by the law adopting it, to be a substitute for the whole body of the statute law, local and general, and it certainly has effected very material changes in the law of the State.
The Legislature designed to preserve all that was needful, and to discard what was obsolete or inapplicable, and relieve the statute-book from all useless matter.
Whilst the Code superseded the preexisting laws, yet, in many cases, by comparing its provisions with the previous statutes in pari materia, a better opportunity may be afforded to ascertain what is the existing law as enacted by the Code. Where its language is the same as that of any antecedent law, the well established construction, is to be regarded.

 [*524]  If the terms are substantially different, they must have their plain and obvious interpretation, and not be strained to conform to previous legislation.
If the provision is doubtful, reference to the antecedent law may aid in determining its true intent and purpose.
Where the language is clear, there is no occasion to resort to other aids in ascertaining the meaning.
We take it, that the Code is to be understood and expounded, according to the law establishing [**15]  it, as a substitute, and such meaning must be given to the language employed, as a just construction will warrant.
To apply our views to the case in question. Whilst the Act of 1849 has been repealed, and the provision in the Code substituted in its place, we can better ascertain the meaning and effect of the provision by an examination of the Act of 1849, with the judicial construction which has been given to it.
Assuming that the provision in the Code is substantially the same as the first section of the Act of 1849, without qualification by the terms of the second section, what is the fair interpretation to be given to the provision as it stands, having the previous judicial construction of the Act to aid us?
The second section of the Act of 1849 had become obsolete, and, of course, there was no occasion for its incorporation into the Code, but as a judicial construction had been given to the first section, from a consideration of the terms of the second section, the omission of the second section in the Code, without the employment of plain terms importing as much as the second section, explanatory of the meaning of the provision, is a material circumstance, to be considered [**16]  in construing the provision in the Code.
Where the Code has left out the second section and substituted alone, in substance, the first section, without qualification, the judicial interpretation given to the Act of 1849, with all of its sections, cannot be applicable to the first section without the addition of the second section.

 [*525]  The Act of 1849 had provided that wills executed after 1st of June, 1850, should be construed to govern all the property comprised therein. The provision of the Code regarded this rule of construction as applicable at that period, and by its terms declared it should operate upon all wills executed after the 1st of June, 1850.
Thus the Act of 1849 and the provision of the Code would be uniform in this respect. The Court of Appeals had declared in the case of Magruder & Tuck vs. Carroll, et. al., 4 Md. 335, "if the Act (1849) were constructed of the first section, we would not experience any difficulty in deciding that it was intended, and did, in fact, operate only on wills executed after the 1st of June, 1850; and this interpretation would be in consonance with the well established principle that statutes are not to have [**17]  a retroactive effect, unless it be perfectly obvious it was the intention of the Legislature. But the great difficulty arises out of the second section."
If we adopted the construction given to the first and second sections taken together, where the first section alone is re-enacted, we should do violence to the provision in the Code, and interpolate a meaning derived from the second section of the Act of 1849, not warranted by its language, and repugnant to the judicial exposition of the Act of 1849, without the second section.
We should, in fact, judicially give force and effect to the Act of 1849, with all its sections, when the Code has simply but substantially incorporated but the first section, without qualification.
If the Code had designed to recognize and re-enact the law of 1849 as adjudicated by the Courts, distinct and plain language would have been used. The codifiers, and the Legislature adopting their Acts, must be presumed to have knowledge of the construction given to the Act of 1849, and certainly they could not have intended to leave so important a subject in a doubtful condition. They determined to disembarrass this first section of the Act of 1849 from all ambiguity. [**18]  

 [*526]  This is a reasonable presumption, and we must construe the provision in the Code according to its own obvious purport.
From a fair construction of its language and from reference to the provisions of the Act of 1849, and the judicial interpretation thereof, it only operates over wills executed since the 1st of June, 1850.
The will in question having been executed before, is beyond its reach and must be governed by the law as it existed when the will was made, independent of this provision of the Code. The testator is presumed to be aware of the law existing and operating when his will was made, and his will has the benefit of that law. By that law the property in dispute having been acquired after the making of the will in 1849, is not embraced by the will and does not vest in the residuary devisee, but descends as property of which the testator died intestate to his heirs-at-law. The plaintiff below being entitled to an undivided third part, had the right to recover accordingly.
Judgment affirmed. 

DISSENTBY:
BARTOL 

DISSENT:

BARTOL, C. J., delivered the following dissenting opinion, in which GRASON, J., concurred:
The only question in this case is whether the lands in controversy [**19]  passed under the will of Richard Johns to his residuary devisee, the appellant, or whether he died intestate thereof.
The will was executed in due form of law to pass real estate on the 13th day of July, 1849; the land in dispute was acquired by the testator on the 11th day of June, 1867, and he died seized in fee thereof in June, 1869. The intention of the testator to devise his whole estate is manifest on the face of the will; and under its provisions the property in question passed to the residuary devisee, unless by law it can operate only on land owned by the testator at the time it was made.

 [*527]  By the ancient and long established rule of law existing in Maryland at the date of the will, while such instruments were ambulatory as to personal property, and were in respect to such property construed as if made at the time of the testator's death; with reference to real estate, they were construed as speaking only on the day of their date, and were incapable of passing lands subsequently acquired.
By the operation of that rule the real intention of testators was often defeated; for it is well known that according to the common apprehension of mankind a will, being an instrument [**20]  operating only after the testator's death, might naturally be supposed to speak and take effect, as of that time, with reference to all property embraced in it as well real as personal. It was therefore reasonable for the Legislature to change the law, and establish a new rule more conformable to reason, whereby the real intention of testators might be carried out. Such a change had been made by Act of Parliament in England some years before; and had been introduced by legislation in several of our sister States.
Accordingly at December session, 1849, by chapter 229, passed on the 23d of February, 1850, it was enacted as follows:
Sec. 1. "That every last will and testament executed in due form of law, after the first day of June next, shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will.
Sec. 2. "That the provisions of this Act shall not apply to any will executed before the passage of this Act, by any person who may die before the first day of June next, unless in such will the intention of the [**21]  testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death should thereby pass.
Sec. 3. "That this law shall take effect on the first day of June next."

 [*528]  This Act came before the Court of Appeals for construction in Magruder & Tuck vs. Carroll, 4 Md. 335. The will of Michael B. Carroll, then under consideration, had been executed in 1837, the testator died in August, 1851; and the question arose whether the will could operate to pass lands acquired by the testator after its date.
The Court decided unanimously that the will came within the operation of the first section of the Act of 1849--and passed lands acquired subsequent to the date of its execution.
The same question again came before the Court of Appeals in Alexander vs. Worthington, 5 Md. 471. There the same will was under consideration, and the Supreme Court of the United States having given a different construction to the statute; the subject was very carefully and elaborately examined, and the former decision in Magruder & Tuck was adhered to and affirmed by the whole Court.
Again the question arose in Wilson vs. Wilson, 6 Md. 487, [**22]  and it was again decided by a full bench, that the Act of 1849, operated upon wills made before its passage, where the testator died after the first day of June, 1850, and that under such wills after-acquired lands would pass.
Thus by three successive decisions of the Court of Appeals was the construction of the Act of 1849, definitively and finally settled, and so the law has remained unquestioned ever since.
Such was the state of the law when the Code was adopted, and it cannot be questioned that if the will before us had gone into operation after the first day of June, 1850, at any time before the adoption of the Code, it would have been effectual to pass all the real estate of which the testator died seized, without any regard to the question whether he owned it at the time the will was executed or acquired it afterwards.
But the appellees' counsel has contended that the law has been changed by the Code, so as now to embrace only wills executed since the 1st day of June, 1850, leaving all wills executed before that time, subject to the old rule which was 

 [*529]  in existence before the passage of the Act of 1849, and which had been abrogated by that Act; and consequently [**23]  that the will before us having been made before the 1st day of June, 1850, is ineffectual to pass the land in controversy acquired after its date, however plainly the intention of the testator that it shall have that effect may be expressed on its face.
Such a change in the law, after the beneficial rule established by the Act of 1849, had been in operation for ten years, universally acquiesced in and approved, would seem to be very unreasonable. It was suggested in the argument that a motive for the supposed change may be found in the fact that there existed a conflict of decisions between the Court of Appeals and the Supreme Court as to the true construction of the Act of 1849, and that the codifiers and the Legislature intended to make the law in terms conformable to the construction of the Act given by the Supreme Court. But in my judgment the appellees' counsel is in error when he supposes that at the time the Code was adopted there existed any conflict of decisions as to the true construction of the Act.
Upon such a question, involving only the construction of a local statute, no conflict could exist between the Supreme Court of the United States and the Court of last resort [**24]  in Maryland; because the decision of the latter is final and conclusive as well upon the Courts of the United States, as upon the State Courts, and their authority has been fully recognized by the Supreme Court itself in numerous decisions, among them may be cited the following. Suydam vs. Williamson, 65 U.S. 427, 16 L. Ed. 742, 24 How. 427; Leffingwell vs. Warren, 67 U.S. 599, 2 Black 599, 17 L. Ed. 261; Christy vs. Pridgeon, 71 U.S. 196, 4 Wall. 196, 203, 18 L. Ed. 322; Randall vs. Bingham, 74 U.S. 523, 7 Wall. 523, 19 L. Ed. 285; Prov. Ins. vs. Massachusetts, 73 U.S. 611, 6 Wall. 611, 18 L. Ed. 907; Gut vs. The State, 76 U.S. 35, 9 Wall. 35, 19 L. Ed. 573.
It is true that after the decision in 4 Md., upon Carroll's will, the Supreme Court decided the same question in a different way; justifying their action in disregarding the decision of the Court of Appeals, on the ground that the latter 

 [*530]  was pronounced in a case in which the question did not properly arise upon the record, and therefore in their opinion it was obliter dictum. Without [**25]  now stopping to consider whether that view taken by the Supreme Court was correct, there can be no doubt or question whatever as to the binding and conclusive effect of the subsequent decisions by the Court of Appeals, in Alexander vs. Worthington, 5 Md., and Wilson vs. Wilson, 6 Md., in which the question was distinctly presented and clearly decided.
By these decisions all conflict of opinion was set at rest, and the construction of the first section of the Act of 1849, was finally settled, as embracing all wills whether made before or after the passage of the Act, which might go into effect by the death of the testator after the 1st day of June, 1850.
And I may be permitted to say, after carefully examining the opinions rendered by the Supreme Court, and the Court of Appeals in the cases arising upon Carroll's will, that in my judgment the construction given by the Court of Appeals to the Act of 1849, was correct, and that of the Supreme Court was erroneous.
But whatever opinion may be entertained on that subject, the question was in its nature one upon which the decision of the Court of Appeals is final, and it had been conclusively set at rest by the decisions [**26]  to which I have referred. When the Code was adopted therefore no conflict existed as to the true interpretation of the Act of 1849, or any doubt that this will would fall within the operation of the first section of the Act.
But it has been argued that it is not within the provision of the Code, because that is to be construed as embracing only wills made since the first day of June, 1850.
This position is based upon the words of the Code considered by themselves, and it seems to me, disregards altogether the settled construction which had been given by the Court of Appeals to substantially the same language in the Act of 1849.

 [*531]  I think it was not disputed in the argument, as certainly it cannot be denied, that the provision in the Code, so far as the question before us is concerned, is substantially the same as the first section of the Act of 1849. It is as follows:
Article 93, section 309. "Every last will and testament executed in due form of law, after the first day of June, eighteen hundred and fifty, shall pass all the real estate which the testator had at the time of his death."
Now how is this section to be construed? Is it to be interpreted as if it was a new [**27]  statute, containing a declaration of the legislative will upon the subject to which it relates, then expressed for the first time, and without regard to the antecedent laws and their established construction? Surely not; to construe the Code in that way, would be contrary to all precedent and against reason; and would lead to the greatest uncertainty and confusion. Such a rule of construction has never been applied to a Code; which like ours was intended as a revision or embodiment of the preexisting statutes, and ought not to be construed as changing the law except where an intention to do so is manifest; a mere change of phraseology ought not to be construed as effecting a change.
The rule to be observed in the interpretation of a Code, was laid down in the leading case of Taylor vs. Delancy, 2 Caine's Cases in Error, 151, and was thus clearly expressed by Judge SPENCER:
"My opinion," said he, "is founded on this proposition, that where the law, antecedently to a revision, was settled either by clear expressions in the statutes or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law, unless such change of phraseology [**28]  evidently purports an intention in the Legislature to work a change. A contrary construction might be productive of the most dangerous consequences."
That decision was concurred in by KENT, then Chief Justice, and afterwards followed by him in Yate's Case, 4 Johns. 359. 

 [*532]  It was re-affirmed in Brown's Case, 21 Wendell 319, and in Douglas vs. Howland, 24 Wendell 45-48, where the reasons upon which the rule is based are presented in a very able opinion by Judge COWAN.
The same rule was recognized in Gaffney vs. Colville, 5 Hill 574, by the Supreme Court of New York, and in several other cases in that State.
In Ash vs. Ash, 9 Ohio St. 383, the Court said: "It is a well-established rule, that in putting a construction upon a revised statute, the mere change in the phraseology does not work a change in the established interpretation of the former statute, unless it evidently appears that such change was intended by the Legislature."
In Conger vs. Barker, 11 Ohio St. 1, the same rule was recognized.
In Alabama, a Code went into effect in 1853. In 1855,  [**29]  the Supreme Court, in construing it, said: "We must take it for granted, that at the time the Code was adopted, the Legislature knew the construction which had been placed on the former statutes, above referred to, by the several decisions above cited; and with this knowledge the Legislature has reenacted in the Code provisions which are substantially the same as those contained in the former statutes; such a reenactment is a legislative adoption of the known construction of those provisions." Duramus vs. Harrison, 26 Ala. 326, 330.
This rule of construction is a reasonable one, and has been uniformly followed in every State where a Code has been adopted. Many other cases might be cited, but this is unnecessary. Some of them, to which I have not here referred, are cited in the brief of the appellant.
The application of this rule to the present case, it seems to me, conclusively settles the question as to the proper construction of the 309th section of the Code.
The whole difficulty grows out of the ambiguity in the language, creating a doubt whether the words, "after the first day of June, 1850," refer to the execution of the will or to 

 [*533]  its operation [**30]  and effect. But it must be remembered, that the 1st section of the Act of 1849 contained the same ambiguity. When that was removed by judicial construction, the meaning of the law was no longer ambiguous, and when it was incorporated into the Code, in substantially the same language, it ought, upon every sound principle of construction, to be understood as meaning the same thing.
It would be a very unsafe rule to disregard established precedents, and to interpret the Code according to the literal meaning of the words. Being intended as a more concise embodiment of the statutes, its language must often be susceptible of various and uncertain construction, even greater than the statutes themselves. No better example could be given of the error of construing the Code in that way, than is presented by the section before us. If understood literally, its effect would be to make every will pass the real estate of the testator without regard to its provisions, whether they relate to real estate or not, and to prevent the possibility of any one who leaves a will duly executed, to die intestate of his lands. Such a construction would be wholly inadmissible; the provision, as all agree, must [**31]  be interpreted in that respect in conformity with the preexisting law, and whether the real estate passes under the will or not, must depend, not exclusively on the words of the Code, but upon the terms of the will itself.
The only safe rule is to read the provisions of the Code in the light of the preexisting statutes, and where these have received judicial construction, to give to the Code the same construction, unless the intention of the Legislature to change the law should be clear and manifest. In comparing the provisions of the Code with those contained in the Act of 1849, I do not discover any such intention. On the contrary, they are substantially the same, with scarce a change in the phraseology. The evident intention was to incorporate in the Code the 1st section of the Act. But the 2d section of the Act has been omitted from the Code, and from this it has been argued 

 [*534]  that a change in the law was intended. To understand this argument, it is necessary to recur to the decisions by which the judicial construction of the Act of 1849 had been settled. The 1st section was the only part of the Act applicable to the cases. That was ambiguous, and the doubt arose whether [**32]  the Legislature intended by the words, "after the first day of June next," to refer to the time of the execution of the will, or to the time when the new rule of construction should apply--that is, whether they referred to the date of the will, or to the time when it might go into effect by the death of the testator. Looking at its language, it might, with equal propriety, be read either way.
To solve the doubt, the Court referred to the 2d section, which, while it provided for a different class of wills, furnished a key to the interpretation of the 1st, and enabled the Court to fix its true meaning, and ascertain the real intention of the Legislature. Now, the argument is, that inasmuch as the 1st section only is contained in the Code, it is to have a different interpretation. It seems to me this is not a sound argument. The 2d section could have no possible place in the Code; to have put it there would, it is conceded on all hands, have been idle and useless; it referred exclusively to a class of wills, executed before the Act was passed, and which went into effect ten years before the Code was adopted. In the Code, it could have no practical operation whatever, and its omission,  [**33]  therefore, cannot have the effect of changing the meaning of the 1st section, which has been incorporated into the Code, and the interpretation of which had been settled by judicial construction.
For these reasons, I am of opinion that the lands in controversy passed to the appellant under the will of Richard Johns, and that the ruling of the Court below was erroneous, and the judgment ought to be reversed.  

72 of 142 DOCUMENTS 

MERRYMAN COLE'S Lessee vs. DEBORAH N. PENNINGTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 476; 1871 Md. LEXIS 10 

January 13, 1871, Decided 

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

This was an action of ejectment instituted by the appellant, to recover from the appellee, tenant in possession, certain premises, situate on Exeter street, in the city of Baltimore.

First Exception: The plaintiff's lessor proved that Harriet P. Knighton, (formerly Pennington,) a former owner of the property, had conveyed the same to Martha R. Yeates, a married woman, to hold at if she were a feme sole, and on the 19th of March, 1864, by deed duly executed, acknowledged and recorded, and that Martha R. Yeates, with her husband, Dr. Henry P. P. Yeates, conveyed the same to the plaintiff's lessor, (Dr. Merryman Cole,) by deed, dated 26th of August, 1868, duly executed, acknowledged and recorded. The defendant then offered to prove, by a certified copy, that certain words, which were erased from the back of the original deed from Harriet P. Knighton to Martha R. Yeates, were recorded with said deed, and formed the title of the tenant in possession. Those words were as follows: "The obligation to the above deed is, that Harriet P. Knighton and D. N. Pennington are to have a home in the above described premises during their lives,  [**2]  or pleasure, and at their death, to the children of said Dr. H. P. P. Yeates and Martha R. Yeates."

The plaintiff's lessor proved by the justice of the peace before whom the deed was acknowledged, that said memorandum was not on the deed when Harriet P. Knighton, the grantor, signed it, and when it was acknowledged before him. He therefore prayed the Court to refuse to allow said memorandum to be offered as evidence to the jury; but the Court overruled his objection, and permitted the same to be read. To this action of the Court, the lessor of the plaintiff excepted.

Second Exception: After the memorandum had been read, it was proved by Dr. Henry P. P. Yeates, that he had written it on the back of the deed after its acknowledgment, and before it was recorded; that it was written without his wife's knowledge or authority, and without any consideration whatever; that witness never had a conversation with defendant on the subject, or made her any promise, at any time; that he never received any consideration from his aunt Deborah, the tenant in possession, nor did he regard her as having any right to stay in the house, except at and during the pleasure of his wife; and that [**3]  none of the conversation held by witness with his aunt Harriet, since deceased, was with his wife's knowledge, or by her authority. Proof was also offered of demand of possession.

The plaintiff's lessor, upon the pleadings and evidence, prayed the Court to instruct the jury, that if they believed the late Harriet P. Knighton executed, acknowledged and delivered the deed offered in evidence by him, to Martha R. Yeates, and that Martha R. Yeates and her husband, Dr. Henry P. P. Yeates, executed, acknowledged and delivered the deed offered in evidence by him, to the plaintiff's lessor, and that both of said deeds were duly recorded, then the legal title of the property is in the plaintiff's lessor, and the verdict must be for the plaintiff.

The Court refused to grant said prayer, but gave the instruction set out in the opinion of this Court.

The plaintiff's lessor excepted to the refusal of the Court to grant his prayer, and also to the Court's instruction, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Ejectment.

After a deed of assignment to the sole and separate use of a married woman, was executed and acknowledged, but before it was filed for record, the husband of the assignee, without her knowledge or sanction, endorsed thereon, immediately under the acknowledgment the following condition: "The obligation to the above deed is, that Harriet P. Pennington and D. N. Pennington are to have a home in the above described premises during their lives or pleasure, and at their death to the children of said Dr. H. P. P. Yeates and Martha R. Yeates." The endorsement was without signature. Subsequently, the premises were assigned by the wife, her husband uniting in the deed, to Merryman Cole, who instituted an action of ejectment for the same against D. N. Pennington, the tenant in possession. HELD:

That the endorsement on the deed was insufficient to defeat the plaintiff's right to recover. 

COUNSEL:
William A. Stewart, for the appellant.

The recording of a memorandum, deed, or any instrument of writing,  [**4]  not authorized by law to be recorded, gives it no additional validity, and the record thus made, or the exemplified copy thereof, is no more evidence of the existence of the deed than would be a copy of such instrument certified by any private individual. Budd vs. Brooke, 3 Gill, 198; Burgess vs. Lloyd, 7 Md., 178.

A married woman can only be bound by deed duly executed and acknowledged, pursuant to the provisions of the Acts of Assembly, and a deed not so acknowledged, is wholly inoperative as to her, and is to be treated as if she had not been a party to it. Chaney vs. Tipton, 3 Gill, 334; Johns vs. Reardon and Wife, 11 Md., 465; Steffey vs. Steffey, 19 Md., 5; Gelston vs. Frazier & Wife, 26 Md., 329.

Even if the defendant had an equitable title to the lot of ground and premises in question, which the plaintiff's lessor denies, and the proof fails to show, that circumstance would not prevent a recovery against her in an action of ejectment brought by the holder of the legal title. Simpson's Lessee vs. Saunders, 2 H. & J., 82, note (a;) Blessing vs. House's Lessee, 3 G. & J., 290; Leonard's Lessee vs. Diamond, 31 Md., 536.

John C. King, for the appellee.

Courts [**5]  of Law as well as of Equity have cognizance of fraud; but Courts of Law relieve against it negatively by enquiring into circumstances, and not permitting plaintiffs to recover in actions brought on deeds or contracts fraudulently obtained, and thus virtually annulling such deeds or contracts against fraudulent parties. Lantern vs. Watson, 6 H. & J., 252; Harris' Lessee vs. Soper, 6 H. & J., 276, 281; Dexter vs. Harris, 2 Mason, 536.

An endorsement upon a deed is part of a deed, and should be admitted in evidence. Stone vs. Hamsbrough, 5 Leigh, 425.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*479]  ALVEY, J., delivered the opinion of the Court.
Two bills of exception were taken in this case; but there is, in truth, but one question involved, and that is, whether the indorsement upon the deed from Harriet P. Knighton to Martha R. Yeates, under which the plaintiff claims title, has any such legal effect as will defeat the plaintiff's right to recover in this action.
The deed of assignment in question was absolute and unconditional on its face, and in that form was executed and acknowledged; but after the acknowledgment, [**6]  and before the deed was filed for record, the husband of the assignee, the latter being a feme covert at the time, thought proper, of his own motion, and without the knowledge or sanction of his wife, to indorse upon the deed, immediately under the acknowledgment, the following condition: "The obligation to the above deed is, that Harriet P. Pennington and D. N. Pennington are to have a home in the above described premises during their lives or pleasure, and at their death, to the children of said Dr. H. P. P. Yeates and Martha R. Yeates." This indorsement is without signature, and the deed of assignment, with the condition appended, was filed for record, and was recorded; but, afterwards, the condition was erased from the original deed, but by whom it does not certainly appear.
The Court below was clearly in error, both in admitting this condition in evidence, and afterwards instructing the jury, "that the evidence showed that the plaintiff's lessor and the defendant both claimed title under the deed from 

 [*480]  Harriet P. Knighton to Martha R. Yeates, and that under the memorandum written on the back of said deed and recorded therewith, the defendant acquired title in said [**7]  premises described in the narr., and that as against the said defendant the plaintiff could not recover."
This condition was plainly no part of the deed, and as it was not shewn to have been written by the authority of the assignee, and signed either by herself, or some one by her duly authorized, it could not, therefore, operate as a re-demise of the premises; and if it be true that it was appended after the deed was executed, and without the knowledge or sanction of the assignee, it was wholly void and without any effect whatever. The fact of its being recorded with the deed, adds nothing to its validity. Not being part of the deed, and being appended without authority, it was improperly admitted to record; and that being so, no authenticated copy from the record was competent evidence. The recording of an instrument not legally executed, or if legally executed, not required to be recorded, affords no ground whatever for admitting an authentication thereof as evidence; a certified copy of such an instrument from the keeper of the record being of no more avail, as legal evidence, than a copy made by a private individual. Coale vs. Harrington, 7 H. & J. 147; Budd vs. Brooke, 3 Gill 198. [**8]  
If the condition in question was omitted from the deed by fraud or mistake, a Court of Law is not the tribunal in which relief can be obtained. It must be sought in a Court of Equity.
The judgment appealed from must be reversed, and a new trial awarded.
Judgment reversed and new trial awarded. 

73 of 142 DOCUMENTS 

SOPHIA B. MERRICK, Executrix of JOSEPH J. MERRICK vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 481; 1871 Md. LEXIS 11 

January 13, 1871, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Supreme Bench of Baltimore City.

This suit was commenced by the appellant on the 11th of September, 1868, by the filing of a narr. containing two counts, one for work and labor done, and the other for services rendered by the plaintiff's testator, in his lifetime, as agent and attorney, in obtaining from the Legislature an Act (1835, ch. 395) authorizing a subscription by the State of three millions of dollars to the capital stock of the appellee, which subscription was made by the State pursuant to the provisions of said Act. With the narr. there was filed an account and affidavit, purporting to be in accordance with the provisions of the Act of 1864, ch. 6. The usual summons was issued, and a copy of the narr. was sent with it to be served on the defendant. The sheriff returned the writ on the return day named therein, the second Monday of September, endorsed, "summoned by service on J. J. Atkinson, Treasurer of the Baltimore and Ohio R. R. Co. Copy left." No appearance was entered for the defendant, and on motion of the plaintiff, a judgment by default was entered the next day. A statement of other facts in the case will be found in the opinion of this Court.  [**2]  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

Appeal to the Supreme Bench of Baltimore City -- When an Appeal will not lie to the Court of Appeals.

An appeal lies to the Supreme Bench of Baltimore City, from an order of the Baltimore City Court, refusing to strike out a judgment by default rendered therein.

The Baltimore City Court refused to strike out a judgment by default, on motion made during the term at which the judgment was entered. From the order refusing to strike out an appeal was taken to the Supreme Bench of Baltimore City, which passed an order striking out the judgment and granting a new trial on condition that the defendant should not plead the Statute of Limitations. From this order of the Supreme Bench no appeal lies to the Court of Appeals.  

COUNSEL:
Benjamin Price and I. Nevett Steele, for the appellant.

The Supreme Bench had no jurisdiction of the case. The matter of striking out the judgment rested entirely with the Baltimore City Court, and was so purely within its discretion that its action in the premises is not the subject of an appeal. Robinson vs. Commissioners of Harford County, 12 Md., 141; Rutherford vs. Pope, &c., 15 Md., 581; Evans' Prac., 437.

An appeal should have been entered from the order extending the judgment if the appellee wished to test questions of law. Anderson vs. State, 5 H. & J., 175; Boteler & Belt vs. State, &c., 7 G. & J., 113; Wylie vs. Cox, 14 How., 1.

If the Supreme Bench had power to interfere at all, it could only have been exercised to direct the Baltimore City Court to act. Shipley and Wife vs. Wood, 4 Md., 497.

John H. B. Latrobe, for the appellee.

No appeal lies to this Court from the order of the Supreme Bench striking out the judgment of the City Court and granting a new trial.

The Constitution of 1867, Article 4, sec. 34, defining the powers of the Supreme Bench, declares that "the same right of appeal to the Court of Appeals shall [**3]  be allowed from the determination of the said Court on such matters as would have been the right of the parties if said matters had been decided by the Court in which said cases were tried." The order of the Supreme Bench striking out the judgment and granting a new trial is to be regarded, therefore, as if made by the City Court. And it is clear that if the City Court, in the absence of the constitutional provision, had stricken out the judgment and granted a new trial, on a motion to that effect, such action would not have been a subject of appeal.

It is very true that the Act of 1785, ch. 87, sec. 6--reenacted in the Code of Public General Laws--authorizes an appeal from any judgment or determination of any Court of law; but it has always been held to limit the right so as not to include matters resting exclusively in the sound discretion of the Court. Crockett vs. Parke, 7 Gill, 237; Elliott vs. Eustace, 6 Md., 506; Rutherford vs. Pope, 15 Md., 579; Anderson vs. The State, 5 H. & J., 174; Wall's Ex. vs. Wall, 2 H. & G., 79; Boteler & Belt vs. State, &c., 7 G. & J., 109; Calvert vs. Carter, 18 Md., 108.

A judgment may, for sufficient cause, be stricken out after the term [**4]  at which it was entered. Munnikuyson vs. Dorsett, 2 H. & G., 374; Kemp vs. Cook, 18 Md., 138; See The State vs. Cox, 2 H. & G., 379, and Montgomery vs. Murphy, 19 Md., 576, as to the circumstances under which the Court will open a judgment, on motion, after the term has passed, under the Act of 1787, ch. 9. Evans' Practice, (2d ed.,) 438.

And, in view of the facts in this case, there were the strongest reasons to justify the action of the Supreme Bench, even should it be held that the motion in question was made after the term had ended. But, it was made in due season, and during the term at which the judgment to be affected by it was entered.

The judgment by default was entered on the 15th of September and on the 13th of October following, it was extended. The motion to strike out was made on the 15th of October. The motion to strike out the judgment was therefore made during the term at which it was entered; and, having been made in due season, and the Supreme Bench occupying on the appeal, the position of the City Court in regard to the judgment, and having ordered it to be stricken out, its decision was final and no appeal lies from it. As a consequence, the present appeal [**5]  should be dismissed.  

JUDGES:
The cause was argued before STEWART, MILLER, ALVEY, and ROBINSON, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*484]  ALVEY, J., delivered the opinion of the Court.
This is an appeal from the Supreme Bench of Baltimore City, and the question preliminary to all others is one of jurisdiction of that Court to review on appeal an order of the Baltimore City Court, refusing to strike out a judgment rendered therein by default.
It appears that the judgment by default, in favor of the present appellant against the appellee, was entered, on motion, on the 15th of September, 1868, and on the 13th of October following, it being after the first return day succeeding the return of the writ, on motion of the appellant, the judgment was extended under the Act of 1864, ch. 6.
During the term at which this judgment was entered and extended, and only two days after the latter act, the appellee appeared by its attorney and moved the Court to strike out the judgment by default previously entered, and also the extension thereof; and assigned as reasons therefor, among others, that there had been irregularities in obtaining the judgment, and also surprise of the appellee. This motion was supported [**6]  by affidavits, and counter affidavits were filed on the part of the appellant.
The Judge in the City Court supposing that the application to strike out involved some question of law that had been determined by him on the motion to extend the judgment, and that his jurisdiction in the premises had been exhausted, refused the motion to strike out upon the ground of want of jurisdiction, and left the present appellee to its remedy by an appeal to the Supreme Bench. In the conclusion of his opinion filed, on disposing of the motion to strike out, he said that he should dismiss such motion for want of jurisdiction, and, in the docket entries of the cause the motion is entered as overruled generally. So that it clearly appears that the motion was definitively determined and disposed of in the City Court.
An appeal was taken to the Supreme Bench, and after full hearing there, it was ordered that the judgment entered by 

 [*485]  the City Court should be stricken out, and a new trial had therein, on condition however, that the defendant should not plead the Statute of Limitations. It is from that order of the Supreme Bench that the present appeal is taken. And as ground for reversal of [**7]  this order, it is contended that the Supreme Bench acted without warrant or sanction of law, and, consequently, without jurisdiction, in opening the judgment entered in the City Court; first, because the motion was addressed to the sound discretion of the Judge of the latter Court, and as he refused to gratify the motion, no matter upon what ground, no appeal would lie; and secondly, because in disposing of the motion to strike out no such matter or question of law was determined as to entitle the present appellee to appeal to the Supreme Bench for review.
To determine this question of jurisdiction of the Supreme Bench it is only necessary to refer briefly to the 33d section of the 4th Article of the Constitution, which limits and defines the powers and jurisdiction of that tribunal. Over all motions for new trials, and motions in arrest of judgments, made in the several common law Courts of the city, before the recent Act of the Legislature, its jurisdiction was original, being required to hear such motions in the first instance, as a Court in banc. But upon any other "matters of law determined by the said Judge or Judges, while holding said several Courts," its jurisdiction [**8]  was appellate merely, and not original; having no power to hear until the matter of law had been determined in one of the several Courts referred to. This would seem to be the obvious interpretation of the section of the Constitution in question, but which has been, by power derived from the Constitution itself, materially modified by the Act of 1870, ch. 177; which Act, however, has no application to this case.
Now, whether, by overruling and dismissing a motion to strike out a judgment entered in one of the Courts contemplated by the section of the Constitution, such question or 

 [*486]  matter of law was determined as to entitle the party aggrieved to the right of appeal to the Supreme Bench, is a question that would seem, upon the comprehensive language of the Constitution, to be altogether free of doubt. In all such motions matters of law are necessarily involved. It would be difficult, indeed, to imagine a case of the kind that did not in some respect involve matter of law, as well as matter of fact, if contested, and especially so when the motion is founded upon reasons assigned, such as in this case. The question as to the sufficiency of the affidavit filed, and also [**9]  of the right of the plaintiff to file another account at the time of extending the judgment, were matters of law. Whether the party applying moves at the proper time, and in the proper mode and form, according to the rules and practice of the Court, or assigns sufficient or insufficient reasons for the relief sought, are matters of law; and the very refusal of the motion itself without reference to the particular grounds assigned for it, requires the Court to re-affirm the validity of the judgment as against the defendant, which is a conclusion of law. And this although the application may be said, in some sense, to be addressed to the discretion of the Court. The question is, whether from the nature of the motion matters of law were required to be determined in finally disposing of it, and not whether it was disposed of upon one ground rather than another. The legal result was the matter to be reviewed by the Supreme Bench, and not the particular reason upon which the City Court acted in overruling the motion. The motion was finally overruled, and the party making it put out of Court without relief, and its only remedy was an appeal, to which we think it was clearly entitled.
The [**10]  appeal to the Supreme Bench having been properly taken, and that Court having ordered the judgment to be stricken out and a new trial to be had of the cause, the next question for this Court to decide is, whether an appeal lies from such order of the Supreme Bench to this Court? And we are clear in the opinion that it does not.

 [*487]  The motion to strike out was made during the term at which the judgment was entered, and, in such case, where the motion prevails and the judgment is stricken out, it has been recently decided by this Court, in the case of Hall vs. Holmes, 30 Md. 558, that no appeal will lie; though otherwise if the motion be refused. If, therefore, the City Court had ordered the judgment to be stricken out in the first instance, clearly no appeal could have been taken to this Court. And as the right of appeal to this Court from the Supreme Bench is only allowed "on such matters as would have been the right of the parties if said matters had been decided by the Court in which said cases were tried," (Const., Art. 4, sec. 33,) it follows that this appeal cannot be maintained. It is therefore dismissed.
Appeal dismissed. 

74 of 142 DOCUMENTS 

HENRY LEWIS, and others, trading as LEWIS, BROTHERS & CO. vs. OTTO BREHME.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 412; 1871 Md. LEXIS 2 

January 12, 1871, Decided 

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

This suit was instituted by the appellants against the appellee; the declaration contained the common counts--a count for $ 2,283.30 in gold coin, received by the defendant for the use of the plaintiffs, and a count upon a gold check for said sum.

Evidence was offered to support the hypothesis of the prayers.

Exception: The plaintiffs offered the following prayers:

1st. If the jury shall find from the evidence that the defendant, as the factor of the plaintiffs, had agreed, for a commission, to guarantee the purchases of Edwin Akers from the plaintiffs, payable in gold or its equivalent; and that he received from said Akers, on or about the 25th April, 1866, currency equivalent to the amount of Aker's debt to the plaintiffs in gold, for the purpose of remitting the same to the plaintiffs in Philadelphia; and that the defendant, on the 27th April, 1866, procured from Bayne & Co., in Baltimore, a gold draft for the amount due the plaintiffs by said Akers, adding thereto a further sum due by the defendant himself to the plaintiffs in gold, upon Hoyt, Anthony, Douglas & Co., in New York, payable in that city on the 30th [**2]  April, 1866, and procured the same to be drawn to his own order, (by the name of O. Brehme & Co.,) and endorsed the same specially to the plaintiffs, by the name of O. Brehme & Co., in manner and form as appears by said draft offered in evidence, and transmitted the same to the plaintiffs in Philadelphia, who received the same the next day, 28th April, and endorsed it and sent it the same day to New York for collection; and that said draft was presented, on the 30th of April, to Anthony, Hoyt, Douglas & Co., in New York, for payment, and was dishonored, and that on the next day the plaintiffs received notice by telegram of the dishonor of said draft, and on the same day sent notice to the defendant, by telegram, of the dishonor and non-payment of said draft, and that the defendant thereupon made efforts to procure payment of said draft from Bayne & Co., the drawers, and failing in that, procured himself to be secured as a preferred creditor, in his own business name of O. Brehme & Co., for the sum of $ 3,000, in an assignment executed by Bayne & Co., on the 5th May, 1866, for the benefit of their creditors, and that neither the defendant nor any other person has since paid to the plaintiffs [**3]  any part of said draft, then the plaintiffs are entitled to recover the amount of said draft and interest from the defendant in gold.

2d. If the jury shall find from the evidence that the defendant, for the purpose of remitting to the plaintiffs moneys in his hands, received and belonging to the plaintiffs, and also moneys due by the defendant himself, on his own account, to the plaintiffs, purchased and forwarded to them the gold draft offered in evidence, and that said draft was dishonored and returned to the defendant; and shall further find that on the return of said draft, the defendant retained the same, and made efforts to procure payment of said draft to himself, and failing in that, procured the drawers, Bayne & Co., to secure him among their first preferred creditors (in his own business name of O. Brehme & Co.) for the amount of said draft, and that he notified the plaintiffs of the proceedings on his part, and in his correspondence with them during the year 1866, after the dishonor and return of said draft, treated the loss as his own, and promised the plaintiffs to send them another draft; and shall further find that the plaintiffs, by reason of such proceedings and [**4]  assurances on the part of the defendant, treated the loss on said draft, and the duty of collecting and securing it as that of the defendant, and not as their own, and that the defendant did not, until some time in the year 1867, distinctly make known to the plaintiffs that he did not consider himself responsible to make good to them the amount of said draft, then the plaintiffs are entitled to recover the amount of said draft and interest in gold, notwithstanding they may find from the evidence that the defendant was acting only as the agent of the plaintiffs in remitting the moneys received by him on their account, and that, for the purpose of making such remittance, he purchased said draft in good faith, and without any knowledge of the insolvency or discredit of the house of Bayne & Company.

3d. If the jury shall find from the evidence that the defendant, as the plaintiffs' agent, on or about the 25th April, 1866, received from Edwin Akers a sum of money in currency, to be remitted to the plaintiffs in Philadelphia, or its equivalent in gold coin, and that for the purpose of making such remittance on the 27th of April, 1866, (being Friday,) the defendant bought from Bayne [**5]  & Co., bankers, in Baltimore, the gold draft on New York, offered in evidence, with the understanding that it was not to be presented for payment in New York until the succeeding Monday, 30th of April, and transmitted the same to the plaintiffs, who caused the same to be presented on the 30th of April for payment, and that the same was dishonored, and had never since been paid to the plaintiffs; and shall further find that at the time of the purchase of said draft, the said banking house of Bayne & Co. had failed to meet their obligations, and were discredited, and that the defendant, by the exercise of reasonable diligence, might have ascertained the fact of such discredit, then the plaintiffs are entitled to recover from the defendant the amount of said draft and interest in gold.

The defendant prayed the Court to instruct the jury as follows:

1st. If the jury shall believe from the evidence that the plaintiffs were merchants, residing in Philadelphia, and the defendant a merchant residing in Baltimore, at the time of the transactions hereinafter stated, and that the plaintiffs verbally agreed with the defendant in consideration, that the defendant would induce Edwin Akers [**6]  to buy goods from them, that they would give said defendant a commission on all goods that said Akers might purchase from them, whether such purchases should be made directly from the plaintiffs in Philadelphia, or should be made from the defendant in Baltimore; and that said plaintiffs further agreed in consideration, that the defendant would guaranty the payment of all purchases made by said Akers, whether directly from the plaintiffs or through the defendant, they would pay the defendant a further commission; and if they shall further find that the plaintiffs also agreed with said Akers, that he might pay for all goods bought by him, either by direct payment to said plaintiffs, or by payment to the defendant; and if they shall further find that after said agreements the said Akers sometimes bought goods directly from the plaintiffs and sometimes through the defendant, and that said Akers sometimes paid directly to the plaintiffs and sometimes to the defendant for them, and that upon all such purchases said defendant received a commission; and if they shall further find that the goods, the price of which is in controversy in this case, were sold by the plaintiffs directly to Akers [**7]  and forwarded to him, without the intervention in any way of the defendant; and that before the maturity of the bill for said goods the plaintiffs sent the same to the defendant with the request that he would collect and remit the same, and that the said Akers in fact paid the amount of his bill to the defendant, then such payment by said Akers to the defendant discharged the obligations of the defendant to the plaintiffs under said contract of guaranty.

2d. If the jury shall find the facts stated in the defendant's first prayer, and if they shall further find that after the defendant had received the money from Akers, the said defendant, on the 27th of April, 1866, purchased from Bayne & Co., the draft offered in evidence, and remitted the same to the plaintiffs on the same day, without any additional compensation from plaintiffs, besides the consideration mentioned in the first prayer; and if they shall further find that the form of said draft, and the mode of remittance adopted by the defendant in this instance, was the same that he had been accustomed to use in sending money to the plaintiffs under like circumstances; and if they shall further find that the defendant, in the [**8]  purchase of said draft in view of all the circumstances of the case, acted with ordinary care and caution, and in good faith, and without knowledge of any thing to affect the credit of the drawers of said draft, or without knowledge of any kind, which would induce a man of ordinary prudence to suspect the solvency or entire responsibility and credit of the drawers, then the plaintiffs are not entitled to recover so much of the money sued for in this case as the jury may find to have been received by the defendant from said Akers.

The Court rejected the prayers of the plaintiffs and granted those of the defendant; the plaintiffs excepted.

The verdict was for the plaintiffs for $ 75.27 in gold coin, which sum not being within the Court's jurisdiction, judgment of non pros was entered. The plaintiffs appealed.  

DISPOSITION:
Judgment reversed, and new trial awarded.  

HEADNOTES:

Liability of a Del credere agent -- Liability of an Agent upon his Endorsement, as between himself and his Principal -- Demand and Notice -- Defective prayer -- Promise by an Endorser to pay a Dishonored draft, Presumptive evidence of Demand and notice.

An agent who undertakes to procure a particular person to deal with his principal, and in consideration of an additional commission allowed him, guarantees the payment of all bills of goods purchased of his principal by such customer, is a del credere agent, and as such is primarily liable to satisfy his principal the price of the goods sold.

A factor acting under a del credere commission, collected the proceeds of a bill of goods sold by his principal to a particular customer, and placed the money to his own account with his bankers, and purchased of them a gold draft payable to his own order, which he specially endorsed, without excluding recourse, and transmitted to his principal. The draft included not only the money collected by the agent, but also a balance due from himself to his principal. The draft was afterwards dishonored. Prior to the presentation of the draft for payment, the drawers thereof failed. In an action by the principal against the agent to recover the amount of the draft, HELD:

1st. That the agent was bound not only for the collection of the money, but for its safe transmission to his principal.

2d. That the endorsement by the agent imported prima facie liability on his part, but he was entitled to show as a matter of defence that it was not the intention that he should be personally charged by his endorsement, and if there were no intention to create personal liability, none would exist as between himself and his principal.

3d. That whether such intention exists or not, will in all cases depend upon the circumstances of the transaction, but the circumstances must be clear and strong to remove the presumption which arises from the endorsement.

A del credere agent for the purpose of remitting certain moneys which he had received belonging to his principal, as also moneys due by himself, purchased a gold draft payable to his own order, which he specially endorsed and transmitted to his principal. The draft was dishonored and returned to the agent, who retained it and made efforts to procure its payment to himself, and failing in this, procured the drawers of the draft to secure him among their first preferred creditors in a deed of trust. The agent notified his principal of these proceedings. After the dishonor and return of the draft, the agent treated the loss thereon as his own and promised his principal to send him another draft. In an action by the principal to charge the agent as endorser on the draft, HELD:

That the promise or undertaking by the agent to pay the debt, was not sufficient to bind him as endorser, unless at the time of such promise or undertaking, he was fully informed that there had not been due demand, and notice of dishonor. And a prayer which did not submit to the jury to find whether the agent was fully informed, at the time of such promise or undertaking, of all the facts and circumstances of the neglect to make demand and to give notice, was defective.

A promise by an endorser to pay a draft, subsequent to its dishonor, is presumptive evidence that the draft had been presented for payment in due time and dishonored, and that he had received due notice thereof. This presumption however is one of fact for the jury, and not an absolute legal conclusion to be drawn by the Court. It is prima facie only and liable to be rebutted.  

COUNSEL:
William F. Frick, for the appellants.

The defendant's first prayer was erroneous--

1st. Because it ignored the evidence of a special contract of the defendant to be bound to collect and remit, as if the debt was his own.

2d. Because, even if the defendant were treated as an ordinary del credere factor, without [**9]  reference to his special contract, the obligation rested upon him to pay Akers' debt, as his own, and therefore to remit, by money or a good check or draft. This presents, what is believed to be, an open question in Maryland.

Under the early law, this guaranty was held to involve an absolute and not a conditional responsibility for the debt. The guarantor was substituted for the purchaser, and, therefore, of course, bound to remit safely the debt if collected. Grove vs. Dubois, 1 Term Rep., 112; Livermore on Agents and Factors, 409, 410, 411; Mackenzie vs. Scott, 6 Brown's Parl. Cases, 280; Paley on Principal and Agent, 28 Law Library, 41, (margin.)

The doctrine was first questioned by Judge STORY, in Thompson vs. Perkins, 3 Mason, 237, and afterwards in Story on Agency, sec. 215.

In England also, in the two cases of Gall vs. Comber and Peele vs. Northcote, in 7 Taunton, followed by Morris vs. Cleasby, in 4 Maule & Selwyn, which determined the guarantee to be a collateral and not an original undertaking, and therefore not good under the Statute, unless in writing. -- Hence KENT treats it as late as 1851, as an open question. 2 Kent's Comm., 799, (margin 625.)

In [**10]  the later cases there is much conflict and uncertainty, but a marked tendency to return to the early doctrine of Lord MANSFIELD. Swan vs. Nesmith, 7 Pickering, 224; Wolf vs. Koppel, 5 Hill, 460 and 2 Denio, 371; Couturier vs. Hastie, 16 Eng. L. & E. Rep., 571; Sherwood vs. Stone, 14 N. Y., 267.

The prayer concedes that the guaranty was binding, though it assumes it to be only verbal, and yet it deals with it as if it were purely a collateral undertaking.

The plaintiffs' first prayer is based upon the theory, 1st. That the defendant was bound, under his contract of guaranty, to remit safely his collection of the guaranteed debt. 2d. That even if this were not clearly so, inasmuch as he chose to mix up money, confessedly due by himself, with money collected from Akers, and to remit the sum total by means of a draft, which he bought and made payable to himself, and endorsed specially to the plaintiffs, and furthermore, upon receiving notice of the dishonor of said draft, took upon himself to require security from the insolvent drawers, in his own name, as one of their preferred creditors, he must be treated as having made himself personally responsible to the plaintiffs for [**11]  the whole amount intended to be paid by the draft, by reason of the character of the remittance, and the form of the draft, and the nature of his dealings with the drawers. Story on Agency, sec. 269; Lefevre vs. Lloyd, 5 Taunton, 749; Goupy vs. Harden, 7 Taunton, 159; Heuback vs. Mollman, 2 Duer, 260.

The plaintiffs' sccond prayer, proceeded upon the theory that the defendant, (without reference to the legal effect of his contract of guaranty,) had made himself personally responsible for the whole debt he intended to remit, not only by reason of the character and form of his remittance, and his assumption of the responsibility of securing it to himself in his own name, but also, by reason of his express promise to pay the debt, by sending another draft in place of the dishonored one, returned to and retained by him, for the purpose of securing himself against the drawers; and also, by reason of the effect of that promise upon the plaintiffs, who were thereby deceived and lulled into the belief that they were not to look to Bayne & Co., but were to treat the loss as that of the defendant, and not as theirs, and therefore to forbear proceedings on their part against Bayne & Co.  [**12]  , and to give time and indulgence, as requested, to the defendant. This proposition the Court below erroneously supposed to be untenable for want of a sufficient consideration to support the admitted promise. Story on Agency, sec. 269, et seq.

The defendant's second prayer ignored all the facts and circumstances set forth in the plaintiffs' first and second prayers, and treated the mere remittance of the dishonored draft as a complete acquittance of the defendant from all further responsibility on account of the moneys received from Akers, without reference to the question whether the draft was intended or accepted as payment. It ignored, also, other facts in the case, and among them the fact not noticed in the plaintiffs' prayers, that the defendant mixed up the money received from Akers with his own, and deposited it, at different times, and in several amounts, to his own individual credit, in the banking house of Bayne & Co., with whom he kept an account.

By this mode of dealing with it, he assumed a responsibility for the solvency of Bayne & Co.; and if so, the defendant's second prayer, ignoring this state of facts, ought not to have been granted. Story on Agency, sec.  [**13]  208.

The plaintiffs' third prayer was intended to present the question of the defendant's responsibility, under any circumstances, to make the draft good, inasmuch as it had been confessedly bought of a broken and discredited banking firm, if, by the exercise of reasonable diligence, he might have ascertained the fact of such discredit.

The Court refused to put the instruction in that form, and adopted the defendant's view, (contained in his second prayer,) that he was absolved from responsibility if he acted with ordinary care, &c., or (in the alternative) "without knowledge of any kind, which would induce a man of ordinary prudence to suspect Bayne & Co.'s solvency."

If the jury should have found the fact, that when the draft was bought, Bayne & Co. were notoriously broken and discredited, the defendant's alleged ignorance of any suspicious circumstances ought not to have relieved him; if they should also have found that the exercise of reasonable diligence, on his part as a business man, would have made him acquainted with the actual fact of the failure.

William A. Fisher and Charles Marshall, for the appellee.

The appellee was not a del credere factor at [**14]  all. Story on Agency, sec. 33. He occupied a different relation to the plaintiffs, and was merely a guarantor, receiving one commission under an agreement, under which he had induced Akers to become a buyer, and a further commission for guaranteeing that Akers would pay what he owed.

But even if the appellee could be treated as an ordinary factor del credere, the commission extends only to the guarantee of the payment of the money by the debtor, and he is but surety. Parson's Mer. Law, sec. 9, ch. 10, 15; Story on Agency, sec. 215; Thompson vs. Perkins, 3 Mason, 236; Morris vs. Cleasby, 4 Maule & Selwyn, 574; Goodenow vs. Tyler, 1 Amer. Lead. Cases, 668; Heuback vs. Mollman, 2 Duer, 227; Muller vs. Bohlens, 2 Wash. C. C. Rep., 378; Peele vs. Northcote, 7 Taunton, 478.

The money received becomes the property of the principal, who could maintain an action for money had and received. Thompson vs. Perkins, 3 Mason, 236; W. B. Man. Co. vs. Searle, 15 Pick., 225; Pitts vs. Mower, 18 Maine, 361.

Even a factor del credere does not guarantee the safe transmission of the fund, and, in this instance, Brehme merely bought the gold to carry out the arrangement between Akers and the [**15]  plaintiffs, that Akers could pay Brehme in currency, and Brehme would buy gold for the plaintiffs. Story on Agency, secs. 112 and 215; Muller vs. Bohlens, 2 Wash. C. C., 378; Leverick vs. Meigs, 1 Cowen, 645; Sharp vs. Emmet, 5 Wharton, 288, 299; Parson's Mer. Law, 159; Goodenow vs. Tyler, 1 Amer. Leading Cases, 668; Gorman vs. Wheeler, 10 Gray, 362.

As to the transmission of the funds, Brehme was merely an unpaid agent, who acted for the convenience of the plaintiffs, and was responsible only for good faith and ordinary diligence. There was some conflict in the testimony as to the time when the fact of the failure of Bayne & Co., became known, but it was all submitted to the jury. It is clear, however, that the condition of Bayne & Co., was unknown to Brehme or his clerk, Mr. Keidel, when the draft was taken, and, as Bayne & Co., were the bankers, through whom all the gold drafts had been previously remitted to the plaintiffs, the second prayer certainly went to the furthest limits of the responsibility of the appellee as to the transmission. Burrill vs. Phillips, 1 Gall., 360.

The first prayer of the appellants sought to impose liability upon the defendant as endorser of [**16]  the draft, upon demand and notice to him, coupled with the fact that he made demand on Bayne & Co., and procured the securing of the claim in his own name, under the deed of trust executed by Bayne & Co.

Brehme was not liable as endorser, as all the circumstances show that no such responsibility was intended. Castrique vs. Battigieg, 10 E. F. Moore, Privy C., 94; Sharp vs. Emmet, 5 Wharton, 288; Chitty on Bills, 34.

If the case were to be governed by the rules applicable to bills of exchange, there would be no sufficient evidence of demand to charge the endorser. The protest was not produced, and the only evidence consisted in the proof that the note was PROTESTED in New York, non constat, that it was ever presented at all. Peoples' Bank vs. Brooke, 31 Md., 7.

In the relation existing between the parties, it was eminently proper that Brehme should accept for the plaintiffs the benefit of a security given in his own name, and his doing so can have no bearing upon his responsibility to the plaintiffs. Gorman vs. Wheeler, 10 Gray, 362.

The second prayer of the appellants proceeded upon a supposed assumption of the loss by the appellee. There were no facts to sustain [**17]  the prayer as put, but even if Brehme had believed himself liable, and had so conceded and assumed the debt, he would not be liable under the circumstances of the case. Wyman vs. Gray, 7 H. & J., 409; Jones vs. Ashburnham, 4 East., 455.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*423]  ALVEY, J., delivered the opinion of the Court.
It is conceded in this case that the defendant was the agent of the plaintiffs for the sale of goods, and that, in addition to the commission allowed the defendant as ordinary agent, an additional commission was agreed to be allowed, and was actually allowed, for and in consideration of the defendant's guaranty of payment of all bills of goods purchased of the plaintiffs by a certain customer, who was, through the agency of the defendant, induced to deal with the plaintiffs, merchants in Philadelphia, and such additional commission was to be paid whether the purchases were made by the particular customer directly of the plaintiffs, or through the defendant as their agent. The customer having purchased goods of the plaintiffs, and paid for them to the defendant, the agent, and the money having been lost [**18]  in the manner disclosed in the evidence and stated in the prayers of the respective parties, the question is, upon whom is that loss to fall.
It is insisted on the part of the plaintiffs that the defendant, being an agent, acting under a del credere commission, is bound to pay, not conditionally, but absolutely, as if he were himself the vendee of the goods; and that, consequently, he did not discharge his liability by the purchase and transmission of the gold draft of the 27th of April, 1866. And even if the liability of the defendant, by reason of the del credere commission, be not maintainable to the extent contended for, still, the plaintiffs insist that as ordinary agent, whose duty it was to remit funds to his principal, the defendant having procured the draft payable to his own order, and endorsed it to the plaintiffs without excluding recourse, is, under all the circumstances attending the transaction, liable 

 [*424]  as endorser, the drawer having failed, and the draft meeting with dishonor.
On the other hand, the defendant contends that his relation to the plaintiffs was not that of a del credere agent or factor, strictly speaking; but that if he be so regarded [**19]  the guaranty, in consideration of the commission, only extends to the payment of the money for the goods by the vendee, and not to its safe transmission to the vendor; and that, consequently, the guaranty was gratified and discharged when the money was paid by the purchaser to the defendant as the plaintiffs' agent. He also contends that he is not liable as endorser of the draft transmitted, because of the relation of principal and agent existing at the time between the plaintiffs and himself, in reference to which the draft was purchased, and that, acting for the convenience of the plaintiffs, he can only be held responsible for good faith and ordinary diligence.
These positions of the parties were sought to be maintained by them at the trial in the Court below, and with that view they propounded prayers for instruction to the jury; but the Court rejecting those of the plaintiffs, and granting those offered by the defendant, the plaintiffs have brought those rulings to this Court for review, and whether they be correct or otherwise, according to our judgment, will appear in the sequel of this opinion.
We cannot resist the conclusion that the defendant was, at the time of the transactions [**20]  involved in this controversy, strictly a del credere agent of the plaintiffs; although the nature and extent of the obligation imposed upon such an agent has been variously stated, and, in regard to it, down even to the present time, no little conflict will be found to exist among Judges and authors of the highest repute. On the one hand there are those who maintain that an agent del credere for the sale of goods, makes himself absolutely and in the first instance liable to his principal for the price of the goods sold; while on the other hand it has been strongly maintained that such an agent only incurs a secondary responsibility, 

 [*425]  that of mere surety, whereby he can be required to pay only in the event of failure on the part of the principal debtor. And some of the authorities have gone to the extreme of maintaining that the undertaking of the agent under a del credere commission is a mere guaranty of the debt of another, and therefore within the Statute of Frauds. Which of these positions is correct depends, to a great extent, upon the state of the authorities, the question never having been finally adjudicated in this State.
Whenever an agent, in consideration [**21]  of additional commission, such as was agreed to be allowed in this case, guarantees to his principal the payment of debts that become due through his agency, he is said to act under a del credere commission. What then is the nature and extent of this guaranty? In Grove vs. Dubois, 1 T. Rep. 112, a case of a policy broker, Lord MANSFIELD answered this question in very plain and unqualified terms when he said, "It is an absolute engagement to the principal from the broker, and makes him liable in the first instance. There is no occasion for the principal to communicate with the underwriter, though the law allows the principal, for his benefit, to resort to him as collateral security. But the broker is liable at all events." In this Mr. Justice BULLER concurred, and said that he had known many actions to have been brought against brokers with commission del credere, and that he had never heard any inquiry made in such cases, whether there had been a previous demand upon the underwriter and refusal; and he declared that such was not the practice. Thus showing, according to the opinions of these great Judges, that the obligation of such undertaking was primary and absolute [**22]  in its character, and that the agent was regarded as standing in the relation to his principal of an original debtor.
Ten years after the case of Grove vs. Dubois, the case of Mackenzie vs. Scott, 6 Bro. P. C. 280, occurred in the House of Lords, on an appeal from the Court of Sessions in Scotland. That case was very analogous in its circumstances to 

 [*426]  the one before us. There, a factor under a commission del credere, sold goods and took accepted bills from the purchasers, which he endorsed to a banker at the place of sale, and received the banker's bill for the amount, payable to his, the factor's, own order, on a house in London. This banker's bill the factor endorsed and transmitted to his principal, who got the same accepted. The acceptors and drawer having failed before payment, it was held, according to the head note of the case, that the factor was answerable for the amount of the bill, being personally liable under his commission del credere, to satisfy his principal the price of the goods sold.
It was insisted in that case, as it has been in this, that the del credere obligation extended only to guaranteeing the payment of the [**23]  price of the goods by the vendee, and that the remittance of the money by the factor was a transaction entirely different and distinct. But, if the uniform interpretation of that case be correct, (there being no reasons assigned for the judgment given,) the argument in that respect did not avail; and, in view of the law as it had been announced in Grove vs. Dubois, it is not difficult to perceive upon what ground that decision was based. And afterwards, in 1803, the same general proposition was again pointedly asserted as the law of England in the case of Houghton vs. Matthews, 3 Bos. & Pull. 489.
By these decisions the law was regarded as settled in England, until about the year 1816; and all the text writers, and authors of elementary treatises upon the subject of commercial contracts before that time laid it down, as the unquestionable law, that an agent, acting under a commission del credere, was bound to his principal in the first instance and as an original debtor. The law will be found so stated by Livermore, in his work on Agency, 409, 410; by Paley on Agency, 40; by Comyn on Contracts, 1 vol. 253; and by Chitty in his work on  [**24]   Com. Law, 3 vol. 222.
But it is said that the cases to which we have referred do not now announce the law as accepted in England, and we 

 [*427]  are referred to the case of Morris vs. Cleasby, 4 Maul. & Selw. 566, decided in 1816, and the cases following on its authority, to show how the rule has been qualified if not entirely changed.
It is true, in the case of Morris vs. Cleasby, Lord ELLENBOROUGH did express a decided dissent from the principle announced in the previous decisions, both as to the nature and scope of the del credere obligation. He said that the guarantor, in consideration of the commission, is only to answer for the solvency of the vendee, and to pay the money if the vendee does not; and that, on the failure of the vendee, the agent is to stand in his place and make his default good. Thus clearly placing the agent in the position of mere surety to the purchaser of the goods. And if such be the true nature and character of the contract, seeing that it is entirely collateral and secondary, it is difficult to perceive how it can escape the operation of the Statute of Frauds. Be that, however, as it may, the decision of Lord ELLENBOROUGH [**25]  was sanctioned by the case of Peele vs. Northcote, 7 Taunt. 478, and also impliedly sanctioned by the case of Gall vs. Comber, 7 Taunt. 558, in the Common Pleas. And from the time of these last decisions, until very recently, all the treatises on commercial contracts have stated the law in accordance with the opinion of Lord ELLENBOROUGH, taking the doctrine of Lord MANSFIELD to have been overruled. It is so stated in Chitty on Contracts; Russell on the Law relating to Factors and Brokers; Smith's Commercial Law, and in other works treating of the subject.
Nor has there been uniformity of decision on the subject in the Courts of this country; though we think the decided weight of authority is in support of the doctrine as announced in Grove vs. Dubois. In the case of Thompson vs. Perkins, 3 Mason C. C. 232, before Judge STORY, in 1823, the principle of Grove vs. Dubois was repudiated as being incorrect, and that of Morris vs. Cleasby sanctioned; though the facts of the case do not appear to have required a distinct ruling upon the particular question now presented. It was 

 [*428]  an action of assumpsit by the [**26]  principal against the assignee of the factor del credere who had sold the goods of his principal, and taken negotiable notes payable on time, in his own name, for the amount of sales; and afterwards, and before the notes became due, the factor failed, and assigned the notes to his assignee, for the benefit of his creditors, and the assignee afterwards receiving the money due on the notes, it was held that the principal was entitled to recover the money so received from the assignee, subject to a deduction of the amount of the lien of the factor for his commissions and charges. Upon such state of facts, it is clear, the right to recover was equally the result of the doctrine of Lord MANSFIELD as that of Lord ELLENBOROUGH. All the cases concede it to be the right of the principal to forbid payment to the agent, and to maintain an action himself against the buyer to recover the price of the goods; or to pursue his goods, or the notes taken for them, into the hands of third parties precisely as if no del credere contract existed. And though such right in the principal would seem to consist only with a collateral undertaking by the agent, yet, in the contract del credere, being [**27]  sui generis, it is held in no wise to change the original and independent character of the agent's undertaking to his principal.
In the case of Swan vs. Nesmith, 24 Mass. 220, 7 Pick. 220, occurring a few years after the case in 3 Mason, the Supreme Court of Massachusetts decided that the legal effect of a commission del credere was to make the agent liable at all events for the proceeds of the sale, so that he might be charged in indebitatus assumpsit, as for goods sold to him. There the contract was admitted to be original and not collateral, and therefore not within the Statute of Frauds; and the necessary conclusion is, that the Court intended fully to sanction the principle of Grove vs. Dubois, to which, and the case of Mackenzie vs. Scott, they refer for the definition of the nature of the commission del credere. And so in New York, the same principle is established, as will be seen by reference to Wolf vs. Koppel, 5 Hill 458, and same case on appeal, 2 Denio 368, 

 [*429]  and Sherwood vs. Stone, 14 N.Y. 267. The two last cases, being in the Court of last resort, fully [**28]  approve and adopt, as far as we can discover from the opinions delivered, the principle of the cases of Grove vs. Dubois and Mackenzie vs. Scott. Judge STORY, however, in his work on Agency, section 215, adopting his own view of the law as found in Thompson vs. Perkins, supported by Morris vs. Cleasby, and the cases in the Common Pleas, says that the true engagement of the agent del credere is merely to pay the debt, if it is not punctually discharged by the buyer. That, in legal effect, he warrants or guaranties the debt; and thus he stands more in the character of a surety for the debt, than as debtor. And the principle is so stated in other American treatises. But, with all due deference to the high authority of Judge STORY, we think the decided weight of authority is against his position.
In England the question has been recently under discussion and re-examination, and the result of which is quite at variance with the doctrine laid down in Morris vs. Cleasby. In Couturier vs. Hastie, 8 Exch. 39, the action was brought by the principal against his factor who, on commission del credere, had sold a cargo of corn, and the purchaser [**29]  refusing to comply with the contract on insufficient grounds, and afterwards becoming bankrupt, the question was whether the factor was liable for the non-fulfilment of the contract, by reason of his del credere commission, there being no guarantee in writing; and the Court held the factor liable, not regarding the undertaking as one simply to pay the debt of another, within the 4th section of the Statute of Frauds; and the decision in Wolf vs. Koppel, 5 Hill 458, was referred to and adopted as containing sound law upon the subject. And in the more recent case of Wickham vs. Wickham, 2 Kay & John. 478, Sir WM. PAGE WOOD, then the Vice-Chancellor, and at present the Lord CHANCELLOR, of England, in referring to the case of Couturier vs. Hastie, as authority, said: "When I look at the whole of that case, and consider the 

 [*430]  reasons given by the Judges in delivering their judgments, though given very cautiously and guardedly, I cannot but conclude that they considered that an agent entering into a contract in the nature of a del credere agency, entered in effect into a new substantial agreement with the persons whose agency he undertook;  [**30]  that the agreement so entered into by him was not a simple guarantee, but a distinct and positive undertaking on his part, on which he would become primarily liable: Otherwise, I cannot see how the learned Judges could arrive at the conclusion that the undertaking was not within the Statute of Frauds."
Supposing this to be the correct conclusion deducible from the present state of the authorities, of which we have no doubt, the contract being distinct and positive, rendering the agent primarily liable, it necessarily follows that the agent stands in no such relation to his principal as that of mere surety for the price of the goods sold. His relation to his principal is that of debtor as well as agent; and being so, the legal consequences of the debtor relation must follow. Indeed, it was conceded in the case of Leverick vs. Meigs, 1 Cow. 645, where the liability of such an agent was attempted to be restricted, that if by the engagement the agent became a debtor absolutely, as if he were himself the purchaser, he would be bound for the remittance of the money, as well as for its payment by the buyer. "This arises from the general principle, that the debtor [**31]  is bound to make payment to his creditor, and consequently, if he remits a bill which turns out of no avail, it is no payment. It does not discharge a precedent debt, unless it be so expressly agreed between the parties;" (1 Salk. 124; 2 John. Cas. 441; Glenn vs. Smith, 2 Gill & John. 493;) or, unless the creditor parts with the bill, or is guilty of laches, to the prejudice of the debtor, in not presenting it for acceptance or payment in due time.
Of course, the agent, acting under a commission del credere, where the goods have been sold on an authorized credit, cannot be required to account to his principal before the expiration 

 [*431]  of the credit given to the buyer. And if the money which comes into his hands be remitted under special instruction from the principal, then it will be at the risk of the latter, provided the instructions are observed with proper caution and diligence on the part of the agent. But in this case, it is not pretended that there were any special instructions in regard to the manner of remitting the money received by the defendant. The remittance therefore was at his risk, as it would be of any other [**32]  debtor remitting funds to discharge a debt due by him.
Such being our view in regard to the liability of the defendant as an agent acting under a commission del credere, we are of opinion that there was error committed by the Court below in refusing to grant the first prayer of the plaintiffs, which was intended to present the case as within the principle of Grove vs. Dubois and Mackenzie vs. Scott, and particularly the latter, to which this case bears a strong analogy.
But as it has been earnestly contended in argument that the contract del credere only extends to the payment of the price of the goods, and not to the remittance of the money to the principal, and the Court below having so instructed the jury, let us examine the case briefly upon that supposition, in order to determine whether the defendant be not liable as indorser of the gold draft transmitted to the plaintiffs.
The defendant upon collecting the amount due from Akers, placed the money in his own account with his bankers, and purchased of them the gold draft that was afterwards dishonored, by a check on his account. This draft he caused to be made payable to his own order, without reference to his [**33]  character as agent, and after indorsing it to the plaintiffs, or their order, it was transmitted to them to pay not only the price of the goods sold to Akers, but a balance due from the defendant himself. The draft proving worthless, and having been purchased without special directions, what is the liability of the defendant by reason of his unqualified indorsement?

 [*432]  Judge STORY, in his work on Agency, sec. 157, states the rule as an unqualified one, that an agent, though known as such, who indorses a bill or note generally, makes himself personally responsible; "for, in such a case, although he is a known agent, the making, or accepting, or indorsing of the instrument, is treated as an admission that it is his personal act, not only in respect to third persons, but also in respect to his principal." And for this proposition, as stated, he cites many respectable authorities. So CHITTY in his work on Bills, on page 46, states the same general principle, and says, "if a person employed by the plaintiff to purchase bills for him, obtain them payable to himself, and indorses them generally, he will be liable upon that indorsement, even to his own employer, although [**34]  he had no guarantee commission;" and the Court, in deciding one of the cases referred to, observed that the defendant might have specially indorsed the bill sans recours, and not having thought fit to do so, he was personally liable. And for other authorities supporting the same general proposition, see Smith on Mercantile Law, 164; Russ. on Brokers and Factors, 263, 264; Parsons on Notes and Bills, 102.
Notwithstanding, however, the rule is thus generally and unqualifiedly stated, we think, on the more recent authorities, it is not to be applied, as between the principal and agent themselves, without some limitation. The indorsement, of course, if unqualified, is to be taken as importing prima facie liability on the part of the agent. He should be allowed to show, however, as matter of defence, that it was not the intention that he should be personally charged by his indorsement; and if there be no intention to create personal liability, none will exist as between himself and his principal. Whether such intention exists will, in all cases, depend upon the circumstances of the transaction. But, as was said by Mr. Chief Justice TILGHMAN, in Miles vs. O'Hara, [**35]  1 Sergt. & Rawle 32, the circumstances should be clear and strong to take off the presumption which arises 

 [*433]  from the indorsement. See the case of Castrique vs. Battigieg, 10 E. F. Moore 94, before the Privy Council.
Such being the law, the next question is, has the liability of the defendant been fixed by the proper evidence of due demand and notice?
No direct proof of demand and notice was offered at the trial. In the absence of such evidence, the liability was sought to be fixed by reason of the conduct and declarations of the defendant subsequent to the protest of the draft. The plaintiffs' second prayer enumerates the facts that were supposed to have fixed the defendant's responsibility as indorser; and whether they are sufficient for that purpose is the question to be decided.
If, in point of fact, there had been no demand and notice of dishonor, or insufficient demand and notice, we think this second prayer defective, because it does not submit to the jury to find whether the defendant was fully informed, at the time of the promise and other conduct relied on, of all the facts and circumstances of the neglect to make demand and to give the notice. [**36]  The promise and other circumstances stated in this prayer would certainly be sufficient to charge the defendant as indorser, if he possessed full knowledge at the time. Without such knowledge, however, his promise or acknowledgment would not bind him. It is, therefore, essential, in this aspect of the case, that the fact of knowledge be found by the jury, in addition to the fact of the defendant's treating the debt as his own and promising to pay it to the plaintiffs. Beck vs. Thompson, 4 H. & J. 531; 1 Parsons on Notes and Bills, 595, and the authorities there cited.
But if the party is sought to be charged on his indorsement, and his promise or assumption be used as evidence of the previous demand and notice, a different principle applies. In such case, any promise to pay, or admission made by the indorser that he continues liable, subsequent to the dishonor, is good evidence upon which to found a presumption that every thing has been properly done to render him liable. 

 [*434]  This is a principle now well established. As in the case of Lundie vs. Robertson, 7 East, 231, which was an action by an indorsee against an indorser, and the only evidence of notice [**37]  of dishonor being the promise of the defendant, Lord ELLENBOROUGH said: "When a man against whom there is a demand promises to pay it, for the necessary facilitating of business between man and man, every thing must be presumed against him. It was therefore to be presumed prima facie from the promise so made, that the bill had been presented for payment in due time and dishonored, and that due notice had been given of it to the defendant." And so in the case of Hicks vs. Beaufort, 4 Bing. N. C. 229, where the question was similar to that in Lundie vs. Robertson, TINDALL, C. J., said: "The cases go on this point only; that if, after the dishonor of a bill, the drawer distinctly promises to pay, that is evidence from which it may be inferred he has received notice of the dishonor, because men are not prone to make admissions against themselves; and therefore when the drawer promises to pay, it is to be presumed he does so because the acceptor has refused."
This presumption, however, is one of fact for the jury, and not an absolute legal conclusion to be drawn by the Court. It is prima facia only, and liable to be rebutted. 4 Bing. N. C. 229; [**38]  Booth vs. Jacobs, 3 Nev. & Man. 351; Picken vs. Graham, 1 Cr. & Mee. 728; Brownwell vs. Bonney, 1 Q.B. 39. If no demand had been made and notice given, the defendant would be entitled to prove the omission, and the further fact that his promise or acknowledgement had been made without knowledge of the plaintiffs' neglect in this respect, and thus rebut the presumption. The jury should be required to find from the evidence whether due demand and notice had occurred, as ground of the plaintiffs' right to recover. This being so, the plaintiffs' second prayer is also erroneous in not requiring due demand and notice to be found by the jury. Instead of making the right of recovery depend upon the legal conclusion to be drawn from the facts stated, 

 [*435]  the jury should have been instructed that it was competent to them, from the facts enumerated, if found to exist, to infer and conclude, as matter of fact, that due demand had been made and notice of dishonor given, and if they should so find, that then the plaintiffs were entitled to recover. It follows, therefore, that the plaintiffs' second prayer was properly rejected by the Court below.
It [**39]  results necessarily from what has been said that the defendant's first prayer was erroneous, and should not have been granted. It assumed that the contract resulting from the del credere commission was discharged in the payment of the money by Akers to the defendant. This, as we have seen, was an erroneous view of the law. It also follows from what we have said in reference to the plaintiffs' second prayer, that the second prayer of the defendant should not have been granted. It assumed that the defendant could not be held liable, after the receipt of the money from Akers, either by virtue of the commission del credere, or his indorsement of the draft, if he used ordinary diligence in transmitting the money to the plaintiffs. This, as we have shewn, is not maintainable. The judgment below will be reversed, and a new trial awarded.
Judgment reversed, and new trial awarded. 

75 of 142 DOCUMENTS 

WILLIAM STIRLING and ADOLPH AHRENS, Garnishees of N. W. LAWSON vs. GRENVILLE LOUD, and others, trading as LOUD, CLARIDGE & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 436; 1871 Md. LEXIS 3 

January 12, 1871, Decided 

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

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Responsibility of the Master of a Vessel for necessary Supplies -- Interest of the Owners of a Vessel in the Freight.

Supplies were furnished for a schooner which was hired under a contract with the owners, known as a "lay," the terms of which were that the master should victual and man the vessel, and after all port charges were deducted, he should receive one-half of the freights. The existence of the contract was known to the parties who furnished the supplies for the vessel. The account for the supplies was kept against the schooner and owners. An attachment was issued by the parties who furnished the supplies, against the master of the vessel, a non-resident, and laid in the hands of persons who had chartered the vessel from the master in his own name. At the time of laying the attachment there was a net balance in the hands of the garnishees for freight due on the charter-party, more than the claim for supplies; and at the same date the master was indebted to the owners of the vessel on account of freights earned under the contract with them, to an amount greater than that due by the garnishees on the charter-party. Before the laying of the attachment, the owners of the vessel notified the garnishees not to pay the master any more of the freight then due. HELD:

1st. That the master, and not the owners, was responsible for the supplies furnished to the vessel, notwithstanding the bill for them was made out against the vessel and her owners.

2d. That the balance of the freight in the hands of the garnishees, due on the charter-party, was not the rightful property of the master, and therefore not subject to the attachment. 

COUNSEL:
Arthur George Brown and George Wm. Brown, for the appellants.

A contract of "lay" is a continuing contract, and from the nature of the case necessarily must be so, lasting while the captain remains in command, and each voyage is not and cannot be considered a separate and distinct undertaking. The contract of lay in this case is proved to be a continuing contract, beginning in August, 1867, with the fitting out of the schooner, and continuing until Lawson's discharge. Thomas, et al. vs. Osborn, 19 Howard, 22.

Lawson's interest in the earnings of the vessel was simply his "wages."

The charter-party in this case, though signed by Lawson in his own name, was the contract of his principals. Higdon vs. Thomas, 1 H. & G., 139; Oelrichs & Lurman vs. Ford, 21 Md., 489.

The plaintiffs have no other or better right than Captain Lawson would have if the suit had been brought by him against the garnishees. The appellees might have refused to sell provisions on the captain's credit, and if they had sold on the credit of the ship and owners, the admiralty law would have given them a lien which [**2]  could be enforced by libel, instead of this attachment. Thomas, et al. vs. Osborn, 19 How., 22-29, 30; The Grapeshot, 9 Wallace, 129. But after neglecting to avail themselves of the means necessary to entitle them to this easy remedy, devised for the protection of just such cases; after voluntarily giving personal credit to the captain, they cannot now hold the ship and owners liable for his debt. Story on Agency, secs. 269-288, 289; Patterson vs. Gandasequi, 15 East, 62; Patapsco Ins. Co. vs. Smith, 6 H. & J., 166-171.

The instruction given by the Court was erroneous. The account of Stirling & Ahrens is not a personal account with Captain Lawson, but is with the Schooner L. C. Hickman and owners. If on that account Captain Lawson had brought suit against Stirling & Ahrens for the balance in their hands, it would have been competent for them to show that they had received notice from the owners not to pay to him, and that, in fact, the balance was due to them. So the owners could have recovered the balance from Stirling & Ahrens in an action for money had and received, brought against them.

In no form of action can Captain Lawson or his creditors recover from Stirling & Ahrens [**3]  anything that he was not entitled to, as his wages, under the contract of lay.

Joseph B. Seth and William S. Waters, for the appellees.

The Court below was right in granting the plaintiff's prayer.

Lawson holding and using the vessel, under the contract in question, was owner, pro hac vice, and responsible for such debts as those upon which this suit was brought. Webb vs. Pierce, 1 Curtis, 104; Thomas, et al. vs. Osborn, 19 Howard, 30-38; Kenzel vs. Kirk, 37 Barb., 113; Hallet vs. Col. Ins. Co., 8 Johns., 272; Manter vs. Holmes, 10 Met., 402; Taggard vs. Loring, 16 Mass., 336; 3 Kent's Com., 137 to 139.

By virtue of the contract under which Lawson held the vessel, the freight was primarily due to him. The claim of the owners against him for the hire of the vessel was an ordinary indebtedness, the owners holding no better position than other creditors of Lawson. They had no lien upon the money attached in this case which they can interpose against the attachment.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*438]  ALVEY, J., delivered the opinion of the Court.
This is an attachment on warrant against Lawson,  [**4]  the defendant, as a non-resident, and the claim of the appellees is for supplies furnished for the schooner "L. C. Hickman," while the defendant was master thereof, and sailing her under a contract with the owners, known as a "lay." The terms of the contract were, that the defendant as master should victual and man the vessel, and after all port charges were deducted, to get half the freights. These are the usual and customary terms of such contracts. The existence of the contract was known to the appellees at the time of the supplies 

 [*439]  furnished, but the account was kept against the schooner and owners.
The case was tried in the Court below on the pleas of non-assumpsit and nulla bona. It was shown that there was a net balance in the hands of the appellants, at the time of laying the attachment, of $ 1,898.12, for freight due on charter-party, entered into with Lawson in his own name. The freight was reserved by the charter-party to Lawson for a voyage from Baltimore to Humacao, and back. It was also shown in evidence that, at the time of laying the attachment, Lawson, the defendant, was indebted to the owners of the vessel, on account of freights earned, under [**5]  the contract with them, an amount greater than that due by the appellants on the charter-party. And it was also in proof that, before the laying of the attachment, the owners, by their duly authorized agent, notified the appellants not to pay the defendant, Lawson, any more of the freight then due, and they agreed that they would not. The defendant was discharged as master of the vessel on the morning of the 17th of March, 1869, and the attachment was laid in the evening of the same day.
The Court below, at the instance of the appellees, instructed the jury, that if they found the existence of the contract between the owners of the vessel and the defendant; the indebtedness of the defendant to the appellees; the non-residence of the defendant; the making of the charter-party given in evidence, and that, at the time of issuing the attachment, there was in the hands of the appellants the sum of $ 1,898.12, due for freight under the charter-party, "then the verdict must be for the plaintiffs upon both issues." And whether this instruction be correct or not depends upon the real nature of the contract under which the vessel was let to the master, and the rights of the respective parties [**6]  thereto.
Contracts of the character of the one in question have become quite familiar and of frequent use among those engaged in the coasting trade of this country. They have, in several cases, been the subject of judicial decision, and their 

 [*440]  nature and qualities have been determined, and the rights and liabilities under them become, to a great extent, fixed and well understood. And as the contract in this case is of the customary nature, without any special provisions in it to distinguish it from others of its class, its attributes may be stated to be, that, under it and during its existence, the general owners were required to keep the vessel in repair, but the master had the entire possession, command and navigation of it, with a right to employ her in such freighting voyages as he should think proper; thus becoming owner of the vessel, pro hac vice, and not a mere agent of the general owners as ordinary masters are. He was to victual and man the vessel at his own expense, and from the gross earnings were to be deducted all port charges, and the residue then to be divided into two equal parts, one of which was to belong to the owners, and the other to the master.  [**7]  This agreement, being indefinite as to its duration, could be terminated by the restoration of the vessel to the owners by the master, or by their intervention to displace him, at the end of any voyage, but not while conducting a voyage. This is the exposition of the contract as given by the Supreme Court of the United States, in the case of Thomas vs. Osborn, 60 U.S. 22, 19 How. 22, 15 L. Ed. 534, and it seems to accord with that given in other cases on the subject.  Webb vs. Peirce, 1 Curt. 104, 29 F. Cas. 501; 3 Kent's Com., 138.
Seeing, then, that the master, when he hires a vessel on shares, as was done in this instance, is under an obligation to victual and man her, and becomes the owner, pro hac vice, during the existence of the contract, it would seem necessarily to follow, that he, and not the general owners, is responsible for the supplies furnished to the vessel; and that notwithstanding the bill for the supplies was made out against the vessel and her owners. Story on Agency, section 297. It follows, therefore, that if the freight in the hands of the appellants, or any portion thereof, be the rightful credit of the master,  [**8]  it should be condemned for the satisfaction of the claim of the appellees.

 [*441]  But was the balance of the freight in the hands of the appellants, due on the charter-party, under all the circumstances of this case, the rightful credit or property of the master, and therefore subject to the attachment. We are clearly of opinion that it was not.
It is said in 1 Parson's Mar. Law, 236, that "when the earnings of a vessel let on shares are collected, they are equally the money of the owner and master, and the latter becomes a trustee of the owner's share. And if a third person, knowing all the facts, is authorized by the master to receive the freight already earned, and promises to pay the owner his share, afterwards receives the money, he holds it for the use of the owner, and the latter may sue him for it." This last proposition was so decided in the case of Williams vs. Williams, 23 Me. 17, and we think the principle of that case fully embraces this. It may, indeed, be conceded, that, as a general proposition, the master, sailing the vessel on shares, is alone entitled to collect the freights earned, and, if it be necessary, to sue for their recovery.  [**9]  But it does not follow, because such right exists exclusively in the master, that the owners may not interpose for their protection. They have, at least, an equitable right to the money attached, and if it were paid over to the defendant he could hold it in no other character than as trustee. It is not money liable for his debts, and the owners having made known their claim to the appellants, the latter were justified in resisting the attempt to apply the money, that in equity and conscience belongs to the owners, to the payment of the proper individual debt of the master, the defendant. A Court of Equity would certainly restrain such application of it, and we can perceive no propriety in allowing it to be condemned to such purpose.
It was contended in argument that the freight earned by each voyage of the vessel was a separate and distinct affair, and gave rise to separate and distinct rights of account, and that, consequently, the balances due the owners for and in respect of freight on former voyages, should not be allowed 

 [*442]  to off-set the master's right to his full half of the net earnings of the last voyage. But to this proposition we do not agree. The master's accountability [**10]  to the general owners is co-extensive with the existence of the contract, and there is nothing in the contract itself looking to any such division of accounts, whatever may be the practice in such cases, as matter of convenience to the parties.
As the instruction given by the Court required the verdict to be found for the appellees, without reference to the evidence tending to establish the fact that the defendant in the attachment had no actual beneficial right to or interest in the freights in the hands of the appellants, and that they had been notified to hold them to the use of the general owners, to whom they in equity and right belonged, it follows that such instruction was erroneous, and should not have been granted. And as to the prayer of the appellants, which was rejected by the Court, we forbear to express any opinion in regard to it, as we suppose the whole case to be embraced in what has been said upon the instruction that was actually given.
Judgment reversed and new trial awarded. 

76 of 142 DOCUMENTS 

MARGARET SMITH vs. JOHN DOE, ex dem., J. UPSHUR DENNIS, Adm'r d. b. n. c. t. a. of H. CONNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 442; 1871 Md. LEXIS 4 

January 12, 1871, Decided 

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

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Void bequest -- Incomplete administration -- Plea of Limitations in an Action of Ejectment.

H. Conner bequeathed certain leasehold property to his wife for life, and after her death, to her son for his life, and after his death to an illegitimate son of the testator absolutely. The legatee in remainder was a slave for life, and not the property of the testator. The wife of the testator was appointed the sole executrix, and as such, obtained letters testamentary upon her husband's estate and returned an inventory thereof, but never settled an account in the Orphans' Court. She paid all the debts of the estate, however, and took possession of the property as legatee under the will, and continued such possession until her death, "without having made any other transfer, conveyance, sale or distribution of the same, or having obtained any order of the Court therefor, either as executrix or otherwise." Upon her death, her son took possession of the leasehold premises, and continued in possession until August, 1822, when he sold all his right therein to S, who took possession, and in December following, conveyed his interest therein to C, who took possession and retained it until his death. Upon his death, his executor took possession of the premises as part of the estate of his testator, and held the same until they were assigned to the defendant as a distributive portion of said estate. H. Conner left next of kin. The second tenant for life died more than twenty years previous to June, 1869, when letters of administration d. b. n. c. t. a. on the estate of H. Conner were granted to the plaintiff's lessor, who, after obtaining such letters, made demand for the premises, and was refused. In an action of ejectment by him to recover the premises, it was HELD:

1st. That the bequest of the residuary interest in the premises failed, the legatee being a slave, and not belonging to the testator, and such interest, after the expiration of the estates of the two life-tenants, remained undisposed of, and formed part of the testator's estate for distribution to his next of kin.

2d. That such residuum was a proper subject for an administration de bonis non, and vested in the administrator upon the grant of such letters.

3d. And as there was no person in being capable of suing after the termination of the last life estate, until the grant of letters to the lessor of the plaintiff, the Statute of Limitations did not bar.  

COUNSEL:
Bernard Carter, for the appellant.

The estate of Hannibal Conner was fully administered by his widow and executrix, Sybil Conner, she having paid off the debts of the estate and taken possession of the premises in controversy, and of the other estate devised and bequeathed to her as legatee under said will, and so continued in possession thereof until her death, when the second life-tenant, Lloyd Gibbs, took possession of the said property as legatee under said will.

There was, therefore, nothing to require an administration d. b. n., and the plaintiff's lessor, in this case, took no title to the property in controversy. Alexander vs. Stewart, 8 Gill & John., 241; Alexander vs. Riston, 2 G. & J., 99; Gardner & Hughes vs. Simmes, 1 Gill, 428; Lemmon vs. Hall, 20 Md., 169.

The next of kin, upon the death of the second life-tenant, was entitled to the possession and enjoyment of the property, and had the right to bring any action which was necessary to obtain possession thereof from Frederick Cook, the grandfather of the appellant, who was then in adverse and exclusive possession thereof, claiming [**2]  it as his own. Binnerman vs. Weaver, et al., 8 Md., 517; Williams vs. Holmes, 9 Md., 281; Hewitt's Case, 3 Bland, 185; Coward vs. Worrell, 7 G. & J., 475; Kent vs. Sommervell, 7 G. & J., 272.

No deed was necessary to vest title in the next of kin of H. Conner.

More than twenty years having elapsed from the death of Lloyd Gibbs, the second life-tenant, before the institution of this suit, and there being at his death a person in being, (Henrietta Williams, the next of kin,) capable of instituting an action for the recovery of possession of said property, the adverse and exclusive possession of the appellant and her grandfather, F. Cook, during said twenty years, gives her a perfect title.

Sybil Conner held as legatee and not as executrix. After paying the debt of her testator, her title as executrix was gone. Gardner & Hughes, Ex'rs, vs. Simmes, 1 Gill, 428; Watkins' Adm'rs vs. State, &c., 2 G. & J., 220; Boyd, et al. vs. Boyd, 6 G. & J., 25, 33; Evans, et al. vs. Iglehart, et al., 6 G. & J., 183; Sparks, et al. vs. Weedon, 21 Md., 165.

In case of lapsed or void legacies, the property goes to the next of kin--the executor is only trustee for them. 2 Roper on Legacies,  [**3]  1704, 1715; Androvin vs. Poilblanc, 3 Atkyns, 299; Bagwell vs. Dry, 1 P. Will., 700.

Spotswood Garland and John Scott, Jr., for the appellee.

The bequest in remainder to Thomas Conner was void on account of his condition, and Hannibal Conner died testate only of the two estates for life, there being an intestacy as to the residue of the term. Hall vs. Mullin, 5 H. & J., 190, 194 and 195, Heirs of Cunningham vs. Ex'rs, Taylor's Reports, 209; Gist vs. Toohey, 2 Richardson, 424; Wicks vs. Chew, 4 H. & J., 547.

The unbequeathed portion of the term vested in the executrix, (Sybil Conner,) as well as that part which passed by the will. Gibbons vs. Riley, 7 Gill, 83; State vs. Bank of Maryland, 6 G. & J., 230; Hays vs. Jackson, 6 Mass., 152.

The legal title to the unbequeathed remainder continued in the executrix until her death as part of the estate of Hannibal Conner, and vested in the administrator de bonis non, on his appointment, as undistributed property. During the life of Gibbs, the holder thereof had no power to take possession or bring ejectment. It was a vested estate in presenti to be enjoyed in futuro. On his death, when it became of present enjoyment, there [**4]  was no one clothed with the title in existence to whom the right of action or demand could possibly accrue. The title was in abeyance, and the right to possess happened in the interval between the death of the executrix and the appointment of her successor. Limitations and lapse of time is no bar to the latter's right, for, until his appointment, no one had power to take possession. The right to enter and hold, which is required to maintain ejectment, never vested in the executrix, for, during her life and that of her son, it remained in the legatees. The present case is one in which the right to bring ejectment accrued when there was no one to bring it, and the authorities are decisive, that the period of presumption and of limitations date from the existence of a person free from disabilities, clothed with the right to sue. Fishwick vs. Sewell, 4 H. & J., 428; Haslett vs. Glenn, 7 H. & J., 17-24; Smith vs. Wilson, 17 Md., 460; Murray vs. East India Co., 5 Barn. & Ald., 212.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*446]  ALVEY, J., delivered the opinion of the Court.
This was an action of ejectment brought [**5]  to recover certain leasehold property situate in the City of Baltimore. The case was tried in the Court below on an agreed statement of facts; and whether, upon the facts thus admitted, the plaintiff is entitled to recover is the question to be decided.
From the agreed statement it appears that Hannibal Conner died about the year 1813, sole owner and possessor of the leasehold property in question, and that by his will, which was duly admitted to probate after his death, he bequeathed the same to his wife Sybil Conner for life, and after her death to her son Lloyd Gibbs, for his life, and after the death of the latter to an illegitimate son of the testator, named Thomas Conner, absolutely. The last named legatee was a slave for life, and died in the lifetime of Lloyd Gibbs. The wife, Sybil Conner, was appointed sole executrix of the will, and as such obtained letters testamentary upon her husband's estate, and returned an inventory including the property now sued for, but never settled an account in the Orphan's Court. She paid all the debts of the estate, however, and took possession of the property in controversy as legatee under the will, and continued such possession until her [**6]  death, "without having made any other transfer, conveyance, sale or distribution of the same, or having obtained any order of the Court therefor, either as executrix of said Hannibal Conner, deceased, or otherwise." Lloyd Gibbs, the next legatee for life, took possession of the premises on the death of his mother, and continued in possession thereof until August, 1822, when he sold all his right, title and interest, in and to the same to one Sumwalt, for the consideration of $ 110. Sumwalt took possession under the deed from Gibbs, and held it until December, 1822, when, for the consideration of $ 150, he sold all 

 [*447]  his interest in and to the premises to Frederick Cook, who entered into the possession thereof under such sale, and continued such possession until his death, holding and claiming the premises as his own. Upon Cook's death his executor took possession of the premises as part of the estate of his testator, and held possession thereof until they were assigned to the defendant as a distributive portion of the estate of the testator, Cook. "Since which time," adopting the language of the agreed statement, "they have been held by the said defendant as her property,  [**7]  derived from her grandfather, the said Cook, and that the claim of ownership of said property, and the possession thereof, as well of the said Sumwalt, the said Frederick Cook and of the defendant, and of all those claiming under said Sumwalt, Cook, and the defendant, has been exclusive and unbroken, and the acts of ownership of each and all of said parties thus enumerated, have been acts which comport only with the sole and exclusive ownership of said parties of said land."
Gibbs, the second tenant for life, who was not of blood relation to the testator, died more than twenty years previous to June, 1869, when letters of administration de bonis nis, cum testamento annexo, on the estate of Hannibal Conner, were granted by the Orphan's Court of Baltimore City to the lessor of the plaintiff in this action. After obtaining such letters the plaintiff made demand of the premises, which was refused.
Hannibal Conner left next of kin who would be entitled to any portion of his estate not effectually disposed of by his will.
Thomas Conner, the party to whom the residuary interest in the premises was given, being a slave for life, and not belonging to the testator, the bequest of that [**8]  interest failed; it being well settled that a devise or bequest to a slave for life, if it cannot operate to give freedom, as well as the property intended for the benefit of the devisee or legatee, is absolutely void. Hall vs. Mullin, 5 Har. & John. 190. That being so, the residuary interest of the testator, after the expiration of 

 [*448]  the estates of the two life-tenants, remained undisposed of, and formed part of the testator's estate for distribution to his next of kin. And it is upon the assumption that the estate of Hannibal Conner has not been fully administered, and distribution of this residuum made, that letters of administration de bonis non have been obtained from the Orphans' Court.
Whether such letters were properly granted is not for this Court to determine. The Orphans' Court granting the letters had exclusive jurisdiction of that matter; but whether the property sued for in this action vested in the lessor of the plaintiff by virtue of such letters is quite a different question, and one that depends upon the fact whether the estate was fully and completely administered by the executrix of Hannibal Conner.
There can be no question but that [**9]  to enable the next of kin to derive and establish complete title to the personal estate of the deceased, administration is essential. And although this is not denied, it is insisted, that, in this case, the premises in controversy having passed into the possession and enjoyment of the life tenants, as legatees under the will, by the assent of the executrix, the estate, as to this particular property, must be taken as having been fully administered, and that the next of kin were entitled to take, after the expiration of the estates for life, without any further administrative act on the part of the executrix. For this position, however, none of the authorities cited in argument give any support, nor have we been able to discover any precedent that would lend it the remotest sanction.
It is admitted that no distribution in fact was ever made to the next of kin, nor was there ever an account stated in the Orphans' Court. It does not, in any manner, appear that the executrix ever even recognized the right of the next of kin to distribution of the residuum of the estate; and it is certain that the Orphans' Court was never called upon to sanction any distribution whatever. In such a [**10]  state of things, how can it be said that the estate has been fully 

 [*449]  administered? It may well be, that the legatees for life were allowed to enjoy their legacies, and to that extent, and so far as they were concerned, the estate was administered; but it does not follow, by any means, that the estate was therefore fully administered in regard to the rights of all other persons. Until distribution of the residuum of the estate to the next of kin, there was not full and complete administration; for, without distribution according to law, the next of kin could neither claim nor sue for any specific property of the estate. It is only through distribution that the title of the distributees to possession and actual enjoyment can be shewn, though they may have an interest in the property, subject to distribution, before the distribution is actually made.
The Act of 1798, chapter 101, sub-chapter 11, section 16, and sub-chapter 14, section 12, directed when and how distribution should be made in the Orphans' Court; and sub-chapter 5, section 6, and sub-chapter 14, section 2, of the same Act, directed when letters of administration de bonis non might be granted; "and [**11]  the authority conferred by such letters," says the Act, "shall be to administer all things herein described as assets, not converted into money, and not distributed or delivered, or retained by the former executor or administrator under the Court's direction."
In the case of Scott vs. Fox, 14 Md. 388, the Orphans' Court had passed an account in which the administratrix charged herself with the balance due the estate by the former account, and claimed credits for payments made to each of the distributees, in full of their shares, except one, whose share was placed to his credit in bank, and for which, also, she claimed credit in her account. But because it did not appear that any meeting of the distributees was appointed, or any notice of such meeting given, or that the distributee, whose share was deposited in bank, had ever received it, or assented to the distribution made, it was held, that there had not been a final distribution of the estate made by the 

 [*450]  Orphans' Court, and that there was nothing in the account passed by that Court to prevent an administrator de bonis non, seven years after, from having errors corrected and distribution [**12]  completed. And if an administrator de bonis non was deemed proper and necessary in that case to represent the estate and complete the administration, how much more was one required in this, where no administration account has ever been settled, and no attempt even to make distribution of that part of the estate to which the next of kin was entitled?
This case cannot be distinguished in principle from that of Alexander vs. Stewart, 8 G. & J. 226. There the administrator de bonis non was deemed, not only proper, but actually necessary, the executor not having completed the administration by delivering over the property in his hands to the persons entitled thereto, without which, said the Court of Appeals, there could be no full administration.
It was supposed in that case, because all the debts had been paid by the executor, and the estate had, in all respects, been fully administered, except that the specific property belonging to the estate had not been actually delivered over to the parties entitled to it under the will, that it was competent for the administratrix of the deceased executor, to have passed the property, remaining specifically in her hands,  [**13]  to the distributees, without the intervention of an administrator. But the Court of Appeals said: "It is true, if all the debts were paid, they (the distributees) were beneficially entitled to it; but they could not have been clothed with a legal title but through the medium of an administrator, and had their possession been thus acquired, it might have been liable to be divested by the grant of letters subsequently to an administrator de bonis non. The Act of Assembly, in express terms, rendering effects, specifically existing, liable to administration."
The residuum of Hannibal Conner's interest in the premises, upon the termination of the estates for life given by his 

 [*451]  will, not having been converted into money, nor distributed or delivered to the party entitled, or retained by the former executrix, under the Court's direction, it is a proper subject for an administration de bonis non, and, therefore, became vested in the administrator upon the grant of such letters. And as there has been no person in being capable of suing since the termination of the last life estate under H. Conner's will, until the grant of letters to the lessor of the plaintiff, the [**14]  Statute of Limitations does not bar, although the holding of the defendant, and those under whom she claims, has been exclusive, and by claim of right and title in themselves, for more than twenty years since the termination of such life estate, and before the bringing of this action.
Judgment affirmed. 

77 of 142 DOCUMENTS 

L. JEWETT GROVE, and others, of the SOCIETY OF GERMAN BAPTISTS, vs. THE TRUSTEES OF THE CONGREGATION OF THE DISCIPLES OF JESUS CHRIST, in the City and Precincts of Baltimore.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 451; 1871 Md. LEXIS 5 

January 12, 1871, Decided 

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

The bill of complaint in this case was filed by the appellants. The appellees demurred and answered. By agreement of counsel, a judgment sustaining the demurrer was entered, pro forma. From that judgment the present appeal was taken. The bill alleged in substance that by deed dated 1787, John Eager Howard, for the consideration of £  100 specie, conveyed to certain trustees therein named, "and their successors," the lands in question, "to and for the only proper use and behoof of the said German Baptist Society [the Tunkers] forever;" that under that deed the trustees entered, and those for whom they held the land, used it in full and undisputed enjoyment for many years, for a place of religious worship, and for the burial of their dead; that in 1808, the same grantor made a new deed of the same lands to trustees, in part new, "and the male heirs of their bodies severally and lawfully begotten;" and by the same deed sought to enlarge and alter the trusts of the deed of 1787.

That in 1849, one John Stouffer, [representing himself to be the sole surviving trustee under the deed of 1808,] and others, executed a "license to [**2]  the Trustees of the Congregation of the Disciples of Jesus Christ," to build a Church on the trust-lands, for the "exclusive worship" of the Disciples. The consideration for this license, under which the appellees claim exclusive rights, was one dollar. The structures erected as conditions of the deed, being under claim of the appellees, for the exclusive use of the Disciples, no other consideration than the one dollar moved to the Tunkers; that the house, wall and vault, the building of which were the conditions of the deed of license, were not built pursuant to the covenants of the deed; that the Tunkers reserved the right to worship in the house built by the Disciples; which right, though not set forth in the deed, "was by them fully and explicitly conceded." In fact, until recently, the Disciples admitted that their right was subordinate to the primary right of the Tunkers; that the appellees, claiming exclusive right to the property, had, for the last year preceding the beginning of this suit, excluded the Tunkers from the right to worship in the house and had refused all offers for a peaceful adjustment; that the Tunkers are the very Society of Christians who paid for the property,  [**3]  and in trust for whom alone the deed was made by Howard.

The entire rights of the appellees are acquired under the deed of "license" of 1849. That license was based on the new trusts and powers declared in the deed of 1808. But the deed of 1808 was a nullity, if the deed of 1787 passed the fee out of Howard. He had nothing to grant.

The bill prayed that the trust should be executed in favor of the complainants; that the Court would appoint proper trustees under the deed of 1787, and decree possession of the property to the complainants and remove the defendants. To this was added the prayer for general relief.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Grants of Land to Religious Societies -- When void under the 34th Article of the Declaration of Rights.

In 1787, H conveyed a parcel of land -- less than two acres -- to trustees for the use of a religious society. The deed did not express that the land was "for a church, meeting, or other house of worship," or "for a burying ground;" nor did it declare that the land should "be improved, enjoyed, or used only for such purposes;" and it was not averred or shown that there had been any assent of the Legislature to the grant. The society remained in possession of the land using it as a burying ground until 1808, when H made another deed conveying the property to trustees for the use of the same religious society, and defining more accurately the purposes of the trust. HELD:

1st. That the deed of 1787, was in contravention of the 34th Article of the Declaration of Rights and consequently void.

2d. That the original grantor had the right to treat it as defective and void, and to execute the deed of 1808, which, therefore, became the first valid and effective grant.  

COUNSEL:
Innes Randolph, for the appellants.

E. Otis Hinkley, for the appellees.  

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

OPINIONBY:
MILLER 

OPINION:

 [*453]  MILLER, J., delivered the opinion of the Court.
The disposition of this appeal depends mainly upon the rights of the parties under the several conveyances filed as exhibits with the bill.

 [*454]  By deed of the 13th of February, 1787, John Eager Howard, for the consideration of £  100, conveyed to nine named individuals "and their successors" a piece [**4]  of ground (less than two acres) adjoining Baltimore town, in trust "for the society of German Baptists commonly called Dunkers, to and for the only proper use and behoof of the said German Baptist Society forever, and to and for no other use, intent or purpose whatsoever." Upon its face this deed is in direct contravention of the 34th Article of the then Declaration of Rights. It is a conveyance of land in trust for a "religious sect, order, or denomination," and though not exceeding two acres, yet the deed does not express that it is "for a church, meeting, or other house of worship and for a burying ground," nor does it declare that the land "shall be improved, enjoyed or used only for such purposes." No assent of the Legislature thereto is averred, nor does any such assent appear ever to have been given. Such a conveyance the Article referred to declares shall be void, and the Courts have uniformly enforced like provisions in all the Declarations of Rights under the several Constitutions of the State. 1 Bland 529; Murphy vs. Dallam, 28 Md. 338. That being the law as to the invalidity of this conveyance, the original grantor, in our opinion,  [**5]  had the right to treat it as defective and void, and to execute the deed of the 17th of November, 1808, which therefore became the first valid and effective grant, and must operate as such, and not as a mere affirmance of the deed of 1787. This view dispenses with the necessity of deciding whether the deed of 1787 was defective to pass the fee for want of words of limitation to the heirs of the grantees.
By the deed of 1808 it is stated that "it was and is the true intent of the said John Eager Howard that the said lot of ground should at all times thereafter be used as a burial ground, or a place of deposit for the remains of the members of the Society of German Baptists, commonly called Dunkers, and such other persons as a majority of the trustees for the time being, residing in Baltimore City and precincts, should 

 [*455]  or shall think proper and give permission to be buried therein, and that any house erected or to be erected thereon should and might at all times be used as a place of public or private worship for the said Society, or such other persons as a majority of the trustees aforesaid residing in the city and precincts of Baltimore should think proper." The [**6]  deed then conveys the lot to thirteen named persons, including four of the original trustees named in the deed of 1787, and to their heirs and assigns in trust for the above mentioned uses and purposes and none other. From an examination of the terms of this trust it is apparent that whilst the lot is to be used as a burial ground for the Dunkers, and such other persons as a majority of the trustees might give permission to be there buried, in respect to the house for public or private worship, erected or to be erected thereon, the provision is that it may at all times be used by the Dunkers, or such other persons as a majority of the trustees should think proper to permit so to use it.
On the 15th of September, 1849, an indenture was executed between a majority of the trustees or the heirs of the trustees, under the deed of 1808, of the one part, and "the trustees of the congregation of the Disciples of Jesus Christ," a body corporate, incorporated under the Act of 1802, ch. 111, of the other part, which, after reciting in full the deed of 1808, states in effect that there was then on the premises no house whatever; that the parties of the first part deemed it advisable one [**7]  should be erected in accordance with the provisions of the deed of trust; that the parties of the second part, "in consideration of the license, liberty, privilege, sufferance, permission, and right, granted to them by this indenture," have agreed to build at their own expense a house on part of the ground, and also a brick wall around the whole lot, and to erect a public vault thereon; and that the parties of the first part "think proper in the exercise of the power vested in them by said deed of trust, to permit and appoint that said house which may be erected by the parties hereto of 

 [*456]  the second part shall be used as a place of public or private worship by the parties hereto of the second part exclusively, as hereinafter particularly mentioned, during the continuance of said corporation and this license." The grantors, then, in consideration of the premises, of the sum of one dollar, and of the performance of covenants hereinafter mentioned to be performed by the grantees, "concede, give and grant the liberty, license, privilege, faculty, and permission, and right, unto the said parties of the second part, to occupy, use, possess and enjoy exclusively for the [**8]  uses hereinafter declared," a designated part of the lot. It then provides the licensees shall hold the building to be used at all times hereafter during their corporate existence as a place of public or private worship for themselves exclusively; "and it is hereby declared to be the true intent and meaning of these premises and of the parties hereto, that the said building to be erected by the" licensees "as a place for public worship when erected shall be held, used, occupied, possessed and enjoyed by" them "at all times hereafter for the purpose aforesaid without the let, hindrance, molestation, interruption or entry of the said parties hereto of the first part, or any of them, unless upon cessor of the estate of the" licensees, "by abuser or non-user or other forfeiture of the rights, privileges, liberties and license, hereby granted unto them; but it is nevertheless understood as the true intent and meaning of these presents and of the parties hereto that the rights, privileges, liberties and license hereby given, granted and conceded, and intended so to be, are such as the said parties hereto of the first part may lawfully give, grant and concede and not other or further.  [**9]  "
The licensees then covenant and agree on their part, forthwith to erect, at their own expense, on the licensed ground, a good and sufficient two-story brick house, of certain dimensions for worship; to build, within three years, a good and substantial brick wall around the whole lot, to keep the same in repair during the continuance of the license, and pay all paving taxes and assessments that at any time may be levied 

 [*457]  or assessed on the whole or any part of the entire lot; to erect forthwith, at their own expense, a good and substantial brick vault for the interment of the dead, on some part of the lot; to purchase, at their own expense, before they proceed to erect a house of worship, the right of property held by certain parties in a family burial ground and vault, built on part of the licensed ground; not to underlet the licensed premises without consent of a majority, for the time being, of the trustees under the deed of trust, nor use the licensed premises, or any part of them for any other purpose than is authorized by that deed. It is then agreed, that this instrument is made upon condition that if the licensees do not faithfully perform and keep each and every [**10]  one of the several covenants on their part to be performed and kept, then it shall be lawful for the trustees for the time being, under the deed of trust, to reenter into the licensed premises and re-possess and enjoy the same as of their former estate, and in such case, this indenture shall be void and of none effect.
This license professes to be given in pursuance of the deed of 1808, and, in our opinion, the trustees, in granting it, did not exceed the power and authority vested in them by that instrument. Under that deed, whilst the Dunkers cannot be excluded from the use of the premises as a burial-ground, the trustees have the power to permit other persons to use, and exclusively, if they think proper, any house erected or to be erected on part of the granted premises, as a place of public or private worship. The appellees obtained, for a valuable consideration in building and keeping in repair the walls around the whole lot, and in other onerous duties and obligations which they assumed, a license to erect on part of the lot a house of worship, for their own exclusive use, if they preferred at any time to exclude others therefrom. They erected the building at their own expense, [**11]  and the object of the present bill is, by a decree of a Court of Equity, to remove them from its possession and deliver the same to the appellants, and in the meantime, for an order pendente lite to secure a 

 [*458]  joint or common use thereof by both parties, and, if necessary, to appoint a receiver of the property for that purpose.
The bill necessarily bases the complainants' claim to the relief asked, upon the invalidity of this license, resulting from their construction of the effect and operation of the antecedent deeds and the rights of the parties thereunder. That construction being in our opinion erroneous, and the license a valid and effective exercise of the authority conferred upon the trustees, it follows the demurrer was properly interposed and sustained by the pro forma decree of the Circuit Court. Any rights the appellants may have, founded on a forfeiture or non-performance of the conditions contained in the deed of license, are provided for by that instrument itself, and must be asserted in another forum. The powers of a Court of Equity cannot be invoked to declare and enforce such forfeiture.
Decree affirmed. 

78 of 142 DOCUMENTS 

JOHN S. GITTINGS vs. THE STATE OF MARYLAND, use of HENRIETTA OCKERME.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 458; 1871 Md. LEXIS 6 

January 12, 1871, Decided 

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

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

From what an Appeal will not lie -- Non-residence as a Defence to an Action -- Practice.

An appeal will not lie from an order directing issues to be framed, for determination by a jury, upon the question of the non-residence of a defendant, raised by a motion for a judgment of non pros., upon the ground that he was not a resident of the city of Baltimore, where he was sued.

A person sued out of the county in which he resides, may present the question of his non-residence by a motion for a non pros., supported by affidavit; and when the question is so presented, it is the duty of the Court to hear and determine it, without the intervention of a jury, on affidavits, or such proof as the Court may order to be taken, in accordance with the rules of practice in summary proceedings of like character.

And such proceeding by the Court is no violation of the constitutional provision securing "the right of trial by jury of all issues of fact in civil proceedings in Courts of Law, where the amount in controversy exceeds the sum of five dollars." 

COUNSEL:
George H. Williams, for the appellant.

The Court of Common Pleas had no jurisdiction over the appellant, as he was a resident of Baltimore county. Code of Pub. Gen'l Laws, Art. 75, sec. 87. And the defence of non-residence was properly raised by a motion for a judgment of non pros., and ought to have been decided by the Court. Hoffman vs. Prout, 4 Har. & McH., 165.

A replication to a motion, a matter always addressed to a Court, is without precedent, as is also the submission of such a motion to a jury for their verdict.

The inviolable right of the plaintiff to a trial by jury is preserved to him in the county where the defendant resides, and is not destroyed nor interfered with by confining him to that jurisdiction; and it is a novelty for a Court to permit a jury to say whether it has or has not jurisdiction, either over the person of a defendant or the subject-matter of a suit.

The order appealed from was a proper subject for appeal, like an order removing a cause to an adjoining county--Wright vs. Hamner, 5 Md., 370; or an order refusing to remove a cause--Price vs. Nesbitt, 29 Md., 263; or an order [**2]  remanding a cause after it has been removed--State vs. Shillinger, 6 Md., 449.

C. D. McFarland, for the appellee.

The appeal should be dismissed, for an appeal will not lie until a final decision in the Court below, which concludes the rights of the parties to the action, and which prohibits the party appealing from further prosecuting or defending the suit. Evans' Practice, 557; Boteler and Belt vs. State, &c., 7 G. & J., 112; Wheeler, et al. vs. State, use of Bateman, 7 Gill, 33; Welch vs. Davis, &c., 7 Gill, 366; Green vs. Hamilton, 16 Md., 328; Hazlehurst vs. Morris, et al., 28 Md., 71; Smithson and Owens vs. United States Telegraph Co., 29 Md., 165.

The case remains on the docket of the Court below for trial. The order appealed from was not, therefore, a finality.

If the appeal were properly taken, the order appealed from should be affirmed. Art. 15, sec. 6, of the Constitution. Either party is entitled to a jury trial of the matters of fact contained in a motion to quash an attachment, under the Act of 1864, chapter 306. Howard, et al. vs. Oppenheimer, 25 Md., 364.

Article 75, section 87, Code of Public General Laws, provides, that "no person shall be [**3]  sued out of the county in which he resides, until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county." The appellant made a motion for a non pros., based on the allegation that he did not reside in the city of Baltimore, when the writ issued. This allegation was denied by the appellee. An issue was joined upon the matters alleged in the motion, which is in the nature of a plea in abatement, being an objection to the jurisdiction of the Court. Sim & Lee's Lessee vs. Deakins, 2 H. & McH., 46; Bryden vs. Taylor, 2 H. & J., 398; Carroll vs. Tyler, 2 H. & J., 57; Field, et al. vs. Adreon, et al., 7 Md., 209; Fouke vs. Flemming & Douglass, 13 Md., 407; Dorsey vs. Kyle, et al., 30 Md., 518.

Residence is a question of fact for the jury. Union Bank vs. Kerr, 7 Md., 88; Risewick vs. Davis, Gar., 19 Md., 82; Lyman vs. Fiske, 17 Pick., 235.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*461]  MILLER, J., delivered the opinion of the Court.
The appellant was sued in this action in Baltimore city, and, wishing to avail himself of the provision of the Code, Article [**4]  75, section 87, that "no person shall be sued out of the county in which he resides," until after a return of non est on a summons in that county, moved for a judgment of non pros. on that ground, and supported the motion by his affidavit, that, at the time of bringing this suit, he was and still is a resident of Baltimore county. The plaintiff filed a replication to this motion, denying its allegations, and applied for a jury trial of the issue thus presented. The Court, thereupon, passed an order granting the plaintiff's application, and directing issues to be framed on the matters of fact alleged in said motion, for determination by a jury. From this order the present appeal was taken, and the first question to be disposed of, raised by the motion to dismiss, is, whether the appeal was properly taken at this stage of the cause?
It is well settled, by numerous decisions of this Court, that no appeal in actions at law can be prosecuted until a decision has been had in the Court below, which is so far final as to settle and conclude the rights of the party involved in the action, or to deny to him the means of further prosecuting or defending the suit, as otherwise, by [**5]  repeated appeals, litigation might be protracted to an almost indefinite period. Hence no appeal lies from rulings upon motions or demurrers or other merely interlocutory judgments or orders pronounced and passed in the progress of the cause, to final judgment. All errors committed by the Court below in these rulings or judgments, if properly presented by exception or in some other form, are open for review on appeal from that judgment. But the appellant's counsel, treating this order as, in effect, a refusal of his motion, which involves a question of jurisdiction, contends it constitutes an exception to the general rule, and forms a proper subject of appeal, like orders, removing or refusing to move, a cause for trial, or remanding a cause after it has once been removed. Cases, 

 [*462]  where appeals have been entertained from orders of that character, have been referred to and relied on in support of this position. The case of Wright vs. Hamner, 5 Md. 370, is the only instance to be found in our reports of an appeal taken directly, before termination of the suit, from an order removing a cause for trial, and there, no question of the right of appeal was raised [**6]  or passed upon by the Court. It may be doubtful, therefore, whether that case is to be accepted as conclusively establishing the right of immediate appeal from such orders; but this is not a point now to be determined. Appeals have also, in some instances, been taken from orders remanding cases to the Court from whence they were removed, but such cases may clearly fall within the general rule, for an order of that kind may operate to deny to a party the means of further prosecuting the suit. If the Court that ordered the removal in the first instance should adhere to its original order, and refuse to try it, on being remanded, the cause would terminate, and no trial could ever take place. It is easy to recognize the final nature of such an order, and the necessity of allowing an appeal therefrom.
Appeals have also been allowed from orders refusing a removal. The ground upon which these are sustained is stated in Griffin vs. Leslie, 20 Md. 15, where it is said an order of that character unlike ordinary rulings on motions addressed to the discretion of the Court, or on demurrers and other interlocutory judgments, "does finally settle a constitutional right of [**7]  the party, the exercise of which when demanded is essential to the impartial administration of justice, and should not be withheld or postponed." Whether the statutory right or privilege of being sued only in the county of residence ought to be placed on the same footing, and its refusal made the subject of an immediate appeal, we need not now decide, because the present order, in our opinion, does not amount to a refusal of the defendant's motion. It merely provides that the matters of fact alleged in the motion shall be tried by a jury. There is nothing final about it even in 

 [*463]  respect to the motion itself, and much less is it so far final as to settle the rights of the defendant involved in the action or to deny to him the means of further defending the suit. Upon no principle and under none of the decisions of this Court can an appeal from an order like this be sustained, and the motion to dismiss must therefore prevail.
But as the question may arise and be properly presented on another appeal in the same cause, and as it involves an important question of practice, we think it advisable now to express our views as to the propriety of this order. We are clearly of [**8]  opinion it is erroneous. Whilst this Court has recently decided in Hamilton vs. Hardesty, 32 Md. 348, that a party may if he chooses claim this privilege by a formal plea in the nature of a plea in abatement, yet that decision does not disturb, but on the contrary expressly recognizes the propriety of the usual and well settled practice of presenting the question by motion for a non pros., supported by affidavit; the same practice was also recognized and approved in Horner vs. O'Laughlin et al., 29 Md. 465. When claimed by motion the action of the Court is invoked, and we are of opinion it then becomes the duty of the Court to hear and determine the matter without the intervention of a jury, on affidavits or such proof as it may order to be taken in accordance with the rules of practice in summary proceedings of like character. By such proceeding there is no violation of the constitutional provision securing "the right of trial by jury of all issues of fact in civil proceedings" "in Courts of Law" "where the amount in controversy exceeds the sum of five dollars." It is simply a determination by the Court in a summary way, on motion,  [**9]  in what jurisdiction the trial shall be had. It is facilitating instead of delaying or violating that jury trial which the constitution contemplates and guarantees, and the action of the Court in this respect may, as we have said, be reviewed by this Court when duly presented by appeal taken at the proper time. Motions to dissolve attachments involving sometimes questions of residence and citizenship, 

 [*464]  and other matters of fact de hors the proceedings may be decided by the Court in this mode, and such decisions have never been regarded as infringing the constitutional right of trial by jury. Lambden vs. Bowie, 2 Md. 334; Gover vs. Barnes, 15 Md. 576. In Howard vs. Oppenheimer, 25 Md. 350, the garnishee and claimant of the property attached, under a bill of sale, the bona fides of which was disputed, made the motion to quash, and in that case the Court after commending the practice of docketing cases between the claimant and attaching creditors, and trying the title by a jury on issues framed or made by the pleas, say it would have been the duty of the Court below, if application to that end had been made,  [**10]  to have granted it, and had the bona fides of the bill of sale and all other facts in proof of title submitted to the finding of a jury, but they did not question the authority of Gover vs. Barnes, where the motion to quash made by the party against whom the attachment issued, involved the questions whether he was a citizen of the State, and had run away or fled from justice, or had removed from his place of abode with intent to injure and defraud his creditors, and where the very point was made in the Court below, (amounting in effect to an application for a jury trial,) that these matters of fact should be tried by a jury, and ought not to be tried by the Court. But whatever may be the law or duty of the Court in relation to such applications when made in attachment cases, we are fully satisfied from the nature and character of this privilege, it ought to be speedily and summarily disposed of by the Court when claimed by way of motion for judgment of non pros. What may be done when the defence is presented by a formal plea, whether a jury trial may then be had on the issue of residence vel non, or whether even then the better practice is not to submit the plea and [**11]  issue on proof taken to the determination of the Court as was done in the analogous case of Anderson vs. Garrett, et al., 9 Gill 120, are questions we are not now called upon to decide, as they cannot arise in this case. The question is here presented by motion invoking 

 [*465]  the summary action of the Court, and in our judgment it is the duty of the Court to hear and determine it, on proof submitted to it in the mode we have indicated, without the intervention of a jury.
Appeal dismissed. 

79 of 142 DOCUMENTS 

CLIFFORD C. ANDERSON vs. SAMUEL R. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 465; 1871 Md. LEXIS 7 

January 12, 1871, Decided 

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

Exception: The plaintiff asked the following instruction:

If the jury shall find from the evidence, that the plaintiff's bill was for necessaries furnished to the wife of the defendant before his marriage, and during a period after the death of her father, when she was entitled to property in her own right, of a much larger value than the amount of said bill, and that she owned said property at the time of her marriage and that the same is now still owned by her and her husband, and that she personally acknowledged said debt and promised to settle it; and shall further find that the defendant, before this suit was brought, admitted to the plaintiff the correctness of the bill, and said that he would have to pay it, then the plaintiff is entitled to recover.

The Court below refused to grant this instruction, and gave the instruction to be found in the opinion of this Court. The plaintiff excepted and the judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Responsibility of the Husband of an Infant for Necessaries furnished to her, previous to Marriage.

The husband of a minor is responsible for board and necessaries furnished to her, after the death of her father, previous to her marriage, at her request, and upon her promise to pay for them.  

COUNSEL:
William F. Frick, for the appellant.

John F. Preston and R. H. Goldsborough, for the appellee.  

JUDGES:
The cause was argued before [**2]  BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*466]  BARTOL, C. J., delivered the opinion of the Court.
This suit was instituted by the appellant to recover a sum due from the wife of the appellee for board and necessaries furnished to her before her marriage, and while she was a minor.
It appears from the proof that the wife of the appellee when a minor was placed by her father in the house of the appellant to board and be cared for by his family. The father died in January, 1867, and had paid for his daughter's board to that time, except a few hundred dollars balance, which was claimed by the appellant from his estate. After his death the young lady continued to board with the appellant, till her marriage to the appellee, which took place when she was about eighteen years old. The amount claimed in this suit is for her board and necessaries, furnished to her after the death of her father, at her request and upon her promise to pay for them.
The proof is further that before her marriage she recognized her indebtedness and promised to pay it, and that the appellee since his marriage admitted to the appellant the correctness of the account and said he [**3]  would have to pay it, and on one occasion offered to settle the bill, if he, the appellant, would make some trifling deductions.
Upon this evidence the plaintiff below offered one prayer, which was rejected, and the Court gave an instruction to the jury to the following effect:
If they should find from the evidence that the wife of the defendant, was placed by her father in the family of the plaintiff to board when she was an infant, under the age of 

 [*467]  twenty-one and before her marriage, and that her father paid for her board up to the time of his death, and that he was a man of competent means to support his family, and left a sufficient estate to continue the support of his infant children after his death, then the plaintiff is not entitled to recover.
This instruction appears to rest on the ground of a supposed liability of the father for the debt, and that it was a charge against his estate, although there is no evidence of such liability beyond the period of his lifetime. The evidence is that after his death, the daughter "continued to live and board in the plaintiff's family, having asked if he was willing she should remain, and promising to pay her board, to which [**4]  he assented." This evidence was altogether ignored in the Court's instruction, although if believed by the jury, it proved the amount claimed to be the debt of the daughter, not of the father. It showed that the board and necessaries were supplied to her upon her own contract and promise to pay, made after her father's death.
Such a contract was binding upon her although a minor. It is well settled that contracts made by infants for necessaries are binding and can be enforced. Macpherson on Infants, 41 L. Lib. 315; 1 Parsons on Contracts, 312, 343, 344; Fridge vs. State, 3 G. & J. 103; Brawner and Wife vs. Franklin, 4 Gill 463; Levering vs. Heighe, 2 Md. Ch. 81.
The amount claimed being a subsisting debt of the wife at the time of her marriage, and one that might have been enforced against her notwithstanding her minority; her husband of course became responsible for it upon the marriage. The instruction therefore given to the jury was erroneous; and it was error to refuse the plaintiff's prayer.
Judgment reversed and new trial ordered. 

80 of 142 DOCUMENTS 

JAMES OWENS, Sr. vs. LEONARD MACKALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 382; 1870 Md. LEXIS 102 

December 21, 1870, Decided 

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

The case is fully stated in the opinion of the Court.

Exception: The plaintiff offered the following prayer, which was rejected:

That by the true construction of the two papers offered in evidence by the plaintiff, dated 30th of October, 1857, and 29th of March, 1862, the defendant Mackall became a partner in the firm of J. W. & E. Reynolds & Co., mentioned in said papers, it being admitted that said papers were signed by Mackall and the other parties therein.

The defendant offered three prayers; the second and third were rejected; the first as follows, was granted:

If the jury find that the defendant never in any way participated in the transaction of the business of the firm of J. W. & E. Reynolds & Company, or exercised any control or supervision over the same in any way, or received any portion of the profits thereof directly or indirectly, or was held out or held himself out as a partner of the said firm otherwise than by the execution of the two agreements which have been offered in evidence by the plaintiff. And shall further find that the plaintiff in his dealings with the said firm which are in controversy, knew [**2]  the relations of Mackall thereto, but did not regard him as a partner therein personally responsible, or rely upon the personal credit of the said Mackall, but on the contrary knew him to have no personal interest in the profits of the concern, and knowingly dealt therewith exclusively upon the faith and credit of the other parties in the said firm and not on that of said Mackall, and did not in his said transaction hold or mean to hold said Mackall as liable to him thereupon, that the plaintiff is not entitled to recover against this defendant in this action.

To the rejection of his prayer as also to the granting of the defendant's first prayer, the plaintiff excepted, and the judgment being against him he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Partnership.

A partnership was formed between J and E, and the business conducted for some time, when in 1842 J died, leaving a will by which he appointed his wife, E, his partner, and M, his executors, to whom he devised his entire estate in trust for certain purposes. He directed that the business should be conducted after his death by E, and that the trustees under the will should not withdraw from the business of the firm any part of the capital which he had invested therein, unless it was necessary for them to do so in payment of his debts. The business was continued by E, according to the directions of the testator until 1857, when T was taken into the firm, and an article of agreement entered into between E acting in his own right, and jointly with the widow of J and M, trustees under the will, and T, by which it was provided that the business should be carried on under the old name and should continue for a specified time -- the net profits were to be divided into three equal parts, one of which was to go to E in his own right, one to the trustees under the will of J, and the remaining part to T. It was also provided that in case of the death of E, his "executors or trustees or both" should hold the same relation to the business of the firm as he did in his life time. This agreement was assented to by the heirs-at-law of J. Subsequently the widow of J died, and in 1862 the article of agreement was continued for seven years from its date, by E acting for himself and jointly with M as surviving executors and trustees of J, and by T. This contract was also assented to by the children of J. E died leaving a will by which he provided for the continuance of his interest in the business. He appointed O and D his executors -- the latter renounced and the former became sole executor. The business was carried on in the same name and at the same place until 1868, when the firm failed. An action was brought by O, a creditor of the firm, against M seeking to charge him as a partner for the debt. M never participated in any way in the management of the business of the firm, nor exercised any control or supervision over the same, nor received any portion of the profits thereof directly or indirectly; and never gave any authority for the continuance of the firm after the death of E. HELD:

That M was not a partner in the firm, and was not personally liable, as a partner, to a creditor of the firm.  

COUNSEL:
Levin Gale and Reverdy Johnson, for the appellant,

Argued that the articles of co-partnership offered in evidence, constituted Mackall a partner in the firm, and that he became liable to the creditors thereof, whether he actively participated in the business or not. And in support of this view the following authorities were referred to: Bissett on Partnership, secs. 16-20; Parsons on Part., 450-455; Story on Part., secs. 70-106; Collyer [**3]  on Part., sec. 604; 3 Kent's Comm., 33; Thompson vs. Brown, 4 John., Ch. Rep., 628; Wightman vs. Townroe et al., 1 Maule & Selwyn, 412; Alsop vs. Mather, 8 Conn., 587.

Robert A. Dobbin and S. Teackle Wallis, for the appellee.

The appellant's prayer was properly rejected, because it required the Court to determine the appellee's relation with the firm of J. W. & E. Reynolds & Co., from the two papers referred to in said prayer, alone, unconnected with the will under which they were made, unaffected with the testamentary system of the State, and without regarding the actual facts of the appellee's connection with the firm, or the other facts proven, under which the appellee was not in fact a partner. Code, Art. 93, sec. 13; Albert and wife vs. The Savings Bk., 2 Md., 160; Miller & Mayhew vs. Williamson, 5 Md., 219; Lowrey vs. Commercial Bank, 3 Bankers' Mag.; Bullen vs. Sharp, 1 Law R., 86; Cox vs. Hickman, 8 H. L. C., 268; Story on Part., sec. 49; Eden Bank, Ch. 5, 34 L. L., 22; Parsons on Part., 145, 146, and notes.

The appellee's prayer was properly granted, because, upon its hypothesis, the appellee was not a partner in law or fact as to the appellant. The undisputed [**4]  proof shows that the appellant dealt with the firm exclusively on the credit of the other parties sued as members thereof, and not upon that of the appellee, and this with full knowledge of the facts of the case, never considering or meaning to consider the appellee liable as a member of the firm. Maltby vs. N. Va. R. R. Co., 16 Md., 443, Matthews vs. Dare, 20 Md., 273; Giddings vs. Seevers, 24 Md., 363; Bromley vs. Elliott, 38 N. H., 309; Hastings, et al. vs. Hopkinson, et al., 28 Vermont, 108.  

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

OPINIONBY:
MAULSBY 

OPINION:

 [*385]  MAULSBY, J., delivered the opinion of the Court.
The facts of this case are that in 1841, and prior thereto, Joseph W. Reynolds and Edward Reynolds conducted business in the City of Baltimore, as partners, under the name of Jos. W. & E. Reynolds & Co.--that in 1841 Joseph W. died, leaving a last will and testament, by which he appointed his wife, Ann Reynolds, the said Edward Reynolds, and Doctor Leonard Mackall, executors of his will, and devised to them all his estate, in trust for the uses and purposes declared, one of which was contained in this clause: "Item--Whereas, my nephew"  [**5]  (the said Edward) "has generously offered to continue the business of the firm of Jos. W. & E. Reynolds, and divide the profits between himself and my family, as they are now divided between himself and me, therefore it is my will and desire that the said business be continued by him after my death, and that my trustees leave in said firm a capital, belonging to my estate, of five thousand dollars; and whereas I have in said business a capital exceeding ten thousand dollars, I do not wish my trustees to withdraw any part of the same, but as it may be necessary for them to do, as my executors, in payment of my debts." Another clause of the will was: "My sons being all young, and although steady and promising now, I know not how they may turn out to be, and the better to provide for my dear wife, are the motives of my appointing trustees, together with securing the property of my daughters."
The business was continued, according to the directions of the will, by Edward Reynolds until October 30th, 1857, when Thomas B. H. Turner was taken into the firm, and an article of agreement was entered into between Edward Reynolds, acting in his own right, and jointly with Ann G. Reynolds, (the [**6]  widow called Ann in the will,) and Leonard Mackall, trustees under the will of Joseph W. Reynolds, and 

 [*386]  Thomas B. H. Turner, by which it was provided that the same business was to be carried on under the name of Joseph W. & Edward Reynolds & Co.; that this partnership was to be computed to commence on the 1st day of January, 1854, and to continue seven years from that date, and that the net profits were to be divided into three equal parts, one of which should go to said Edward Reynolds, in his own right, one part "to the trustees aforesaid," and the remaining part to the said Turner. It was further provided that in case of the death of Edward Reynolds his "executors or trustees, or both," should hold "the same relation and power in regard to the co-partnership matters and business of said firm, as the said Edward Reynolds did in his lifetime."
Subscribed to this agreement was the following: We, the undersigned, Thos. Reynolds, Harriet G. Reynolds, and Jas. W. Reynolds, heirs-at-law of the late Joseph W. Reynolds, do hereby ratify and confirm the foregoing agreement of co-partnership.
Witness our hands and seals the day of the date of said agreement.  [**7]  
THOMAS REYNOLDS, [Seal.]
HARRIET G. REYNOLDS, [Seal.]
JAMES W. REYNOLDS, [Seal.]
On the 29th of March, 1862, Edward Reynolds for himself, and Edward Reynolds and Leonard Mackall, surviving executors and trustees of Jos. W. Reynolds, deceased, and Thomas B. H. Turner, executed another agreement, reciting the foregoing, and the death of said Ann G., and that the foregoing agreement provided for the continuation of the partnership in case of the death of either of the parties, and providing for the continuation of the partnership for seven years, and that in case of the death of any of the parties, the partnership should be again renewed, and that the executors, administrators, trustees, or other legal representatives of the parties dying, should have full power to renew and continue 

 [*387]  the partnership. This contract, like the preceding, was assented to by the representatives, the children, of Joseph W.
In 1862, Edward Reynolds died, leaving a last will, by which he appointed William A. Dunnington, and the appellant in this case, executors and trustees thereunder, and the sixth clause was: "I contemplate increasing my interest in the firm [**8]  of J. W. and E. Reynolds & Co. to an amount not exceeding ten thousand dollars beyond my present interest in said firm. Should that not be done by me in my lifetime, in whole or in part, I hereby empower and direct my executors and trustees to carry out the same, by paying over to said firm the sum of ten thousand dollars, or so much as may be required, in addition to any advance made by me in my lifetime to that view, to make up the sum of ten thousand dollars, provided my executors and trustees shall deem the same advisable and judicious." Dunnington renounced, and the appellant became sole executor and qualified. There is proof that business was carried on in the same name, at the same place, until the winter or spring of 1868.
There is also proof that the appellee never took any part in, or intermeddled, in any way, with the business of the firm. A witness, who was book-keeper, cashier and salesman from 1853 to 1857, proves that he never saw the appellee about the business office of the firm, nor heard of him in connection with the business; never knew him to share in the profits, nor participate, in any manner, in the management of the affairs of the firm. Another witness, who [**9]  was book-keeper from 1856 to 1867, proves that the appellee did not, during that time, in any way, participate in the management, control or profits of the business, and that he never heard his name mentioned in connection with the firm or its affairs. And another, who was book-keeper from September, 1866, to June, 1868, that he had never known or heard of the appellee as, in any way, connected with the firm, its business or profits. There is further proof that the appellee never, at any time, took any part in, or exercised any control over, the 

 [*388]  management of the affairs of the firm; that he had never seen any of its books, nor ever had any business whatever with the firm. And further, that the appellant had said that he knew that the appellee never had anything to do with the business, and was not liable for the debts of the firm; that he knew that he never had any connection with the firm; and after suit brought, the appellant said he would go and have the appellee's name stricken out of the suit, because he knew that he was not responsible for the debts. There is no conflicting proof.
There was also proof that the appellee had never given any authority for the continuance [**10]  of the firm after the death of Edward Reynolds in 1862. The death of Edward put an end to the partnership then existing, by operation of law. There was no proof tending to show that, after the death of Edward, the appellee had entered, in any character, into another contract of partnership. The terms of the contract of 29th March, 1862, in respect to a continuation of the partnership, are: "And further, it is declared to be the intention of the parties hereto, that if, at the expiration of this contract, any of the parties hereto may have departed this life, the partnership hereby continued, shall be again renewed, upon such terms as may be agreed on by the surviving partner or partners, and the representatives of the one or more of them so having died, and full power is hereby given to the executors, administrators, trustees, or other legal representatives of the parties, to renew and continue the aforesaid co-partnership." No agreement was made by the appellee after the death of Edward; and there is nothing to relieve this case from the operation of the rule, that the death of one partner operates as a dissolution with respect to the whole, notwithstanding it is entered into for [**11]  a term of years, unless provision is expressly made to the contrary. In this contract no provision to the contrary was made.
On these facts, the appellant offered one prayer, and the appellee three, the last providing for the contingency of the 

 [*389]  appellant's prayer being granted. The prayer of the appellant was rejected, and the first prayer of the appellee granted, the third falling with the rejection of the appellant's, and the second rejected.
We are called upon to pass on an exception by the appellant to the rejection of his prayer, and to the granting of the first prayer of the appellee.
We do not concur in the proposition contained in the appellant's prayer, which is that the simple execution of the two contracts mentioned in it, by and of itself, and without reference to anything else, constituted the appellee a partner in the firms mentioned in those contracts, and rendered him liable as such. Those papers, on their face, describe him as trustee under the will of Joseph W. Reynolds. To an understanding of his intention in executing the papers, it is indispensable to look to the will referred to, in order to ascertain what the trust was--to see what the appellee [**12]  in fact proposed to do. The first principle, underlying a partnership, is the consent of the parties to its formation--delectus personae--and that consent must be signified in some way, by writing, by parol or by acts. It may be express, or it may be implied by law, but there must be a consent apparent. It is not necessary to make a party a partner, so as to be liable to third persons for the debts of a partnership, that he shall have an interest in the firm profits; but if he lend his name, as a partner, he becomes liable upon principles of general policy, to prevent the frauds to which creditors would be exposed, if they supposed that they were lending their money to three or four persons, when in fact they were lending to only two or three of them. But, lending his name is his act, and evidences his consent. So a party may do an act from which the law will imply his consent to be answerable to creditors of a firm, without his intending that such a consequence shall follow his act; but still he must do the act or consent cannot be implied. Whether the execution of the contracts in question be, or not, such acts as the law will 

 [*390]  therefrom imply, the appellee's consent [**13]  to become liable as a partner, must depend on the circumstances developed by those papers, and by the other paper referred to by them, and, in this case, from other facts and circumstances in proof. The other paper is the will of Joseph W. Reynolds, and to ascertain the nature and character of the appellee's acts in signing the contracts, the will must be looked to. By that he is directed not to withdraw from the business of the firm any part of the testator's funds invested in it, except such as may be necessary to pay his debts; and the testator's object, in giving this direction, is declared to be, that the profits of the business may continue to be divided between Edward, and the family of the testator, after his death, in the same manner as they were divided at the date of the execution of the will, between Edward and the testator. In both the contracts, the appellee declares that he executes them as trustee under this will, and the just construction of all the papers shows that he is carrying out the trust, to wit, that the profits may be divided with the family of Joseph W. Reynolds. The appellee does not appear to be devising a way of his own to benefit the family of the testator, [**14]  but simply obeying the directions of the will under which he acts. A ratification of both the contracts, by the family of Joseph W. Reynolds, is subscribed to them. The appellee did no act, holding himself out to the world as a partner, or connecting his name with this firm, except the act of signing those contracts. No creditor of the firm could know that the name of the appellee was connected with it, in any way, directly or indirectly, unless by reading the contracts, and on reading them, he would discover the true facts surrounding the transactions, and that the appellee was not participating, for his own benefit, in the profits of the partnership, nor holding himself out as a partner, but simply discharging an expressly declared trust, and that the actual partners in interest were, so far as the appellee was concerned, "the family" of Joseph W. Reynolds.

 [*391]  It is said in the text books, and was insisted on by the appellant's counsel, that the rules as to partnership liability apply, with full force, although the party is not personally interested, but only as trustee, executor or administrator for the use and benefit of others; and even though he does not interfere except [**15]  in settling the accounts; and the authorities referred to in all the text books are the cases of Weightman vs. Townroe, 1 Maule & Selwyn 412, and Ex parte Garland, 10 Vesey 109, and Barker vs. Parker, 1 Term. R. 287.
Weightman vs. Townroe, was a case where the executors of a deceased partner continued, of their own motion, his share of the partnership property in trade, for the benefit of his infant daughter. They were not directed to do so by the will, but acted bona fide for the benefit of the testator's daughter. Lord ELLENBOROUGH said, "the fund subsisting at the death of the testator, under a due administration of the will, should have been disposed of by the executors, and converted into money, and distributed as assets. Instead of that it is embarked de novo in the trade, in the purchase of other barley, and a variety of other contracts, to which the infant is not privy, nor bound by them, but may renounce when she comes of age, as damnosa haereditas. If then the infant has such an option, who but the executors can be liable?" And BAYLEY, J., said, "the executors in this case are mere volunteers. At law they [**16]  became the legal proprietors in respect of everything belonging to the trade; and consequently are liable to the legal debts."
It is clear that the ground of the judgment, in this case, was the volunteer and unauthorized act of the executors, well intended, but still violative of their duty as executors. It was their act of embarking in the firm as partners, although the fund which they embarked was that of the estate, and their object was the benefit of the infant child of their testator; still it was their act that made them liable, which act it was not their duty to do.

 [*392]  In this case the appellee did no act of his own motion, except to carry into effect that, which the declaration of his trust commanded, not to be sure, in so many words, that he should execute the contracts, but to enable the partnership business to be carried on by Edward Reynolds, who, by the terms of the will, was to carry it on, and by Edward Reynolds and Turner, when Edward Reynolds deemed that desirable; and that he did so, is evidenced by the terms of the contract of March, 1862, in order that "the family" of Joseph W., might participate in the profits of the business, the object declared [**17]  by the will.
In the case in 10 Vesey, Henry Ballman bequeathed his estate to his wife Margaret, and three other persons, in trust, &c. He directed that his trade should be carried on by his wife, the profits to be applied to her own use, and the maintenance and education of his children, and that the trustees should pay her six hundred pounds out of his personal estate, to enable her to carry on the business. She did carry on the business and became a bankrupt. The testator had directed that a valuation should be made of the stock and effects in his trade, and that the wife should give to them her notes for the amount thereof, and also for the six hundred pounds. The other executors and trustees had advanced to her the further sum of £  768, 12s and 4d, of the assets of the estate. The question arose on proving these several claims under the commission. The points made by the assignees were, that the surviving trustee, as a creditor on the notes, ought to be postponed to all the other creditors of the bankrupt, and, secondly, that the general assets of the testator were subject to the bankruptcy. The Lord CHANCELLOR decided the first point in favor of the assignees, and on the [**18]  second point, he finally allowed the proof of the £  768, 12s and 4d, to stand against the bankrupt's estate; or, that the general assets of the testator were not subject to the bankruptcy.
In the argument of the cause it was said "if an executor is directed to carry on the trade, and does so, he must make 

 [*393]  himself personally liable to the whole of the debts contracted in that trade," and the case of Hankey vs. Hammond, decided by Lord KENYON, was cited. It was then argued that the executor must have the right of resorting for his indemnity to the whole personal estate given to him with the direction to carry on the trade.
In delivering his judgment the Lord CHANCELLOR used the expressions quoted in the text books, but it is manifest that they were not used in reference to any such case as the present, and they do not support the position contended for by the appellant. The inquiry was, as to the liability of the general assets of an estate for debts, contracted by an executor, who had carried on a business in his own name, or in his own person, having been authorized by the will to do so; and the language used by the Lord CHANCELLOR was used in illustration of his [**19]  views on that point. Finally he decided, that only the property embarked in the trade should be answerable to the creditors of the trade.
If this case could be held to decide anything touching the case we are considering, it would seem to be that creditors of the firm of Joseph W. and E. Reynolds & Co., would be entitled, so far as the estate of Joseph W. Reynolds and this appellee are concerned, to only the property declared to be embarked in the partnership, that is, to the estate of Joseph W. Reynolds, and not to any claim against the appellee personally.
But the primary object in examining it, has been to show that it cannot be taken as authority for the proposition contained in the appellant's prayer.
Hankey vs. Hammond, referred to in this case, and, in a note, said to have been cited by the Lord CHANCELLOR from his manuscript note of it, has been found reported in 1 Buck's Cases in Bankruptcy, 210. It is, that Jackson, a corn chandler and lighterman, by his will devised and bequeathed the residue of his estate, real and personal, to his wife, for her own use for life, and desired that she should carry on his trade 

 [*394]  and business for the benefit of herself [**20]  and children; and after other directions, directed that if, on an examination, it should be found that the trade was declining and in a losing way, the said residue should be sold, except the leasehold buildings, and they rented, and the proceeds of sale and the rents invested for the benefit of his wife and children, and appointed Ruse and Jackson executors. The widow carried on the trade for two years, when the executors found that it was a losing concern, and possessed themselves of the stock and effects of the trade. In the meantime the widow had become indebted. This was a proceeding by creditors to obtain payment of their debts. Accounts were directed to be taken of the value of the stock in trade and effects belonging to the testator at his death, possessed by the executors, and also how much of said stock and effects, possessed by the executors, had been acquired by the widow in the course of carrying on the trade or business by her. Lord KENYON decided that the value of the stock in trade, effects, &c., which had been acquired by the widow in the course of carrying on the business, and of which the executors had possessed themselves, should be first applied to the payments [**21]  of the debts incurred by her, and that any deficiency should be paid out of the assets of the testator.
This report of the case shews that it does not sustain the proposition for which it was cited by counsel in the case ex parte Garland, 10 Vesey. No question appeared touching the personal liability of the executors, but on the contrary, it simply appropriated the assets of the testator to the payment of the debts of the trade, carried on by direction of the will; and like the case in 10 Vesey, if it shew anything touching this case, it would be that creditors of the firm of Jos. W. & E. Reynolds & Co. are entitled to look to the estate of Jos. W. Reynolds.
We have not been able to find any English or American authority to sustain, when examined, the proposition that the execution of an article of partnership by an executor, or trustee, ipso facto, renders him personally responsible, without 

 [*395]  reference to other facts and circumstances attending the transaction.
The case of Thompson, et al. vs. Brown, et al., 4 Johnson Ch. 619, was where the administrators of a deceased partner entered into articles of co-partnership with the surviving partner, [**22]  on the same terms existing between the surviving and deceased partners, by which the partnership was to continue until it might be mutually dissolved. They did so, not for their own benefit, but for that of the estate. Still it was their act. They were not in the discharge of a trust enjoined on them, as in this case. Besides the goods on hand at the death of their intestate, they advanced to the firm some cash belonging to the estate. A judgment was recovered against the surviving partner, and a bill filed seeking to make the administrators liable for the value of the moiety of the goods belonging to the deceased partner at his death, and for the cash advanced to the firm. The Chancellor held them responsible for the cash advanced, but refused to hold them liable for the value of the goods, on the ground that they had acted in good faith. In this case the administrators were personally liable for the debts of their own partnership, because they had, of their own volition, entered into a partnership. The undertaking was their own, not for their own advantage it is true, but still they were partners to all the world, and by their own contract. It is this character of case in which Courts [**23]  of Chancery, it is said, will sometimes appoint a trustee to carry on a trade for the benefit of an infant. That is, where the infant inherits an interest in an existing trade, which cannot be discontinued without detriment, and where it may appear to the Court that the best interests of the infant demand that the partnership be continued, or rather a new partnership formed for the continuation of the trade. And this is the character of case spoken of by Lord MANSFIELD in Barker, &c., vs.  Parker, 1 Term. R. 287, (Marg.,) when he said: "Executors eo nomine do not usually carry on a trade; if they do so, they run great risk; and without the 

 [*396]  protection of a Court of Chancery, they would act very unwisely in carrying it on." And again, "If executors carry on a trade, they must do it as individuals, for their own advantage. I remember many instances of trade being carried on under the direction of the Court of Chancery." In that class of cases no trust exists to carry on the partnership, and if the executor choose to do it, of his own accord, for the benefit of the estate he represents, whilst, by the act, he makes himself liable to creditors of [**24]  the firm, and a Court of Chancery will protect him as between himself and the estate, according to his prudence and bona fides, he may protect himself against creditors by applying to a Court of Chancery, and inducing it to create a trust. Where, in a case like this, a trust is created by the will, and the executor does no act, save only to obey the declaration of the trust--does not create a partnership, but only carries out the directions of the will in regard to it--in other words does only that which a Court of Chancery would, not permit, but compel him to do, or renounce his trust, so that another could be appointed to do the same thing, we can discover no principle which would bind him, individually, as a partner. That which a Court of Chancery would have compelled him to do, if applied to, must be entitled to the same protection, as if he had been compelled to do it. Indeed the only purpose that could be accomplished by application to Chancery, in the class of cases mentioned, would be to have a trust declared. In this case the trust is as fully declared by the will as it could be by any decree. And as in the case of a trustee under a decree, the creditor trusting the firm [**25]  would be bound by notice of the decree, and a Court of Law would notice and conform to it in administering its remedies; so in this case, the creditor has notice of the trust declared by the will, because the very contract signed by the appellee, and offered in evidence by the appellant, expressly refers the very act of the signature, and the character of the appellee in making it, to the will declaring the trust; and a Court of Law will recognize it, just as it would recognize a decree in the former case.

 [*397]  If the case were that of a party actually carrying on the business, and holding himself out to the world as a partner, or who could be proved to be a partner by any other proof than the production of the contract itself, and with, and attached to, and part of it, the will declaring the trust, the case might be different. The creditor might not be necessarily affected with notice of the trust, and of its character. In that case, a plaintiff creditor might be entitled to recover, unless express notice of the trust could be brought home to him. In this case, the proof carries the full notice of the trust, and of the capacity in which the appellee acted, home to the appellant.  [**26]  
The case of Barklie vs. Scott, 1 Hudson & Brooke 83, is very strong, if not absolutely conclusive, authority in this case. To estimate its full bearing on this case, the whole report of it ought to be read, a brief condensation of which is all that can be attempted in the limits of an opinion, already extended, perhaps, too much.
The defendant was the owner of untenanted store houses in Sligo, and determined to set up two young men in business, to be carried on in them. He also advanced £  1,000, as capital, in the name of his infant son, and the contract was that the young men, John Scott and Patricksen, should account for the profit or loss, on this proportion of the capital to the defendant, as trustee for his infant son, and that they should be governed and directed by the advice of the defendant, and a Mr. Ponsonby Shaw, in all matters relative to the business. It was in proof that the defendant took a very active part in the management of the concerns of the partnership, by guaranteeing their payments, and buying and selling for them. The concern became bankrupt, and an action was brought by a creditor to charge the defendant as a partner. It was also in proof, that [**27]  the £  1,000 was advanced by the defendant for his son, as the property of the son, and that the firm would not have paid it back to the defendant, and that he had no right to withdraw it; and that there were profits realized 

 [*398]  in the first years of the partnership, but that the defendant never received them; that they were retained in the firm, and that they were credited on the books of the firm, "Samuel Scott, on behalf of his son, S. P. Scott, a minor."
The question was, whether the defendant was a partner. The Judge charged the jury, that "if a parent deposit a sum of £  1,000 in a partnership concern, as a capital for an infant son, and reserve no power over either it or the profits, he does not thereby make himself liable as a partner," but that "if a person wanting to put money into trade, for his own benefit, embark a sum of money in a partnership concern, in his son's name, reserving to himself the power of drawing it or any profits out, there could be no question that a person so acting would be liable as a partner," and finally, "that if, upon the entire of the case, they should be of opinion that the defendant did not reserve to himself, and had not any right [**28]  to or control over the sum of £  1,000," they should find for him. To this, plaintiff's counsel objected that the Judge himself was bound to put a construction on these instruments, (the letters in evidence, containing the contract between the parties and the defendant,) and to say that the defendant had thereby made himself liable as a partner, and to direct the jury to find for the plaintiff. This the Court refused, but gave leave to move that a verdict be entered for plaintiff, if the Court should be of opinion that he ought so to have directed the jury. The Court of King's Bench, in Ireland, in reviewing the direction of the Judge, delivered an elaborate opinion, almost the whole of which is pertinent to the question in this case, but brief extracts from which can only be given here, one of which is: "Whether that direction was right or not," "depends on the relationship between the parties, to be collected from the letters written to the defendant and P. Shaw, in the commencement of the partnership, and the letter written on P. Shaw's withdrawing his son from the firm in July, 1820, as well as from the acts of the 

 [*399]  parties." The letters referred to are the same [**29]  mentioned in the objection of plaintiff's counsel.
Another extract is: "It is to be considered what were the rights of the infant, of the defendant, of the partner, and of the public dealing with the firm. As to the infant, he had a right to the gift made him by his father, but subject to the qualification that it should be a share in the partnership, and subject to the terms of the letter of the 6th August, 1818. If the father had died, his executors could not have had any claim to any part of this sum; the guardian of the son's fortune could have no claim until the partnership had expired, and then only subject to the qualification as to the losses. This entirely distinguishes the present case from the case, where investments have been made in partnerships, by executors, of the property to which infants are entitled under the wills of their testators; there the legal interest is in the executors, and the persons beneficially entitled cannot be affected by their act, or made liable to any loss." "As to the world dealing with this firm, the son's share being liable to loss to the amount of the £  1,000, there is an equivalent for his being entitled to a share of the profits." As to [**30]  the defendant, the Court held that he was not liable, because, amongst many other reasons assigned, it did not follow necessarily, from the stipulation, that the firm was to account to him for the profits, as trustee for his son, that anything should be paid to the father by reason of that accounting; that the jury had found that he did not reserve any power over the capital, and that it was perfectly consistent that the profits should be left to fructify in the house; and that it did not follow that they were to be paid over to the father on the termination of the partnership. "As to the stipulation that the house should be governed and directed by the defendant's advice, that does not constitute him a partner, nor give him any legal interest in the firm." "But the question of partnership does not depend upon the letters alone; this is not the case of a single agreement which is not to be explained, 

 [*400]  altered or added to by parol evidence, but it is a dealing of mercantile parties with the world, in which the transactions of the parties are admissible in evidence, even against the terms of the original agreement." The application of most of the principles of this decision [**31]  to the case before us, is, we think, manifest.
The case of Alsop vs. Mather, 8 Conn. 584, is not in point. In the Court's opinion, reference is made to Wightman vs. Townroe, 1 Maule & Selwyn, which has been examined.
We think that there is no such rule, as that contended for by the appellant, governing all cases, without regard to the particular circumstances of each case.
The case of the appellee was put in argument, and might be put in this opinion, on other additional grounds quite sufficient to sustain it; but as, in our opinion, the appellee was not a partner in the firm in question, and was not personally liable, as a partner, to creditors of the firm, and the action of the appellant cannot be maintained, and as this opinion has already grown to great length, generally very undesirable, it would seem to be better not to extend it further by investigations not essential to the determination of the case.
We think that the prayer of the appellant was properly rejected by the Court below, and that of the appellee properly granted, and the judgment will be affirmed.
Judgment affirmed. 

81 of 142 DOCUMENTS 

J. G. vs. H. G.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 401; 1870 Md. LEXIS 103 

December 21, 1870, Decided 

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

This is an appeal from a decree of the Court below dismissing the bill of the appellant, which prayed a divorce a vinculo matrimonii, from his wife, the appellee, on the ground of her impotence, which existed at the time of their marriage. The facts of the case are sufficiently stated in the opinion of the Court.  

DISPOSITION:
Decree reversed and decree divorcing the parties a vinculo matrimonii.  

HEADNOTES:

Divorce on account of Impotence -- Jurisdiction of Courts of Equity in Applications for Divorce -- Deed of Separation.

Where, by organic defect of the female, existing at the time of marriage, there cannot be a natural and perfect coition -- vera copula -- between the parties, and the defect is permanent and incurable, the case comes within the legal definition of impotence, and will authorize a divorce a vinculo.

Courts of Equity in this State, on applications for a divorce, sit not in the exercise of their ordinary equitable jurisdiction, but as divorce Courts, and must be governed by the rules and principles established in the Ecclesiastical Courts in England, so far as they are consistent with the provisions of the Code.

A voluntary deed of separation between husband and wife, is not a bar to a bona fide application by the former for a divorce from the latter, on the ground of her impotence at the time of marriage. 

COUNSEL:
Geo. Wm. Brown and I. Nevett Steele, for the appellant.

The evidence of the impotence of the appellee is clear and conclusive, but if the opinion of the Judge of the Circuit Court were correct, that the question was involved in doubt by reason of the conflict of medical testimony, there should have been another examination, and it was error in the Court to refuse to order it. 2 Bishop on Marriage and Divorce, secs. 590 to 600; Deane vs. Aveling, 1 Rob. Ecc. Rep., 279; Briggs vs. Morgan, 3 Phill., 325, (1 Eng. Ecc. Rep., 408;) Devenbagh vs. Devenbagh, 5 Paige, 554; Newell vs. Newell, 9 Paige, 25; Le Barron vs. Le Barron, 35 Verm., 365; Calkins vs. Long, 22 Barb., 97.

The impotence of either party at the time of marriage, is made, by Article [**2]  16, section 25 of the Code, ground for a divorce a vinculo; and impotence consists--first, in an incapacity of procreation from organic malformation; or, second, in incapacity for the act of copulation--and copulation, to come within the meaning of the definition, must be natural and complete. Judged by either test, the appellee is incurably impotent, and was so at the time of her marriage. Article 16, sec. 25 of the Code of Pub. Gen'l Laws; 1 Bishop on Mar. and Div., secs. 325 to 340; Deane vs. Aveling, 1 Rob. Eccl. Rep., 279; Briggs vs. Morgan, 3 Phill., 325, (1 Eng. Eccl. Rep., 408;) Brown vs. Brown, 28 Eng. L. & E., 95; Ewens vs. Tytherleigh, 9 Law R., 424, (N. S.;) X, falsely called Y. vs. Y., 34 Law Journal, 81, and Lewis vs. Hayward, 15 Law Reporter, 299.

The deed of separation does not constitute an estoppel or bar to the right of the complainant to have the marriage declared a nullity. It contains no covenant that the appellant will not sue for a divorce, and he has waived all application to set aside the settlement made on the appellee. No deed of separation can render a marriage valid which the law declares to be void ab initio. 1 Bishop on Mar. and Div., secs. 631 [**3]  to 639, and secs. 646-656; Matthews vs. Matthews, 1 Sw. & T., 499, and 3 Sw. & T., 161; Spering vs. Spering, 3 Sw. & T., 211; Hunt vs. Hunt, 32 Law J. Rep., 168; Williams vs. Williams, 35 Law J., 85; Lippy vs. Masonheimer, 9 Md., 316; Benton vs. Benton, 1 Day, 116; Calkins vs. Long, 22 Barb., 97-103-106; St. John vs. St. John, 11 Ves., 525; Durant vs. Durant, 1 Hagg., 733; Beeby vs. Beeby, 1 Hagg., 789.

S. Teackle Wallis, for the appellee.

The evidence does not establish such a state of facts as would entitle the appellant to a divorce, even if his own physical condition allowed him to urge the defects of the appellee. Barrenness is no ground of divorce, and the other sexual deficiencies alleged do not amount to impotence, under the decisions.

The deed of separation and settlement between the parties is an estoppel to the present proceedings, not only because of the provisions for such separation which it contains, but because it was a compromise of doubtful rights and of a pending controversy, deliberately and advisedly made, with a full knowledge of all the facts, and for the express purpose of preventing a painful and scandalous litigation and exposure. Whatever may [**4]  be the disfavor with which the policy of the law regards arrangements for separation, made between husband and wife, where there is no legal ground for divorce, it cannot otherwise than approve and ratify them, where such ground is claimed to exist, as the foundation of his relief, by the very party who seeks to repudiate them.

Public policy might well nullify a deed of separation, in order to bring the parties together, but to do so in order to set them wider apart than they had agreed to be, would seem alike repugnant to reason and the interests of society. Brown vs. Brown, 5 Gill, 254, 255; Devenbagh vs. Devenbagh, 5 Paige, 558; Wilson vs. Wilson, 1 House of Lords' Cases, 554, 556, 567, 570-574, and 5 House of Lords' Cases, 40-59; Jodrell vs. Jodrell, 9 Beavan, 53, and 14 Beavan, 397; A. vs. B., 1 Prob. & Div. R., (L. R.,) 561; Brown vs. Brown, 7 Eq. Cases, (L. R.,) 191; Sills vs. Harding, 8 Eq. Cases, 492, (L. R.); Williamson vs. Williamson, 1 Johns., Chy., 491; Sanders vs. Rodway, 16 Beavan, 207; 3 Leading Cases in Equity, 388, 389-403, 404; Hartle vs. Stahl, 27 Md., 157; 1 Bishop on Marriage and Divorce, secs. 105-339; Matthews vs. Matthews, 1 Swabey & Tristram, 501, and [**5]  3 Swabey & Tristram, 163, 164.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*404]  BARTOL, C. J., delivered the opinion of the Court.
The bill of complaint in this case was filed by the appellant, praying for a divorce a vinculo, on the ground of the alleged impotence of the appellee.
It appears from the pleadings and proofs that the parties to this suit were married in Baltimore on the 31st day of March, 1864; the appellant then being 49 years of age and the appellee 28. They started on a tour to the West immediately after the marriage; physical impediments to the consummation of the marriage having been discovered, the appellee submitted to an examination of her person by Dr. Thomas Wood and Dr. S. O. Almy, eminent physicians and surgeons of Cincinnati, whose testimony is contained in the record. After the return of the parties to Baltimore, on the 25th of May, 1864, another surgical examination was made by Dr. Inloes, the family physician of the appellee, aided by Prof. Nathan R. Smith, the testimony of these physicians is also in the record.
On the 29th day of June, in the same year, a deed of separation was entered into,  [**6]  whereby the sum of ten thousand dollars was conveyed and secured by the appellant to certain trustees therein named, for the separate use of the appellee for her support, she agreeing to relinquish all further claim or interest in his estate, and the parties mutually agreeing to live separate from each other as if unmarried.
The separation under the deed continued for nearly three years, when on the 8th day of May, 1867, this bill was filed. One of the prayers of the original bill was that the deed of separation might be set aside; but in the progress of the cause, on the 15th day of February, 1869, a paper was filed by the complainant, signed by his solicitors, waiving all that part of his bill and the prayer therein seeking to set aside the deed of settlement; and leaving all vested rights in the trustees, and in the appellee under the deed unassailed, and unaffected by any decree in the cause. The only question therefore presented by this appeal arises upon the prayer for a divorce.

 [*405]  The appellee opposes the application for a divorce upon two distinct grounds. 1st. The alleged impotence is denied. 2d. It is contended that the deed of separation is a bar and estoppel [**7]  to the right of the complainant to maintain the present suit.
"The impotence of either party at the time of the marriage," is one of the causes prescribed in the Code, for which the Court is authorized to decree a divorce a vinculo matrimonii. 1 Code, Art. 16, sec. 25.
Has the alleged impotence of the appellee been proved? A careful examination of the evidence has convinced us that this question must be answered in the affirmative.
Without repeating here at length, or in detail, the evidence on this most delicate and painful question, it may be stated that the testimony of the examining surgeons establishes the following facts:
That the physical condition of the appellee, at the time of the marriage, was that of a very imperfect development of the sexual organs, both externally and internally. These organs were in a rudimentary condition, evincing that their development had ceased and been arrested before the age of puberty. She had never experienced the monthly sickness to which females of mature age are subject; and was without the natural passion or desire incident to woman.
The rudimentary condition of her sexual organs, and their imperfect development, not only [**8]  rendered conception impossible, but there was on her part an incapacity for vera copula. That is to say, she was not capable of the act of generation in its natural and ordinary meaning, but only of incipient and imperfect coition.
In giving the results of their examination, the surgeons differ somewhat as to the degree or extent of the organic defects; but we have stated the conclusions which appear to us to be established by their testimony. They all concur in saying that the defect is incurable.
Whatever differences of opinion may have arisen as to the legal definition of impotence; it is well settled that if by 

 [*406]  reason of malformation or organic defect existing at the time of the marriage, there cannot be natural and perfect coition, vera copula, between the parties; and it appears that the defect is permanent and incurable; the case comes within the legal definition of impotence, and is cause for nullity of marriage. Deane vs. Aveling, 1 Rob. Ecc. R. 279; Devenbagh vs. Devenbagh, 5 Paige 554; 1 Bishop on M. & D., secs. 325 to 340.
The charge made by the appellee in her answer, that the difficulty in consummating the marriage [**9]  proceeded from physical defect or incapacity on the part of the appellant has not been sustained by proof; and we are of opinion upon all the evidence in the cause that the appellant is entitled to a divorce a vinculo; unless by reason of the deed of separation he is barred and estopped from maintaining this suit. This brings us to the examination of the second ground of defence.
What is the effect of the deed of separation, upon the rights of the appellant in the present suit?
By the Act of Assembly of 1841, chapter 262, and its supplements, now embodied in the Code, Article 16, section 24, et seq., jurisdiction of all applications for divorce has been given to the Courts of Equity. Under that provision this suit has been instituted.
The Court in such case sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a Divorce Court; and must be governed by the rules and principles established in the Ecclesiastical Courts in England, wherein a similar jurisdiction has been exercised, so far as they are consistent with the provisions of the Code. By the 14th section of Article 16, the Code expressly provides that all causes for alimony "are to be heard [**10]  and determined, by Courts of Equity in this State, in as full and ample a manner as they could be heard and determined by the laws of England, in the Ecclesiastical Courts there."
In respect to the mode in which Courts of Equity shall exercise jurisdiction in divorce cases, and the principles by 

 [*407]  which they are to be governed, the Code is silent. But from the nature of the jurisdiction itself, it has always been considered that the decisions of the English Ecclesiastical Courts, in similar cases, may properly be referred to as precedents; and they have uniformly been cited and relied on as safe and authoritative guides for the Courts of this State in disposing of cases of this kind.
If we refer to those precedents, it appears to have been long settled, that a voluntary deed of separation between husband and wife is not per se a bar to a suit in the Ecclesiastical Court for a restitution of marital rights or to a petition for divorce. Durant vs. Durant, 1 Hagg. 733, (3 English Ecc. R. 310); Beeby vs. Beeby, 1 Hagg. 789, (3 English Ecc. R. 338); Westmeath vs. Westmeath, 2 Hagg. Supp. 1, (4 English Ecc. R. 238); Spering vs. Spering,  [**11]   3 Suabey & Trist. 211; Hunt vs. Hunt, 32 Law J. Rep. 168.
In 1 Bishop, sec. 634, and note 3, other cases are referred to in support of the general proposition above stated.
Some cases have arisen upon applications for divorce in the Ecclesiastical Courts, in which a voluntary deed of separation between the parties has been considered, in connection with lapse of time and other circumstances, as sufficient to show that the application was not made bona fide, for the cause assigned; but for some sinister or collateral purpose, and the application for that reason has been denied. Such were the cases of Matthews vs. Matthews, 1 Swabey & Trist. 161, and Williams vs. Williams, 35 Law J. 85, decided in 1866.
But, as we have said, such a voluntary deed has never been considered per se as a bar to the suit.
The cause for which the divorce in this case is claimed, as stated in the bill and established by the proof, is one which by the Ecclesiastical Law as well as by our Code, would when judicially established render the marriage null and void, ab initio. No case can be found in which an application for a sentence of nullity [**12]  of marriage for such cause has 

 [*408]  been held in the Ecclesiastical Court to be barred or defeated by reason of a voluntary deed of separation entered into between the parties; and in our opinion it would be alike unjust and against reason and public policy, as it is without precedent so to hold.
The case of Brown vs. Brown, 5 Gill 249, has been cited as an authority to show that in this State, a voluntary deed of separation between the parties is a bar to an application for divorce.
We do not so interpret that decision. In that case the application was for a divorce a vinculo; the cause for the divorce charged in the bill, filed by the husband, was an abandonment by the wife, which was alleged to have taken place in the spring of 1836, and to have continued ever since. The bill was filed in July, 1846.
It appeared that in April, 1846, only a few months before the filing of the bill, the parties entered into a voluntary deed of separation, whereby they agreed to live separate and apart from each other; certain property was secured to the wife for her support, all her rights to her husband's estate were relinquished, and he was secured from liability [**13]  for her debts.
The Chancellor in his opinion, which was adopted by the Court of Appeals, after suggesting doubts whether upon a true construction of the Acts of Assembly, the case stated in the bill came within their provisions, placed his decision refusing the divorce, upon the effect of the deed, and the absence of any circumstance which had subsequently transpired, to render it necessary or proper that the relation of the parties as established by that instrument should be changed.
Now looking to the only ground upon which the divorce in that case was claimed, as being an alleged abandonment by the wife, it is very obvious that the deed operated as a condonation of the offence; or as an acquiescence in the separation on the part of the husband; which, so far affected his equitable rights to claim a divorce on that ground, as in 

 [*409]  the absence of any fact or circumstance occurring after the execution of the deed to justify his application for a divorce, authorized the Court to infer that the application was not made bona fide for the cause alleged; and the divorce might properly be refused on grounds similar to those stated in Matthews vs. Matthews and Hunt vs.  [**14]   Hunt, above cited.
In the very recent case of Parkinson vs. Parkinson, reported in 1870, in Law Rep., parts 5 and 6, (Cases in Probate and Divorce, page 25,) which was a petition by the wife for a divorce, upon the ground of desertion or abandonment by the husband, the parties were married in July, 1861, and the alleged desertion took place in 1865. It appeared that the parties entered into a deed of separation in April, 1866. It was alleged in the petition and so appeared by the proof, that the husband, from the time of the alleged desertion, had been living in adultery.
At the hearing the Court decided that the wife had by the deed, "bargained away her right to relief on the ground of desertion;" but "that she was entitled to a judicial separation on the ground of adultery if she applies for it."
The effect of that decision is that such a deed operates as a condonation of the offence of abandonment; and to that extent is consistent with the decision of the Court of Appeals in Brown vs. Brown, but is no bar to a suit for divorce for adultery, although it appeared that offence was known to the wife at the time the deed was executed. And, in this respect the [**15]  case is an authority against the position contended for here by the appellee.
We think it is very clear upon the authorities, that the deed of separation in this case is not per se a bar to the maintenance of the present suit. There is no evidence in the case to impeach the good faith or bona fides of the appellant in bringing this suit. The only circumstance relied on by the appellee for that purpose, is the lapse of time after the execution of the deed, before filing the bill. But this is satisfactorily explained by the proof in the record. It 

 [*410]  appears the complainant was restrained from instituting this proceeding by conscientious scruples, supposing it to be inconsistent with his religious duty, to seek a divorce for any cause; and it appears also, that the same motive led him to enter into the deed for an amicable separation.
Those conscientious scruples were afterwards removed by a decision upon the subject, rendered by the highest ecclesiastical tribunal of the Church of which he and the appellee are members, and to whose authority he felt himself bound to submit, declaring the marriage null. These facts disclosed in the record, while they in no otherwise [**16]  affect the rights of the parties in this cause, are a sufficient answer to the suggestion, that the appellant has lost his remedy by laches or acquiescense, or that his application for a divorce has not been made in good faith and for the cause assigned. It has been argued on the part of the appellee, that although in the divorce Court, the deed may not operate per se as a bar or estoppel to the suit, yet that a Court of Equity would in the present case, upon a bill filed on behalf of the appellee for that purpose, issue an injunction to restrain the appellant from prosecuting a suit for divorce, as being contrary to the terms of the deed, and in violation of the covenants therein. And this proceeding, being in a Court of Equity, it has been argued that, for the reason stated the divorce ought to be denied.
In support of this position, we have been referred to the decision of the House of Lords in Wilson vs. Wilson, 1 H. of L., 538, and 5 H. of L., 40.
We have carefully examined that case, and are of opinion that it ought not to be accepted as a binding authority in support of the appellee's position here. It seems to us that the learned Court, when that case [**17]  was first before them, went farther than was justified by antecedent decisions. There the deed of separation contained a covenant on the part of the husband not to institute any suit in the Ecclesiastical Court for restitution of conjugal rights. The Chancellor granted an injunction 

 [*411]  restraining him from proceeding in the Ecclesiastical Court contrary to his covenaant, and on the first appeal the decree of the Chancellor was affirmed. It appears, however, when the cause went up to the House of Lords on the second appeal, grave doubts were expressed whether the Court had not gone too far; and while it was held that the former decision must be adhered to as the law of that case, it may be inferred from the opinions expressed by the learned Judges, among whom was Lord St. LEONARDS, that it was not to be considered as a precedent for a Court of Chancery to interfere by injunction for the enforcement of voluntary deeds of separation between married persons, any farther than to compel their observance, so far as rights of property may be concerned. To that extent Courts of Chancery will support and enforce the stipulations of such deeds, when they are made in good faith, and [**18]  are equitable in their terms, but no farther. And in our judgment, it would be against public policy and contrary to the uniform current of decisions, to hold that the right of the appellant to relief in this case is barred or defeated by the deed of separation.
The decree of the Circuit Court will be reversed, and a decree will be signed divorcing the parties a vinculo matrimonii.
Decree reversed and decree divorcing the parties a vinculo matrimonii. 

82 of 142 DOCUMENTS 

JOHN THOMAS vs. GEORGE DELPHY and WILLIAM DELPHY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 373; 1870 Md. LEXIS 101 

December 15, 1870, Decided 

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

This was an action of assumpsit brought by the appellees to recover from the appellant a balance of $ 633.30, alleged to be due them for the livery of certain horses and for the value of a horse, the property of the plaintiffs, sold by the defendant. Plea -- the general issue. The suit was originally brought in the Court of Common Pleas, but was removed by the appellees, on affidavit, to the Baltimore City Court, where a judgment was rendered in their favor for $ 726.37.

The narr. contained eight counts; the first six were the ordinary money counts; the seventh was a special count, alleging a promise on the part of the defendant to pay the bill for the livery of the horses, in consideration of the plaintiffs' forbearance to sue out an attachment against one John Spicer, who was alleged to be separately and not jointly liable for the debt, and of their allowing the horses to remain in the possession of the defendant.

The eighth count alleged the delivery by the plaintiffs to the defendant of an artillery horse to be placed in his contract with the Government; and the failure of the defendant to account to the plaintiffs for the value [**2]  of such horse.

Exception: The plaintiffs offered evidence tending to prove that in December, 1864, the horses, for the livery of which this suit was instituted, were brought to their stables; that on the day after their arrival, the defendant came to the stables and stated to one of the plaintiffs, that the horses were his property, and a contract was made respecting their rate of livery per day. The plaintiffs also offered evidence tending to prove that the defendant had assented to put a horse belonging to them into his contract with the United States Government, and that he had been paid $ 180 for such horse by the Government, and had promised to pay them said amount, but had failed to do so. The plaintiffs further offered evidence tending to show that in March, 1865, one of the plaintiffs presented the bill sued on to the defendant, saying that he would sue if payment were not immediately made; that the defendant then stated that if the plaintiffs would wait a few days, he would shape up the bill, which in the parlance of traders was equivalent to a distinct promise to pay the bill. The defendant proved by himself and one John Spicer that the horses were the sole property [**3]  of the latter, and that he, the defendant, had no interest in or title to them whatever. The defendant further offered evidence tending to show that he never had promised or agreed to pay the bill of the plaintiffs.

Prayers were offered on both sides, which the Court rejected and instructed the jury as follows:

1st. That if the jury believe from the evidence that the horses in the evidence mentioned, were the property of the defendant, or the joint property of the defendant and John Spicer; and also believe that the plaintiffs, at the request of the defendant, or at the joint request of the defendant and said Spicer, furnished the livery and other matters mentioned in said evidence for the said horses, then the plaintiffs are entitled to recover so much as they may find due for such livery and other matters as charged.

2d. If the jury believe from the evidence, that the said horses were not the sole property of the defendant, or that he had no property therein, yet if they believe that he contracted in his own name and upon his individual responsibility for the livery, care, &c., of said horses, then the plaintiffs are entitled to recover so much therefor as the jury [**4]  may find due.

3d. If the jury believe that the said horses were the sole property of the said Spicer, and that the plaintiffs were about to take legal proceedings for the recovery of any claim for livery, &c., furnished for said horses by the plaintiffs, and that the defendant promised and agreed with the plaintiffs that he would pay their said claim, provided they would not take legal proceedings at that time for the recovery thereof, and that the said plaintiffs did so forbear, then the plaintiffs are entitled to recover in this suit.

4th. If the jury believe that the artillery horse in the eighth count of the narr. and in the evidence mentioned, was delivered by the plaintiffs to the defendant for sale, for their use, and was so accepted by the defendant, and not returned, sold or paid for by the defendant, then the plaintiffs are entitled to recover the value thereof in this suit.

To the rejection of his prayers and to the instructions given by the Court, the defendant excepted, and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Parol promise to pay the Debt of another -- Statute of Frauds.

A parol promise to pay the debt of another, in consideration of forebearance to sue the original debtor, without any new or superadded consideration moving from the creditor to the promissor, is not enforcible, being within the Statute of Frauds.

The consideration to support a parol promise to pay the debt of another, must be such as would be good whether it related to paying such debt, or an equal sum on any other account.  

COUNSEL:
John Johnson and John P. Poe, for the appellant.

The theory of the second [**5]  instruction is that the plaintiffs could recover the livery bill, although the defendant had no property in the horses, if he had "contracted in his own name and upon his individual responsibility." There is no question in it of joint ownership or joint liability.

If, as this instruction supposes, the defendant had no property in the horses, and if the owner, Spicer, was known and charged with the bill by the plaintiffs, the primary responsibility (in the absence of all question of joint liability) was manifestly Spicer's; inasmuch as it was his property which was benefitted by the plaintiffs' services.

If Spicer were liable at all on the contract, or if credit were originally given to him, Thomas' responsibility, not being joint, was necessarily secondary or collateral, and required written proof in order to be enforcible against him.

No such proof was offered, and consequently the Court erred in submitting to the jury the question of the appellant's liability upon an alleged verbal contract to pay a debt for which, upon the theory of the plaintiffs' case, as presented in this instruction, Spicer was originally liable and still continued liable. Elder vs. Warfield,  [**6]  7 Har. & John., 391; Connolly vs. Kettlewell, 1 Gill, 260; Ellicott vs. Peterson, 4 Md., 476; Northern Central Railway Co. vs. Prentiss, 11 Md., 119; Pittman vs. Cropper, 13 Md., 190; Chitty on Contracts, 507, et seq.; Smith on Cont., 44, 50; Myer vs. Grafflin, 31 Md., 350.

The true question in all this class of cases is--to whom was the credit given?

The third instruction was also erroneous. The promise set up in this instruction was a verbal one, and was a collateral, not an original undertaking. The forbearance to resort to legal proceedings to recover the plaintiffs' claim was a consideration connected with, and growing out of the original contract, and is within the Statute.

There was no new and superadded consideration for the alleged promise moving to the appellant from the appellees, so as to make such promise an original undertaking, and thus to withdraw it from the Statute.

The alleged promise here was to "shape up" the still subsisting debt of another--which the appellees were not required to release, and in fact never have released--and is, therefore, precisely like the case of Fish vs. Hutchinson, 2 Wilson, 94, adopted in Elder vs. Warfield, 7 H. &  [**7]  J., 395, 396. See also Jones vs. Walker, 13 B. Monroe, 360; Lieber vs. Levy, 3 Met., (Ky.,) 292; Mallory vs. Gillet, 21 New York, 412, (7 Smith;) Andre vs. Bodman, 13 Md., 241; Walker vs. Richards, 39 N. H., 259; Rogers vs. Rogers, 6 Jones' (Law,) N. C., 300; Kutzmeyer vs. Ennis, 3 Dutch., (N. J.,) 371; Britton vs. Thrailkill, 5 Jones' (Law,) 329; Mason vs. Hall, 30 Ala., 599; Sterm vs. Drinker, 2 E. D. Smith, 401; Mallory vs. Gillett, 23 Barbour, 610; Alger vs. Scoville, 1 Gray, 391; 3 Parsons on Cont., 24; Nelson vs. Boynton, 3 Met., 396.

The defendant received no benefit from the alleged promise, and consequently it was altogether without consideration and void. Nelson vs. Boynton, 3 Met., 396; Tomlinson vs. Gell, 6 Adol. & El., 571.

John Henry Keene, Jr., for the appellees.  

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

OPINIONBY:
MAULSBY 

OPINION:

 [*378]  MAULSBY, J., delivered the opinion of the Court.
The questions in this case arise on the second and third instructions of the Court. The appellant has not insisted, in the argument, on any error in the rejection of his three prayers, or in the first and fourth instructions.
There is evidence [**8]  in the record tending to prove that on the morning after the horses were delivered, by an employee of a rail road company, at the stables of the plaintiffs, with a statement that he thought they were Thomas and Spicer's property, the appellant came to the plaintiffs and said the horses were his property, and contracted for their livery.
There is no error in the second instruction. If the jury believed this evidence, the plaintiffs were entitled to recover. No questions of original and collateral responsibility arose under the instruction. It was simply a question of liability of the appellant on his own contract, under which the livery was furnished.
The third instruction, as we construe it, is erroneous. In examining it, we are confined to the proposition of law contained in it, and cannot look, outside the instruction, to evidence in the record, to see whether another proposition may not have been contemplated. The hypothesis contained in it is, that if the jury find that the horses were the property of Spicer, and that the plaintiffs were about to take legal proceedings for the recovery of a claim for livery furnished by them, and that the appellant agreed to pay the claim if [**9]  they would forbear to take legal proceedings at that time, and that they did forbear, then the plaintiffs are entitled to recover. On what ground? That Thomas, the appellant, had agreed 

 [*379]  to pay Spicer's debt in consideration of the appellees' forbearance to sue Spicer!
If this were the law which the instruction was intended to announce, it was erroneous, and it is not susceptible of any other construction. It is based on the idea that Spicer was sole owner of the horses, and as such originally liable for the debt.
It has been settled, by the case of Fish vs. Hutchinson, 2 Wils. 94, adopted by the Court of Appeals in Elder vs. Warfield, 7 Har. & John. 396, and various other cases, that a promise to pay the debt of another, in consideration of forbearance to sue the original debtor merely, without any new or superadded consideration passing between the promisor and promisee, is within the Statute of Frauds, and must be in writing.
Forbearance to take or to continue proceedings against an original debtor, is a good consideration for a promise by a third person to pay the debt, but the promise must be by writing and not by parol. What is a sufficient consideration [**10]  to sustain a parol promise, is a question which has arisen in many cases in England and in this country, presenting great varieties of circumstances; and perhaps the variety of circumstances, rather than uncertainty in respect to the rule itself, has given rise to the apparent conflict of authority. The difficulty has been rather in the application of the rule than in the rule itself. As stated in Roberts on Frauds, 232, it is, that if the consideration of the new promise "spring out of any new transaction, or move to the party promising, upon some fresh and substantive ground, of a personal concern to himself," the Statute of Frauds does not attach. And Browne on Statute of Frauds, (sec. 212,) after a thorough examination of all the cases in which the question has arisen, states it thus: "Wherever the transaction between the parties is such that the primary and distinctive obligation assumed by the defendant is different from that of a guarantor, although, as incidental to, and 

 [*380]  in the course of the discharge of that obligation, the debt of another is satisfied, the defendant's promise is not within the Statute." In other words, there must be a valid promise to [**11]  pay, sustained by a sufficient consideration, which would be good, whether it related to paying the debt of another, or an equal sum of money on any other account. In the case of Williams vs. Leper, 3 Burr 1886, there was something more than a mere parting by the landlord with his lien on the goods in the defendant's possession. That would have been a consideration moving from the landlord only. Leper, the defendant, had possession of the goods to sell, and had advertised them for sale. Here, the forbearance of the landlord to enforce his lien, operated a consideration to Leper. The decision was also placed on the ground of Leper being trustee to sell the goods and receiving the proceeds. It was in this sense that the case of Williams vs. Leper, was referred to in Elder vs. Warfield, 7 Harris & John., and also in Andre vs. Bodman, 13 Md. 241-255, where the Court said that if the appellant was restrained from filing his claim for a lien, by a promise of the defendant to pay him, by which his lien against the property was lost, the defendant would be answerable on his promise. There the defendant was the owner of the property, a lien [**12]  on which was claimed, and the loss of the right to file the lien operated to the benefit of the promisor. It is not to be understood that, in enforcing a promise of this character, the plaintiff is required to prove that the defendant actually realized any benefit from his promise; but only that the facts and circumstances of the transaction should show that the defendant, in making the promise, expected to realize a benefit to himself -- that the arrangement contemplated a benefit to him -- was, in his view, such a transaction as that he might derive an advantage from his promise; and so, that in making it, a consideration moved to him, as well as from the plaintiff. This, we apprehend, is the true rule derivable from all the authorities.

 [*381]  If the instruction, in this case, had been based on an hypothesis, that the appellant had in his possession, in March, 1865, horses belonging to Spicer, or in which Spicer had an interest, jointly with the appellant or otherwise, which possession of the appellant was in the course of some proceeding for, or for a purpose of, realizing some real or supposed benefit or advantage to himself therefrom, and which might have been seized by [**13]  the appellees under an attachment against Spicer, and that the appellees notified the appellant that they were about to issue such attachment, and he thereupon promised that he would pay their claim against Spicer, if they would forbear to do so, and to seize the horses in his possession, and they did forbear, it would have presented the question of a new or superadded consideration between the promissor and promissees, and have been within the rule stated. In that case the promise would be not to pay the debt of Spicer, in consideration of forbearance to sue Spicer, merely, but to pay it in consideration of forbearance to seize the horses in the appellant's possession, held by him for his benefit. The promise would be, not simply to pay the debt of another, but in effect, to pay an amount of money, equal to the debt of another, in consideration of the benefit, real or supposed, conceded to the promissor by the promisee forbearing to interfere with his possession.
Such was not, however, the instruction in this case, nor is such a state of facts clearly set out in the record, although the record does contain a statement from which it might be inferred, perhaps, that such facts existed.  [**14]  
The second instruction being correct, but the third erroneous for the reasons assigned, the judgment must be reversed.
Judgment reversed and new trial awarded. 

83 of 142 DOCUMENTS 

CHARLES R. JOHNSON and CHARLOTTE M. JOHNSON, his Wife, vs. JOHN H. HEALD, Executor of JAMES FRAZIER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 352; 1870 Md. LEXIS 100 

December 8, 1870, Decided 

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

The bill of complaint in this case, filed on the 24th of September, 1866, by the appellee against the appellants, and Jas. M. Frazier and the Northern Central Railway Company, alleged that James Frazier died on the 18th of July, 1866, having made a will on the 23d of December, 1863, in manner and form to pass real estate, which was duly proven, and on which letters testamentary were granted to the complainant; that said Frazier died in the eighty-fifth year of his age, and although originally a man of much vigor of mind and body, he had become, in the last year or two of his life, exceedingly infirm, and this condition of feebleness gradually so increased that, towards the last, he was quite incapable of intelligent transaction of business--his senses were greatly impaired, and his memory shared the decay of his physical faculties. That more than a year before his death, he had sunk into a state of hopeless imbecility, and lost all power of managing or taking care of his property, or of resisting any influence which those by whom he was immediately surrounded might choose to exercise.

That at his death, and for two and a half [**2]  years previously, his household consisted of his son, James M. Frazier and his wife, Elizabeth, and of his daughter Charlotte M. Johnson and her husband, Charles R. Johnson, a master mariner, but who, on his return from sea in the latter part of the year 1864, also lived with his wife, in the same house; and that upon the said son, James M., and the daughter, Charlotte and her husband, the care of his person and the possession of a very large amount of property devolved.

That although the said son and daughter were already greatly benefitted by the bounty of their father, who, while in health, had manifested no intention to give them a preference over persons having an equal claim, they availed themselves of their position--Charlotte being impelled thereto by her husband--to appropriate to themselves large portions of their father's property, when he was incapable of making a valid disposition of the same; and in order more effectually to get possession of his estate, the son, less than a year before his father's death, and when he was incapable of making a valid deed or contract, induced him to execute a power of attorney to him, under which he got into his possession large sums [**3]  of money and valuable effects--part whereof he took to his own use, and another part, in execution of a mutual scheme and confederacy between himself and his sister Charlotte and her husband, he transferred to them, or one of them, and that Charlotte and her husband, with the connivance of the son, appropriated other property of their father to a still greater extent.

The bill then particularly charged that the testator owned in his life-time registered bonds of the Northern Central Railway Company to the amount of $ 10,000, standing in his name, and unregistered bonds of 1885, of the same company, to the amount of $ 20,500; and treasury notes of the United States, commonly called seven-thirties, to the amount of $ 25,500; and that said registered bonds were by the son, James M. Frazier, by virtue of a pretended power of attorney from his father, ordered to be made payable to bearer, and were thus delivered to his sister and her husband, on the 6th of July, 1866, only twelve days before the death of his father, who was then lying bed-ridden, helpless and utterly incompetent to comprehend any matters of important business--and that the other, Northern Central Railway coupon bonds,  [**4]  sometime during the last illness of said testator, when he was too infirm to exercise care over his property, were wrongfully taken possession of by the said Charles and Charlotte and converted to their own use; and that the said seven-thirty notes of the United States were, about the same time, wrongfully taken possession of by the said James M. Frazier, and converted to his own use.

The bill further charged that the said James M. Frazier, in May, 1865, prevailed on his father, then incapable of making a valid deed or contract, to execute to him without consideration, conveyances of certain parcels of fee simple and leasehold property, situated in the city of Baltimore, severally improved by buildings; and that on or about the 26th of August, 1861, the said testator executed to his daughter, Charlotte, a deed of the dwelling house where he resided at the date of the deed, and continued to reside until his death, and likewise a bill of sale of the furniture in said house, and that said conveyances were made to the said Charlotte by way of portion, to be taken into account pro tanto, in ascertaining and settling her share of his estate when the same should be distributed at his [**5]  death.

The bill also charged that at the death of the testator, he was represented in blood by his two surviving children, James and Charlotte, the issue of his deceased son, Edward, and the several issue of his four deceased daughters by their respective surviving husbands, who were named as devisees in his will.

The bill further charged that the property so taken possession of by the said James and Charlotte, in the last years of his life and during the period of his mental incapacity, was largely in excess of the portions or shares of his estate to which they were entitled under his will.

The bill prayed discovery and an account, and the surrender of all the Railway bonds and United States Treasury notes as rightly forming part of the assets of the estate of the testator, that the house and furniture conveyed to the appellant, Charlotte, should be adjudged to belong to the estate of her father, and in the distribution thereof be treated pro tanto as a part of the share or portion devised to her, that the conveyances made to James M. Frazier should be annulled, and the property thereby conveyed and the proceeds thereof be treated as a part of the estate of James Frazier;  [**6]  the bill also prayed for writs of injunction, and the appointment of a receiver. Injunctions were granted as prayed, including an injunction against the Northern Central Railway Company to restrain it from recognizing the pretended transfer of the registered bonds.

The appellants answered under oath, denying that the testator had fallen into a state of hopeless mental imbecility for more than a year before his death, or that he was bed-ridden some time previous to that event; the answer stated that he was a man of a very strong will to which he required every member of his family to bend, and this quality adhered to him to the end of his life; that he was therefore not to be influenced by those around him to do anything which he did not desire to do, or did not approve of; but he formed his own purposes, especially in regard to all matters of business or property, and carried them out with resolute determination.

That his frame was powerful and vigorous, and his health remained good almost to the last; and so far from being bedridden, he came down stairs to dinner the day before his death; that he had a clear and vigorous mind, and a remarkable capacity for business, which [**7]  was shown by his successful career, and up to the 8th of July, he was of sound mind and competent to execute contracts and to manage his affairs, although by reason of bodily infirmity, he required an agent to attend to his collections and other matters of business; that the appellant, Charlotte, was the youngest child of her father, and for many years the only surviving daughter and the only child who always lived with him; and that he was always deeply attached to her, that she first lived in his family and he afterwards lived in her's. That in 1852, she was married to the appellant, Charles R. Johnson, who since the marriage had seldom been at home, and then for short intervals, being constantly employed as captain in the merchants' service, about July, 1865, since when he had found employment on shore. The answer denied that the gift of the house and furniture was intended as an advancement to the appellant, Charlotte, and alleged that the house was originally built for her by her father, as he often declared at the time it was built, but that he did not intend to give it to her as long as her mother lived. That her mother died on the 8th of August, 1861, and some weeks afterwards [**8]  her father presented her with deeds of the house and furniture, without any suggestion or request on her part; that from that time she and her husband had used the house and furniture as her own, and that her right and title thereto was fully known, not only to the complainant, but to every member and relative of the family.

The answer stated the circumstances of the gift of Railway bonds, as follows: That their amount was $ 30,500, coupon bonds, of which $ 10,000 were registered in the name of the testator, 11th of March, 1857; that when he gave his daughter these bonds, he came to her chamber and handed them to her, telling her that they were coupon bonds of the company and that they were for herself; that she thanked her father for his generous gift; took them and put them into her trunk in her own room, and had had possession of them ever since; that said coupon bonds were subsequently, by the direction of her father and in his presence, placed in an envelope, on which there was the following endorsement:

"A present to Charlotte M. Johnson from James Frazier, Coupons, July 10th, 1864."

That the words "from James Frazier" were in the hand writing of her father, and [**9]  the rest in her hand writing; that the gift of said bonds by her father to her, was entirely free and voluntary, without any request or suggestion of any kind from her or her husband; that her husband, as a shipmaster, was absent from Baltimore from October, 1860, to July, 1865, with the exception of about six days in the latter part of 1863, so that he was away from home upon long voyages in August, 1861, and in July, 1864, at the times when the house, furniture and coupon bonds were given to his wife.

The answer denied indignantly the charges of fraud contained in the bill, and the charge of confederating and conspiring with James M. Frazier. It also denied that it was the intention of James Frazier, at any time, to establish an equality among his children and descendants. That while he gave legacies to all his grand-daughters, he entirely left out his grand-sons from his will, and left a child's portion, in the residue of his estate, to four sons-in-law -- three of whom were rich men -- and the widow of a deceased son was entirely left out of the will, although she was poor and had a son fourteen years of age, for whom no provision was made.

The defendant, James M. Frazier,  [**10]  likewise answering under oath, stated that the allegations of the bill of complaint, that James Frazier, towards the close of his life, was incapable of intelligent transaction of business, and that more than a year before his death, he sank into a state of hopeless mental imbecility, and lost all power of making or taking care of his property, or of resisting influences which those by whom he was immediately surrounded, might choose to exercise, were utterly and flagrantly false and unfounded; and, on the contrary, averred that, up to the day previous to his father's death, he was in the full and conscious use of all his reasoning powers, of sound and disposing mind, memory and understanding, and that although his hearing had become somewhat imperfect, and his sight affected by advanced age and consequent physical debility, yet he was perfectly capable of comprehending the various transactions to which the control of so large an estate, and the management of its revenue gave rise, and such was the retentive powers of his memory, that he repeatedly, up to the time of his decease, notified the defendant, as his agent and attorney, on what particular days the respective dividends became [**11]  due upon the stocks which he held, and never failed in designating the proper time to apply for them.

That in conformity with an intention often expressed to him by his father, on the 6th of November, 1865, he executed and delivered to the respondent a letter or power of attorney whereby he was authorized and empowered to transact all business requiring the presence and name "of his father," "to enter into and take possession of property belonging to him, to receive and receipt for all moneys due him, and to sign or endorse his name to all checks or orders for the payment of money to or on which his name was necessary to make good and valid;" that the power of attorney was signed by his father, and acknowledged by him before Thos. W. Griffin, Esq., a justice of the peace, who, together with the respondent's sister, Charlotte, signed the same as witnesses; that the power of attorney was made by his father, without the slightest solicitation on the part of the respondent; that at the time of signing and sealing the same, his father was in full possession of his mental powers; that he was perfectly conscious of the nature of the transaction, and aware of the character and effect [**12]  of the instrument; that he was fully capable of making a valid deed or contract, and that all and every of the complainant's allegations in his bill to the contrary, were utterly and scandalously false. The answer further stated, that after the execution of the power of attorney, in pursuance of the authority thereby vested in him, he received and accounted to his father for all dividends accruing from stocks, all rents and income from his real and leasehold estate and other property; that he attended, under the instructions of his father, to the sole exchange and transfers of his stocks, and constantly acted in strict conformity with the power and trust with which he was invested; that during the whole period of the agency thus voluntarily conferred upon him by his father, he had acted with the most scrupulous good faith; that he had never appropriated to his own use any money or property belonging to his father's estate, except what was freely and without solicitation given to him by his father.

The answer also admitted the gift of the Railway bonds by the testator to his daughter Charlotte, averring that in December, 1865, the respondent heard his father say, in response to [**13]  a question put to him by Charles R. Johnson, that he had given the bonds or coupons to Charlotte. The answer further stated that on or about the 22d of February, 1866, while sitting with his father, he remarked to the respondent that "inasmuch as he had given to his daughter, Charlotte, his Northern Central Railway bonds, he would now give to the respondent all of his seven-thirty United States bonds, then deposited in bank, (meaning the Second National Bank of Baltimore.") He said to the respondent, "take them and make good use of them." The respondent warmly expressed his gratitude to his father for so generous and liberal a donation, but at the same time intimated his apprehension that his father's designs and his own motives might be misconstrued, and that difficulties might arise out of the transaction. To this remark of the respondent, his father promptly responded: "Who can make trouble? I can do as I please with my own property, as I have earned it all myself."

After a brief interval, on the same occasion, he again said to the respondent, "keep those seven-thirties in your own name, and then you will be sure to have them; your sister, Charlotte, has her bonds in her own [**14]  possession;" that about the 15th day of August last past, the respondent, having determined to return to the State of Kentucky, withdrew said bonds from bank, and had ever since retained them in his own possession; that at the time of said withdrawal, there were four seven-thirty bonds of the denomination of five thousand dollars each, four of said bonds of the denomination each of one thousand dollars, and three of said bonds each of the denomination of five hundred dollars; that the said bonds were voluntarily and freely given to the respondent by his father, without any solicitation, importunity or unfair dealing on the part of the respondent; that at the time when said gift was made, and when the said property was taken into possession by the respondent, his father was sound in mind, fully sensible of the nature of the transaction, and cognizant of any step taken by the respondent to render his title to said property perfect.

The answer further stated that in the month of May, 1865, the testator, in accordance with a previously expressed purpose, by deeds of gift duly executed, acknowledged and recorded, conveyed to the respondent, by the name of James Frazier, Jr., four several [**15]  parcels of ground, with the improvements thereon, situated in the city of Baltimore, the locations of which said lots were properly designated in the complainant's bill; that said deeds were voluntarily made by the respondent's father, without any request or solicitation on the part of the respondent; that his father was at the time of their execution, fully capable of making a valid deed or contract; that the deeds were each and all made and executed in good faith; and upon a valid and legal consideration, and conferred upon the respondent a perfect title in law and equity to the property sought to be conveyed, and that all the allegations to the contrary in the complainant's bill, were utterly false and unfounded.

That at the time of the alleged conveyance of the house and lot on East Baltimore street, by his father to his sister, Charlotte M. Johnson, the respondent was residing in the State of Kentucky, and had no personal knowledge of the circumstances attending the same, but he had heard his father say, that he had given the house and furniture therein contained, to his said sister.

The answer denied all and all manner of unlawful combination and confederacy wherewith [**16]  he was charged by the bill of complaint, and especially all connivance, collusion and confederacy with Charles R. Johnson and Charlotte M. Johnson, as alleged in the bill.

A commission was issued and a great number of witnesses were examined. The complainant was likewise examined, under the Act of 1864, ch. 109, and the defendant, Mrs. Johnson, became a witness on her own offer.

After hearing, the Court, on the 6th of February, 1869, passed a decree dismissing the bill, in so far as it sought to set aside the conveyances from James Frazier, the testator, to Charlotte M. Johnson and James M. Frazier, respectively, annulling the gifts of the Railway bonds and the United States seven-thirties, and adjudging that they belonged to, and were part of, the estate of the testator. From this decree Charles R. Johnson and Charlotte M. Johnson appealed. No appeal was taken by James M. Frazier.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Construction of the Act of 1868, ch. 116, relating to the Competency of Witnesses and the Examination of Parties.

In any suit, action or other proceeding, where an executor is a party, he may, under the Act of 1868, chapter 116, on his own offer, or on the call of his co plaintiff or co-defendant, give in evidence, adversely to his opponent, any conversation he may have had with the latter in reference to the cause of action or controversy when it antedates the death of the testator; and if he does so, then the other party likewise, on his own offer, or on the call of his co-plaintiff or co-defendant, may testify in respect to such conversations or admissions, by giving such evidence as will fairly tend to contradict, explain or modify them; but beyond this he cannot go.

Upon a bill filed by an executor to set aside certain gifts alleged to have been made by his testator, to a son and daughter, the executor was examined under the Act of 1864, chapter 109, on his own offer, and in the course of his examination, testified as to interviews and conversations between himself and the daughter, one of the donees. No interrogatory was put to this donee relative to those conversations, and no contradiction or explanation of them offered; she, however, became a witness on her own offer, and testified at large to the whole cause -- to her father's mental condition and capacity to make the gift of railroad bonds -- to the previous gift of the house and furniture -- to the writing on the envelope in which the bonds were placed, and then gave a detailed statement of all that occurred in reference to the secret gift of the bonds between herself and her deceased father, when no other person was present. She was not cross-examined, and her whole testimony was excepted to on the grounds of her incompetency as a witness. HELD:

That she was not competent to testify on any of these matters, and the exception to her testimony was well taken.  

COUNSEL:
George Wm. Brown and Frederick Wm. Brune, for the appellants.

The Act of 1868, ch. 116, had three distinct objects:

1st. When an original party to a contract or cause of action is dead or insane, or when an executor or administrator is party to a suit, it provides [**17]  that "either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely."

The ambiguity as to the meaning of the words "other party" in the Act of 1864, ch. 109, sec. 2, is thus removed, and this was the first object of the Act; either party may now be called as a witness, but cannot testify on his own offer unless he is a nominal party. This latter provision as to a nominal party is precisely the same as that in the Act of 1864.

2d. But the Act of 1868, ch. 116, contains a proviso, the object of which is to create two additional exceptions to the provision contained in the body of the Act prohibiting executors, &c., from being witnesses on their own offer, in suits on contracts, where an original party is dead or insane, or in suits to which they are parties.

The first exception in the proviso is very clearly stated, and is free from all possible ambiguity, and is in harmony with the spirit and meaning of the general provisions of the Act of 1864, ch. 109, which was designed to make all parties to a contract [**18]  competent witnesses, who are living and able to testify.

The exception is, that when executors, &c., are parties to a suit on a contract made with them, either party is, in all respects, a competent witness.

3d. The second exception in the proviso is not limited like the first, to cases where executors, &c., are parties to a suit on a contract made with them, but embraces all cases included in the Act--that is, all cases "when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding;" and in such cases the proviso enacts that "when the executor, administrator, guardian or committee testifies as to any conversation had with the other party, either party may be examined as a witness, as provided for in the other sections of this article."

The exception, then, is, that an executor, &c., when he is a party to a suit, may testify as to any conversation had with the other party, and if he does so, then either party may be examined as a witness on his own offer, and as to the whole case. The language of the Act is not, indeed, may testify, but that is [**19]  its meaning. The language is, "when the executor, &c., testifies"--that is, it assumes and declares that he has the right to testify, and therefore, by implication, as clearly authorizes and permits him to do so as if it had so declared in express terms. But whether the executor has this right or not, yet, if he does so testify, and his testimony is not excepted to, and is, in consequence, received and relied on, then the Act expressly makes the other party a witness as to the whole case.

The complainant testified as to conversations which he had with all the defendants, and this gave them the right "to be examined as witnesses, as provided for in the other sections of this article." What that examination is designed to be, is shown by the first section of the Act of 1864, ch. 109, which provides that "such witness shall be competent and compellable to give evidence in the same manner as other witnesses, except as hereafter excepted."

This exception, so far as the defendants are concerned, is repealed by the proviso in the Act of 1868, ch. 116, sec. 2, and the defendants were therefore made general witnesses, "competent and compellable to give evidence in the same manner [**20]  as other witnesses," and they are not confined to the particular conversations about which the complainant testified.

The object of the complainant in testifying to his conversations with the defendants was to show, by their statements, that the gift, which they allege was made by Captain James Frazier to his daughter, was, in fact, not made, and that he was not competent to make it; and it would be exceedingly unjust, and would tend, not only to suppress, but to distort the truth, if the complainant were permitted to testify on these material points, and the defendants were excluded from disclosing their knowledge of the real facts of the case.

Unless this construction of the proviso in the Act of 1868, ch. 116, be correct, it is absolutely without sense or meaning. There is no ambiguity in the proviso itself, for the language is perfectly clear and plain. Nor is there a conflict between it and the body of the Act, which the Court should seek to reconcile.

And even if there were a conflict between the proviso and the body of the Act, the proviso must prevail, because the proviso "speaks the last intention of the law-giver." Smith's Com. on Stat. and Const'l Const.,  [**21]  sec. 578; see also Leonard vs. Wiseman, 31 Md., 204; Canal Co. vs. Railroad Co., 4 G. & J., 1; Maxwell vs. Sency, 5 H. & J., 26; Beall vs. Black, 1 Gill, 203; Gordon vs. Mayor, &c., of Baltimore, 5 Gill, 231.

Arthur W. Machen and I. Nevett Steele, for the appellee.

By a fair construction of the provision added by the Act of 1868, ch. 116, to the original Act of 1864, ch. 109, it can have no application to a case like the present, where the testimony of the executor, which is to be ground for the admission of the testimony of the other party, was given before the passage of the new law. The employment of the word "testifies" in the clause in question, instead of "has testified," or some similar expression, evidently points to future testimony --to testimony to be introduced after the law begins to speak and be operative.

Such is the natural construction of the statute. But, even if its language were more doubtful, and were susceptible of a different interpretation, a well established principle of law would forbid that it should be allowed to operate retroactively. This principle is no where more clearly or forcibly stated than by the Court of Appeals in the recent case [**22]  of Williams vs. Johnson, 30 Md., 507, 508; see also Dash vs. Van Kleeck, 7 Johnson, 502; McEwen et. al. vs. Den, Lessee, 24 Howard, 244; Haver vs. Yaker, 9 Wallace, 32.

When an executor, under the Act of 1868, proceeds to testify to conversations with the other party, he voluntarily makes his election to open the door to the testimony of the latter. He becomes a consenting party to the admission of testimony from the opposite party. But it is manifestly unjust and contrary to reason to construe anything that he may have done before the passage of the Act diverso intuitu, as having the effect of such an assent or election. Hughes vs. Lumley, 4 El. & Bl., 358, (82 Eng. C. L.;) Vansittart vs. Taylor, 4 El. & Bl., 910-912-915; and Midland Railway Co. vs. Pye, 10 C. B. N. S., 191, (100 Eng. C. L.)

The deposition of the complainant, containing the evidence as to conversations which is relied on by the defendants as justifying the examination of Mrs. Johnson, was taken on the 10th day of May, 1867. The Act of 1868, ch. 116, was passed on the 6th of March, 1868, and went into effect on the first of June, 1868. When Mr. Heald was examined, he was, under the then existing law, a perfectly [**23]  competent witness for all purposes. Mrs. Johnson at the same time, was incompetent to testify to anything. How could a law, passed ten months afterwards, and which did not go into operation till more than a year afterwards, render her competent by reason of anything in Mr. Heald's testimony, taken under an altogether different state of the law? Testimony of an executor examined after June 1st, 1868, or perhaps after the 6th of March, 1868, the date of the enactment of the new law, would be produced subject to the conditions of the Act of 1868; testimony given in 1867, came into the cause like the testimony of ordinary witnesses--unqualified by any condition.

All the witnesses in the cause, indeed, other than Mrs. Johnson, were examined before the Act of 1868 went into effect, and, consequently, under the original law of 1864. The whole testimony on the part of the complainant was closed on the 25th of May, 1867.

The word either, in the fourth line of the Act of 1868, seems to be a clerical error for the original words "the other." The whole object of the amendatory Act is evidently contained in the additional clause, following and including the word provided. The previous [**24]  part is simply a re-enactment of the original section, in conformity with the constitutional provision as to the mode of introducing amendments into the Code. This inference is confirmed by a reference to the Massachusetts Statute, which was the prototype of our own legislation. Gen. Stat. Mass., 1860, ch. 131, sec. 14.

The section as it stands, exhibits one of those accidental changes of phraseology which a Court is entitled to disregard; as was done in Kennedy vs. Gibson, 8 Wall., 498-506.

What was the object of this clause, and what the injustice it sought to correct, is sufficiently manifest. Provision had already been made for the admission of the testimony of both parties where the cause of action arose, or contract was made with the executor or administrator. But there was still to be provided for the case where, although the contract was with the deceased, conversations in reference to it had taken place between the executor and the other party, and to permit the executor to testify as to these, while the other party was excluded, was regarded as not only unjust, but as inconsistent with the general principle adopted by the law, that the evidence of neither party [**25]  to a transaction should be excluded, except where one of them was dead or insane. This inequality, which existed before the Act of 1868, it seems to have been the intention of the clause under discussion to remove. Looking then to the reason of the law, Mrs. Johnson was not a competent witness, under any circumstances, except for the special purpose of testifying as to conversations with the executor.

In the present case, independently of the fact that an executor is a party to the suit, Mrs. Johnson is incompetent to substantiate an alleged gift from Captain Frazier, by her own testimony, under the first clause of the Act of 1868, chapter 116, and upon the ground there stated, namely: That one of the original parties to the contract or cause of action is dead. Ayres vs. Ayres, 11 Gray, 132; Pettingill vs. Porter, et al., 3 Allen, 352.

The Johnsons claim that there was an absolute gift of the bonds to them by Captain Frazier in his lifetime. This they would have to substantiate against Captain Frazier, if he were living. This they have to substantiate, now that he is dead. But, inasmuch as he is dead, the statute forbids that they should do it by their own testimony.

If [**26]  the Johnsons set up no title derived from Capt. Frazier, their inability to testify would then depend merely on the fact that the complainant is an executor; but since the right they assert as against Captain Frazier and his representatives, rests upon a supposed title derived, as they say, from Captain Frazier through a transaction to which Charlotte M. Johnson and he were the parties, they are prevented from testifying by the general prohibition expressed in the first clause of the section.  

JUDGES:
The cause was argued before BRENT, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*368]  MILLER, J., delivered the opinion of the Court.
When the Legislature, by the Act of 1864, chapter 109, removed the incompetency of witnesses arising from interest and crime, and declared that the parties litigant and all persons in whose behalf any suit, action or other proceeding, may be brought or defended, themselves and their wives and husbands, shall be competent and compellable to give evidence in the same manner as other witnesses, they made certain exceptions which in our judgment clearly manifest the purpose of the law makers and the spirit and intent of the law. It appears to us [**27]  to have been the design of this legislation, in admitting parties to suits to testify at their own instance, to provide that they should do so on terms of perfect equality as to knowledge or means of knowledge of the subject-matter of controversy about which they were to speak. It would have been flagrantly unjust to permit a party whose property was at stake, subjected to all that influence of interest which the infirmity of human nature and the experience of ages had demonstrated to be so powerful as in most cases to shake integrity, and induce a departure from truth, and on which the rule of exclusion in all cases was founded, to go upon the witness stand and tell his story of the transaction and give his version of the contract against one whose lips were sealed by death or insanity. This obvious rule of justice, mutuality and fairness was not overlooked by the Legislature, and hence by the 2d section of that Act it was provided that:
"When an original party to a contract or cause of action is dead or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding, 

 [*369]  the other party may be called as a witness [**28]  by his opponent but shall not be permitted to testify on his own offer or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed unless a nominal party merely."
The spirit of this provision and the intent of its framers are sufficiently apparent, but it was in some respects defective and unfortunately worded. It had received no construction by the Appellate Court prior to the passage of the amendatory Act of 1868, chapter 116, but in some, perhaps in all the circuits, the practice had obtained, sanctioned apparently by the language of this section, of allowing an executor or administrator in all cases where he was a party to the suit, no matter when the cause of action arose or what was the subject of controversy, to become a witness on his own offer because the prohibition to that extent was against the other party only, and not to allow the latter to testify except upon the call of his adversary. In other words and to illustrate the effect of this construction, if an executor was sued on a cause of action against his testator, he could, on his own offer, testify to any conversations he may have held with the plaintiff or to any admissions [**29]  made by the latter, as, for instance, he might testify that the plaintiff told him the debt was paid, and yet the latter could not himself be a witness at his own instance either to contradict or explain such conversations or statements; so when suing for a debt due his testator, the executor could testify as to an admission by the defendant that would remove the bar of the Statute of Limitations, whilst the latter could not contradict or explain such statement. Again an executor might be plaintiff or defendant in a suit where the cause of action arose since the death of the testator on some contract or transaction connected with the estate between him and the other party, and one would be allowed to testify on his own offer and the other not. In our opinion it was the main purpose of the law of 1868, chapter 116, to meet such cases as these, and preserve the rule of mutuality and fairness to which we have adverted. It repeals 

 [*370]  the 2d section of the Act of 1864, and enacts in lieu thereof that:
"When an original party to a contract or cause of action is dead or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding,  [**30]  either party may be called as a witness by his opponent, but shall not be permitted to testify on his own offer or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed unless a nominal party merely; provided, that when an executor or administrator, guardian or committee of a lunatic or insane person is a party to the suit, action or other proceeding, when the cause of action has arisen on a contract made with such executor, administrator, guardian or committee, or out of transactions between such executor, administrator, guardian or committee, and the other party, or when the executor, administrator, guardian or committee testifies to any conversations had with the other party, either party may be examined as a witness, as provided for in the other sections of this article."
By that part of this law which precedes the proviso, an important change is made, or, at least, a grave doubt upon its construction as it stood in the second section of the Act of 1864, is removed, for it is plainly said that, in all cases where the cause of action antedates the death or lunacy, or where an executor or administrator is a party to the suit,  [**31]  neither party shall be admitted to testify on his own offer, but only on the call of his adversary. This is made a general and just rule, and thus the injustice of allowing the executor or administrator to testify in every case on his own offer, whilst the other party was excluded from so doing, resulting from the practice under the previous Act, was obviated. Then comes the proviso, which clearly creates exceptions to this general rule, and in certain specified cases, allows either party to be a witness on his own offer in the same manner as in cases where the cause of action is between living parties. The first exception is where the cause of action follows the 

 [*371]  death or lunacy and arises on some contract or out of some transaction between the executor, administrator, guardian or committee and the other party. In such cases, it is very clear either party can testify on his own offer, and here the rule of mutuality and fairness is strictly preserved, because both parties have equal knowledge or means of knowledge of the subject about which they are to give testimony. Provision is next made for cases where conversations may have taken place between the executor, [**32]  administrator, guardian or committee, and the other party in reference to the cause of action or controversy when it antedates the death or insanity. With respect to these conversations, though not so clearly expressed as in the other cases, yet by fair implication from the words used, either party is made competent to testify on his own offer. But to what extent? On one side there can be no doubt of the limit. It is these conversations alone that the executor can on his own offer speak of. In all justice and fairness the other side should be confined to the same subject matter also. To these alone as a subject matter of testimony this part of the proviso refers, and with these alone it professes to deal, and we are of opinion the true construction of this statute, looking to the spirit and general intent of the whole law, and the objects it seeks to attain, require that both parties in such cases should be confined to the giving in evidence and the denial or explanation of the conversations that may have occurred between them. In other words the executor, administrator, guardian or committee, may on his own offer or on the call of his co-plaintiff or co-defendant go upon the [**33]  stand and give in evidence adversely to his opponent any conversations he may have had with the latter, and if he does so, then the other party, likewise on his own offer or the call of his co-plaintiff or co-defendant, may testify in respect to such conversations or admissions by giving such evidence as will fairly tend to contradict, explain or modify them, but beyond this he cannot go. This is our reading and construction of this part of the proviso. To give 

 [*372]  it a broader scope and to allow the other party, where the executor testifies and can only testify to conversations, to become a witness at large for every purpose of the action, to give his story and version of the whole transaction between himself and the deceased, who cannot speak, would, in our judgment violate the rule of mutuality, work in many cases great wrong and injustice, and be inconsistent with the general tenor and intent of the whole legislation on this subject. It would give to the other party in such cases a greater advantage than the executor or administrator had under the previous law, and perpetuate one of the very mischiefs that law allowed, and which the Act of 1868, was intended to cure. We [**34]  cannot attribute to the Legislature such a purpose. The construction we have adopted is just and reasonable, and is but a legitimate application of the cannot of interpretation sanctioned by the Court of Appeals in 4 G. & J. 1, 152, where it is said: "Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention which may be collected from the cause or necessity of making the Act, or from foreign circumstances, and when discovered ought to be followed although such construction may seem to be contrary to the letter of the statute."
Under the construction we have thus placed upon this law, we are satisfied Mrs. Johnson was incompetent to speak of any of the matters about which she has testified. The executor had been examined under the Act of 1864, and in the course of his examination had given testimony as to conversations and interviews between himself and Mrs. Johnson, but to the latter no interrogatory was put relative to these conversations and no contradiction or explanation of them offered. She became a witness on her own offer and testified at large to [**35]  the whole cause, to her father's mental condition and capacity to make the gift, to the previous gift of the house and the furniture, to the writing on the envelope in which the bonds were placed, and then gave a detailed statement 

 [*373]  of all that occurred in reference to the secret gift of this large amount of bonds between herself and her deceased father, when no other human being was present. She was not cross-examined and her whole testimony is excepted to on the ground of her incompetency as a witness. In our opinion she was not competent to testify on any of these matters and the exception to her testimony should be sustained. This direct and positive proof of the gift out of the case, we cannot, after the most careful and patient examination of all the other testimony in the record, discover sufficient, reliable and satisfactory evidence to establish the fact of the gift, without which the case of the appellants has no foundation.
In these views a majority of the Judges, constituting the Court that heard the cause, concur, and the result is that the decree appealed from must be affirmed. In disposing of the costs, we are of opinion that under all the circumstances of [**36]  the case, all of them as well those in the Court below as in this Court, ought to be paid by the executor out of the estate, and will so provide in the decree of affirmance.
Decree affirmed.
BRENT and GRASON, J., dissented.  

84 of 142 DOCUMENTS 

THE PHILADELPHIA, WILMINGTON & BALTIMORE R. R. COMPANY vs. ROBERT KERR, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 331; 1870 Md. LEXIS 98 

December 6, 1870, Decided 

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

The facts are given in the opinion of the Court.

Exception: The defendant offered the following prayers:

1st. That the plaintiffs cannot recover in this case, if the jury shall find from the evidence in the cause, that there was want of ordinary care on the part of the plaintiffs, which contributed to the collision, even if the jury shall find from the evidence that there was fault also on the part of the defendant.

2d. That even if the jury shall find from the evidence, that there was no negligence on the part of the canal boat, then, in order to enable them to find in favor of the plaintiffs, they must be satisfied from the evidence in the cause, that there was want of ordinary care on the part of the defendant, in failing to exercise such care and diligence as the defendant had the means and power to employ, having regard to the business in which the defendant was engaged.

The Court rejected these prayers, and gave the following instruction to the jury:

If the jury shall find from the evidence, that the collision complained of in this action was caused by the want of ordinary care on the part of the defendant,  [**2]  and was not caused or contributed to by the want of ordinary care on the part of the plaintiffs, then the plaintiffs are entitled to recover such damages for the injury occasioned thereby, and interest thereon in the discretion of the jury from the time of the injury, as the jury may find the plaintiffs have sustained; and in determining the question of ordinary care, the jury are entitled to consider the circumstances under which the collision took place, and the rule of navigation which requires, that in order to avoid a collision between a steamer and a sailing vessel, it is the duty of the vessel moved by steam to get out of the way of the vessel propelled by sails, and it is the duty of the sailing vessel to hold her course; and if they shall find that either party to this suit violated this rule, without being justified in doing so by the surrounding circumstances, then the party so acting was guilty of a want of ordinary care.

To the rejection of its prayers and to the instruction given by the Court, the defendant excepted, and the verdict and judgment being for the plaintiffs, it appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Collision of Vessels -- Duties of Steamers and Sailing Vessels.

Whenever a sailing vessel and a steamer are proceeding in such directions as to involve risk of collision, it is the duty of the steamer to keep out of the way of the sailing vessel, and of the sailing vessel to hold her course.

This rule is a general one not depending on the length of route of the steamer, or whether it be up, or down, or across, a navigable stream; and it applies to the case of a steamer transporting a train of cars with passengers, across a river at a railway connection.

There may be dangers and difficulties which will excuse the violation of the rule, and then it will be left to the jury to determine if any surrounding circumstances existed to justify a departure from it.

If the sailing vessel conform to the rule and keep her course, she is not guilty of want of ordinary care, or contributory negligence, even when she might possibly have avoided a collision by casting anchor, or turning her course.

It is the duty of steam vessels navigating waters, where sailing vessels are often met with, to keep a trustworthy and constant lookout besides the helmsman.  

COUNSEL:
Wm. Schley and Thomas Donaldson, for the appellant.

The [**3]  defendant's first prayer was correct, and ought to have been granted in terms as prayed. Redfield on Carriers and other Bailments, 356, &c., and the cases referred to in the notes; The Fanny Fern and Thomas Swann, 1 Newberry, 160, and 6 McLean, 282; The New Jersey, Olcott, 519; The Neptune, Olcott, 493; Crockett vs. Newton, 18 Howard, 583; The Nautilus, 2 Ware, 529.

The defendant was entitled to have had the prayer granted, as it embodied a principle of law, applicable to the case. Sowerwein vs. Jones, 7 Gill & Johns., 341.

The second prayer of the defendant ought to have been granted. It announced a clear rule of law. The question of fault or no fault is necessarily a question of fact, to be passed on by the jury; except where there is some fixed principle of law, which, upon a given state of case, precludes all enquiry.

But the Court erred in its instruction, in applying to the steamer in this case, used for the purpose of continuing the railroad across the River Susquehanna, the rules and regulations prescribed by the Act of Congress, approved 29th April, 1864, for the Navy and Mercantile Marine of the United States. 13 Statutes at Large, 60, 61.

But even if [**4]  that statute was applicable to this steamer, engaged in a special service, which made it, in fact, a moving portion of the railroad, still there was error in the instruction, given without qualification, that it was the duty of the sailing vessel to hold her course, without regarding the provisions of the 18th, 19th and 20th sections of said statute.

Also in saying, that if they should find that either party violated the rule, that the Steamer must keep out of the way, and that the Schooner must hold her course, without being JUSTIFIED in doing so, by the surrounding circumstances, the party, so acting was guilty of a want of ordinary care. It is open to several exceptions, firstly, it is ambiguous, wanting in precision, involving rather a conclusion of law than matters of fact, and calculated to mislead and embarrass the jury; secondly, it impliedly affirms, that the canal boat was not to blame for not changing her course or anchoring; although it might have been found, by the jury from the evidence, that changing her course was possible and, in view of the immediate danger would have been a proper departure from the rule, and a wise precaution to avoid impending danger; and [**5]  that throwing out the anchors would have been prudent, and perhaps, efficacious to prevent collision; and thirdly, because under this instruction, even if the jury should have found, from the evidence, that the conduct of the captain of the canal boat, was rash, reckless and perverse in holding his course, and neglecting all precautions and efforts to avoid collision, still the owners were entitled to recover, because the defendant had no lookout on the starboard side of the steamer.

But the Act of Congress was not in force when the collision in this case occurred. It took place in May, 1862; and, in so far as that Act may have introduced, as peremptory, certain rules of navigation, theretofore found only in reported decisions, and in the practice of mariners, it can have no application. The case is to be tried upon the state of the law existing at the time.

Henry Stockbridge, for the appellees.

It was evidently the object of the first of the instructions to define to the jury the term "ordinary care," which, as used in instructions, is always ambiguous, and often utterly meaningless. Courts are always compelled to define that term or juries are misled. This Court, on [**6]  the former trial of this cause, defined it (25 Md., 531,) as the "observance of the precautionary rules and regulations, established by competent authority, to guard against accidents and prevent injuries to others." This language, although plain, conveys no definite idea to jurymen, who do not know what "precautionary rules and regulations have been established by competent authority." The Judge, therefore, very wisely and properly proceeded to state what those "precautionary rules and regulations" were, so far as applicable to the circumstances of this collision. In doing so, he stated the law correctly, as laid down by the highest tribunals, with perfect uniformity, in England and this country, from the commencement of steam navigation till Congress, by the declaratory Act of 1864, gave the settled rule the authority of National Statute. St. John vs. Paine, 10 How., 583, 584; Newton vs. Stebbins, 10 How., 606; The Oregon vs. Rocca, 18 How., 572; Culbertson vs. Shaw, 18 How., 587; Liverpool Steam. Co. vs. Rumball, 21 How., 384; The Carroll, 8 Wallace, 302; Art. 15, 13 U. S. Stat. at Large, 60; Handaysyde vs. Wilson, 3 Car. & P., 528.

The duty of all vessels, in localities where [**7]  collision with other vessels is possible, to maintain a constant and vigilant lookout, is one of the first dictates of common sense, and one of the first requirements of law. The Europa, 2 Eng. Law and Equity, 562; Netherlands Steam Ship Co. vs. Styles, 40 Eng. Law and Equity, 27; The Genesee Chief vs. Fitzhugh, 12 Howard, 463.  

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

OPINIONBY:
MILLER 

OPINION:

 [*335]  MILLER, J., delivered the opinion of the Court.
The first appeal in this case is reported in 25 Md. 521, where the judgment was reversed and the present trial was had under the procedendo then issued. The suit is to recover damages resulting from the collision of the defendant's steamboat 

 [*336]  with the plaintiff's canal boat, by which the latter and her cargo were totally lost. The facts are substantially the same as in the former trial. The canal boat, propelled by sails, had started from her wharf, and was on her way down the Susquehanna river, and while holding her course under a light wind was struck by the steamer and sunk. The steamer belonged to the defendant, and was used in transporting its engines, cars and passengers [**8]  across the Susquehanna, from Perryville to Havre de Grace, and the collision occurred while she was on one of her regular trips across the river.
At the first trial the Court instructed the jury that it was the duty of the defendant to exercise the utmost care and diligence it was in its power to employ, considering the nature of the business in which it was engaged. But as both boats were on a common highway, each in pursuit of a lawful business, engaged in avocations wholly independent of each other and without any relation of contract or trust imposing any special duty from either to the other, this Court reversed that instruction as prescribing a too rigorous rule, and decided the defendant was only 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. The Court then observe that the terms "ordinary care and diligence" are comparative and always bear a direct relation to the particular circumstances of each case; that the increasing probabilities of danger require a corresponding increase [**9]  of care and vigilance to avoid it, and they then quote with approval from the case of Kelsey vs. Barney, 2 Kernan 425, where it is said by the Court of Appeals of New York: "The degree of vigilance which the law exacts by the requirement of ordinary care, must vary with the probable consequences of negligence, 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 

 [*337]  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." The Court also further remark that "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 [**10]  be prosecuted on land, on the water, or upon both, the established rules for regulating the course of conduct on either, so far as they relate to the safety of others, should be duly regarded to satisfy the first requirement of ordinary care."
At the present trial the Court rejected the prayers on both sides and granted an instruction of its own. The two instructions asked by the defendant, and to the rejection of which exception is taken, assert: 1st, That the plaintiff cannot recover if the jury find there was want of ordinary care on the part of the plaintiffs which contributed to the collision, even if they find there was fault also on the part of the defendant; and 2d, That even if they find there was no negligence on the part of the canal boat, still, in order to enable them to find for the plaintiffs, they must be satisfied from the evidence there was want of ordinary care on the part of the defendant, in failing to exercise such care and diligence as the defendant had the means to employ, having regard to the business in which the defendant was engaged. By the first part of the Court's instruction, the jury were told that if they found the collision was caused by the want [**11]  of ordinary care on the part of the defendant, and was not caused or contributed to by the want of ordinary care on the part of the plaintiffs, then the plaintiffs are entitled to recover. If the instruction had stopped here, there would exist no plausible ground on which 

 [*338]  the defendant could found an objection to it. It correctly and very clearly states the general rule as to contributory negligence on the part of the plaintiffs, and of negligence on the part of the defendant. In effect it embodies the law of the two prayers of the defendant, and gave it substantially all its counsel had asked for.
But the Court in its instruction further told the jury that in determining the question of ordinary care, they could consider the circumstances under which the collision took place, and the rule of navigation which requires that in order to avoid collision between a steamer and a sailing vessel, it is the duty of the former to get out of the way of the latter, and it is the duty of the latter to hold her course, and if they find either party violated this rule, without being justified in doing so by the surrounding circumstances, then the party so acting was guilty of a want [**12]  of ordinary care.
This part of the instruction has been vigorously assailed in argument, as announcing law inapplicable to the case, as well as being ambiguous, and calculated to mislead and embarrass the jury. To determine whether it contains any error warranting a reversal of the judgment, it is important to ascertain, first, whether it properly defines the rule of duty for the steamer, and correctly declares that the non-observance by her of that rule, without justifiable cause, constituted in law want of ordinary care on her part. The rule of navigation, that whenever a sailing vessel and a steamer are proceeding in such direction as to involve risk of collision, it is the duty of the latter to keep out of the way of the former, was well established by the highest judicial authority, and with perfect uniformity of decision, both in England and in this country, long prior to the Act of Congress of 1864, chapter 69, adopting it as a rule for the navy and mercantile marine of the United States. Like others of the same character, it is a nautical rule, based upon experience and sound reasons, framed and administered for the purpose of preventing disasters by collisions, and to afford [**13]  security to life and 

 [*339]  property exposed to such dangers; and public policy, as well as the best interest of all concerned, requires it should be constantly and rigidly enforced in all cases to which it applies. Thus, in St. John vs. Paine, 51 U.S. 557, 13 L. Ed. 537, 10 How. 557, the Supreme Court, in giving the reasons on which the rule is founded, say: "Steam vessels are regarded in the light of vessels navigating with a fair wind, and are always under obligations to do whatever a sailing vessel, going free or with a fair wind, would be required to do under similar circumstances. Their obligation extends still further, because they possess a power to avoid the collision not belonging to sailing vessels, even with a free wind, the master having the steamer under his command both by altering the helm and by stopping the engines. They are also of vast power and speed compared with craft, on our rivers and internal seas, propelled by sails, exposing the latter to inevitable destruction in case of collision, and rendering it at all times difficult and not unfrequently impossible to get out of their way. Greater caution and vigilance are, therefore, naturally [**14]  to be exacted of those in charge of them to avoid the dangers of the navigation. This justly results from the superior power to direct and control the course and speed of the vessel, and the serious damage consequent upon a failure to avoid the dangers. As a general rule, therefore, when meeting a sailing vessel, whether close-hauled or with the wind free, the latter has a right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her." This and similar rules are administered and enforced in cases where they are applicable, as well by Courts of Common Law as in Admiralty. Jameson vs. Drinkald, 12 Moore 148; Handaysyde vs. Wilson, 3 Carr. & Payne 528; Mellon vs. Smith, 2 E. D. Smith, (N. Y. Rep.,) 462. That the rule cited does apply to the present case, has, we think, been settled by our predecessors in their opinion on the former appeal. We can place no other construction on their language when they speak, as applicable to the case before them, 

 [*340]  if "precautionary rules or regulations established by competent authority to guard against accidents and prevent injuries," and say that, to satisfy the [**15]  first requirement of ordinary care by a party prosecuting his business on the water, he must regard "the established rules" for regulating the course of his conduct so far as they relate to the safety of others. But apart from this, and supposing the question an open one, why should not the rule be applied to this case? No reason has been suggested except that the steamer was engaged in transporting a train of cars, with passengers and freight, across the river, to be forwarded by the railway on the other side, and that she had been accustomed to cross at stated times, with regular speed, and in a particular and wellknown track, and was on the line of that track when the collision occurred. The argument based on these facts, carried to its logical result, is, that the passage of the steamer was in fact a prolongation of the railway track, and it hence became the duty of all sailing vessels passing up or down the river, to take notice, at their peril, of her times of crossing, her speed and prescribed route, and observe the same precautions in getting out of her way as parties travelling on land are required to observe in avoiding a coming or passing train of cars. In other words, if [**16]  she rang her bell and blew her whistle at starting and while crossing, she had the right to pursue her accustomed route with her usual speed, and when so proceeding, would stand excused if she ran down every sailing vessel that might happen to come in her way. We cannot sanction that view of the case. This steamer was not part of the railway track, nor had she any prescriptive or other right to the exclusive use of any fixed and definite portion or space of the navigable water she was accustomed to traverse. She was propelled by steam, was crossing a large navigable river, in each and every part of which sailing vessels, propelled by wind and tide, had the same right to traverse that she had. Her case was in no respect different from that of an ordinary steam ferry-boat, using navigable 

 [*341]  water frequented by all manner of sailing craft. If the rule does not apply here, there will be a large class of cases, where it is most useful and needed, entirely exempt from its operation. The rule is a general one, not depending on the length of the route of the steamer, or whether it be up or down or across a navigable stream, and we have no doubt of its applicability to the case before [**17]  us. There may be exceptions to or cases justifying a departure from it. The difficulties or dangers of navigation, or of collision with other vessels in a thickly crowded harbor or river, may be such as to excuse the steamer in violating the rule with respect to a particular vessel, and make a given collision a case of inevitable accident, but there is no proof of any such difficulties or dangers in the present case. There were no other vessels in the way, the navigation was not dangerous, and there was ample and safe sea-room for her to have stopped, backed or turned aside. The collision occurred in day-light, on an open, clear day, when the movement of each vessel was perfectly apparent to the other, and from aught that appears, the steamer could have observed the rule, with perfect safety to herself, and avoided the sailing vessel by turning her own course, or stopping her engines in time. But if any surrounding circumstances existed to justify a departure from the rule, it was for the jury to find them, and the instruction so left it to their finding. We are, therefore, satisfied no error available to the appellant exists in this branch of the Court's instruction, in so far as [**18]  it refers to the steamer.
Nor can we discover any fatal error in what is said in regard to the sailing vessel. The rule is applicable to her, and her obligation and duty, are equally well established and equally explicit. "Few cases can be imagined," says the Supreme Court in 62 U.S. 372, 21 How. 372, 383, 384, 16 L. Ed. 144, "where it is more needful that these rules should be observed, than when a steamer and a sailing vessel are approaching each other from opposite directions or on intersecting lines, for the obvious reason that the negligence of the one is liable to baffle the 

 [*342]  vigilance of the other; and if one of the vessels under such circumstances follows the rule and the other omits to do so, or violates it, a collision is almost certain to follow. Sailing vessels approaching a steamer are required to keep their course on account of the correlative duty which is devolved upon the steamer to keep out of the way, in order that the steamer may know the position of the object to be avoided, and may not be led into error in her endeavor to comply with the requirement. Under the rule that a steamer must keep out of the way, she must of necessity determine [**19]  for herself and upon her own responsibility, independently of the sailing vessel, whether it is safer to go to the right or left, or to stop; and in order that she may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the attempt to perform her duty in the emergency, it is required in the admiralty jurisprudence of the United States that the sailing vessel shall keep her course, and allow the steamer to pass on the right or left, or to adopt such measures of precaution as she may deem best suited to enable her to perform her duty and fulfil the requirement of the law to keep out of the way. Repeated decisions of this Court have affirmed the doctrine here laid down and carried it out to its logical conclusion, and in so many instances that the question cannot any longer be regarded as open to dispute." The proof is without contradiction that the sailing vessel in this case did hold her course and observe the rule. There is proof however from which the jury might have found that by luffing or casting anchor she could possibly have avoided the collision, and it is argued that in view of the immediate peril a departure from the [**20]  rule on her part would have been a proper and wise precaution to avoid the danger, and that the instruction is therefore erroneous in that it impliedly assumes she was not to blame for not changing her course or anchoring. But the question material to the case is not whether the collision might have been avoided by a departure from the rule by the sailing vessel, but whether she is to be visited with the consequences of contributing 

 [*343]  negligence in observing the rule and keeping her course as she had the right to do. It is possible if she had cast anchor or turned her course when she first saw the steamer under way the collision would not have occurred, as it certainly would not if she had not started from her wharf until after the steamer had crossed. But she had the right to start at any time she chose, and once having started the rule made it her duty to hold her course. Those in charge of her had the right to assume the steamer was intelligently guided and would in proper time discharge her duty, and it is impossible to say they were bound at any instant of the time of approach before it was too late to avoid the danger, to assume the contrary and act accordingly, and [**21]  if the collision had occurred on her attempt to do so, the steamer might justly say the fault lay with the sailing vessel in not holding her course. If the collision had resulted in damage to the steamer, and her owners were plaintiffs, it cannot be doubted the non-observance of the rule regulating her conduct, without just cause in so doing, would have amounted to contributing negligence barring a recovery, and we cannot see by what process of reasoning the observance of the rule by the sailing vessel in connection with its non-observance by the steamer can be wrought into want of ordinary care on the part of the former. We certainly find nothing in that part of the instruction relating to the sailing vessel, entitling the appellant to a reversal.
The remaining portion of the instruction, that by the rules of navigation it is the duty of steam vessels navigating waters where sailing vessels are often met with, to keep a trustworthy and constant lookout besides the helmsman, and if the jury find the defendant did not have such a lookout at the time of the collision, and that the happening of the collision might have been prevented by keeping such lookout, this omission was a want [**22]  of ordinary care on the part of the defendant, is clearly correct, and was not seriously questioned in argument. The judgment must therefore be affirmed.
Judgment affirmed. 

85 of 142 DOCUMENTS 

JOSHUA LYNCH vs. SUSAN A. LYNCH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 328; 1870 Md. LEXIS 97 

December 5, 1870, Decided 

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

The bill in this case was filed by the appellant to procure a divorce a vinculo matrimonii from the appellee, upon the ground of abandonment, under Article 16, section 25, of the Code of Public General Laws. The character of the evidence is sufficiently disclosed in the opinion of this Court. The Circuit Court being of the opinion that there was no proof of an intention on the part of the defendant to bring about a separation, although her conduct was so outrageous as to justify the complainant in leaving her, refused the prayer of the bill, and passed a decree divorcing the complainant a mensa et thoro from the defendant.

From this decree the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Abandonment -- Divorce a mensa et thoro.

Abandonment, to constitute a sufficient cause for a divorce a vinculo matrimonii, must be the deliberate act of the party complained against, done with the intent that the marriage relation should no longer exist.

Violent and outrageous conduct on the part of the wife, towards the husband, rendering the proper discharge of the duties of married life impossible, is sufficient ground for a divorce a mensa et thoro. 

COUNSEL:
William M. Marine and Milton Whitney, for the appellant.

The evidence in this case establishes the fact that the appellant was compelled by the ill-conduct of his wife to leave the house in which they had been living; and the being thus compelled by the offensive conduct of his wife to quit his home and seek shelter elsewhere, constituted under the law of this State an abandonment on the part of the wife. Levering vs. Levering, 16 Md.  [**2]  , 213. And this abandonment having continued, as shown by the evidence, for three years and more, and the same being deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation, the complainant is entitled to a decree for a divorce a vinculo matrimonii.

The following authorities were also referred to: 1 Select Equity Cases, (Parson's,) 329; 7 Law Reports, 19; 1 Bishop on Marriage and Divorce, secs. 782, 791, 793 and 794.

No appearance for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*329]  ALVEY, J., delivered the opinion of the Court.
In this case, we fully concur with the Judge below, that the facts disclosed do not establish a case of abandonment of the husband by the wife, within the meaning of the 25th section of the 16th Article of the Code of Public General Laws, to entitle the husband to a divorce a vinculo matrimonii. The proof shows a lamentable state of domestic discord to have 

 [*330]  existed, and unbearable persecution of the husband by the wife, while living together, but there is no sufficient proof to establish the fact to the satisfaction [**3]  of the Court that the wife, the party complained against, ever deliberately designed, by her conduct, to effect a final separation of herself and husband, beyond reconciliation, however naturally that conduct may have tended to alienate the husband from his home, and finally determined him to desert it. The evidence shows that the unhappy relations between the parties, was mainly owing to the wife's ungovernable and vicious temper, and a morbid jealousy of her husband; but so far from having a deliberate design of producing an abandonment, it appears that, after her paroxysm of passion had subsided, she was always ready to admit her fault, and willing to become reconciled, promising not to repeat her offensive conduct. The desertion of the common home was the act of the husband, the party complaining, and although he may have been fully justified in so doing, still, he is not in a position to be divorced, on the ground of abandonment by the wife. Cruelty of treatment, which is only ground for a qualified divorce, must not be allowed, when used as a justification for living separate from the offending party, to be made the ground for a final divorce. Abandonment, to constitute ground [**4]  for a final divorce, must be the deliberate act of the party complained of, done with the intent that the marriage relation should no longer exist. And with this there is nothing decided in the case of Levering vs. Levering, 16 Md. 213, at all in conflict, as seems to be supposed by the counsel for the appellant; nor does the case of Harding vs. Harding, 22 Md. 337, tend to support a different principle. Besides, in this case, it is in proof that the husband, since the separation, upon being applied to by a friend of his wife to ascertain whether he would do anything for her, she being then sick, declared that he would neither live with her nor have anything more to do with her. Thus showing that the abandonment of the marital relation is not less deliberate and final on the part of the party complaining 

 [*331]  than on the part of the party complained against; and under such circumstances, clearly, no final divorce should be granted.
But, although a divorce a vinculo matrimonii cannot be granted, the facts of the case show ample cause for a divorce a mensa et thoro. According to the most restricted definition of cruelty of treatment,  [**5]  as ground to decree separation, this case falls within it. The wife's conduct towards the husband is shewn to be violent and outrageous, and such as to render impossible the proper discharge of the duties of married life.
Concurring as we do with the Judge below, the decree appealed from will be affirmed, with costs of the appeal to the appellee.
Decree affirmed. 

86 of 142 DOCUMENTS 

WILLIAM THOMSON, Sheriff of Baltimore City, vs. THE BALTIMORE AND SUSQUEHANNA STEAM COMPANY. THE BALTIMORE AND SUSQUEHANNA STEAM COMPANY vs. WILLIAM THOMSON, Sheriff of Baltimore City.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 312; 1870 Md. LEXIS 95 

December 2, 1870, Decided 

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

This was an action on the case brought by The Baltimore and Susquehanna Steam Company, the landlord of a lot of ground and wharf in the city of Baltimore, against William Thomson, sheriff of said city, for seizing and removing under an attachment on warrant against The Commercial Steamboat Company, certain goods and chattels of said company, being on the premises of which it was the tenant, without paying a month's rent due to the plaintiff as landlord, after due notice given, under the Statute of VIII Anne, ch. 14, sec. 1.

The defendant pleaded:

1st. Not guilty.

2d. That The Commercial Steamboat Company was not the tenant of the plaintiff.

3d. That he did not remove the goods from the premises.

4th. That the attachment on warrant was not an execution.

5th. That he sold the goods under an order of the Court passed in the attachment cause; and that afterwards the Court rendered judgment condemning said goods to the use of the attaching creditors.

On the first, second and third pleas issue was joined; to the fourth and fifth the plaintiff demurred. The Court sustained the demurrer and the [**2]  defendant appealed.

At the trial the plaintiff offered in evidence a lease of the premises from the plaintiff to John R. Bacon, dated 28th July, 1865, a notice from the plaintiff to the defendant, dated April 20th, 1866, claiming one month's rent as due on the 1st of April by John R. Bacon, and another notice dated the 11th of May, claiming that one month's additional rent was due by the Commercial Steamboat Company to the plaintiff on the first instant. The plaintiff also produced the writ of attachment, issued 19th of April, 1866--the sheriff's return showing the levy, and also reporting to the Court the landlord's notice of rent, the order of the Court, dated 8th of May, 1866, requiring the sheriff to sell the property and bring the proceeds into Court, to be deposited to the credit of the cause, and the writ of execution, dated 3d of October, 1866, founded on the judgment of condemnation. The plaintiff also proved that the premises had been used by the Commercial Steamboat Company, and that the previous instalments of rent had been paid by its checks, but the witness did not know whether the bills had been made out against Bacon or the Commercial Steamboat Company. The defendant [**3]  then offered in evidence a distraint warrant against John R. Bacon for the rent which had accrued on the 1st of April, and a levy under said distraint warrant upon other property than that taken under the attachment, of sufficient value to pay the rent, which property so distrained on had been replevied.

Instructions to the jury were asked by both parties--both parties excepted to the ruling of the Court on the prayers and to the instruction which it gave; and both parties appealed.  

DISPOSITION:
Judgment reversed, and judgment for the defendant below; and appeal of plaintiff below dismissed.  

HEADNOTES:

Statute VIII of Anne, chap. 14, sec. 1 -- Attachment on Warrant -- Sheriff protected by an Order of the Court -- Remedy of the Landlord for arrearages of Rent.

Under an attachment on warrant and the order of the Court thereon, certain goods and chattels of a tenant were seized and sold by the sheriff, without paying the arrears of rent due the landlord, after notice given under the Statute of VIII Anne, chap. 14, sec. 1. In an action against the sheriff by the landlord, HELD:

1st That an attachment on warrant was not an execution within the meaning of the Statute of VIII Anne, ch. 14, sec. 1.

2d. That the order of the Court directing the sale of the property seized by the sheriff, fully justified him in making the sale, and he was not liable to any one for so doing.

3d. That the landlord having a quasi lien on the goods of his tenant subject to distress, for arrearages of rent, was entitled to claim out of the proceeds of the sale made by the sheriff, such an amount of rent in arrear as he could have legally demanded if the goods had been taken on execution; and his claim, if properly established, would have taken precedence of the debt for which the attachment issued. 

COUNSEL:
George H. Williams, for the Baltimore and Susquehanna Steam Company.

If the jury believed that the plaintiff below was landlord of the premises, and that the two notices were given to the sheriff prior to his sale, duly verified as prescribed by the 21st section of Article 53 of the Code, then it was his duty to withdraw, unless the rent was paid. Calvert vs Joliffe, 2 Barn. & Adol., (22 E. C. Law,) 418.

The Statute of 8 Anne, chapter 14, applies to all executions whatsoever. Archbold's Land. & T., 252, (margin.)

Under the notices the sheriff was liable on the removal. Colyer vs.  [**4]  Speer, 2 Brod. & B., 67; Foster vs. Hilton, 1 Dowling, 35.

The suit was not brought for selling the goods, but for "removal after notice;" and the removal by the sheriff's vendees, was a removal by the sheriff. Smallwood vs. Pollard, 6 Mann. & G., 1001, (46 Eng. C. Law,) cited with approbation, in Cloud vs. Needles, 6 Md., 505. And the Court's order was no protection. Trieber vs. Blocher, 10 Md., 21.

T. Wallis Blakistone and John H. Thomas, for William Thomson.

Seizure of goods under an attachment on warrant is not within the prohibitions of the Statute. Fisher vs. Johnson, 6 Gill, 359, 360, 361, 362.

The language of the Statute only embraces executions. An attachment on warrant is not an execution. Even attachments on judgment are not considered as embraced by the general term executions used in a statute. Harden vs. Moores, 7 H. & J., 4.

Rights of all kinds may be asserted against goods seized under an attachment on warrant, or against the proceeds of them. The landlord loses nothing by such a seizure. Courts do not extend statutes to cases not within the mischief intended to be prevented, or the good to be accomplished by them. Brien vs. Calwell, 16 Md.  [**5]  , 122; 3 Robinson's Practice, 348; Davis vs. The Commonwealth for Leon, 13 Grattan, 144.

Seizure of goods alone, even under an execution, is not a violation of the Statute. The officer is not liable unless he also removes them. Washington vs. Williamson, 23 Md., 244, 251.

Removal by purchasers is not, on principle, sufficient to establish the liability of the officer. When he delivers possession, the goods are no longer in custodia legis, and may be distrained.

The sheriff was bound to obey the order of the Court directing him to sell the property, passed, as it was, with notice of the plaintiff's claim and rights, and cannot be punished for discharging that official duty. Ranahan vs. O' Neale, 6 G. & J., 298; Trieber vs. Blocher, 10 Md., 14; Cecil vs. Cecil, 19 Md., 79; Chicago City vs. Robins, 2 Black, 418; Robbins vs. Chicago City, 4 Wallace, 677.

The order directed the sheriff to bring in the proceeds of the goods to abide the result of the suit. The judgment of condemnation was a judgment in rem, binding on all the world. The sheriff paid the money in pursuance of a fieri facias issued on it. Green vs. Van Buskirk, 7 Wallace, 139.

A distraint having been [**6]  issued for the rent due at the time of the sheriff's seizure, and levied upon property more than sufficient to cover it, a second distraint therefor could not have been issued. The plaintiff was not entitled to vex his tenant twice in the same way, and at the same time, for the same cause of action. The defendant did not prejudice the plaintiff as to that rent, and the plaintiff is not entitled to recover in this action without averring and proving that it was injured in reference to the rent then due. It can not recover for any that accrued afterwards. Archbold's Land. & Tenant, 304, 305, (53 Law Lib.;) Taylor's Land. & Tenant, secs. 603, 733; Washington vs. Williamson, 23 Md., 244, 252.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*316]  ALVEY, J., delivered the opinion of the Court.
This is a special action on the case against a sheriff for seizing and selling the goods and chattels of a tenant under and by virtue of an attachment on warrant, and the order of the Court thereon, without paying the arrears of rent due the landlord, after due notice given under the Statute of 8 Anne, chapter 14, section 1. And the first and [**7]  most material question is, can the action be maintained?
It is contended, on the part of the defendant, that the action does not lie against him, because the attachment proceeding under which he acted is not embraced or contemplated by the Statute on which the action is founded; that an attachment on warrant is not an execution within the meaning of the Statute of Anne.
The Statute referred to is entitled, "an act for the better security of rents," &c., and provides "that no goods or chattels whatsoever, lying or being in or upon any messuage, lands, or tenements which are or shall be leased for life or lives, terms of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is 

 [*317]  sued out, shall, before the removal of such goods from off the premises, by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution;" and if more than one year's rent is due, "then the said [**8]  party, at whose suit such execution is sued out, paying the said landlord, or his bailiff, one year's rent, may proceed to execute his judgment as he might have done before the making of this act; and the sheriff or other officer is empowered and required to levy and pay to the plaintiff as well the money so paid for rent, as the execution money."
It is not difficult to perceive that the provisions of this Statute are such as cannot well be adapted to the course of proceedings on attachment. The seizure of property under an attachment is not by way of execution, in the ordinary sense of that term, but is simply in execution of a power delegated to the officer to impound such property of the debtor as may be required to answer the demand of the creditor, to be subject to the judgment of condemnation of the Court issuing the process. If the debt or demand upon which the attachment is founded be not sustained, of course, no judgment of condemnation is rendered, and the property is released and again restored to the possession of its owner. The sheriff, upon laying the attachment, has no power to sell the property seized, unless it be by the express order of the Court; and if [**9]  the arrears of rent were required to be paid as a condition to rendering the property subject to the attachment, the sheriff, not being authorized to sell under the process in his hands, could not levy and pay to the plaintiff "as well the money so paid for rent, as the execution money," as required by the Statute; and, consequently, the plaintiff would be deprived of the means provided for re-imbursing him the money paid to the landlord.
In the case of Fisher vs. Johnson, 6 Gill 354, it was decided by the late Chief Justice LE GRAND, then an associate 

 [*318]  Judge of the Baltimore County Court, that an attachment on warrant was not an execution within the meaning of the Statute of Anne; and upon appeal, while the question does not appear to have been considered by the Court of Appeals, it was expressly conceded and asserted by counsel on both sides, that such an attachment could not be considered an execution; and of the correctness of that proposition we think there can be no doubt. Indeed, an attachment has but few of the attributes of an execution; the execution contemplated by the Statute being the judicial process for obtaining the debt or damages recovered [**10]  by judgment, and final in its character, while the attachment is but mesne process, liable at any time to be dissolved, and the judgment upon which may or may not effect the property seized.
Nor do we concur in the position of the plaintiff in this case, that the sale of the property seized by the sheriff, under the order of the Court, rendered the officer liable to this action under the Statute, as if the goods were seized and removed under an execution. The order of Court was authorized simply as a means of preserving perishable property from loss pending the attachment, and the sheriff was bound to execute it, and he is not liable to any one for so doing. The order, having been made by competent authority, afforded full justification to the sheriff for making the sale. The proceeds of sale remained subject to the final judgment of the Court; and all persons having superior claims to the property to that given the plaintiff in the attachment to render such property specifically liable for his debt, with knowledge of the pendency of the attachment proceeding, were bound to come in and assert their claim before condemnation; for the sheriff can neither be held liable for selling [**11]  the property before judgment of condemnation under an order of Court, nor after such judgment, under a fi. fa. issued thereon. Trieber vs. Blocher, 10 Md. 14. And in a case like the present, although the officer be not liable as for seizing and removing the goods of a tenant under an execution, to the prejudice of the landlord's claim 

 [*319]  for rent, yet, by analogy to cases that have been decided to be within the equity of the Statute, we think the landlord is not without remedy. After the seizure of goods under an attachment and before sale, they are in the custody of the law, and, consequently, cannot be distrained, because the party distraining cannot legally take them into his own possession. But still, the landlord has a quasi lien on the goods of his tenant subject to distress, even before distress levied, for arrearages of rent; (Henchett vs. Kimpson, 2 Wils. 140; Dixon vs. Smith, 1 Swanst. 457;) and as the seizure and condemnation under the attachment may deprive the landlord of his remedy by distress, if there be not sufficient goods left remaining to satisfy his demand, he should be allowed to come in and claim [**12]  for such an amount of rent in arrear as he could have legally demanded if the goods had been taken on execution. Such demand, if properly established, will take precedence of the debt or claim for which the attachment issued, and, out of the proceeds of the property condemned, will be entitled to be first paid. This mode of proceeding is analagous to that allowed in cases of executions levied, where the landlord, instead of suing the sheriff, is awarded his claim for rent out of the money realized on the execution by motion in Court. 2 Tidd's Prac., 1016; Henchett vs. Kimpson, 2 Wils. 140; Washington vs. Williamson, 23 Md. 244.
It results from the view that we have taken of this case, that the action is not maintainable, and consequently the judgment on the appeal of the defendant below will be reversed, and judgment entered for him; and as to the appeal of the plaintiff below, that will be dismissed.
Judgment reversed, and judgment for the defendant below; and appeal of plaintiff below dismissed. 

87 of 142 DOCUMENTS 

GEORGE A. COONEY, Administrator of ELEANOR B. WOODBURN, vs. DAVID E. WOODBURN, Administrator c. t. a. of CHARLES H. WOODBURN, and SARAH WOODBURN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 320; 1870 Md. LEXIS 96 

December 2, 1870, Decided 

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

This appeal was taken from the decree of the Circuit Court dismissing the bill of the complainant. The facts of the case are sufficiently stated in the opinion of this Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Right of the Husband to the Personal estate of his Wife, upon her death, Intestate and without issue.

A testator bequeathed to his daughter certain leasehold property, for her sole and separate use and benefit, without being subject to the control or disposal of her husband, if she should marry, or liable for his debts. The share of the daughter under the residuary clause of the will was also declared to be for her sole and separate use and benefit, independent of the control of any future husband. The daughter became possessed of the property bequeathed to her by her father's will, and subsequently married. She died intestate and without issue, her husband surviving her. HELD:

That the personal property of the wife, limited to her sole and separate use by the will of her father, passed upon her death, intestate and without issue, to her husband in his own right. 

COUNSEL:
McHenry Howard and S. Teackle Wallis, for the appellant.

This case depends entirely, upon the law of Maryland and the recent adjudications of this Court. The English and American decisions, relied on by the appellees and by the Court below, do not apply. They are, for the most part, cases where the question arose upon the construction of marriage settlements, to which the husband was a party, surrendering his marital rights, and where it was held, properly enough, that he gave up no more than was necessary to secure to the wife the control of her estate during coverture. Others of the cases referred to, such as Stewart vs. Stewart, 7 Johns. Chy., 228, were decided upon the construction of the particular instruments in controversy, and under a different state of the law of husband and wife from that which exists here. In this case, the limitation of the separate estate in dispute is to be found in the will of Patrick Cooney, deceased,  [**2]  and is of the simplest form. He died before the marriage, (actual or contemplated) of either of his daughters, and gave the property to them, "for their sole and separate use and benefit, without being subject to the control or disposal or liable for the debts of their respective husbands, if they should hereafter marry." Is this limitation to be construed as concluding all marital rights absolutely, or as excluding them during coverture only? As matter of actual intention, manifested in words, it would be hard to imagine any clearer declaration of a testator's purpose to secure the property devised to his daughters, from all marital intervention whatsoever. Is there any principle of law which makes a contrary construction imperative? In Maryland there is none, whatever may be the case elsewhere. The error of the appellees, and of the Court below, consists in transplanting into our present system doctrines which are not applicable to it. There are undoubtedly English decisions, to the effect that separate estates are allowed by Courts of Equity to married women, in order to protect them during coverture only, and that the jus mariti is, therefore, not divested, but is only suspended [**3]  so long as the marriage lasts, and is revived, in full force, by the death of the wife. Chancellor KENT adopts the same doctrine in Stewart vs. Stewart, 7 Johns. Chy., 229. But Chancellor KENT has been held by this Court, in Cooke vs. Husbands, 11 Md., 504, to have been entirely in error in his views as to the rights of femes covert, in respect to their separate estates, and the English decisions in question are at war with all our own recent adjudications, as well as the spirit of our legislation. The intendment of law with us, is now against the jus mariti in all cases, and as strongly so as it was once the other way under the common law system. Married women are now held to be sole, as to their rights of property, wherever the question is one of construction. When it is not, the statute makes them so. Such is our present policy. Thus, in Cooke vs. Husbands, instead of its being held that it required a positive, or controlling and direct provision to exclude the rights of the husband, exactly the reverse was determined, and the Court said that the simple limitation of property to the sole and separate use of a married woman, gave her, ex vi termini, all the rights of a feme sole,  [**4]  including the absolute right of alienation by deed or will, and that an express provision to the contrary was necessary, to exclude that conclusion of law and let in the rights of the husband. The right of disposition was held to be a legal incident to the right of property, which attached to it of course, unless in terms excluded. Following up this decision, the Court has since accordingly held, (Buchanan vs. Turner, 26 Md., 7, and Schull vs. Murray, 32 Md., 16,) that the rights of married women, under limitations to their separate use, do not spring from the Code, but from the limitations only, and are not affected or controlled by the Code, so that married women may dispose of their separate estate by deed, without the participation of their husbands, and by will, without their assent, in spite of the general provisions of the Code to the contrary. If then there be no intendment of law, as to such estates, in favor of that jus mariti which is secured by our own positive statutes, on what principle can there be any in favor of the jus mariti at common law which is against the policy of the statutes? If the separate property of a wife be so far different and apart from her general [**5]  property that the provisions of the Code in regard to her general testamentary powers do not apply to it, under the cases in 26 and 32 Md., what renders the same separate property so far general as to make it subject to the provisions of the Code, (Art. 93, sec. 32,) in respect to survivorship of the husband, and the wife's choses in action? If it is separate property at all, it is separate property altogether, and if one portion of the Code does not apply to it, for the reason that it is not general property, surely no other part can apply to it for the reason that it is. If the absolute and unrestrained right of alienation, to the exclusion of the husband, flows as a legal consequence, from the mere existence of the separate estate in the wife, it can only be because the estate is one which is in itself superior to all marital rights. The premises must, logically, be as large as the conclusion. The greater cannot flow from the less.

C. L. L. Leary, for the appellees.

Under the will of Patrick Cooney, an absolute separate use as to the leasehold property bequeathed to his daughter, Eleanor, became vested in her, with power of disposal as a feme covert during her life. Cooke [**6]  vs. Husbands, 11 Md., 462, 505; Michael vs. Baker, 12 Md., 158; Chew's Adm'r vs. Beall, 13 Md., 348, 360; Buchanan vs. Turner, 26 Md., 5.

Upon the death of the daughter, her husband surviving her, the coverture having ceased, the separate use ceased, and the marital right of the husband attached; as survivor, at common law, he succeeded to the absolute leasehold interest. 1 Williams on Executors, 616, 778, 779; 2 Kent's Com., 134; 1 Bright's Husband and Wife, 94; 1 Cruise's Digest by Greenleaf, 229.

Under the will of Patrick Cooney, the use or trust was not carried beyond the death of Eleanor; it could not vest in her next of kin; there was no limitation over after her death, and therefore the husband's marital right attached; the effect of the will was only to suspend this right during coverture. When it is intended to exclude the husband's marital right, an express provision to that effect, in the deed or will is necessary. Jones vs. Brown, 1 Md. Ch. Dec., 194; Stewart vs. Stewart, 7 Johns. Ch. Rep., 234, 239, 245, 246; Ward vs. Thompson, 6 G. & J., 357; 2 Redfield on Wills, 133, sec. 15, and 179, sec. 4; Brown vs. Alden, 14 B. Monroe, 141, 144 to 146 and 150; Beall vs.  [**7]  Marshall, 6 Howard, 70, 79, 80.

The intention of the testator was to confer on his daughter, Eleanor, an absolute interest in the leasehold property, and to protect that interest during coverture from the husband's interference; at the death of the wife, the succession of this property is determined, not by the will of her father, nor by the law of the State regulating the distribution of personal property as in case of intestacy, but by the provisions of the common law. The right of the husband attaches prior and in preference to her next of kin; the law gives it to him, not as the representative of his wife; but in his marital right as her survivor. At the death of the wife, the quality of the property, as separate property, ceases, and the marital right attaches. 1 Bright's Husband and Wife, 94, 95; 1 Williams on Executors, (5 Am. Ed.,) 667, note f; Maloney vs. Kennedy, 10 Simon, 254.

The right of the husband, Charles H. Woodburn, to his wife's share of the residue of the estate of her father, depends upon a similar principle, modified in its application, by the nature of the property which consisted at the time of the wife's death, of bank and insurance stock or choses [**8]  in action. The language employed by the testator in disposing of the residue of his estate, shows clearly that he did not intend the separate use of his daughter to extend beyond the period of her death; nor is there here any limitation over. As choses in action, therefore, these stocks survived to the husband, and if he reduced them into possession during his lifetime, upon his death, his administrator, and not the administrator of the wife, is entitled to them. Act of 1798, ch. 101, sub-ch. 5, sec. 8; Code, Art. 93, sec. 32; 1 Bright's H. & W., 79, sec. 8 and 9; Stockett vs. Bird's Adm'r, 18 Md., 488.

The transfer by the husband, of the bank and insurance stock to his own name on the books of the respective corporations, was a complete reduction into possession. 1 Bright's H. & W., 50, 54, secs. 6 and 7, p. 55, secs. 9 and 10; Wildman vs. Wildman, 9 Vesey, 174; Turton vs. Turton, 6 Md., 381; Hill on Trustees, (2d Am. Ed.,) margl. p. 415, note (1.) 

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

OPINIONBY:
ALVEY 

OPINION:

 [*325]  ALVEY, J., delivered the opinion of the Court.
The question in this case arises upon the effect of a clause in the will of Patrick [**9]  Cooney, who died in September, 1849. The will was made in April, 1849.
The testator left several children surviving him, and among them Eleanor B., the appellant's intestate, to whom was bequeathed, by her father, certain leasehold property in the city of Baltimore, for her sole and separate use and benefit, without being subject to the control or disposal, or liable for the debts, of her husband, if she should thereafter marry; and such of the testator's property as passed to his daughter Eleanor B. under the residuary clause of the will, was also declared to be for her sole and separate use and benefit, independent of the control or disposal of her husband, if she should marry. At the time of the death of the testator, the daughter Eleanor B. was unmarried; but she became possessed of the property bequeathed to her by her father's will, and in August, 1854, was married to Charles H. Woodburn, the testator of the appellees. She died intestate, and without issue, in 1864, her husband surviving her. Her property was all taken possession of by the surviving husband, without administration; and in August, 1866, he died, leaving a will, by which he gave his property to his mother, one [**10]  of the appellees, and David E. Woodburn, his brother, became administrator of his estate. In 1867, George A. Cooney, the appellant, obtained letters of adminstration upon the estate of his sister Eleanor B. Woodburn, and in his character of administrator claimed the property that had been bequeathed to his intestate by her father, and which had passed into the possession of her surviving husband at the time of her death. The bill in this case is filed to enforce that claim. And the single question argued on this appeal is, whether the personal 

 [*326]  property of the wife limited to her sole and separate use by her father's will, passed, upon her death intestate and without issue, to her husband, in his own right, or to her administrator?
It is contended on the part of the appellant that, according to the intention of the testator, as manifested in the terms of his will, the daughter took the estate bequeathed to her as feme sole, and that she bore that relation to it during life, notwithstanding her marriage, and that all the marital rights of the husband were excluded, as well after the death of the wife as before, and that, consequently, the property devolved on the appellant [**11]  as administrator of the wife; while on the part of the appellees it is contended, that during the coverture the marital rights of the husband in the property were only suspended, and that upon the death of the wife, the separate quality of the property ceased, and the marital rights of the husband attached, as if the separate use had never been declared.
In determining this question it is important to observe the terms in which the bequests were made. They gave the property to the legatee, then a single woman, for her sole and separate use, without being subject to the control or disposition of her future husband, but without any limitation over whatever, or the employment of any terms to indicate how the property was to pass on the death of the daughter; nor is there any limitation as to the mode of assignment or appointment. The legatee was clothed therefore with general power of alienation as feme sole, both before and after marriage. Cooke vs. Husbands, 11 Md. 492.
The separate estate, the mere creature of a Court of Equity, is allowed and maintained for the benefit and protection of the wife, against the improvidence and misfortunes of the husband, and [**12]  consequently it has its existence and operation only during the period of coverture; and whilst the legatee in this case remained discovert the separate estate was dormant and without effect, though it was capable of arising, and did 

 [*327]  arise, upon the happening of the marriage contemplated by the will; and upon the termination of the coverture by the death of the wife, such separate estate became absolutely void. Tullett vs. Armstrong, 1 Beav. 1, Same Case, on appeal, 4 Myl. & Cr. 397.
It was certainly competent to the testator to have not only excluded the marital rights of the husband during the coverture, but, by apt terms, to have carried such exclusion beyond that period, and excluded them altogether. There is nothing however in the terms of the will to manifest clearly such intent. The husband is the party declared by law to be entitled in the absence of some clear and positive limitation to exclude him, and if the separate estate terminated with the death of the wife, and there be no limitation of the estate inconsistent with the rights of the husband, who other than the husband can be entitled? His rights were simply [**13]  suspended, in reference to this particular property, during the coverture. It is true, the property could have been disposed of by the wife by virtue of the existence of the separate estate, and thus the husband's suspended rights could have been entirely defeated; but that not having been done, upon the death of the wife, those rights were revived and became active.
It being conceded that the husband would be entitled to the property in question if it were not for the effect attributed to the will of Patrick Cooney, it becomes purely a question of construction; and as there is nothing on the face of the will, apart from the usual formula of declaring the separate estate during coverture, it follows that the husband's rights, though suspended up to the time of the death of his wife, have not been entirely defeated. The will making no disposition of the property on the death of the wife, and providing only for her exclusive dominion over it during coverture, "the right of the husband, as survivor, is a fixed and stable right, over which the Court has no control, and of which he cannot be divested. The settlement cannot be extended, by construction, beyond the just and fair import [**14]  of its provisions; 

 [*328]  and, clearly, the Court cannot create a settlement, or disposition of property, in violation of the jus mariti, when none has been made by the party." So declared Chancellor KENT, in the case of Stewart vs. Stewart, 7 John. Ch. 229; and the reasoning and principle of construction of that case have been fully sanctioned and approved by the Courts of this State, in Ward vs. Thompson, 6 Gill & John. 349, 357; Waters vs. Tazewell, 9 Md. 291, and Jones vs. Brown, 1 Md. Ch. 191; which cases govern and control this.
Being of opinion that the surviving husband was entitled to the personal property of his wife at the time of her death, we shall affirm the decree appealed from, with costs to the appellees.
Decree affirmed. 

88 of 142 DOCUMENTS 

ROBERT HALL, THOMAS W. ATKINSON, and others, vs. JOHN R. RIDGELY and Wife, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 308; 1870 Md. LEXIS 94 

November 15, 1870, Decided 

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

The case is very fully stated in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Creditors' Bill -- Plea of the Statute of Limitations.

On a creditors' bill filed to vacate certain deeds executed by the debtor in fraud of existing creditors a decree was passed on the 22d of June, 1867, vacating the deeds as against the complainants and all other creditors of the debtor who were such on or prior to the 2d of May, 1861, and directing the property, or so much thereof as might be necessary to pay their claims, to be sold for that purpose. The trustee was directed to give the usual notice to such creditors. In consideration of the withdrawal of an appeal which had been taken by the debtor and others from this decree, certain judgment creditors, parties to the suit, agreed to accept the amount of their respective judgments without interest, to be paid out of the proceeds of a designated portion of the debtor's property; and on payment thereof the decree was to be entered satisfied. The specified portion of the property was sold by the trustee, and an account stated distributing the entire proceeds, together with other money which had been received by the trustee, to the discharge of the claims of these creditors. On the 18th of April, 1868, the account was finally ratified. On the 9th of March, 1868, certain creditors who were not named as complainants in the bill, filed their claims which existed prior to the 2d of May, 1861, and which were barred by limitations long before they were filed. On the 1st of May, 1869, the debtor and others filed their petition, pleading the Statute of Limitations as a bar to each of these claims. The claimants objected to the plea, that it was taken too late. HELD:

That the Statute was pleaded in due time and at the proper stage of the cause.  

COUNSEL:
Alexander H. Hobbs, for the appellants.

Frederick W. Brune, for the appellees.  

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

OPINIONBY:
MILLER 

OPINION:

 [*309]  MILLER, J., delivered the opinion of the Court.
A creditors' bill in the usual form was filed to vacate certain deeds, executed by John R. Ridgely, in fraud as alleged of existing creditors; which, after much litigation, resulted in a decree, dated June 22d, 1867, vacating the deeds as against the complainants and all other creditors of Ridgely, who were such on or prior to the 2d of May, 1861, the date of the first of the assailed deeds, who may come in and make themselves parties to the suit, and directing the property thereby conveyed or so much thereof as might be necessary to pay their claims, to be sold for that purpose. The decree contained the usual direction to the trustee to give notice to such creditors to file their claims. The defendants, Ridgely and others, having taken an appeal from this decree, entered into an agreement with certain judgment creditors, [**2]  then parties to the suit, by which they agreed to withdraw their appeal and the creditors to accept the amount of their respective judgments without interest, to be paid out of the proceeds of a designated portion of the property; and on payment thereof the decree was to be entered satisfied. The specified portion of the property was sold by the trustee and an account stated, distributing the entire amount of proceeds with other money which had come to the hands of the trustee, to the discharge of the claims of these creditors. All the claims allowed by this account which was finally ratified on the 18th of April, 1868, appear to have been paid. On the 9th of March, 1868, the appellants who were not named as complainants in the bill, filed certain claims on promissory notes existing prior to the 2d of May, 1861, all of which were barred by limitations long prior to the time they were filed. No notice was taken of them by the auditor in the account which was ratified, or by any of the defendants until May, 1869, when, on notice from the trustee that he would proceed to sell other property to pay them, the defendants filed petitions in which they pleaded and relied upon the Statute of [**3]  Limitations as a bar to each and every of these claims, and 

 [*310]  asking the decree should be entered satisfied in accordance with the agreement referred to, and the trustee discharged from further execution of the trust. The Court decided the petitioners were entitled to the benefit of the defense of limitations as against these claims, and referred the case to the auditor to state a final account disposing of the case. The auditor accordingly reported there were no claims filed to which the Statute was not a bar, and that there was no other account to be stated in the case. Upon this report an order was passed ratifying it and discharging the trustee. From that order the claimants who filed their aforesaid claims on the 9th of March, 1868, have appealed, and the sole question for our consideration is, was the Statute pleaded and relied upon in due time as against these claims?
The sole objection made by the appellants is, that as the defense was not interposed until more than a year after the claims were filed, it came too late. It is perfectly well settled, that in a creditors' suit of this character, any creditor not named as complainant in the bill, may come in after institution [**4]  of the suit and make himself a party thereto, by simply filing the voucher of his claim with the clerk, and as against any claim so filed the Statute runs down to the time it was thus filed, that being regarded as the time of commencement of the suit with respect to such claim. To a claim thus filed, any party interested in contesting it may rely upon limitations in the same summary and informal manner in which the claim itself was presented, by a short note in any form without oath, stating in substance that he relies upon the bar of the Statute. Carroll vs. Waring, et al., 3 G. & J. 491. As a general rule he may present this defense at any time after the claim has been filed, either before the case has gone to the auditor or after he has made a report upon it, or by way of exception to an account allowing it, (Welch vs. Stewart, 2 Bland 37, 42; McDowell vs. Goldsmith, 24 Md. 214,) unless he has done some act, or stands by and suffers some act to be done which necessarily implies a waiver 

 [*311]  of that defense on his part, as for instance he cannot first contest such claim on its merits and then afterwards plead [**5]  limitations to it; (McMachen vs. Chase, 1 Bland 85, note c, and 2 Bland 43,) or where an original complainant presents his claim with his bill, and the defendant in his answer denies its existence, but does not plead limitations thereto, he cannot after the case has been contested on the ground of the existence of the claim, rely upon the Statute by way of exception to the audit which allows it, (Brendel vs. Strobel, 25 Md. 395,) and so where on appeal a claim has been allowed by this Court and the cause remanded for further proceedings, it is too late then to plead the Statute to such claim. Williams vs. Banks, 19 Md. 22. The present case comes within the general rule. These claims had not been reported or acted upon by the auditor, there were no funds in Court applicable to their payment, they had never been contested on other grounds, and the first time they are met, and the first defence taken to them was the plea of the Statute. Even if the trustee had proceeded to sell other property and the funds had been brought in for distribution, it is clear, limitations could have been availed of by an exception [**6]  to an account, distributing the proceeds to their satisfaction, and a fortiori could such defense be made before the property was sold. We are clearly satisfied the plea was interposed in due season and at the proper stage of the cause. The order appealed from must therefore be affirmed.
Order affirmed. 

89 of 142 DOCUMENTS 

MATTHEW MCCLERNAN, trading as MCCLERNAN & CO. vs. M. TAYLOR HALL and H. T. D. LONEY, trading as HALL & LONEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 293; 1870 Md. LEXIS 92 

October 21, 1870, Decided 

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

This was an action brought by the appellant to recover from the appellees on a contract for the sale of a thousand bags of Quercitron bark. The narr. contained the usual money counts. The seventh count declared that the defendants on the 10th of August, 1868, bought from the plaintiff a thousand bags of good No. 1 merchantable ground oak Quercitron bark, at the price stated, to be delivered to the defendants or to a certain John Koper, between the 1st and 10th of October, 1868--that the plaintiff notified the defendants that the bark was ready for delivery according to the contract, but that they refused to receive it. The eighth count declared that the defendants as agents of the said Koper, to the plaintiff unknown, purchased said bark which was to be delivered to the defendants or their alleged principal within the time specified; that the plaintiff tendered the bark in accordance with the contract, but that the defendants refused to receive it, and that the plaintiff gave the credit of said bark to the defendants, and charged the same to them, and that the value of said bark had greatly diminished.

The defendants pleaded the general [**2]  issue.

At the trial the plaintiff offered certain parol evidence, taken subject to exception, to show that he sold the bark to the defendants personally, and that he looked solely to them as the purchasers; he also offered in evidence the following papers:

BALTIMORE, August 10, 1868.

As agents for Mr. John Koper, of No. 10 Old Slip, New York, we have this day bought and agree to receive one thousand bags of No. 1 merchantable ground oak Quercitron Bark, at $ 47 cash per long ton, (of 2240 lbs.,) to be tendered and delivered to us (or to said principal) in lots of not less than 500 bags between the first and tenth days of October, 1868. And we hereby acknowledge to have received one dollar on account of this contract to bind our principal.

HALL & LONEY.

(U. S. Stamp 5 cts.)

August 10, 1868.

We, the undersigned, have this day sold to Mr. John Koper, No. 10 Old Slip, New York, one thousand bags of No. 1 merchantable Quercitron Bark at $ 47.00 per ton, which we promise to deliver on board of New York steamers, in lots of not less than 500 bags, to be delivered between the 1st and 10th day of October, 1868.

MCCLERNAN & CO.

The plaintiff as a [**3]  witness testified that he signed the memorandum of sale as a business accommodation, and because the defendant Hall asked him; it was also shown that this paper was transmitted by the defendants to Koper who declined to accept the bark.

The defendants offered no testimony.

The plaintiff presented a number of prayers which the Court refused to grant, and instructed the jury that there was no evidence from which they could find for the plaintiff; that if they found all the facts offered in evidence by the plaintiff, they were not sufficient to sustain a verdict in favor of the plaintiff. To the rejection of his prayers and to the instruction given by the Court the plaintiff excepted, and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Principal and Agent -- Evidence.

A contract in writing stated that the parties whose names were thereto signed, had, as agents, bought and agreed to receive a certain quantity of Quercitron bark at a stipulated price, to be delivered to them, or to their principal, within a time specified. The name of their principal was disclosed in the contract, and they therein acknowledged the receipt of one dollar, on account of the contract, to bind their principal. HELD:

1st. That upon a refusal to receive the bark when tendered, the agents were not personally liable to the vendor.

2d. And that parol evidence was inadmissible for the purpose of showing that the vendor had given credit to the agents exclusively, and that he looked solely to them as the purchasers.  

COUNSEL:
John Henry Keene, Jr., for the appellant.

The Court below erred in deciding that should the jury find all the facts testified to by the plaintiff, they afforded no evidence upon which he was entitled to recover. And the question to whom the credit was given, and whether it was a sole and exclusive credit to the appellees, was only to be found by weighing all the testimony in connection with both papers, in [**4]  any form of action instituted by any of the parties thereto. Thompson vs. Davenport, 2 Smith's Leading Cases, 433; York County Bank vs. Stein, et al, 24 Md., 463; Sumalt vs. Ridgely, 20 Md., 115; Wyman vs. Gray, 7 H. & J., 411; 3 Robinson's Practice, 54-62; 1 Greenleaf on Ev., 89, 284; Story on Agency, (Ed. 1869,) sec. 288.

Alexander H. Hobbs, for the appellees.

The paper writings of the 10th of August, 1868, merged all antecedent negotiations between the parties, and constituted the contract in this case. And that being so the law is perfectly well settled; for where persons entering into contracts, and especially written contracts as agents, disclose the name or names of their principals, they are not personally liable. Oelricks vs. Ford, 23 How., 59-64, 65; Bradford vs. Eastman, 2 Wash., C. C., 219; 1 American Leading Cases, (4th Ed.,) 628; Key vs. Parnham, 6 H. & J., 421; 2 Kent, 630.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*296]  BARTOL, C. J., delivered the opinion of the Court.
The rule of law applicable to this case is very clearly stated by the Court of Appeals in Key vs. Parnham, 6 H. & J. 418,  [**5]  421, as follows: "Wherever, upon the face of an agreement, a party contracting plainly appears to be acting as the agent of another, the stipulations of the contract are to be considered as operating solely to bind the principal; unless it manifestly appears by the terms of the instrument, that the agent intended to superadd or substitute his own responsibility for that of his principal."
In 1 American Leading Cases, 628, the same rule is thus stated:
"In respect to the liability of the principal on written contracts; if the name of the principal, and a relation of agency be stated in the writing, and the agent really be authorized, the principal alone is bound, unless the language express a clear intention to bind the agent personally."
Applying this rule to the present case it seems to be very clear that the appellees are not personally liable upon the contract here sued upon. The written papers signed by the parties, by which the contract is evidenced, show on their face that the contract of purchase was made by the appellees as agents for John Koper, of New York, who is named as principal. The memorandum of sale, signed by the appellant the vendor, expresses in terms that [**6]  the sale was made to "John Koper, No. 10 Old Slip, New York," and the appellees, the agents, are not even named therein.
The rights and obligations of the parties must depend upon the construction and legal effect of the writing, which in this case is free from ambiguity and too plain to admit of argument.
The effort of the plaintiff below was to introduce parol evidence of the negotiation and agreement made by them with the appellees, before the contract was reduced to writing, for the purpose of explaining that he dealt with the appellees as principals, and gave credit to them exclusively. Such evidence 

 [*297]  was inadmissible, and the Court below was right in instructing the jury to disregard it.
The contract being executory and within the operation of the Statute of Frauds, could be evidenced only as the Statute requires, and could not be proved by parol; the only valid and binding contract is that expressed in the writing; and there is no rule of law which would allow the parties to resort to parol evidence for the purpose of varying its terms, or changing its legal construction and effect. Its terms are plain and unambiguous, and there is no room for extrinsic proof to [**7]  explain their meaning. According to the well established rule of construction the contract of sale was made with John Koper as principal; the agency of the appellees is expressed in the agreement; the appellant dealt with them exclusively in that character, and there is nothing in the contract by which they bound themselves personally, there was no error therefore in the instruction given to the jury by the Court below, or in refusing to grant the prayers of the appellant.
Judgment affirmed. 

90 of 142 DOCUMENTS 

AUGUSTUS ALBERT, Sheriff of Baltimore City, vs. AMBROSE A. WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 297; 1870 Md. LEXIS 93 

October 21, 1870, Decided 

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

This is an appeal from an order passed by the Court below, granting an injunction as prayed in the bill of the appellee. The bill, filed on the 2d of June, 1870, recited that the appellee was an honorary member of Company D, of the Fifth Regiment of Infantry, of the militia of the State of Maryland, in the city of Baltimore, in conformity to the provisions of section 22, of the Act of 1870, chapter 182, the General Militia Law; that he had received and filed with the clerk of the Superior Court of said city his certificate of membership, and was therefore entitled to be exempt from jury duty for the period of one year from the 7th of April, 1870, the date of said certificate; that subsequently at the drawing of the juries for the Courts of said city, which took place on the 29th of April, in the manner provided by section 603, Article 4 of the Public Local Laws, the name of the appellee was drawn and placed in order upon the jury books for said city, whereby he became liable to be summoned for jury duty; that although the appellant had been notified of the legal excuse and exemption to which the appellee was entitled, by the said [**2]  Act of 1870, chapter 182, section 22, the appellant had refused to summon some other person in his stead as required by section 610, Article 4 of the Code of Public Local Laws, alleging as his excuse that the Judges of the Common Law Courts of said city were divided in opinion as to the validity of such exemption under the Militia Law, and that he had announced his intention to summon the appellee for jury duty whenever his services should be needed.

The bill charged that the appellee was remediless in the premises, without the interposition of a Court of Equity, and prayed that the appellant might be enjoined and restrained from summoning the appellee for jury duty prior to the 7th day of April, 1871.

The appellant by his answer, admitted the facts and allegations of the bill, and the cause being submitted, the order for the injunction was passed.  

DISPOSITION:
Order affirmed without costs.  

HEADNOTES:

Exemption from Jury duty, in virtue of being an Honorary member of a Volunteer company of the Militia of the State -- Act of 1860, ch. 308 -- Act of 1870, ch. 182, sec. 22.

An honorary member of any legally organized volunteer company of the militia of the State, is by virtue of section 22, of the Act of 1870, chapter 182, entitled to exemption from jury duty for the period of one year from the date of his certificate of membership, provided the same be filed with the clerk of the Court before the drawing of the jury.

Sections 584 and 585 of the Code of Public Local Laws relating to the city of Baltimore, as it was reported by the Commissioners to the General Assembly, and adopted by the Act of 1860, ch. 1, form no part of the existing laws of the State, they having been repealed by implication, by virtue of the Act of 1860, ch. 308, which provided for the selection of jurors for Baltimore city.

The words, "qualified under the law of this State," as used in section 1, of the Act of 1860, ch. 308, refer to the qualification of jurors prescribed by Article 50 of the Code of Public General Laws. 

COUNSEL:
Ferdinand C. Latrobe and Reverdy Johnson, for the appellant.

The question to be decided on this appeal is whether the Act of 1870, chapter 182, a General Militia Law, applicable to the whole State, operates as an implied repeal of the 584th section of Article 4 of the Public Local Code,  [**3]  which designates who shall be liable to jury duty in the city of Baltimore? This section will be found in the copy of the Local Code reported to the Legislature by Commissioners Scott and McCulloh, and by the Legislature enacted into law and ordered to be deposited in the office of the Clerk of the Court of Appeals.

In re-printing the Code, this section and the one succeeding it, have been omitted from the copy of the Code in common use; a preliminary question therefore arises, which will have to be determined by the Court, whether the authentic copy, now on file in the archives of the State, presents the true law, or whether the law was liable to be lawfully altered by the agent appointed by the Legislature for the sole purpose of incorporating the new legislation of that session with the Code as then passed, and making an index to the whole.

The statute law of Maryland can only be found in the authentic archives of the State, the proper depository of which is the office of the Clerk of the Court of Appeals; and the sections 584 and 585 being there found, are part of the jury law applicable to Baltimore city, though the same are omitted from the printed copy of the Code [**4]  in general circulation.

The statutes of Maryland relating to the adoption of the Code are as follows. Act of 1860, ch. 1; Act of 1860, ch. 236, and Act of 1860, ch. 246.

The Militia Law being a general statute. and the Baltimore City Jury Law a local statute, and the two being in conflict, the Public Local Law must prevail by force of the eleventh rule of interpretation of the Code. Code of Public General Laws, Art. 1, sec. 11; Everett, Adm'r, vs. Avery, 19 Md., 136; Hammond vs. Haines, 25 Md., 541; State vs. County Commissioners, 29 Md., 515.

Since the enactment of the Code, which divides the statute law of the State into Public General and Public Local Laws, and provides an imperative rule of interpretation in cases of conflict between the two classes of laws, there is no longer such a thing as a repeal by implication between conflicting laws belonging to different classes, but such conflicts are determined by the application of the rule of interpretation provided by the Code. Now, a repeal by implication can only arise between laws of the same class.

The provision in the law of 1870, ch. 182, which exempts from jury service all honorary members of volunteer companies [**5]  of the militia of the State, who shall pay ten dollars for the support of the company, is unconstitutional.

To exempt from the obligation to serve on juries, a class of persons whose profession or occupation may be such that the people have an interest in their not being disturbed, such as doctors, preachers, lawyers, State or city officers, or men in the military service of the State, who may at any time be called upon to support her laws, is a power which has been often exerted, and is not denied. But the authority to make such exemption dependent upon the payment of a sum of money presents a very different question. That such money is to be applied for any particular purpose, in no manner affects the power. Such a power might greatly interfere with, if not totally destroy the value of jury trials. The men of pecuniary means and men of business, who are generally intelligent and above improper influences, and who are naturally unwilling, in a city, to perform jury service, would be willing to pay any reasonable amount to purchase exemption, and the result would be that juries might often consist of persons of less intelligence and character. No mere payment in money by a citizen,  [**6]  no matter what the object may be, gives to the State any power, in consideration of such payment, to exempt him from jury duty.

Thomas W. Hall, Jr., and S. Teackle Wallis, for the appellee.

The 11th section of Article 1, of the Code of Public General Laws, simply means that when there are co-existing statutory provisions, Local and General, which differ, and are repugnant to each other, the Local Statute shall govern in the locality designated. This rule was not intended, and does not and cannot operate to restrain the Legislature from harmonizing or repealing existing Local Laws by subsequent General Laws clearly inconsistent with, or repugnant to them, and applying from their nature, subject and purpose to the whole State.

That any statute, local or general, may be repealed by implication, has been authoritatively determined by this Court. Davis vs. The State, 7 Md., 159; Sedgwick on Stat. and Const'l Law, 124, 125; Smith on Statutory and Const'l Cons., 905; Commonwealth vs. Kimball, 21 Pick., 377; Starkweather vs. Howe, 17 Mass., 240.

There is nothing in the division of the Statute Law of the State into Public General Laws and Public Local Laws, which militates [**7]  against the principle thus laid down by the Court of Appeals. Whether a given statute belongs to the one class or the other, is to be determined from its general nature, scope and policy, not its accidental place in the statute book. A law general in its policy does not become local, although by subsequent enactments, nineteen out of twenty counties in the State are excepted from its provisions. A law which is local in its nature does not become general by being extended nominatim et seriatim to a majority, or all the counties of the State.

The Act of 1870, chapter 182, is a general law, passed in furtherance of a general policy, and intended to operate throughout the whole State, and to supersede, therefore, all inconsistent and repugnant provisions of previous laws, whether general or local.

It was passed in obedience to Article 9, section 1, of the Constitution, which directs the Legislature to provide for organizing the militia, and to "pass such laws to promote volunteer militia organizations as may afford them effectual encouragement." In the discharge of this obligation, and the exercise of its constitutional prerogative, and in accordance with the policy of many former [**8]  laws in relation to the same subject, the Legislature has determined that exemption from jury duty, as provided by section 22 of said Act, is likely to "afford effectual encouragement" to the volunteer organizations it is intended to promote, and which it substitutes for the compulsory militia system provided by the statutes which it repeals.

Where the intention of repeal or modification of existing legislation exists, and is apparent on the face of a new Act of Assembly, it repeals all previous laws inconsistent with it, whether they be general or local. The rule of construction set up by the Code, being itself but a public general law, is to be held as repealed pro tanto whenever such is the legislative purpose, distinctly announced or legitimately deducible.

In the cases referred to by the appellant in 19 Md. and 25 Md., the local law established was passed after the general law. In the case in 29 Md. the question was not raised. None of these cases meet the present inquiry.

But sections 584 and 585 of Article 4 of the Public Local Laws (relating to the city of Baltimore) are not in reality a part of our existing legislation. They are not to be found in the Code,  [**9]  as printed under the authority of the Legislature of 1861.

There is no doubt that the section which is supposed by the appellant's counsel to render the Militia law inapplicable to Baltimore is to be found in the Local Code, as originally adopted in 1860, according to the official copy on file. But, among the reform measures introduced into the Legislature at that session, one of the most important was a new law regulating juries in Baltimore city. See Act of 1860, ch. 308.

This Act, by some inadvertence, does not in terms repeal the sections 584 and 585, but its first section conclusively shows that its purpose was to reduce the jury qualifications to uniformity throughout the State, by directing the selection in the mode prescribed, of persons "qualified under the law of this State." When, therefore, the Code was printed by the authority of the Act of 1860, ch. 236, under the direction of Mr. Mackall, one of the actual codifiers, the two sections in question were omitted, and the Code as printed, without them, was distributed to all the Courts, justices and clerks throughout the State, by all of whom, as well as by all the people, it was supposed to be the Code until 1869,  [**10]  having gone unchallenged through two new Constitutions meanwhile. This printed Code is now read as the law of Maryland in every State and Federal Court throughout the country. It has been treated as the Code of Maryland by every Legislature since that of 1860.

Public policy, the quieting of men's titles, and the security of their rights, all require that the laws should be well known as well as certain, and it is calculated to strike the whole State with dismay, if the entire Code of Laws, printed and published by authority, is subject to correction in all particulars and at any time by the original printed volume, which scarcely any one but the Clerk of this Court possesses, and to which public access is practically impossible.  

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

OPINIONBY:
MAULSBY 

OPINION:

 [*304]  MAULSBY, J., delivered the opinion of the Court.
No question of jurisdiction having been made in this case we are not required to express an opinion on that point.
The appellee, as an honorary member of Company D, of the Fifth Regiment of Infantry, of the Militia of the State of Maryland, claims exemption from jury duty in [**11]  the city of Baltimore, under the operation of the Act of Assembly of 1870, chapter 182, and by that Act he is exempt, unless it is inoperative, for some reason, in said city.
It is claimed by the appellant that that Act is not operative in the city of Baltimore, for the reason that it is in conflict with sections 584 and 585 of the Code of Public Local Laws relating to that city, as it was reported by the commissioners to the General Assembly, and adopted by the Act passed January 12th, 1860, and because a Public Local Law must prevail over a General Law when they are in conflict, by force of section eleven, Article 1, of the Code, which prescribes "Rules of Interpretation."
The first inquiry necessarily presented is, whether the sections 584 and 585 are in force. If they form no part of the Laws of this State, there is nothing with which the Act of 1870 is in conflict.
By the Act of 1860, ch. 236, Henry C. Mackall was authorized to incorporate the laws of that session into the Code, and prepare the same for the printer, and supervise the printing thereof.
The sections in question, at that time, formed part of the Code of Public Local Laws relating to jurors in the city of Baltimore.  [**12]  
The General Assembly, at the same session, passed the Act of 9th of March, 1860, chapter 308, entitled "An Act to amend the Code of this State, by providing otherwise 

 [*305]  than as therein enacted, for the selection of grand and petit jurors for Baltimore city." This Act repealed, in express terms, sections 175, 586 and 589 of the Public Local Laws relating to jurors in the city of Baltimore, and enacted that the sections of this Act, chapter, 308, from 1 to 18 inclusive, should "constitute and become part of the Code of this State." Sections 584 and 585 are not mentioned, in terms, in the Act. The sections enacted by it were incorporated into the Code, and stand as sections 601 to 618 inclusive, in Article 4 of Public Local Laws. This Act is a public local law, and was passed by the same body which enacted the sections 584 and 585, and subsequently to the enactment of those sections.
If the provisions of this Act be in conflict with the provisions of those sections, the Act last passed must prevail, and the sections in question must be held to be repealed by implication. "The very fact of establishing a particular rule of conduct for the public, pre-supposes an intention on [**13]  the part of the Legislature, that a contrary rule should not prevail, and, therefore, the enactment of one law is as much a repeal of all inconsistent laws as if those inconsistent laws had been repealed by express words." Davis vs. The State, 7 Md. 151.
It follows that sections 584 and 585 are as effectually repealed by the Act of 1860, chapter 308, as are sections 175, 586 and 589, although the latter are repealed by express words, and the former are not mentioned, provided the former are inconsistent with the Act last passed.
Section 585 provides that the Court may excuse a juror summoned, if he be suffering under family affliction, or under a necessity of speedily going abroad, but shall not excuse him on account of pressure of engagements, whether of business or of pleasure.
Section 11 of the Act of 1860, chapter 308, provides, that "no one summoned as a juror shall be excused from service, except in open Court, on good cause shown to the satisfaction of the Court."

 [*306]  Whilst the former enumerates the causes which shall and shall not authorize the Court to excuse a juror, the latter refers the causes for excuse to the discretion of the Court exclusively.  [**14]  The latter provides a heavy penalty, which shall be enforced, against a juror summoned and failing to attend, without being excused. The former contains no such provision. The inconsistency is manifest.
The section 585 cannot be held to establish "a particular rule of conduct for the public" in this regard, and section 11 of the Act of 1860, chapter 308, another "particular rule of conduct." Each, on its face, establishes a particular rule, and the rules being inconsistent with each other, one must yield.
The section 584 limits the liability of citizens to jury duty to "between the ages of twenty-one and sixty-five," and entitles to exemption "those who are infirm in body or in mind, ministers of the Gospel, practitioners of law, practitioners of medicine, teachers of day schools, officers of the General Government, civil officers of the State, executive officers of the said city, and members of the General Assembly, and of the City Council when severally in session."
The 1st section of the Act of 1860, chapter 308, requires the Judges of the Superior Court, of the Court of Common Pleas, of the Circuit Court and of the Criminal Court, to select annually the names of seven hundred [**15]  and fifty persons, qualified under the law of this State, to serve as Grand and Petit Jurors in said city. "The law of this State," Article 50, Code of Public General Laws, prescribes twenty-five years of age as a qualification for a juror, and exempts from jury duty, Judges of the Orphans' Court, persons over seventy years of age, and all delegates, coroners, schoolmasters and constables, during their continuance in office. The qualifications for, and exemptions from jury duty, provided for by the section 584, and by the Act of 1860, chapter 308, are inconsistent, and in respect to both, these laws are in conflict, and the former must yield to the last expression of the legislative will.

 [*307]  We think that the words "qualified under the law of this State" as used in section 1, of the Act of 1860, chapter 308, must be understood to refer to the qualification of jurors, prescribed by Article 50, of the Code of Public General Laws. That is the law of the State evidently contemplated by the Legislature, their intention being to make the laws relative to the qualification of jurors uniform throughout the State.
Until the passage of the Act of 1860, chapter 308, all laws relating [**16]  to jurors in the city of Baltimore, contemplated, and provided for, their being summoned by the sheriff, on his own selection, in accordance with immemorial usage. That Act provided a new mode of selecting jurors. First, seven hundred and fifty names were to be selected by the Judges, and next, the Judges were to select, from that list of names, the required number of jurors. The Act is full and specific in its provisions, and capable of execution without the aid of reference to other statutes, except on the single point of qualification, and that reference is clear and distinct to the General Law of the State which defines it, and being plainly inconsistent with sections 584 and 585, they were properly omitted from the Code.
These views render it unnecessary that we shall pass on the other questions presented in the argument.
We are of opinion that the order of the Circuit Court granting the injunction ought to be affirmed.
Order affirmed without costs. 

91 of 142 DOCUMENTS 

E. BEATTY GRAFF, Executor of JOHN R. BARNUM, AND CECILIA R. BARNUM vs. DAVID BARNUM, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 283; 1870 Md. LEXIS 90 

October 19, 1870, Decided 

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

This was an appeal from a decree of the Circuit Court, dated the 26th of May, 1870, directing a sale of the City Hotel buildings and grounds in the city of Baltimore, passed in conformity with the decree of the Court of Appeals, dated the 8th of December, 1869, and the opinion accompanying the same, (see 31 Md., 425.) By the decree of the Circuit Court it was declared that all questions in relation to the claim of John R. Barnum, (whose representatives, since his death, had been made parties in his stead,) to a share and interest in the proceeds of sale, or to rents and profits, were not to be prejudiced by the decree, and all questions as to his alleged claim to any such share and interest were reserved for further adjudication. The facts of the case are sufficiently stated in the opinion of this Court.

A motion was made to dismiss the appeal.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

When an Appeal will not lie.

Where a decree is reversed by the Court of Appeals, and the cause remanded to the Circuit Court, that a new decree may be passed in accordance with the directions of the Court of Appeals accompanying its decree, and the Circuit Court proceeds to pass a decree in strict conformity with such directions, its decree has the force and effect of a judgment of the Court of Appeals, and an appeal therefrom cannot be entertained. 

COUNSEL:
E. Beatty Graff, for the appellants.

This appeal is well taken and ought not to be dismissed, because it is from a "final decree;" when it was passed, the case was "in a proper condition for a final decree," and admitted to be so by the Circuit Court; because,  [**2]  "as the case now stands," the Circuit Court has denied and indirectly decided and adjudicated adversely to the rights and claims of the appellants, by decreeing a sale of their interest in the property, and a distribution of the proceeds of sale; because, it has authorized the auditor to allow rents and profits to the complainants only, whilst the appellants are also entitled to rents. The appeal should be allowed because the Circuit Court has not passed a "final decree" or any decree, in pursuance of all of the mandates of this Court; because the Circuit Court, of its own accord and against the wishes of the appellants, alleges it has "reserved," their rights, although they were fully made out and submitted. Because, being a new and "final decree," the Circuit Court should have directly decided, one way or the other, all judicial questions, as to the rights of all parties who submitted their rights for final decision or adjudication; because the Circuit Court refused directly to decide the appellants' rights one way or the other; because the auditor, by said "final decree," is authorized to decide upon or adjudicate the appellants' rights and claims upon testimony to be taken before [**3]  him, so as to ascertain whether or not the appellants are entitled to any interest in the property before he can state any correct or just account, as to the division of the proceeds of sale, the value of improvements, &c.; because this appeal is to "the merits of the subject-matter."

"The regularity or propriety of an appeal can only be disposed of upon motion to dismiss, but such a motion will not be entertained when it raises an inquiry as to the merits of the subject-matter to be considered under an appeal which has been regularly taken." Ringgold vs. Emory, 1 Md., 350; Brown vs. Sommerville, 8 Md., 444; Thompson vs. McKim, 6 H. & J., 302, 328; Buchanan vs. Deshon, 1 H. & J., 280; Lester vs. Howard, 24 Md., 236; Emory & Gault vs. Owings, 3 Md., 178; Ex parte Coston, 23 Md., 272; Lucas vs. McBlair, 12 G. & J., 1; Jones vs. Belt, 2 Gill, 106; Dennis vs. Dennis, 15 Md., 76; Mitchell vs. Mitchell, 6 Md., 234; Mong vs. Bell, 7 Gill, 246; McLaughlin vs. Barnum, 31 Md., 447.

T. A. Linthicum, Geo. H. Williams, I. Nevett Steele and William Schley, for the appellees.

The present appeal should be dismissed:

First. Because the appellants are not aggrieved.

Secondly.  [**4]  Because there can be no appeal to this Court to review a decree passed in strict conformity to its own directions.

Thirdly. Because no question of right has been decided in relation to John R. Barnum's alleged title to a share of the estate. It is carefully reserved for future adjudication.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*285]  BARTOL, C. J., delivered the opinion of the Court.
By the decree of this Court on the former appeal in this cause, passed on the 8th day of December, 1869, the decree of the Circuit Court of the 14th of June, 1869, was reversed, and the cause was remanded, "in order that a new decree might be passed, modifying the decree then appealed from, as and in the manner directed in the opinion of this Court filed with and accompanying the decree of the 8th of December, and that further proceedings might be had under such new decree, in accordance therewith and according to the usual practice and course of the Court."
After the cause had thus been remanded, it became necessary in consequence of the death of John R. Barnum, one of the defendants, to revive the suit against his representatives;  [**5]  and proceedings were had whereby his executor, and his widow and children, the devisees named in his will, were made parties defendants.
No other proceedings were had, except that a petition was filed in the Circuit Court by the present appellants, which was dismissed; that petition will be noticed hereafter.
The Circuit Court in obedience to the mandate of the Court of Appeals, proceeded to pass the decree from which this appeal 

 [*286]  has been taken. The case before the Circuit Court, when this decree was passed, was in all respects the same case that was before this Court on the former appeal, when the cause was remanded for the purpose of having a decree passed therein according to the decision and direction of this Court. By an inspection of this decree, and a comparison of it with the opinion and decree of this Court of the 8th of December, it appears that the Circuit Court has conformed in all respects to the order and direction of this Court, the decree therefore has the force and effect of a judgment of the Court of Appeals, and an appeal therefrom cannot be entertained. To allow an appeal in such case would be to allow a party to baffle and defeat the whole object [**6]  and effect of the decree of this Court. The motion to dismiss this appeal must therefore be sustained.
These appellants are the widow and executor of the late John R. Barnum, who was a defendant in the cause claiming to be entitled to a share of the property mentioned in the proceedings, and of the rents and profits, as a son of Richard Barnum, and a grandson of David Barnum, the original testator.
In the original bill filed in the cause, this claim of John R. Barnum was averred; but his right thereto was called in question on the alleged ground that he was illegitimate. By the decree of the 14th of June, 1869, which came up on the former appeal, the rights of John R. Barnum and his claim to a share of the rents and profits and of the proceeds of sale were expressly reserved for future adjudication, and it was held by this Court that "he had no right to appeal from the decree on that ground." The same objection exists to the present appeal, for by this last decree the Circuit Court has again expressly reserved, for future decision, the rights of these appellants and the other representatives of John R. Barnum. The decision below not being adverse to them, they are not aggrieved,  [**7]  and consequently, as was before decided by this Court, are not entitled to appeal.
When this case was before us in December last, it was obvious that the interests of all parties concerned required that 

 [*287]  the property should be sold, and an account of the rents and profits should be taken; and therefore after deciding the several questions in controversy, the cause was remanded in order that a decree for a sale as directed by this Court should be passed without further delay. It was not contemplated that the decree for a sale should await the determination of the question of the legitimacy of John R. Barnum, and of the rights of his representatives to a share of the fund. That question having been reserved by the decree from which the appeal had been taken, was not finally determined by this Court, and these appellants were in error in stating in the petition filed by them, to which we have before referred, that this Court "had decided that John R. Barnum was entitled to his proper share, &c."
In the opinion of this Court which accompanied the decree of the 8th of December, the following language was used with reference to the rights of John R. Barnum: "We must observe,  [**8]  however, that if the case is not altered by further proof on the subject, from the position in which it now stands, he will be entitled to his proper share as the son of Richard Barnum, and grandson of the testator, David Barnum."
In dismissing the present appeal we reiterate the same opinion. As the case appears upon this record, the representatives of John R. Barnum, are prima facie, entitled to a share and the onus of proof is upon the parties denying their right to establish the illegitimacy of John R. Barnum; they ought to be required with all convenient despatch, to adduce their proof in order that the question may be decided, and the rights of these appellants and the other representatives of John R. Barnum may be finally determined without unreasonable delay.
In the mean time, and until that question shall be finally decided, these appellants will have the same rights as other parties to the cause, to appear before the auditor, and otherwise intervene for the security and protection of their interests.
Appeal dismissed. 

92 of 142 DOCUMENTS 

FRANCIS SAUER vs. CAROLINE SCHULENBERG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 288; 1870 Md. LEXIS 91 

October 19, 1870, Decided 

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

This was an action for the breach of a promise of marriage, brought by the appellee against the appellant.

Exception: At the instance of the plaintiff the Court instructed the jury that the damages to be given in this action rests in their sound discretion under all the circumstances of the case. The defendant offered two prayers, the first of which was granted; the second, as follows, was rejected, the Court thinking the subject properly covered by the instruction given at the instance of the plaintiff: That evidence of the carnal connection of Sauer with Schulenberg, cannot be considered by the jury in estimating the amount of damages, if they shall find for the plaintiff. The defendant excepted to the rejection of his second prayer and to the instruction given at the instance of the plaintiff. The verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Appeal -- Breach of Promise of Marriage.

An appeal will not lie from the judgment of the Supreme Bench of Baltimore city, overruling a motion for a new trial.

In an action to recover damages for the breach of a promise of marriage, evidence was offered of the promise and of the breach, and also of a subsequent seduction of the plaintiff by the defendant; and there was evidence tending to show that the seduction was accomplished by means of the promise of marriage. HELD:

That the jury were warranted, in estimating the damages, to consider the fact of seduction. 

COUNSEL:
T. R. Presttman and J. Randolph Quinn, for the appellant.

Philip C. Freise, for the appellee.  

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

OPINIONBY:
MILLER 

OPINION:

 [*289]  MILLER, J., delivered [**2]  the opinion of the Court.
This case was tried in the Superior Court and resulted in a verdict for the plaintiff. A motion for a new trial was made by the defendant, which was heard and determined in the Supreme Bench under the provisions of Art. 4, sec. 33 of the Constitution. The motion was overruled, and judgment upon the verdict was then rendered by the Superior Court, and from that judgment this appeal is taken. The appellant's counsel, in their brief, have argued that the action of the Supreme Bench on this motion is a subject of appeal and review by this Court. This position, however, cannot be sustained, for, whilst the Constitution confers jurisdiction upon the Supreme Bench to hear and determine, amongst other matters, all motions for a new trial in cases tried in any of the Courts of Baltimore city, it expressly provides that "the same right of appeal to the Court of Appeals shall be allowed from the determination of the said Court on such matters as would have been the right of the parties, if said matters had been decided by the Court in which said cases were tried." From this provision, it is very clear there was no design to grant an appeal, or enlarge the right [**3]  of appeal on motions for a new trial. These motions are merely allowed to be heard and determined by the Supreme Bench instead of the Court which tried the case, the Judge of that Court being himself one of the Judges constituting the Supreme Bench. The character of the question decided is not changed by submitting its decision to another tribunal; and, by the general current of decisions in this State, the granting or refusing of such motions is a matter resting altogether in the discretionary power of the Court, whose action thereon is not reviewable upon appeal or writ of error. We discover nothing in this record to exempt this case from the operation of the general rule, and such would be our decision if an appeal had been taken directly from the judgment of 

 [*290]  the Supreme Bench overruling the motion. But this appeal being from the judgment of the Superior Court only, brings up for review simply the rulings of that Court to which exception was taken, and these it is our duty to consider.
The action is to recover damages for breach of a promise of marriage. The declaration alleges the parties agreed to marry one another; that a reasonable time for such marriage has elapsed;  [**4]  that the plaintiff has always been ready and willing to marry the defendant, yet the defendant has neglected and refused to marry her. The plea is that the defendant never agreed as alleged. At the trial the plaintiff offered evidence of the promise and of the breach, and also offered evidence of a subsequent seduction of the plaintiff by the defendant. At the instance of the plaintiff, the Court granted an instruction that the damages to be given in this action rests in the sound discretion of the jury under all the circumstances of the case. The appellant's objection to this instruction is, that it allowed the jury to consider the fact of seduction in aggravation of damages under this form of action. As the case is presented by the record, we assume there was evidence tending to show the seduction was accomplished after and by means of the promise of marriage, and the question is, ought the jury to be allowed to take this into consideration in estimating the damages? The general rule undoubtedly is, that damages in actions of contract are to be limited to the consequences of the breach of contract, and that no regard is to be had to the motives which induced the violation [**5]  of the agreement. That is the clear and logical result of the form of an action ex contractu, and the rules of pleading and evidence which govern it. It would also seem that, as the law regards seduction as an act of mutual consent and mutual criminality, for which the woman cannot maintain an action so as to make it a ground of recovery directly, she ought not to be allowed to make it so indirectly, by using it as the basis of damages in an action of this kind, founded upon contract, and decisions of high authority have 

 [*291]  so held. The Supreme Court of Pennsylvania so decided in Weaver vs. Bachert, 2 Pa. 80, where the opinion was delivered by Chief Justice GIBSON; and the Court of Appeals in Kentucky, in Burks vs. Shain, 2 Bibb. 341, seem to have reached the same conclusion, though it was noted in that case that the promise, attempted to be proved, was made subsequent to the seduction, and the seduction, therefore, might have been the cause, but could not have been the consequence of that promise. But the decided weight of judicial opinion and authority, at least in this country, is, that this particular action forms an exception [**6]  to the general rule. The reasoning is, that though nominally an action founded on the breach of an agreement, it presents a striking exception to the general rules which govern contracts; that it is given as an indemnity to the injured party for the loss she has sustained, and has always been held to embrace injury to the feelings, affections and wounded pride, as well as the loss of marriage; that from the nature of the case, it has been found impossible to fix the amount of compensation by any precise rule, and as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance, subject of course to the general restriction, that a verdict influenced by prejudice, passion or corruption will not be allowed to stand. Upon this ground it is held, that where it appears the promise was made by the defendant with a view to seduce the plaintiff, and that the defendant did thereby seduce her, this will be allowed to go to the jury in aggravation. Sedgwick on Damages, (3d ed.,) marginal pages, 210 and 369.
In Paul vs. Frazier, 3 Mass. 71, where the question was, whether an action for seduction could be maintained [**7]  by a woman against her seducer, Chief Justice PARSONS in delivering the opinion of the Court adverse to the maintenance of the action, said: "As the law now stands, damages are recoverable for a breach of promise of marriage, and if seduction has been practiced under color of that promise, 

 [*292]  the jury will undoubtedly consider it as an aggravation of the damages. So far, the law has provided, and we do not propose to be wiser than the law." In Wells vs. Padgett, 8 Barb. 323, the direct question whether seduction, under a promise of marriage, could be used in aggravation of damages in an action for a breach of that promise, was presented, fully considered and deliberately decided in the affirmative, and the same decision has been quite recently made by the Court of Appeals of New York in Kniffen vs. McConnell, 30 N.Y. 285. The decisions of the Supreme Courts of New Jersey, Illinois, Indiana, Missouri and Tennessee are to the same effect. Coil vs. Wallace, 4 Zabr. 291; Tubbs vs. Van Kleek, 12 Ill. 446; Whalen vs. Layman, 2 Blackf. 194; Roper vs. Clay, 18 Mo. 383; [**8]  Conn vs. Wilson, 2 Overton 233. The instruction before us accords with these authorities, and we fully assent to the reasoning upon which they proceed, in making this action an exception to the rules which govern ordinary actions upon contract.
There being no error in this instruction, it follows, the proposition contained in the defendant's second prayer was properly rejected, if it be regarded, as it was in argument, as a counter proposition to that which we have considered as embraced in the instruction granted. But "carnal connection," which alone is mentioned in this second prayer of the defendant, is, in legal acceptation, a very different thing from seduction, and as it does not appear there was any evidence of such connection which did not result in or amount to seduction, the rejection of this prayer must, for this reason, also be affirmed.
Judgment affirmed. 

93 of 142 DOCUMENTS 

SAMUEL STONEBRAKER and HENRY K. HOFFMAN vs. HENRY STONEBRAKER. CHARLES A. CLOTWORTHY and WILLIAM P. CLOTWORTHY vs. HENRY STONEBRAKER, and ABRAHAM S. STONEBRAKER vs. HENRY STONEBRAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 252; 1870 Md. LEXIS 88 

July 7, 1870, Decided 

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

The bill of complaint in this case was filed on the 9th of July, 1867, by the appellee, against the appellants and Leonard Passano; it alleged, that prior to the years 1858 and 1859, the complainant, then residing at Funkstown, Maryland, directed his attention to the compounding of certain medicines and preparations; that by diligent and laborious study, and careful and oft-repeated experiments, he succeeded in producing the following compounds, to each of which he gave the name by which it was respectively called, to wit: "Stonebraker's Nerve and Bone Liniment," "Stonebraker's Celebrated Hair Restorative," "Stonebraker's Balsam or Pain Killer," "Stonebraker's Dyspepsia Bitters and Liver Invigorator," "Stonebraker's Rat and Roach Exterminator," "Stonebraker's Horse and Cattle Powders," "Stonebraker's Vegetable Cough Syrup," and "Stonebraker's Bed Bug Exterminator."

The bill further alleged that the said preparations soon became of great repute, were advertised by the complainant in many of the States at great expense, and that the manufacture and sale thereof became the source of great profit and emolument to him; that he adopted [**2]  and used on each of the said preparations certain labels or trade-marks, which were adopted by the complainant clearly to distinguish his medicines and preparations from all others; that the said labels and trade-marks became universally known to the trade and consumers, so that by them the said preparations were recognized, distinguished and bought; that not only did each of the said preparations thus become known to the trade and consumers by its distinctive name, but the whole of said preparations became known, as a class, by the name of "Stonebraker's Valuable Family Medicines and Preparations;" which name was adopted by the complainant as a general trade-mark, and by which name he at great expense advertised the same; that Samuel Stonebraker, an uncle of complainant, on or about the first day of June, 1864, embarked certain capital in said business and became jointly interested therein with the complainant; that about the middle of May, 1866, the said Samuel proposed to the complainant that if he would transfer the business to Baltimore, he the said Samuel would put $ 10,000 into the same; that Henry K. Hoffman of said city would put in a like amount; that a partnership could [**3]  be formed between the complainant, the said Samuel and the said Hoffman, and the said business be thus largely increased; that said proposal was acceded to and an agreement of partnership accordingly entered into. That after the business had been carried on under said agreement for about twenty months, a serious disagreement arose between the partners as to the proper construction of the agreement of co-partnership, that litigation resulted, and finally by agreement a dissolution of the co-partnership.

The bill further showed that by the terms of the agreement of dissolution, the said Samuel Stonebraker and H. K. Hoffman became entitled, among other things, to certain wrappers and labels of the assets of the said firm of Stonebraker, Hoffman & Company, which they were entitled to use only "for re-wrapping medicines coming back in bad order," and that the said Samuel Stonebraker and H. K. Hoffman bound themselves "not to manufacture or imitate Stonebraker's medicines or preparations, or sell any medicines under their names or titles respectively, except stock on hand or in the hands of agents;" and also bound themselves "not to take any interest in or have any interest in the manufacture [**4]  of said medicines or preparations, or be in any way interested in the manufacture of them, or in the sale of any medicines under their names or titles or in imitation of them." The bill then charged, that at the time of the said dissolution there were on hand, large quantities of the said wrappers and labels, and that the said Samuel Stonebraker and H. K. Hoffman sold or pretended to sell and dispose of the stock on hand, including said wrappers, etc., to Wm. P. Clotworthy and Leonard Passano, with the full knowledge that said Clotworthy and Passano would, and with the fraudulent design and intention that they should, use the said wrappers, &c., for purposes for which, by force of said agreement, the said Stonebraker and Hoffman were not permitted to use them, to wit, upon articles to be manufactured by Clotworthy and Passano in imitation of the preparations of the complainant; that the said Clotworthy and Passano and the firm of Clotworthy & Company, consisting of said William P. and Charles A. Clotworthy, had since said sale, with the full knowledge, approbation, participation and encouragement of the said Stonebraker and Hoffman, manufactured large quantities of articles in imitation [**5]  of and counterfeiting some of the preparations of the complainant, and used upon the same the said wrappers and labels, and had offered the said imitations for sale as and for the genuine preparations of the complainant.

The bill further charged that the said Clotworthy and Passano, not content with imitating the complainant's preparations for the purpose of exhausting the wrappers aforesaid, had fraudulently confederated with Abraham S. Stonebraker, a brother of the complainant, to manufacture and sell upon an immense scale imitations and counterfeits of the complainant's medicines and preparations; that in pursuance of said fraud the said Clotworthy & Company and Passano, had manufactured immense quantities of said imitations, and had had printed and placed upon said imitations and counterfeits the said labels or trade-marks of the complainant, or counterfeits thereof, so slightly and colorably varied from those of the complainant as to give evidence of the most deliberate design to defraud the complainant, and to impose upon and deceive the trade and consumers, by inducing them to purchase the said imitations as and for the genuine preparations of the complainant.

The [**6]  bill further charged, that the said W. P. Clotworthy and Passano had employed the complainant's brother in the business for no other reason than that his name was "Stonebraker," and because they believed that by employing a person of the same name as that of the complainant they could with impunity consummate their intended frauds against the complainant and the public; that the said Samuel Stonebraker and H. K. Hoffman had knowingly and wilfully aided and abetted the said Clotworthy & Company and A. S. Stonebraker in all the frauds charged; and that having reason to believe the same, the complainant charged and averred that the said Samuel Stonebraker and H. K. Hoffman were secretly interested with the said Clotworthy & Company in the manufacture and sale of the said imitations, and the use of the said counterfeits.

The bill prayed that the defendants and each of them might be restrained by injunction from counterfeiting or imitating the trade-marks or labels used by the complainant in and about the sale of "Stonebraker's" medicines and preparations, and from using or issuing any such counterfeited or imitated trade-marks or labels, and from selling or delivering any medicines [**7]  or preparations whatever with the labels or trade-marks of the complainant in any wise imitated or counterfeited thereupon; and further that W. P. Clotworthy, Charles A. Clotworthy, Leonard Passano and Abraham S. Stonebraker, might discover what quantity of medicines or other preparations had been manufactured and sold by them or either of them, with labels or wrappers containing the name of "Stonebraker," in conjunction with the descriptive name of each of said medicine or preparation, and the prices obtained therefor. The injunction was issued as prayed.

The answer of Abraham S. Stonebraker denied that the complainant was the original maker of the preparations mentioned in the bill, and claimed that he (A. S. Stonebraker) was the original compounder of the same, and that the labels and directions for the said medicines and preparations were written by him and given to the complainant, as then used by him, with only slight verbal alterations from the original form.

The answer of W. P. and Charles A. Clotworthy, trading as Clotworthy & Co., admitted that they had made an agreement with W. P. Clotworthy, Leonard Passano and A. S. Stonebraker, for the manufacture and sale of [**8]  certain medicines and preparations, known and sold as "Dr. Stonebraker's Medicines and Preparations;" which they averred the said parties had the lawful right to make; they denied all unlawful interference with the rights of the complainant, and all improper use of the labels of the late firm of Stonebraker, Hoffman & Co.; for the rest they adopted the answers of their co-defendants.

The answer of Samuel Stonebraker and H. K. Hoffman, admitted the sale to William P. Clotworthy and Leonard Passano, but denied that they had any interest in the remains of stock or in the business of the late firm of Stonebraker, Hoffman & Co., and denied that they had connived at any fraudulent or improper use of any part of the said remains of stock, or in any imitation or counterfeiting by any person whomsoever of any preparations or medicines, which the said persons had not the right to make.

The answer of Wm. P. Clotworthy and Passano, admitted the agreement with A. S. Stonebraker, to manufacture and sell for their joint account and profit, the medicines and preparations known as "Dr. Stonebraker's Medicines and Preparations," and the purchase of the remaining stock in trade of the late [**9]  firm of Stonebraker, Hoffman & Co.; they adopted the answer of Dr. A. S. Stonebraker, as part of their own. They denied all improper use of the labels of Stonebraker, Hoffman & Co., or that they had imitated or counterfeited (or intended to do so) the preparations of the complainant.

A vast amount of testimony was taken, and after hearing, the following opinion was delivered by Judge PINKNEY:

The bill in this case is for an injunction and for an account, &c. A preliminary injunction was granted. And the case now comes before the Court for final hearing upon bill, answers and testimony.

The facts of the case are these: The complainant in the year 1856, was keeping store at Funkstown, in Washington county, in this State, with one J. Calvin Hoffman. In 1857, Hoffman sold out his interest in the store to the complainant, who about that time commenced the manufacture of patent medicines. The evidence shows that he then made and sold a medicine called "Sloan's Liniment." The year following, (1858,) it seems he failed in keeping store and began to manufacture "Patent" medicines and other preparations, as his sole business; he peddled them through the neighboring country, and [**10]  from time to time added new medicines and preparations. It appears from the evidence that in the year 1860, he was compounding and selling three or four different sorts, viz: "Stonebraker's Pain Killer," "Stonebraker's Nerve and Bone Liniment," "Stonebraker's Hair Restorative," and perhaps "Stonebraker's Horse and Cattle Powders," which preparations at that time he also consigned to agents in different parts of the neighboring country, as well in Virginia as in Maryland, and they became known to the trade and the public as "Stonebraker's Medicines." It also appears by the evidence that he made great exertions to extend the reputation and sale of his medicines and other preparations, and was very successful in those respects, but in his money matters he does not seem to have got ahead. In 1864, he was obliged to seek assistance from his uncle, the defendant, Saml. Stonebraker, who appears to be a man of some means, he put $ 10,000 into the business, and the complainant carried it on for several years as his agent. The business became profitable, and the complainant extricated himself from his pecuniary embarrassments.

In the spring of the year 1866, he removed to Baltimore and [**11]  formed a partnership with his uncle, Samuel, and the defendant, Henry K. Hoffman, under the firm name of Stonebraker, Hoffman & Co.; they entered extensively into the manufacture and sale of "Patent" medicines and other preparations, which were compounded by the complainant and sold as before, under the name of "Stonebraker's Medicines and Preparations." Towards the close of the year a misunderstanding arose between the complainant and his co-partners. They claiming a right to the recipes which were used in compounding the medicines and preparations, and he insisting that they were his secrets which he was not bound to communicate to his co-partners. Legal proceedings were instituted, but the difficulty was amicably arranged and the partnership dissolved by agreement under seal. By the terms of this agreement, his co-partners, Messrs. Hoffman and Saml. Stonebraker, released him from all claims for copies of recipes for the manufacture of "Stonebraker's Medicines and Preparations," agreed to take all manufactured medicines, &c., wrappers, &c., for wrapping medicines, &c., &c., bound themselves "not to manufacture or imitate 'Stonebraker's Medicines or Preparations,' or sell any medicines [**12]  under their names or titles respectively, except such stock on hand or in the hands of agents," and also bound themselves "not to take any interest or have any interest in the manufacture of them or in the sale of any medicines under their names or titles, or in imitation of them." The complainant on his part, bound himself and his sons not to manufacture said medicines or to suffer his recipes to be used for the manufacture of said medicines within three months from the date of the agreement, and also bound himself and his sons not to sell said medicines within six months, except by or with the written consent of his late partners.

Several months after entering into the agreement, Messrs. Hoffman and S. Stonebraker, sold out all their interest under the same to their co-defendants, Messrs. L. Passano and Wm. P. Clotworthy, who it appears from the evidence soon after entered into an arrangement with the defendant, Dr. Abraham S. Stonebraker, (a brother of the complainant, and just previously a resident of the State of Illinois, where he had been a practising physician since the war,) to manufacture "Stonebraker's Medicines and Preparations," for the sale of which compounds they [**13]  appointed the firm of Clotworthy & Co., who are also defendants in this Court, their general agents; Messrs. Clotworthy & Co., so appointed agents of Messrs. Passano and W. P. Clotworthy, addressed a circular notice to the local agents of "Stonebraker's Medicines and Preparations," thereby informing them that H. Stonebraker had no longer any interest whatever in those medicines and preparations, that the old agents would be supplied by wagon as heretofore, that applications for agencies would receive prompt attention and medicines be forwarded free of expense. This circular was signed Clotworthy & Co., agents for proprietor. By another notice they informed dealers that it was their intention as agents of the proprietors. Messrs. Passano and W. P. Clotworthy, to advertise the articles (Stonebraker's Medicines and Preparations) extensively, and to make them standard and reliable preparations. In accordance with which notice they proceeded to enter extensively into the manufacture and sale of medicines and preparations under the name of "Dr. Stonebraker's Medicines and Preparations," using upon the wrappers of certain of their "Medicines and Preparations," certificates given to complainant [**14]  in recommendation of his medicines and preparations.

Here let us pause. Can there be the slightest doubt, that had the defendants, Hoffman and Samuel Stonebraker, after their agreement with the complainant, by which they released him from all claim to the recipes for the manufacture of "Stonebraker's Medicines and Preparations," and bound themselves not to manufacture or imitate them, or sell medicines under their names respectively, except stock on hand, &c., begun to manufacture and sell medicines and other preparations, under the name of "Stonebraker's Medicines and Preparations," using the proper appellation of the several medicines and preparations by which they were known; I say, can any one doubt that it would be a fraud upon the complainant, and a grave violation of their agreement, and that upon the application of the complainant, the Court would restrain them by injunction? Is it less a fraud on the part of their assignees and their agents? And is the hand of the Court to be stayed, because of their association with the complainant's brother, Dr. Stonebraker? It is said so.

Upon what, then, does this pretension rest? There is evidence to show that Dr. Stonebraker,  [**15]  previous to the late civil war, while living at Shepherdstown, (to which place he removed from Funkstown in the fall of 1858,) and keeping a drug store, manufactured patent medicines and sold them in the neighborhood. In 1860, he was manufacturing and selling under the name of "Dr. Stonebraker's Celebrated Compounds," "Stonebraker's Hair Restorative," "Stonebraker's Healing Balsam," "Stonebraker's Anodyne Astringent," "Magic Nerve and Bone Liniment," and "Stonebraker's Anti-Bilious Pills." He advertised his medicines in some of the county newspapers in his neighborhood, and also in the "New Star," a paper printed at Christiansburg, in south-western Virginia, where he had an agent, and he also sent some of his medicines to Illinois. In the winter of that year, (1860,) however, he failed in the drug business, and, according to his own testimony, was about commencing the manufacture and sale of his patent medicines, but the war broke out and blasted all his hopes, as it did those of many others. During the unhappy period of the war, he was in the Confederate army; after the war, he went to Illinois, where he practised medicine until the spring of 1867, when he came to Baltimore, and entered [**16]  into his engagement with Messrs. Passano and Clotworthy for the manufacture of "Stonebraker's Medicines and Preparations." He now claims to have been the original compounder of the medicines which his brother Henry made and sold under the name of "Stonebraker's Medicines and Preparations," or most of them, and that he communicated the recipes to the complainant, but the evidence does not sustain this pretension. And his conduct, (as appears by the proof,) previous to his connection with Messrs. Passano and Clotworthy, is inconsistent with it.

While living in Illinois, he wrote to his brother, the complainant, congratulating him on his success in business, his removal to Baltimore, and his new partnership; and concludes his letter by saying: "If, at any time, you should want a pharmaceutical or financial clerk, with big pay and little to do, why I am open." He was a witness in the suit between the complainant and his co-partners, where the controversy was in regard to the right to the recipes, which he now says he gave to his brother, but he then was perfectly silent in regard to his own claim to them. Mr. Hoffman, (the complainant's former partner,) he says, (in his testimony,  [**17]  ) introduced him to Mr. W. P. Clotworthy, and he proposed to Mr. C. to enter into an arrangement for the sale of his medicines and preparations.

So it was from him, it seems, that Messrs. Passano and Clotworthy got the brilliant, but by no means original idea, as the cases of Croft vs. Day, 7 Beav., 84, and Rodgers vs. Nowill, 5 Man. Gr. & Sct., 109, show, of using his name for the purpose of palming upon the public their medicines as those of the complainant. No doubt Dr. Stonebraker had a right to enter into an agreement with Messrs. Passano and Clotworthy, or any body else, to manufacture and sell his own medicines, but he had no right to lend or sell his name to perpetrate an injury upon his brother and a fraud upon the public. The evidence shows, beyond the shadow of doubt, that the whole agreement between all the parties was but a combination to deceive the public, and to enable the parties to it to obtain for their medicines the benefit of the celebrity which the complainant's medicines and preparations had in the market, at the expense of the complainant, and in fraud of his rights.

The principle upon which relief is given is, that one man cannot offer his goods for [**18]  sale, representing them to be the manufacture of another man; and in this case I do not think it necessary to go into a particular and comparative examination of the different wrappers and labels made use of by the parties, for the different sorts of medicines and preparations made and sold by them respectively. I recognize the principle stated and applied in the late English case of Seixo vs. Provezende, 1 Chan. Appeals L. R., 192, by Lord CRANWORTH, to be correct and applicable to the present case. His Lordship said: "I do not consider the actual physical resemblance of the two marks to be the question for consideration. If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market, may be as much a violation of the rights of that rival as the actual copy of his device." And in the case of Coffeen vs. Brunton, 4 McLean, 516, Judge McLEAN said: "In the case under consideration, in his label, the complainant calls his medicine the "Chinese Liniment;" the defendant calls his the "Ohio Liniment," but from the [**19]  body of the labels, and of the directions for the use of the medicines, it is clear that the language of the defendant is so assimilated to that of the complainant as to appear to be the same medicine, the alteration being only colorable. There would seem to be no doubt that the intention of Loree, who prepared the liniment sold by the defendant as his agent, was to avail himself of the favorable reputation acquired by the "Chinese Liniment" in the sale of his, and by most persons it would be received as the same medicine." And, therefore, an injunction was granted.

In this case the defendants have used the name of the complainant, which he used to designate the medicines and preparations as his, with the addition of doctor; that is, Dr. Stonebraker's Medicines," &c.; they have used the names used by him to designate the specific articles; they have used on their wrappers and labels the language of the complainant on his wrappers and labels; and they have gone further, as if to leave no doubt of their fraudulent intent, and have printed on the wrappers of some of their medicines and preparations the certificates given to the complainant in recommendation of his medicines and preparations.  [**20]  

Finally, the evidence shows, that the design of the defendants to impose their medicines and preparations upon the market, as those of the complainant, was a perfect success. They were even able to mislead and deceive such experienced druggists as Mr. Gosmon, Mr. Erickson and Mr. Francis Volk.

In accordance with the foregoing opinion the Circuit Court, on the 11th of March, 1869, passed a decree perpetually enjoining and restraining Samuel Stonebraker and Henry K. Hoffman, their agents, and all persons claiming under them, from manufacturing or imitating any of the medicines or preparations, which prior to the 10th of December, 1866, had been known as "Stonebraker's Medicines or Preparations," and from selling any medicines whatsoever under the names or titles of said medicines or preparations, respectively, except stock in the hands of Stonebraker, Hoffman & Co. on the said 10th of December, 1866; and likewise perpetually restraining and enjoining all of the defendants, their agents, &c., from counterfeiting or imitating the trade-marks, labels, &c., used and employed by the complainant upon his medicines and preparations; and further directing that the defendants should [**21]  account with the complainant for any and all medicines and preparations, manufactured or sold, or in anywise disposed of by them, since the 10th of December, 1866, with the labels, trade-marks, &c., of the complainant, affixed thereto.

From this decree the present appeals were taken.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Trade-Marks -- Injunction -- Account.

One tradesman has no right to use the trade-marks or names previously adopted and used by another, so as to induce purchasers to believe contrary to the fact, that they are buying the articles to which the marks were originally applied.

Trade-marks are property, and a person using such marks without the sanction and authority of the owner, will be restrained by injunction, even where it does not appear there was any fraudulent intent in their use, and will be required to account for the profits derived from the sale of goods so marked.

S having engaged in the manufacture of various medicines and other preparations, adopted and used thereon certain labels and trade-marks to distinguish his medicines and preparations from all others. These labels and trade-marks were generally known to the trade and consumers, so that by them the preparations were recognized, distinguished and bought. The manufacture and sale of these preparations had become the source of profit and emolument to S. Certain persons thereupon fraudulently engaged in the manufacture of medicines and other preparations, and sold large quantities thereof, with labels and trade-marks corresponding with those used by S, or with only a colorable difference, and designed to deceive the public, and to enable the vendors to obtain for their medicines the celebrity which the medicines and preparations of S had in the market. On application by S, it was HELD:

That he was entitled to be protected by injunction, and to be compensated by having an account taken.  

COUNSEL:
Charles Marshall, I. Nevett Steele and William Schley, for the appellants.

The appellee is not entitled to the aid of a Court of Equity. In the outset of his career as a compounder of nostrums, he improperly assumed the title of Doctor of Medicine, and at a later period he satisfied himself with publishing, without correction, testimonials in which he was addressed as Dr. Stonebraker. He was fully aware of the advantage of the title of Doctor, in recommending his medicines to the public, and availed himself of it, thereby practising an imposition. The rule of law is clear. No matter what may have been the conduct of the defendants, a Court of Equity will not lend its aid to protect rights acquired by fraud and misrepresentation. It is enough if the misrepresentation was calculated to deceive. It is not pretended that the appellee had any right to advertise [**22]  his compounds as the preparations of a Doctor of Medicine. Nor is it denied that if any person bought his preparations under the belief that he was a Doctor, that person has been deceived. The injunction of the Circuit Court, in terms, secures to the appellee the right to continue to impose on the public. The appellee is not entitled to relief. Fetridge vs. Wells, 13 Howard Prac. Reps., 386-394; Perry vs. Truefit, 6 Bevan, 66; Hobbs vs. Francais, 19 Howard Prac. Reps., 571; Flavell vs. Harrison, 19 E. Law and Eq., 15; Palmer vs. Harris, 8 Am. Law Reg., (N. S.,) 137; Pidding vs. How, 8 Simons, 477; Partridge vs. Menck, Howard's Appeal Ca., 547; Upton on Trade-Marks, 30-46; 3 Daniel's Ch. Pr., 1754, 1755; Millington vs. Fox, 3 M. & C., 338; Clark vs. Freeman, 11 Beavan, 112; 8 Vesey, 226; The Leather Cloth Co. vs. The American Leather Cloth Co., 11 H. L., 523; Walcot vs. Walker, 7 Ves., 1.

But it is submitted that the appellee not only practised deception in assuming the title of M. D., but that he attempted to deceive the ignorant and credulous, by misrepresentations as to the virtues of his nostrums, and that a Court of Equity will not protect a Quack. Smith vs. Woodruff, 48 Barbour,  [**23]  438; Fetridge vs. Wells, 13 Howard Pr. Reps., 394-397; Fowle vs. Spear, 7 Pa. Law Journal, 176, and 1 Law Rep., New Series, 130; Pidding vs. How, 8 Simons, 477; Canham vs. Jones, 2 V. & B., 218; Newberry vs. James, 2 Merrivale, 441.

Even if it were conceded that the appellee was the originator of all the compounds mentioned in the evidence, and first made and sold them under the names given to them, yet if he permitted A. S. Stonebraker to advertise and sell them as his own, without complaint, his right to interfere with him is gone. Taylor vs. Carpenter, 2 Woodbury & Minot, 1-20.

Before the appellee can have an injunction, he must establish clearly his title to the alleged trade-marks, and this he must do by proving an original use of the words composing the trade-mark, by himself in connection with the articles designated by the trade-mark. Originality in the manufacture of the compounds themselves is not enough. Any one may manufacture these medicines who may possess the recipe. But if the appellee has shown that he first used the names by which the compounds are known, and that he used those names in writing or printing, so as to be visible, and that he used them in connection [**24]  with the articles themselves, he has acquired a property in the names, otherwise he has not; and, to get an injunction, he must establish these facts clearly. Rodgers vs. Nowill, 6 Hare, 325; Motley vs. Downman, 3 My. & Cr., 17; Bacon vs. Jones, 4 My. & Cr., 433; Coffeen vs. Brunton, 5 McLean, 256; Morrison vs. Moat, 9 Hare, 255; Wyeth vs. Stone, 1 Story's Rep., 282.

Dr. A. S. Stonebraker had the right to make compounds and sell them under his professional name, and cannot be enjoined from so doing, especially by a party who has no right to that title. Burgess vs. Burgess, 17 Eng. Law and Eq., 257; Upton on Trade-Marks, 107.

Even if the appellee was the originator of these trade-marks, he had no right to an injunction, because they had been previously appropriated by Dr. Stonebraker, without objection on the part of the appellee. Upton on Trade-Marks, 87.

The decree is manifestly erroneous so far as Samuel Stonebraker and Hoffman are concerned. It requires them to account to the appellee, "for all medicines and preparations whatsoever, by them or either of them since December 10th, 1866, manufactured or sold, or otherwise disposed of under any of the names hereinbefore [**25]  fully set out, and wherewith they have used or employed any of the labels, trade-marks, wrappers, signs, handbills, or other devices or tokens which have been produced or given in evidence under the commissions in this cause." This will require Samuel Stonebraker and H. K. Hoffman, to account to the appellee for the sales they made of the stock on hand, taken by them from Henry Stonebraker under the agreement of dissolution of December 10th, 1866; although their right to sell that stock and use the labels and wrappers for that purpose is not denied, and is even recognized in the opening of the decree. The above part of the decree would also require William and Charles Clotworthy and Passano to account for sales of the part of said stock, bought by them from Samuel Stonebraker and H. K. Hoffman. The appellee is not entitled to such an account under any circumstances.

Robert D. Morrison and S. Teackle Wallis, for the appellee.

The following authorities were referred to and relied on: Seixo vs. Provezende, 1 Ch. App. C. (Law Rep.,) 192; Ainsworth vs. Walmsley, 1 Eq. Ca. (Law Rep.,) 518; Hall vs. Borrows, 10 Jur., 55, 550; Sykes vs. Sykes, 3 Barn. and Cressw., 541; Croft vs.  [**26]  Day, 7 Beav., 84; Rodgers vs. Nowill & Rodgers, 5 M., Gr. and Sc., 110; Taylor vs. Taylor, 23 Eng. L. and Eq., 281; Walton vs. Crowley, 3 Blatchf. C. C., --; Amoskeag Manufac'g Co. vs. Spear, 2 Sandf. (S. C.,) 599; Taylor vs. Carpenter, 2 Sandf. (Ch.,) 603; Clark vs. Clark, 25 Barb., 76; Williams vs. Spence, 25 How. Pr., 366; Binninger vs. Wattles, 28 How. Pr., 206; Partridge vs. Menck, 2 Barb. Ch., 101; Fetridge vs. Merchant, 4 Abb. Pr., 156; Coffeen vs. Brunton, 4 McLean, 516.  

JUDGES:
The cause was argued before STEWART, BRENT, MAULSBY, MILLER and ROBINSON, J.  

OPINIONBY:
BRENT 

OPINION:

 [*267]  BRENT, J., delivered the opinion of the Court.
These appeals are brought before us upon a record of unusual size, which we have examined with a great deal of care and patience. The proof upon both sides has been very elaborate, and the case rests almost entirely upon questions of fact. As was said by Lord LANGDALE, in the case of Croft vs. Day, "what is proper to be done in cases of this kind must more or less depend upon the circumstances which attend them."

 [*268]  The bill asks for an injunction to prohibit the appellants from using the trade-marks of the appellee, and for an account. The [**27]  law of trade-marks, as applicable to this case, may be very briefly stated. While a party has the right to manufacture and sell any article he may please, not protected by letters patent granted to another, he has no right to use the trade-marks or names previously adopted and used by another trader, and induce thereby the public to believe the articles sold are another's manufacture. Trade-marks are property, and as such the title to them will receive the protection of the Courts. If used by another, without the authority or sanction of the owner, he will be restrained by injunction, and that even where it does not appear there was any fraudulent intent in their use. He will also be held to account for the profits derived from the unauthorized use of such trade-marks. Croft vs. Day, 7 Beav. 89; Farina vs. Silverlock, 39 Eng. L. & Eq. 516; Millington vs. Fox, 3 My. & Cr. 338; Upton on Trade-Marks, 233, 234; Kerr on Injunctions, 489.
We are relieved from the necessity of reviewing at length the facts and circumstances of this case, and we omit embodying them here because of the unusual space which would be required [**28]  to set them out. They are so well considered and stated in the opinion of the Judge below, that we cannot better express our own views than by adopting, as we do, what he has said in reference to them. We are fully satisfied, from all the proof, that the trade-marks and certificates in question belong to Henry Stonebraker, and that they have been improperly, and without authority or excuse, appropriated and used by the appellants, either by themselves or through their contrivance. That there is some difference in those used by the appellants, there is no doubt. But the change is of such a character as to indicate an evident purpose to deceive. Nobody can look at the two--the genuine and the imitation-- without being satisfied that the genuine have been so altered, and so craftily used and employed, as to be well calculated to 

 [*269]  produce, upon the public mind, the impression that the medicines and preparations sold by the appellants are the medicines and preparations of the appellee, Henry Stonebraker. That Samuel Stonebraker and Henry K. Hoffman were both connected with and actively advanced the arrangement effected with Dr. Abraham S. Stonebraker, by which medicines and preparations [**29]  have been manufactured and sold under the prohibited trade-marks, the weight of evidence abundantly establishes. The other appellants were, beyond doubt, connected with the sales, and as we have determined that the trade-marks and testimonials in question are those of the appellee, their liability is clear. We need only add, that we fully concur in the conclusions of the Court below, and are of opinion that the appellee, Henry Stonebraker, is entitled to be protected by injunction, and to be compensated by having an account taken.
The decree of the Court below is correct in so far as it proceeds to restrain and enjoin the appellants. But that part of it which directs an account, is in some respects erroneous. Samuel Stonebraker and Henry K. Hoffman, by the terms of dissolution of the partnership between themselves and Henry Stonebraker, dated the 10th of December, 1866, reserved the right to sell under these trade-marks the stock on hand or in the hands of agents at the time of dissolution, and for the sales of such stock, no matter by whom made, whether by themselves or their vendees, no account can be demanded. The other parties, Passano, Abraham S. Stonebraker and the Clotworthys,  [**30]  not being bound by any contract to the contrary, had the right, under the law as we have stated it, to manufacture the medicines or preparations to whatever extent they chose, and no accounting for such, as they manufactured simply, can be required of them. Their liability to account is limited to sales, under the prohibited use of the protected trade-marks, of such articles as were not part of the stock referred to. The decree is undoubtedly erroneous in requiring an account, as by its terms it clearly does, from these parties, 

 [*270]  of articles which they have manufactured and not sold, and should more clearly except from all accounting, by any of the parties, for sales of such articles as constituted part of the stock on hand and held by the Stonebrakers and Hoffman at the time of the dissolution of that firm. In all other respects the decree is correct; but, for these errors, it must be reversed and the cause remanded, in order that a new decree may be passed by the Circuit Court in conformity with the views expressed in this opinion. As the decree is in the main correct, but for the reasons stated must be reversed, the costs in this Court will be equally divided, one-half [**31]  to be paid by the appellee, and the other half by the appellants.
Decree reversed and cause remanded. 

94 of 142 DOCUMENTS 

R. K. HAWLEY, and others, vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE. THE MAYOR AND CITY COUNCIL OF BALTIMORE vs. PHILIP HISS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 270; 1870 Md. LEXIS 89 

July 7, 1870, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Baltimore City Court.

On the 14th day of May, 1867, an ordinance was passed by the Mayor and City Council of Baltimore, to condemn and open Mosher street, from Druid Hill avenue to Madison avenue. In pursuance of said ordinance the Commissioners for Opening Streets proceeded on the 13th day of April, 1868, to perform the duties required of them in regard to the opening of Mosher street, in accordance with the provisions of the general ordinance in relation to streets in the city of Baltimore. They estimated the value of the ground lying in the bed of Mosher street, between Druid Hill avenue and McCulloh street, to be $ 13,612.50, and between McCulloh street and Madison avenue to be $ 2, and the expenses incurred in enforcing the ordinance for the opening of said street to be $ 997.78, making an aggregate of $ 14,612.28 for damages and expenses. They awarded the amount estimated as damages to Philip Hiss for his interest in the ground lying in the bed of the street; and assessed upon all the adjacent ground and improvements, certain sums amounting in the aggregate to a sum equal to the estimated damages and expenses, for benefits to said ground and improvements [**2]  by the condemnation and opening of said street. The appellants in the first entitled case, adjacent property holders, being dissatisfied with the assessment of benefits made by the Commissioners, appealed therefrom to the Baltimore City Court. Hiss also appealed. On the trial of said appeals, the same were consolidated. The appellants offered in evidence certain leases and a deed from Hiss; the plat made by him according to which sales were made and conveyances prepared; the testimony of the auctioneer by whom the plat was publicly exhibited, and the testimony of Armstrong and Morgan, who negotiated with Hiss for the purchase of lots, the first named negotiating according to the plat, and both with the understanding that Mosher street was to be opened without expense to the purchasers of lots. Other facts in the case will be found in the opinion of this Court.

Exception of Hawley and others: Hawley and others prayed the Court to instruct the jury as follows:

1st. If they shall find from the evidence, that Philip Hiss was the owner of a tract of land lying within the limits of the city of Baltimore, and that he laid out said tract of land into building lots, bounding said [**3]  lots on streets designated as such on the map of the city of Baltimore; and that he made a map of said tract of land in conformity with the map of the city of Baltimore, and designated certain portions of said tract of land as streets; and that he sold or leased certain building lots laid out on said map so made by him; and in the conveyances thereof, bounded said lots on Mosher street as so located on said maps; that although Mosher street so designated on the map of the city, and on the map made by said Hiss, was at the time unopened under the authorities of the corporation of the city of Baltimore; that then, upon the jury so finding, the purchasers or lessees of the said Hiss acquired an easement or right of way in said Mosher street to the full extent of its dimensions as designated on his map to wit: from Madison avenue to Druid Hill avenue.

2d. If the jury shall find from the evidence, that Philip Hiss made a map of his land, designating certain portions thereof as streets, and that he sold or leased building lots laid out on said map, and in the conveyances thereof bounded them on the streets so laid out on said map, that then the ground so laid out and designated on said [**4]  map as streets, has been dedicated to the public use, to be opened as streets, whenever the municipal authorities shall think proper to do so, and that when so opened, the said Hiss is only entitled to nominal damages for the value of the fee of said streets to the full extent of their dimensions, as laid out on the map so made by him, from Madison avenue to Druid Hill avenue.

This instruction the Court refused to give, but directed the jury, that one provision of the Act of 1838, ch. 226, and of the Ordinance No. 26, secs. 6 to 9, of the Mayor and City Council of Baltimore, approved 3d of April, 1866, was to give an appeal from or review of the proceedings of the Commissioners for Opening Streets. This right of appeal is given to each person interested for himself and for his own assessment. No one can appeal but the party assessed, and such appeal is on account of his own separate assessment. On such appeals it is not competent for one party to question the propriety of another's assessment. One appellant cannot disturb another appellant's assessment. It is competent for the city only, the appellee, to show that such other assessment was not proper, and ought therefore to be [**5]  altered. The jury are instructed, therefore, that it is immaterial to those assessed for benefits, what others may have been allowed for damages; that no one assessed the one way is interested in the other assessments the other way. And the jury are only to disturb those assessments from which there have been appeals. The others are not before them for review.

To the rejection of their prayers, and to the instruction given by the Court to the jury, Hawley and others excepted, and the verdict and judgment being against them, they appealed.

Exception of Hiss: Philip Hiss offered the following prayers:

1st. If the jury find from the evidence that Philip Hiss is the owner of the bed of Mosher street, as proposed to be opened between McCulloh street and Druid Hill avenue, and of all the ground binding on the sides thereof, then the jury ought to assess to him as damages the value of the ground taken for the bed of said part of Mosher street, estimated as if said part of the street was not to be opened.

2d. If the jury find from the evidence, that at the time of the executions of the four leases, offered in evidence, from Philip Hiss to Morgan, Moale, T. P. Scott, trustee [**6]  for Armstrong, and Wm. J. Hiss, respectively, it was expressly understood and agreed between the said Philip Hiss and the said lessees, that Mosher street, between Madison and McCulloh streets, should be opened without delay, and that he should appropriate the damages received by him for the bed of said street, so far as might be necessary to the payment of the assessments on said lots, for benefits from the opening of said parts of said streets, that then the jury, in assessing the damages to Philip Hiss for that part of Mosher street, between Madison and McCulloh streets, may give as damages the real value of said ground as taken for the bed of said street, and are not limited to nominal damages.

The Court granted the first prayer and rejected the second.

The Mayor and City Council of Baltimore then offered the four prayers following:

1st. If the jury shall find from the evidence that Philip Hiss owned the land constituting the bed of Mosher street from Madison avenue to Druid Hill avenue, as laid down on Poppleton's plat, if they shall find said street was so laid down, and that he owned all the other property on both sides of said street as so laid down, and that [**7]  prior to the passage of the ordinance for condemning and opening said street, between Madison avenue and Druid Hill avenue, he sold or leased portions or lots of said property, between Madison avenue and McCulloh street, and in the deeds of conveyance or leases thereof, described the said portions or lots so sold or leased, as binding on said Mosher street, then such selling or leasing was a dedication of the bed of said street from Madison avenue to Druid Hill avenue, to the use of the public as a public highway, and the said Hiss is entitled to nominal damages only, for the taking, by the Mayor and City Council of Baltimore, of the land so constituting the bed of said street, from Madison avenue to Druid Hill avenue, for the purpose of opening the same.

2d. If the jury shall find from the evidence the facts stated in the foregoing prayer, then the said Hiss is entitled to nominal damages only, for the taking by the appellee of the ground so constituting the bed of said street, from Madison avenue to McCulloh street, for the purpose of opening the same.

3d. If the jury shall find from the evidence the facts stated in the first prayer of the Mayor, &c., of Baltimore, and [**8]  shall further find that prior to the passage of the ordinance of the said Mayor, &c., of Baltimore, for the condemnation and opening of said street, the said Hiss published a plat of said property, upon which the said Mosher street was laid down as a street from Madison avenue to Druid Hill avenue, and shall further find that said Hiss advertised and offered for sale at public auction, lots laid down upon said plat, and shall further find that the witness, Armstrong, attended at the offering of said lots for sale, at the time and place mentioned in the said advertisement, and there obtained one of the said plats, and that he afterwards negotiated and contracted with said Hiss for the purchase of one of the lots laid down in said plats, to wit, the lot on the corner of Madison avenue and Mosher street; and shall further find that the deed executed by said Hiss in consummation of such contract, if they shall find the same was executed, was drawn with reference to the said plat, and executed by the said Hiss with knowledge that the same was so drawn, then the purchaser of said lot was entitled to an easement or right of way over the ground constituting the bed of Mosher street from Madison [**9]  avenue to Druid Hill avenue, and the said Hiss is entitled to nominal damages only, for the taking by the Mayor, &c., of Baltimore, of the ground so constituting the bed of said street, from Madison avenue to Druid Hill avenue, for the purpose of opening the same.

4th. If the jury shall find from the evidence the facts stated in the foregoing third prayer, then the said Hiss is entitled to nominal damages only, for the taking by the Mayor, &c., of Baltimore, of the ground so constituting the bed of said street, from Madison avenue to McCulloh street.

The Court refused to grant the first and third of the said prayers, but granted the second and fourth.

To the granting of the first prayer of Hiss, and to the refusal to grant its first and third prayers, the Mayor and City Council excepted, and the verdict and judgment being against it, this appeal was taken.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Extent of the Right of Way over a Street not opened by Public Authority, in the Purchasers of Lots binding thereon -- Dedication of Property to Public use -- Ordinance, No. 26, of the City of Baltimore, approved 3d April 1866 -- Appeals from the Returns of the Commissioners for Opening Streets.

The owner of certain lands lying between Madison and Druid Hill avenues, in the city of Baltimore, offered at public auction certain portions of them, marked in lots upon a map or plat. Upon this map lots and streets were laid down, and among others there was one designated as Mosher street; it ran from Madison avenue, across McCulloh street, to Druid Hill avenue. The lots advertised for sale and described as being on Mosher street, were all between Madison avenue and McCulloh street. There was no sale at auction; subsequently four of the lots, calling to bind on Mosher street, were disposed of at private sale. Afterwards, Mosher street, lying between Madison and Druid Hill avenues, was condemned by authority of the city. HELD:

1st. That the right of way or easement in Mosher street acquired by the purchasers of the lots binding thereon, extended from Madison avenue only to McCulloh street, their lots lying between these streets; and to that extent only, was there a dedication of Mosher street to public use by their vendor.

2d. That the vendor of the lots was entitled to substantial damages for that part of Mosher street lying between McCulloh street and Druid Hill avenue, there having been no dedication of the same to public use.

The purchaser of a lot calling to bind on a street not yet opened by the public authorities, is entitled to a right of way over it, if it be of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way.

Under Ordinance No. 26, of the city of Baltimore, approved 3d April, 1866, a person assessed for benefits arising from the opening of a street, who appeals from the return of the Commissioners, can only question the propriety of his own assessment, and cannot disturb or question the return of the Commissioners in reference to any other person who is assessed for benefits or allowed for damages.  

COUNSEL:
Allen E. Forrester, for Hawley and others.

From the evidence in this case, Hiss is only entitled to nominal damages for the appropriation to the public use of the land constituting the bed of Mosher street, for the reason that he had, previously to the passage of the ordinance for the [**10]  condemnation and opening of said street, made a plat of his property, and laid the same out into streets and lots, and had sold certain of his lots according to said plat, and in the conveyances thereof bounded said lots on Mosher street as laid out on said plat. By reason of such sales and conveyances, his grantees are entitled to an easement, or right of way in Mosher street as laid out by him on the plat of his property, to the full extent of the dimensions of said street, so far as he had designated the same as a street on the plat of his property. White vs. Flannigan, 1 Md., 525; Lewis Street, 2 Wend., 475.

The land constituting the bed of Mosher street, from Madison avenue to Druid Hill avenue, had been dedicated to the public as a street prior to the passage of the ordinance to condemn and open Mosher street. The municipal authorities had the right to take and appropriate the land so dedicated, for the purpose for which it was dedicated, upon the payment of a nominal consideration to the person owning the fee of said land, subject to the easement in the public--the allowance of nominal damages to the owner of the fee being requisite for the purpose of vesting the title [**11]  of said land in the public. Apart from the amount which was required to pay a nominal consideration to the owner of the fee, the only assessment which could be rightfully imposed upon the persons deemed to be benefitted by the condemnation and opening of said street, would be for such an amount as might be necessary to defray the expenses incurred in carrying out the provisions of the ordinance for the condemnation and opening of said street, that is, for formally appropriating the street which had been previously laid out and dedicated to the public. Pope vs. The Town of Union, 3 C. E. Green, N. J.,--, and in American Law Register for Sept., 1868, 701; 3 Kent's Comm., 434; United States vs. Chicago, 7 How., 196; 4 Paige's Chan. Rep., 513; 1 Howard's Miss. Rep., 379; 8 Mo., 448; 6 Peters, 438; 19 Wendell, 129.

Another point involved in the adjudication of this case is presented in the exception taken to the opinion of the Court and its directions to the jury, on the subject of the right of a party who is assessed for benefits to call in question and contest the right of another party who is allowed damages in the matter of the condemnation and opening of streets in the City of [**12]  Baltimore.

On this point the appellants maintain that, under the law, it is their right, on appeal to the Baltimore City Court, to have tried by a jury any question of fact which is material to enable the jury to ascertain and decide on the amount of damage or benefit to be assessed. That it is their right to present to the jury as a question of fact whether any damage has been sustained by any one for which he is liable to be assessed for benefits; for, if no damage be sustained by any one in the opening of a street, the only assessment which can be charged against the persons deemed to be benefitted is the amount of expenses incurred by the Commissioners in the performance of the duties required of them under the ordinance. Code of Pub. Local Laws, Art. 4, sec. 837; Ordinance of 1866, No. 26.

Robert D. Morrison, for the Mayor and City Council of Baltimore, adopted the argument in behalf of Hawley and others on their first point.

John H. Ing and I. Nevett Steele, for Hiss.

Under the instructions given by the Court below, Hiss was permitted to have damages awarded to him only for that part of the bed of Mosher street lying between McCulloh street and Druid Hill [**13]  avenue. The appellants denied his right to damages even to that extent; and the principal question to be determined by this Court is whether, by his acts, as stated in the evidence, he had stripped himself of the right to compensation for the bed of Mosher street in the square between McCulloh street and Druid Hill avenue.

As the only leases made by Hiss on Mosher street, were on that part of the street lying between Madison avenue and McCulloh street, no greater or wider effect by way of implied covenant, could properly be attributed to these leases, than to limit him to nominal damages for that part of the bed of Mosher street lying between McCulloh street and Madison avenue. This was the decision of the Commissioners for Opening streets and also of Baltimore City Court. Moale vs. Mayor and City Council of Baltimore, 5 Md., 314-323; White vs. Flannigan, 1 Md., 525-541, 542; Parker vs. Smith, 17 Mass., 415; United States vs. Chicago, 7 Howard, 195, 196; Mercer street case, 4 Cowen, 542; Seventeenth street, 1 Wendell, 262; Lewis street, 2 Wendell, 475; Livingston vs. New York, 8 Wendell, 87-89-98, 99.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY and ALVEY, J.  [**14]  

OPINIONBY:
BRENT 

OPINION:

 [*279]  BRENT, J., delivered the opinion of the Court.
As the appeals of Hawley and others against the Mayor and City Council of Baltimore, and of the Mayor and City Council of Baltimore against Hiss, are included in one record and have been argued together, we will dispose of them in the same opinion.
In the case of the Mayor and City Council against Hiss there is really but one question presented, and that is, to what extent has there been a dedication of the bed of Mosher street by the appellee Hiss?
It is in proof that Hiss, being the owner of certain lands lying between Madison and Druid Hill avenues, offered at public auction, in 1866, certain portions of them marked out in lots upon a map or plat, which was placed by him in the hands of the auctioneer, and which was in all respects similar to the one filed in this case. Upon this map lots and streets are distinctly laid down, and among others Mosher is designated as one of the streets. It runs from Madison avenue across McCulloh street to Druid Hill avenue. The lots advertised for sale, and described as being on Mosher street, are all between Madison avenue and McCulloh street. As the bids at the sale [**15]  were not satisfactory, the lots were withdrawn and no sale effected. Subsequently four of these lots, calling to bind on Mosher street, were disposed of at private sale. Judge Scott purchased one of them in trust for Mrs. Armstrong, and the map or plat referred to was put in his hands 

 [*280]  by Hiss at the time of the purchase, but there is no particular reference to it in the deed for that lot, nor is there any in either of the deeds found in the record. None of the lots South of McCulloh street have been sold or offered for sale. It is also proven, that there were fences across the designated line of Mosher street between McCulloh street and Druid Hill avenue, and so continued up to the time that the City proceeded to take the necessary steps to open it as a public street.
The law is now too well settled to admit of any doubt, that if the owner of a piece of land lays it out in lots and streets, and sells lots calling to bind on such streets, he thereby dedicates the streets so laid out to public use. This rule is founded upon the doctrine of implied covenants, and the dedication will be held to be co-extensive with the right of way acquired as an easement by the purchaser. [**16]  It is upon the implied covenant in the grant to him that the dedication to public use rests, and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us the right of way or easement in Mosher street acquired by the purchasers of the lots mentioned in the proof is the precise limit of the dedication by Hiss. Over what portion of Mosher street then did their right of way extend? We think they acquired by their several purchases the right of way from Madison avenue only to McCulloh street, as it is between those streets that their lots lie and bind on Mosher. The doctrine of implied covenants will not be held to create a right of way over all the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold, and there must be some point of limitation. The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street, not yet opened by the public authorities, is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. [**17]  To this extent will the vendor be held by the implied covenant of his deed and no further. It is needless to review the 

 [*281]  several authorities cited in the argument upon this point, as we consider it settled by a decision of this Court in the case of Moale vs. The Mayor and City Council of Baltimore, 5 Md. 314. In that case the very question now before us was involved. Lots No. 3 and No. 9, both lying in the bed of Biddle street, were owned by Moale, and he claimed substantial damages for them in the condemnation of land for the opening of that street. They were both purchased by him from the same person, who had before sold to Judge Frick lot No. 4. Lots No. 3 and No. 4 were between Cathedral and Decker streets, and lot No. 9 between Decker and Charles streets. This Court held in that case, that as lot No. 3 was purchased by Moale after the purchase by Judge Frick of lot No. 4, which called to bind on Biddle street, it was subject to the rights which Judge Frick had acquired by his previous purchase, among which was the right to the use of Biddle street as a street between Cathedral and Decker. Only nominal damages were therefore allowed for lot No.  [**18]  3. But lot No. 9, lying between Decker and Charles street, was held not to be included in the dedication, for the judgment below was reversed upon the ground expressly that the appellant, Moale, was entitled to receive substantial damages for its condemnation. Applying the doctrine of this case to the facts of the one before us, we must hold that there has been no dedication by Hiss of that part of Mosher street lying between McCulloh street and Druid Hill avenue. We therefore think that the instructions of the Court below were correct, and that the dedication by Hiss was properly confined to that part of Mosher street which lies between Madison avenue and McCulloh street.
In the appeal of Hawley and others we find no error in the instructions given by the Court below. By the plain terms of the ordinance of the Mayor and City Council of Baltimore, approved the 3d of April, 1866, the Commissioners, whose duty it is to assess benefits arising from the opening of streets, are authorized in making such assessment to assess only the 

 [*282]  direct benefits. These are such as actually and substantially accrue to the property holder, and are to be made without reference to the [**19]  costs and expenses of opening the street. The ordinance alluded to changed the old system of assessment, under which the benefits assessed were required to be so apportioned as to cover the whole amount of expenses incurred. Then each party assessed had an interest in the assessment of another, whether for benefits or damages. But under the present ordinance no such interest exists. Each assessment must stand upon its own merits. The benefits assessed are not required to cover the expenses of opening a street. So far as they may go they are to be appropriated to that purpose, but any deficiency in the amount is required by the express terms of the ordinance to be paid by the city. It is very clear if the assessment of another cannot increase or diminish the assessment of a party complaining, that he can have no interest to be subserved by asking an instruction from the Court submitting to a jury the question of that other's assessment. That is precisely what was done by the prayers of the appellants, which were rejected by the Court below. Even if they had properly stated the law, in accordance with what we have said in the preceding part of this opinion, they could not have been properly [**20]  granted. The assessment of benefits to the appellants rested entirely upon the actual and substantial benefits each one had received from the opening of the street in question, and so far as that assessment was concerned it mattered not what was the amount of damages allowed to Hiss.
We are very clear, upon the construction of the ordinance alluded to, that the Court below correctly stated the law in the verbal instructions given to the jury, and the judgment in this case, as well as in the case of The Mayor and City Council of Baltimore against Hiss, must be affirmed.
Judgments affirmed. 

95 of 142 DOCUMENTS 

VACHEL B. TODD vs. SAMUEL E. GROVE and RUTH GROVE, his Wife, Adm'x of BENJAMIN TODD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 188; 1870 Md. LEXIS 83 

July 1, 1870, Decided 

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

The bill of complaint in this case was filed on the 6th of August, 1867, by the appellees for the purpose of vacating and annulling certain transfers and gifts of private securities, and United States seven-thirty and five-twenty bonds to the amount of nearly $ 50,000, made in December, 1866, by Benjamin Todd, the deceased husband of the appellee, Ruth, to his brother, the appellant. The bill was filed in behalf of the widow in her own right, and as representing in her character as administratrix, the distributees and next of kin of the deceased. Its material allegations together with a very complete analysis of the facts of the case, will be found in the following opinion of the Circuit Court: The material allegations of the bill are, that the defendant abandoned his residence in Illinois and came to Carroll county, for the purpose, then declared by him, of obtaining from his brother a large proportion of his property in case of his death, his brother being then in a wretched state of health; that the defendant accordingly fixed his residence in Carroll county with his brother, and then proceeded, by the assiduous use of artifice [**2]  and undue influence, continued up to the time of his brother's death, to work upon his mind, then greatly impaired and weakened by sickness, to procure from him such a disposition of his property during his life, as would at his death defeat his widow's right of dower and interest in his personal estate, and also defeat the legal rights of his other representatives and distributees; that the said Benjamin became weaker in body and mind from day to day as his life drew near to its close, until the autumn of 1866, when his condition was such that he was no longer able to resist the persistent and fraudulent arts and importunities of the defendant, and by these means the latter induced his brother to make certain conveyances of real estate, and to assign and transfer to him, without any consideration, the private securities and bonds referred to, and if these latter were not placed in his hands simply as custodian for the benefit of the distributees, but are claimed as a gift, then that such gift was fraudulently obtained by means of such artifices and undue influence for the purpose of defeating the legal rights of the complainant, and the other legal representatives of the deceased.  [**3]  The answer of the defendant, Vachel Todd, denies all fraud and undue influence, and avers that he came to Maryland at the urgent request of his brother, who was aged and blind, and was invited to take up his abode with him and attend to his business, and that in the early part of December his brother gave him these private securities and bonds in the presence of witnesses, and that this gift was his brother's free, unconstrained and voluntary act, made when he was of sound mind and perfectly aware of the transaction.

The parties being thus at issue, a mass of testimony has been taken, the case argued and submitted for decision. It is a case of great interest and importance, both as to the amount of property and the principles of law involved, and has been argued with remarkable ability by counsel on either side. To these arguments the Court is greatly indebted for a clear and comprehensive review of the law, and an elaborate and masterly analysis and application of the evidence.

In the first place, it is all important to ascertain clearly the relation in which the donor and donee stood to each other at the time these gifts were made. Benjamin, the donor, then blind, crippled [**4]  and quite advanced in life, being some sixty-five or seventy years of age, married the complainant, his third wife, on the 4th of April, 1866. He was possessed of considerable real estate, and a very large personal property. He never had any children by his several wives, but had a natural and acknowledged son, Jesse Todd, who was married, had children, lived with him, and attended to all his business for him. To this son and to his children, he appears to have been much attached. He had three brothers, two of whom, Charles and Vachel, resided in Illinois, where they had lived for many years, and the other, Samuel, in Frederick county. He had also numerous nephews and nieces, children of a deceased brother, and of two deceased sisters. In the summer of 1866, his son, Jesse, became sick with consumption, unable to attend longer to his affairs, and was evidently fast approaching the grave; it, therefore, became necessary for him to seek some one else to aid him in his business affairs, and to attend to the management of his property. It appears he first asked his brother Charles, then on a visit to him, and then applied to a nephew, James H. Brown, the only son of a deceased sister,  [**5]  both of whom declined. He then, on the 13th of August, through his wife, wrote a letter, which was mailed the 11th of September, to his brother Vachel in Illinois, requesting him to arrange his business out there, and come in and live with him in his house, and to attend to his business for him. The defendant thereupon sold out his personal effects in Illinois, and, with his wife and daughter, came to Maryland early in October, took up his residence in the same house with his brother, and, according to the averment in the answer, which is abundantly supported by the proof in the case, had the whole care and custody of all his brother's large, real and personal estate, and acted as his agent in the transaction of all his business, from that time until his death, which occurred on the 31st of December following. Whilst this relation subsisted between them, in the early part of December, the gifts and transfers in question were made; that of the private securities on the 5th, and that of the bonds some few days or a short time thereafter.

The relation, therefore, of principal and agent, in reference to its extent and character, the agency extending to the transaction of all the business [**6]  and the management of all the affairs of the principal, is precisely such as existed in Brooke vs. Berry, 2 Gill, 83, and to which the Court in that case applied the law as laid down in Story's Eq., sec. 315, that it is for the common security of all mankind, that gifts procured by agents, and purchases made by them from their principals, should be scrutinized with a close and vigilant suspicion; and indeed, considering the abuses which may attend any dealings of this sort between principals and agents, a doubt has been expressed, whether it would not have been wiser for the law, in all cases, to have prohibited them; but be this as it may, it is very certain agents are not permitted, by abusing their confidence, to acquire unreasonable gifts or advantages from, nor can they deal validly with their principals in any cases, except where there is the most entire good faith and a full disclosure of all facts and circumstances, and an absence of undue influence, advantage or imposition; and this is the law when the mind of the principal is free from all imputation of imbecility. The case of the defendant is, therefore, clearly within the rules and principles of equity which govern transactions [**7]  between parties standing to each other in a confidential relation.

The next inquiry is, to what extent have these principles been carried, and what are the proper limits of their application? Upon this point a large number of authorities have been cited in argument, and to review, though we have examined all of them, would here be impracticable if not a useless labor. Most of them are collected in the notes to Huguenin vs. Baseley, 2 Lead. Cases in Equity, 54 to 75, and in 1 Story's Eq., secs. 307 to 323, will be found a very able and complete statement of the law by Judge STORY, as it stood when that work was written. Our attention has been called to some recent English cases of high authority, not found in either of the above references, and they have laid down a rule which would relieve this case of all difficulty, if adopted and followed. In Rhodes vs. Bate, 1 Chancery Appeals, 256, decided in 1866, the opinion of the Court was delivered by Sir G. J. TURNER and concurred in by Sir Knight BRUCE, in which the learned Judge says: "I take it to be a well-established principle of this Court, that persons standing in a confidential relation towards others, cannot entitle themselves [**8]  to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the Court, that the persons by whom the benefits have been conferred, had competent and independent advice in conferring them. This, in my opinion, is a settled general principle of the Court, and I do not think that either the age, or capacity of the person conferring the benefit, affects this principle. Age and capacity are considerations which may be of great importance in cases in which the principle does not apply; but I think they are but of little, if any, importance in cases to which the principle is applicable. They may afford a sufficient protection in ordinary cases, but they can afford but little protection in cases of influence founded upon confidence. And, as to the nature of the benefit, the injury to the party by whom the benefit is conferred, cannot depend upon its nature. This general principle, however, must, as it seems to me, admit of some limitation. It cannot, I think, reasonably be said that a mere trifling gift to a person standing in a confidential relation, or a mere trifling liability incurred in favor of such a person, ought to stand in the same [**9]  position as a gift of a man's whole property, or a liability involving it, would stand in. To carry the principle to this extent would, I think, interfere too much with the rights of property and disposition, and would be repugnant to the feelings and practice of mankind. In these cases, therefore, of mere trifling benefits, I think this Court would not interfere to set them aside upon the mere fact of the proof of a confidential relation, and the absence of proof of competent and independent advice. In such cases, the Court, before it would undo the benefit conferred, would, I think, require some further proof--proof not merely of influence derived from the relation, but of malafides or of undue or unfair exercise of the influence."

This rule of competent and independent advice, is supposed to have received the sanction of Lord CRANWORTH, in Smith vs. Kay, 7 House of Lords' Cases, 772, and to have met the approval of Sir JOHN LEACH, in the earlier case of Griffiths vs. Robbins, 3 Madd., 191, 192, and to have been sanctioned by Sir J. ROMILLY, in Cooke vs. Lamotte, 15 Beav., 239, where he said, "the rule is where these relations exist, by means of which a person is able to exercise [**10]  a dominion over another, the Court will annul the transaction under which a person possessing that power takes a benefit, unless he can show that the transaction was a righteous one." There is no proof to bring the case of the defendant within this rule, but without expressing any decided opinion as to its correctness, we yet think it would operate too great a restraint upon the disposition of property, to make almost every gift to a person holding a confidential relation void, merely because not made with the aid of competent and independent advice; we, however, fully assent to what is said by the Vice-Chancellor in Billage vs. Southee, 9 Hare, 540, that "no part of the jurisdiction of the Court is more useful than that which it exercises in watching and controlling transactions between persons standing in a relation of confidence to each other; and in my opinion this part of the jurisdiction of the Court cannot be too freely applied, either as to the persons between whom, or the circumstances in which it is applied. The jurisdiction is founded on the principle of correcting abuses of confidence, and I shall have no hesitation in saying it ought to be applied, whatever may be the [**11]  nature of the confidence reposed, or the relation of the parties between whom it has subsisted. I take the principle to be one of universal application, and the cases in which the jurisdiction has been exercised--those of trustee and cestui que trust--guardian and ward--attorney and client--surgeon and patient--to be merely instances of the application of the principle." "And where a gift is set up between parties, standing in a confidential relation, the onus of establishing it by proof, rests upon the party who has received the gift." But even if this be regarded as too broad a statement of the extent and application of the jurisdiction, it is yet very certain we are bound by the exposition of the doctrine, given by Judge STORY, in the sections of his work on Equity Jurisprudence, which we have cited, because these have been adopted and approved by the Court of Appeals in Brooke vs. Berry, and in Highberger vs. Stiffler, 21 Md., 338, and by the Supreme Court in Taylor vs. Taylor, 8 How., 183. From the doctrines announced by these authorities, it is plainly deducible, as well as positively decided, that a gift obtained where such relation exists, as we have shown did exist between [**12]  the parties in this case, is prima facie void, and the burden is on the donee to establish to the full satisfaction of the Court, that it was the free, voluntary, unbiassed act of the donor; that a Court of Equity, on grounds of public policy, watches such transactions with a jealous scrutiny, and to set them aside it is not necessary to aver or prove actual fraud, or that there was such a degree of infirmity or imbecility of mind in the donor, as amounts to legal incapacity to execute a will or a valid deed or contract. In fact, so strong is the bearing of these principles and authorities on this case, that the counsel for the defendant have admitted the transaction in question is prima facie impeachable in equity, and the burthen of proof is on him to sustain it. They have said they are willing to accept the doctrine as laid down in Gibson vs. Russell, 2 Younge & Collier, 115, that it is incumbent on the defendant to show that when the gifts were made, the donor was of sound mind, in all material respects competent to the transactions of such business, that he well understood the matter, and needed no other advice or assistance respecting it than such as he had.

With this statement [**13]  of the rules and principles of equity applicable to the case, it becomes necessary to examine the testimony, to ascertain whether this onus has been fully discharged by the defendant, whether, after a careful examination and vigilant, jealous scrutiny of all the circumstances attending the transaction, the situation of the parties and the character of the gifts, it is established, to the full satisfaction of the Court, that they were the free, unbiassed acts of the donor. We have given to the testimony and proofs before us a most patient and careful investigation, and bestowed upon them, and the arguments of counsel, the best consideration of which we are capable, and have reached the conclusion, these transactions ought not to be permitted to stand. It is of course impossible, without protracting this opinion to a wearisome length, to review in detail all the mass of proof in the case, and comment upon each circumstance, and the testimony of each witness which have contributed to the formation of our judgment. We can only state, under some general heads, the facts which we regard the testimony as establishing, and the impressions they have made on our minds.

1st. The gift was [**14]  excessive in amount, clearly so in view of any services rendered by the donee, and inequitable and unjust to the other distributees, in view of any claim which the proof shows the donee could reasonably have had to the affection and bounty of the donor. It amounted to full three-fourths of all the property, real and personal he then possessed. The defendant had resided in Illinois, a distant State, for the last sixteen years, and it does not appear there had been any special, friendly intimacy or intercourse between him and his brother during that period. It is proved he visited him but once during that time, and that Benjamin said, Vachel never came to see him, except when he wanted money. The deceased had loaned him the small sum of $ 700, and had taken a mortgage on his lands for security, and this was also made a subject of release and gift in the transactions of December, 1866. After the sickness of his son, Jesse, his mind did not turn at once to Vachel for assistance, as the one nearest, most devoted and most likely to give willing aid. He applied to others who declined, and only after consultation and advice did he write for Vachel. There is moreover some proof that the defendant,  [**15]  on hearing of his brother's large property and situation, himself first wrote, offering his services for some small compensation, and consulted as to what he ought to charge therefor. There is nothing to show any estrangement between the deceased and his nephews and nieces, or that any of them were unworthy objects of his bounty. As to his other brothers, there may have existed good reasons why he did not wish Samuel to act as his agent and take charge of his affairs, but none why he should wholly cut either of them off. Indeed, in his will, executed in 1864, before his marriage, and when his son was alive and well, he had given legacies to all of them, as well as to his nephews and nieces.

We look in vain for any reasonable ground upon which Vachel, before he came to Maryland, in October, 1866, could have based an expectation of more than a brother's share of Benjamin's estate. One witness testifies that once, about the last of September, he heard Benjamin say he had sent for Vachel to come in and attend to his business, and that he intended to give him the bulk of his fortune; that Jesse would not live long, and then a brother comes next. On the other hand, it is proved he made [**16]  repeated declarations in the summer, that he intended to give $ 50,000 to his wife. And at a later date and after the arrival of Vachel, he said he would not divide his property while he lived, that he intended to provide for his wife, and then his brothers might all fare alike.

2d. As to the mental capacity of the donor at the time, it is clearly enough proved that in the prime of his years and health, he was a man of strong will, capable, quick and of vigorous intellect; and it cannot, we think, be said he had not at the time of these transactions, sufficient capacity to have made a will or executed a valid deed or contract. But the question here is not about mere legal capacity, for all the authorities under this head of equity assume its existence. If we were deciding the question of capacity on caveat to his will, or in case of a gift to a stranger, where the onus is on the party assailing the act, and capacity was the only matter we had to determine, we should pronounce in favor of the will or gift. But such is not the question now before us. The onus is entirely on the other side. And the state of mind, whether such as capable of being influenced by a person standing in [**17]  a confidential relation and having the opportunity to exercise influence or abuse confidence, is the subject of inquiry.

On this point the proof is clear that the donor's physical health was greatly impaired. All the witnesses, even those to the transactions in question, speak of and admit this. His health commenced to fail from about the 12th of September, and grew worse from that time until his death. In the latter part of November, and especially in December, he was, as several witnesses state, constantly complaining, seemed to be in trouble, would frequently sit wringing his hands, was drowsy, hard to be aroused, and would sometimes fail to recognize relatives who called to see him. It is not clearly stated what was the nature of his disease, though two of the witnesses speak of his having had a shock of paralysis, but he was evidently then, early in December, rapidly sinking, and perhaps himself contemplating approaching dissolution. No one can tell what effect such a state of health may produce, even upon the strongest minds. In some instances, a long life of bodily weakness only serves to develop more clearly the strength of the mental faculties; in others men of strong [**18]  minds and robust health when suddenly assailed by disease, lose their power of will and vigor of intellect, just in proportion as failing health weakens the body. In this case we think it evident, notwithstanding the testimony of the physicians and others who saw him occasionally, his mind had become impaired to such an extent at least as to make it less able to resist, and the more easy subject of influence and importunity. This we shall show more fully as we consider,

3d. The acts and conduct of the defendant in reference to the question of the actual exercise or not of undue influence to obtain this large amount of money and property. We have shown he had it in his power to exercise unduly and for his own advantage the influence he possessed arising from the position of confidence in which he stood to the donor, and whether he so exercised it no one knew better than himself. As was most pertinently said by Lord BROUGHAM, in Hunter vs. Atkins, 3 Myl. & Keene, 141, "All men have the interpreter of the rule within their own breasts; they know the extent of their influence, and are conscious whether or not they have taken advantage of it in a way in which they would feel indignant [**19]  that others similarly circumstanced should do with regard to themselves. The circumstances of each case, therefore, are to be carefully examined and weighed, the general rule being of a kind necessarily so little capable of exact definition; and on the result of the inquiry we are to say, has or has not an undue influence been exerted--an undue advantage taken?"

The acts, conduct and declarations of the defendant are, therefore, of the utmost consequence in determining this important question. Upon this subject what does the proof disclose? Before coming and while making his preparations to come to Maryland, the defendant held frequent conversations with his brother Charles, who had recently returned from a visit to Maryland, concerning Benjamin's wealth, and Charles advised him not to interfere with the old gentleman and his young wife, to which Vachel replied, he would not, but he would watch her very closely, and if he had any influence at all over the old gentleman, he would make it all right with the balance of the heirs. In these conversations Charles says he always remarked that Benjamin was so hard a man to get money from, that it would be hard for him (Vachel) to get [**20]  any thing for himself and the balance of his brothers and the children, to which Vachel replied, "if you let water drop on a stone drop by drop, it will make a hole." This uncontradicted testimony, without adverting to more of a similar character which is disputed, clearly shows a deliberately formed purpose on the part of the defendant to acquire and exert an influence over his brother for his own advantage and that of the other heirs, to the prejudice of the wife, and he expected to accomplish his purpose by the slow process of constant attrition. At the time he had every reason to suppose it would be the work of years. The letter inviting him in, informed him his brother's health was good, and in the ordinary course of human life, he had still years of life before him. When the defendant reached Maryland, however, he found his brother greatly changed both in health and mind; to use his own language, "he didn't seem like the same person;" and he immediately set about the accomplishment of his purposes. The declaration of Benjamin, shortly after Vachel's arrival, "they want to persuade me to divide my property, but I'm not going to do it while I live, I mean to provide for Ruthy,  [**21]  and then my brothers may all fare alike," shows the work was then begun, but stoutly resisted. A week later Vachel had counted his brother's Government Bonds, and was much surprised at the amount, over $ 34,000. In the latter part of November Benjamin is heard to say, "they want me to do things I don't want to do, and don't intend to do, I mean to keep what I've got while I live."

No one can read this and other testimony to the same effect, without conviction, that influence had been exerted, importunity used, and proposals made, which in health and vigor of mind, the deceased would have spurned with indignation. It shows assiduous, persistent and constant endeavor, a struggling resistance, but at last a yielding will; and on the 5th of December the transfer of the private securities is accomplished in the presence of one witness, in the absence of the wife, the defendant being an active helper in the transaction. In a few days an order was obtained for the Government bonds, then in a Baltimore Bank, and the defendant proceeds at once to obtain them, brings them up into the country, and they are given, in the presence of two witnesses sent for by Vachel, and also in the absence [**22]  of the wife, who had been sent to Baltimore upon an errand, which was laughed at at the time. This sending of the wife away, and the anxiety manifested by Vachel to conceal the transactions from her, clearly evince his own knowledge of the power and influence he could exert over his brother in her absence, and his fears that that influence might be counteracted by her presence, or the influence she could exert over her husband. The defendant's own declarations, made about this time to others out of the family, as to his brother's health and inability to transact business, also show his appreciation of his failing faculties. After this, the declaration made by Vachel to Brown, that he would get his brother to deed the farm, or assign over other notes and mortgages to him, (Brown,) if he could be rallied, demonstrates still further the influence he knew he possessed, and could exert over the then more feeble mind, as well as a desire to prevent complaint on the part of one entitled to a share of the estate in case of death, about what had already been done for himself. One other act the defendant thought necessary to be done. On the 26th of December, he obtained an order for his brother's [**23]  will, which is brought home and destroyed in the brother's presence, and with his apparent approval, and then, on the 31st, death ensues.

But by far the most important facts bearing on the inquiry now being pursued, occur subsequently. Shortly after the death of her husband, the widow having obtained letters of administration, filed her bill, and obtained a writ of ne exeat against the defendant, which he evaded by fleeing from the State. His endeavor to avoid the sheriff, and his exclamation to his brother Samuel, "You've ruined me, you've ruined me! why did you tell Ruth about them coupons?" and all the circumstances of his flight, are anything but the words and acts of conscious innocence and rectitude. It is vain to attempt any explanation of them. They are utterly inconsistent with upright and straight-forward purposes and conduct. They bespeak consciousness of having trod in crooked paths, fear of detection and exposure, and haste to secure the fruits of evil deeds. He was obliged to leave the private securities here, because they must be collected in the Maryland Courts, but the Government bonds he had in his pocket, and took with him in his flight, and when he reached [**24]  home, the triumphant and sneering remark to his brother Charles, "I've got the money in my pocket, and mean to keep it," is in perfect accord with, and reflects light upon the whole line of conduct he had previously pursued. There are other circumstances and portions of testimony upon which it is needless to dwell, all strengthening the same influence. But these facts, thus imperfectly stated, in our judgment, outweigh the proof of the attesting witnesses to the gifts, all the formalities of the transactions, and the apparent assent and satisfaction of the donor. They point irresistibly to the conclusion, that the influence the defendant possessed, from the relation in which he stood to his brother, was unduly exercised for his own advantage, and we believe it to have been thus exerted, and so believing and adjudging, the transaction becomes one of that sort, which, as said by Lord HARDWICKE, in Wells vs. Middleton, 1 Cox, 118, it is not "possible for a Court of Equity, consistent with its rules and principles, and the land-marks of its authority for ages together, to admit of standing."

The marriage, the character and conduct of the wife, the feelings of her husband towards her,  [**25]  and the relations friendly or otherwise existing between them, have been prominently relied on as having a controlling influence upon the questions at issue. This part of the case we touch with reluctance, not on account of the importance with which it is to be viewed in reaching a conclusion, but from the nature of the facts and circumstances disclosed, and the proofs by which they are supposed to be sustained. But it is our duty to notice it, and we shall do so. The argument for the defendant, in short, is this, that the marriage was entirely mercenary on the part of the wife; that her character for chastity was bad; that she communicated to her husband a venereal disease; was unfaithful to him after marriage, and otherwise treated him badly; and that the controlling motive on his part was to dispose of his property, as he had a right to do during his life, so that she should never receive any part of it. This argument would certainly be strong if there was satisfactory foundation for it in evidence.

It is no doubt proved, the marriage did not originate in affection on the part of the complainant, resulting from that intimacy and acquaintance usually preceding an engagement [**26]  to marry. She wrote two letters to a female friend, which have been produced in evidence by the husband of the latter. These letters evince neither literary culture nor maidenly delicacy nor refinement of sentiment. In the most important of the two, she, with much bad grammar and worse spelling, bluntly avows her determination to marry old Mr. Todd, because she had heard he had offered a large sum for a wife, and requests aid in obtaining an interview with him. The other is unimportant, except as declaring her determination to carry out her purpose. It may, perhaps, be said in excuse, they were written to a friend and a married woman. It may also be remarked, that not unfrequently marriages are contracted merely for money and a settlement, and the parties still live irreproachable and measurably happy married lives; but it is not often, we hope, the determination to do so, has been so frankly and bluntly announced in writing by a woman as in this case. But the same witness who produced the letter testifies that he read it to the future husband before he met the complainant, and he was much pleased with it. This removes the force of all unfavorable inference, so far as the questions [**27]  before us are concerned; for whatever may be said of her want of delicacy, he is equally open to the same charge. He was not a bona fide purchaser without notice, but having full notice, was gratified and content. There could, therefore, be no after-discovery of her conduct in this particular, to influence his feelings towards or treatment of her. As to the disease communicated to the husband, and for which they were both treated some few weeks after the marriage, the testimony of the physicians, and especially of Dr. Riggs, leaves it in doubt whether it was the venereal disease, or a disease originating in natural causes, to which no blame is imputable. It was proved she was the daughter of respectable parents, and had always borne a good reputation in the neighborhood where she was raised and lived. But, whatever impression may have at one time been made on the mind of the husband from this cause, it is clearly shown to have been entirely removed, for during the whole summer and fall he is proved to have treated her with affection and kindness. There is no proof the husband ever heard of the story of the act of adultery, testified to by Prior, and it could not, therefore, have had [**28]  any influence on his mind. Apart from these proofs, which we have thus disposed of, there is no evidence worthy of notice, the husband was otherwise than kind and affectionate, or that the conduct of the wife was other than it should be. We can discover nothing in any of the testimony on this subject to aid the defendant's case.

In accordance with the foregoing opinion, the Court passed a decree on the 12th of July, 1869, declaring void and setting aside the gift of notes, single bills, mortgages and evidences of debt, together with the five-twenty and seven-thirty bonds of the United States, made by the intestate, Benjamin, to the defendant, making perpetual an injunction previously issued against the defendant, enjoining him from selling any of said bonds, notes and evidences of debt, from assigning any debts secured by mortgage, and from proceeding to recover the debt due upon any of said promissory notes or sealed bills, mortgages or other evidences of debt, and from receiving any part of said debts so due; and providing for an account.

From this decree the present appeal was taken.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Confidential Relation -- Undue Influence -- Gifts.

A gift obtained by any person standing in a confidential relation to the donor, is prima facie void, and the burden is thrown on the donee to establish to the satisfaction of the Court, that it was the free, voluntary, unbiassed act of the donor; a Court of Equity on grounds of public policy, watches such transactions with a jealous scrutiny, and to set them aside, it is not necessary to aver or prove actual fraud, or that there was such a degree of infirmity or imbecility of mind in the donor as amounts to legal incapacity to make a will or execute a valid deed or contract.

B, an aged man, blind and crippled, being possessed of considerable real estate and a very large personal property, invited his brother V, then living in Illinois, to come and live with him and take charge of his business. V thereupon sold out his personal effects in Illinois, and with his wife and daughter came to Maryland, in October, 1866, and took up his residence in the same house with his brother, and had the whole care and custody of his large real and personal estate, and acted as his agent in the transaction of all his business from that time until his death which occurred in December following. Whilst this relation subsisted between them, in the early part of December, gifts and transfers of private securities and United States bonds to the amount of nearly $ 50,000, were made by B to his brother. The donor had at the time two other brothers, a wife and numerous nephews and nieces living, as also grand-children, off-spring of a deceased natural son, who had lived in the house with him. At the date of the gifts, the physical health of the donor was greatly impaired and his mind weakened to such an extent at least, as to make it more easily the subject of influence and less able to resist importunity. It was also shown that the donee, before coming and while making his preparations to come to Maryland, had deliberately formed the purpose to acquire and exert an influence over his brother for his own advantage and that of the other heirs, to the prejudice of the wife. On a bill filed by the widow and administratrix of the donor, for the purpose of vacating and annulling the gifts and transfers made to his brother, it was HELD:

That the influence which the donee possessed, from the relation in which he stood to his brother was unduly exercised for his own advantage, and the gifts and transfers made to him were invalid and could not be permitted to stand.  

COUNSEL:
Charles W. Ross, William A. Fisher and Charles Marshall, for the [**29]  appellant.

Of late years a theory has been started in some of the English Courts, that whenever a relation of confidence exists, the gift shall not be supported unless the donee can establish that the donor had competent and independent advice, no matter what may be the age or capacity of the donor; but this doctrine has never obtained a foothold in this country. In the two cases in this State in which gifts have been assailed upon the ground of the existence of confidential relations, coupled with weakness in the donor and importunity from the donee, such a doctrine was not even alluded to. Brooke vs. Berry, 2 Gill, 83; Highberger vs. Stiffler, 21 Md., 338. It was not even alluded to by the Supreme Court of the United States in a case in which the principle, had it been a sound one, might well have been involved. Taylor vs. Taylor, 8 How., 183. Judge STORY, who has elaborated with great care and minuteness the rules applicable to the relationships of confidence, does not adopt it. In England the proposition may be called a novelty, which has not met the approbation of those Judges to whom we have been most accustomed to look as authority. Such a rule would be a very dangerous [**30]  one, and might readily be made the means of collusion and fraud. Hunter vs. Atkins, 3 Mylne & Keene, 141.

But there has been a compliance in this case, even with the spirit of a rule so strict. Both gifts were made in the presence of intelligent and competent witnesses and advisers, and the gift of the United States bonds was made, with the assistance of the physician residing in the village, who had been the medical adviser and friend of Benjamin Todd.

The true test is to be sought in no arbitrary rule, but in a fair and just examination of the circumstances of each transaction. It is conceded that whenever the donee occupies any confidential relation towards the donor, the burden of proof lies upon him to establish the bona fides of the gift, but this burden is, in the case of certain species of relations, a heavy weight, while in others it sits lightly. There are certain well known relations, as those of guardian and ward, trustee and cestui que trust, &c., in which more proof will be required than in cases of a less defined and close character. Hunter vs. Atkins, 3 Mylne & Keene, 141.

The principle which has been established is merely that the party assailing the [**31]  deed need not show fraud, imposition or weakness in the first instance, as he would have been compelled to do had no confidential relations existed between the donor and donee, and the donee must show that no improper advantage has been taken by him of his position, and that the act of the donor was of his free bounty. But, while the burden is thus shifted, and the donee is compelled to assume the position of proving a negative, he is to present no other or higher proof than is required in any other case. Cramer vs. Crumbaugh, 3 Md., 499, 503, 504.

Although confidential relations may have existed, yet, if the donee is the friend or near relative, the force of the rule is much weakened. Harris vs. Tremenheere, 15 Vesey, 34; Casborne vs. Barsham, 2 Beavan, 76; Gibson vs. Russell, 2 Younge & Collyer, 115.

Much less suspicion should attach to a gift than a sale from the principal to an agent. In the former case there is not the same opportunity for imposition--the principal knows that he is making a gift, and the agent does not treat with one whom he should protect; but, in the case of a sale, it is obvious, from the nature of the transaction, that the principal wishes to obtain [**32]  an equivalent for what he parts with, and if he does not, the vendee may fairly be treated as having imposed upon his vendor and treated with him upon terms of inequitable advantage.

In the case of a gift, where confidential relations exist, the donee may be called upon with varying degrees of strictness, to convince the Court of the absence of any undue influence or unfair advantage, but this he can be required to do only by exposing distinctly what the relations between the parties were, by showing the character of the mind and will of the donor, what were his pre-conceived intentions, and the motives which, from the situation in which he was placed, could reasonably be supposed to have influenced him.

The counsel for the appellant, accepting the burthen of proof within the limits thus defined, undertook to show, by an examination of the testimony, that the deceased was a positive, self-willed man, not likely to be influenced; that his mind continued in a healthy state down to the time of his death; that undue influence was impossible, and that there was no evidence of the exercise of any influence by the appellant.

William Reynolds, Jr., and Thomas Donaldson, for [**33]  the appellees.

A gift obtained by any person standing in a confidential relation to the donor is prima facie void, and the burden is thrown upon the donee to establish affirmatively, and to the entire satisfaction of the Court, that the act proceeded from the free and unbiassed will of the donor, whether the relief be sought by the donor himself or by his legal representatives--and this is a principle of public policy. Osmond vs. Fitzroy, 3 Peere Will, 129; Huguenin vs. Baseley, 14 Ves., 273, (2 Leading Cases in Eq., 54 to 75;) Dent vs. Bennett, 4 My. & Cr., 269; Billage vs. Southee, 9 Hare, 540.

In Cooke vs. Lamotte, 15 Beav., 234, decided by Sir JOHN ROMILLY, in 1851, the principle is extended to all cases of voluntary donations. Smith vs. Kay, 7 House of Lords' Cases, 750.

In Ahearn vs. Hogan, Drury, 310, (note to 2 Y. & C., 120,) Lord Chancellor SUGDEN applies the rule to every case "in which one party may exercise influence over the other." Harvey vs. Mount, 8 Beav., 439; Brooke vs. Berry, 2 Gill, 98; Highberger vs. Stiffler, 21 Md., 338, 352, 353; 1 Story's Eq., secs. 303 to 322.

Though this principle is carried to a much greater extent in cases of the highest [**34]  authority, yet all the authorities in Europe and in this country agree, that it applies to the case of a gift to an agent having charge of all the donee's business at the time, and that is exactly the present case. Hunter vs. Atkins, 3 Mylne & Keene, 113, (8 Eng. Cond. Ch. Cases, 316;) Pratt vs. Barker, 4 Russell, 507, and 1 Sim., 4.

A Court of Equity watches such transactions with a jealousy almost invincible, and if, in the conflict of testimony, there is any doubt left on the mind of the Court as to the donee's perfect fairness, or as to the donor's perfect freedom from influence, the gift will be declared void. Hatch vs. Hatch, 9 Ves., 291.

A Court of Equity will not be satisfied of such fairness on the one part and such freedom from influence on the other, unless the donor had competent and independent advice in regard to the propriety of conferring the gift; and merely the presence of witnesses is not sufficient for this purpose. Griffiths vs. Robins, 3 Mad., 191; Welles vs. Middleton, 1 Cox Ch. Cases, 112; Gibson vs. Russell, 2 Y. & C., 104; Rhodes vs. Bate, 1 Chan. Appeal Cases, 252.

The principles stated in the authorities are entirely independent, both of actual [**35]  fraud in the donee, and of any weakness of mind or want of clear knowledge in the donor; although the presence of either one of those ingredients would, of course, make the case so much the worse; and if actual fraud is charged in the bill, and not proved, yet the averment is sufficient for obtaining relief. Bridgman vs. Green, Wilmot, 70; Brice vs. Brice, 5 Barb., 533; Whelan vs. Whelan, 3 Cowen, 537.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MAULSBY, GRASON and ROBINSON, J.  

OPINIONBY:
GRASON 

OPINION:

 [*208]  GRASON, J., delivered the opinion of the Court.
We have carefully examined and considered the authorities cited in the argument of this case by the counsel of the respective parties, as well as the evidence contained in the record, and have reached the same conclusion upon the facts, as also upon the law applicable to them, which was reached by the Court below.
The opinion delivered by that Court embodies such a clear and forcible exposition of the law of the case, as well as such a thorough analysis of the evidence, that we are satisfied that no additional force could be added to it by any opinion we might file in the case. We will, therefore, pass a decree [**36]  affirming the decree of the Court below, for the reasons set out in the opinion of that Court.
Decree affirmed. 

96 of 142 DOCUMENTS 

WILLIAM H. TUCK vs. EDWARD H. CALVERT, THE NATIONAL BANK OF BALTIMORE and WASHINGTON J. BEALL, Executor. THE NATIONAL FARMERS' BANK OF ANNAPOLIS vs. EDWARD H. CALVERT, THE NATIONAL BANK OF BALTIMORE and WASHINGTON J. BEALL, Executor.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 209; 1870 Md. LEXIS 84 

July 1, 1870, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Circuit Court for Prince George's County, in Equity.

The bill of complaint in this case was filed on the 7th of November, 1865, by some of the judgment creditors of Thomas F. Bowie, against him and his other judgment creditors, for the sale of his real and personal estate for the payment of debts. The bill charged that the debtor's property was about to be sold under executions which had been levied thereon, and that a sale by the sheriff would be disastrous to the interests of the creditors, and especially of the junior judgment creditors, and that it would be better for all parties in interest, that the property should be sold under a decree of a Court of Equity; it suggested that it would be proper for the Court to interpose to prevent a sale by the sheriff. An injunction was issued as prayed. The prior judgment creditors answered the bill and consented to a sale; before a decree was obtained, the debtor applied for the benefit of the bankrupt law, and was discharged under it, and his assignees in bankruptcy also agreed to the sale. A decree was passed, all questions as to priorities or preferences of any of the creditors whether of judgment, mortgage, specialty [**2]  or other debt or claim, or by way of vendor's lien, being reserved for the future order or decree of the Court. The real estate of the debtor, consisting of a house and lot in Upper Marlborough, and three farms called Kinsale, Cheltenham and Brookefield, were sold, and the proceeds arising therefrom brought into Court for distribution. This property, exclusive of Brookefield, sold for $ 22,153, and Brookfield sold for $ 11,223. Mr. Bowie had purchased Brookefield from J. A. Osbourn, and had given him his two single bills for the purchase money, with William Z. Beall and Fielder Bowie as his sureties. Judgments were recovered on these single bills against Thos. F. Bowie and Fielder Bowie, survivors of William Z. Beall, who had deceased, and also against Washington J. Beall, his executor. They were finally assigned to the National Bank of Baltimore; Washington J. Beall claimed to have paid them as executor, and to be entitled to be substituted to all the rights and interests of the original vendor and his lien on the lands. Mr. Bowie had also purchased from Edward H. Calvert, a parcel of the Cheltenham property, and for the purchase money had given his single bills; on these a judgment [**3]  was obtained, which together with the vendor's lien, were assigned to Henry Boyle, as security for a debt; the debt was subsequently discharged. The auditor stated accounts A, B, C, D, E and F. Accounts D and E were stated under instructions from Wm. H. Tuck. The other accounts represented the views of the auditor.

Account "A" ascertained the costs, expenses, commissions and taxes on all the property except Brookefield, amounting to $ 2,731.99, and after deducting this sum from $ 22,153.00, the proceeds of the Marlborough property, Kinsale and Cheltenham, the balance, $ 19,421.01, was carried to account "B." This account allowed Calvert's vendor's lien and a judgment of Amelia H. Chew and R. B. B. Chew, administrators of L. H. Chew, making $ 1,137.85, leaving a balance of $ 18,283.16, to be carried to account "C," by which that sum was distributed to the judgments of James C. McGuire, administrator of John D. Brown, Edward G. W. Hall and W. F. Green-well, use of Duvall, Keighler & Co., and Saml. B. Anderson. These judgments were recovered at November Term, 1857, and signed the 6th of that month, and were allowed preference over the judgment of W. H. Tuck, obtained at the same [**4]  term, but signed on the 11th of the month.

Account "F," after deducting a proportion of the costs, commissions, taxes, &c., as ascertained by account "A," assigned all the proceeds of Brookefield to the National Bank of Baltimore, as assignee of the two judgments recovered by Osbourn, including costs and poundage fees, and leaving a balance due on these claims.

Account "D" differed from account "A" in that the State and county taxes allowed in the latter were excluded from the former, and after allowing the costs therein mentioned, and the claim of Edward H. Calvert, under his lien as vendor, and the judgment of Amelia H. Chew and Richard B. B. Chew, administrators, c. t. a., of Leonard H. Chew, the balance was carried to account "E" and there distributed pro rata among the judgments allowed in account "C," and the judgment of Wm. H. Tuck, as of November Term, 1857, without regard to the day of signing.

The National Farmers' Bank of Annapolis, which held a judgment against Bowie, rendered at November Term, 1858, filed exceptions to all the accounts. The exceptions of the Bank related to some of the allowances for expenses, fees and taxes, and to the allowance of the [**5]  claim of Calvert, use of Boyle, and of the judgments recovered in the name of Osbourn, use of Eversfield and others, and claimed by the National Bank of Baltimore, as vendor's lien. Exceptions were taken by William H. Tuck to accounts A, B, C and F, and embraced the objections taken to the same accounts by the Bank.

The Court passed an order assigning a day for the hearing of the exceptions, and allowing the claimants to take testimony.

After hearing, the Court passed an order, dated the 9th of July, 1869, by which account "A" was ratified, except as to the allowance therein of the personal expenses of one of the trustees, and a solicitor's fee for conducting the proceedings and obtaining a decree--the allowance to the trustee was rejected, and the solicitor's fee was directed to be allowed proportionately out of the claims of all the creditors participating in the fund. Account "B" was ratified as to the allowance of the claims of Calvert and Chew's administrators. Accounts "C" and "D" were rejected. Account "E," in so far as it allowed the judgment of Tuck, ratably with the other judgments rendered at the same term, was confirmed. Account "F" was ratified, except as to [**6]  the claim of Osbourn, upon a judgment rendered at April Term, 1860, and assigned to the National Bank of Baltimore; this claim was suspended for insufficiency of proof of the assignment of the vendor's lien, and leave was given to the parties interested, to take testimony in reference thereto. The claims of Osbourn, use of the National Bank of Baltimore, were allowed to Washington J. Beall, executor of William Z. Beall. The cause was referred to the auditor for further proof in regard to the suspended claim of Osbourn, and with directions to state other accounts as specified in the order. From this order, William H. Tuck and the National Farmers' Bank of Annapolis appealed.  

DISPOSITION:
Order affirmed, and cause remanded.  

HEADNOTES:

Right of the Executor of a Surety for the payment of the Purchase money of Real estate, which he had paid, to be Indemnified out of the proceeds of the Property when Sold under a Decree in Equity -- Vendor's Lien -- Taxes as a Preferred claim.

A purchased certain real estate and gave his two single bills, with B and C as securities for the purchase money, the vendor retaining his legal title to the land. Judgments were recovered on these single bills against A and B, the survivors of C, who had died, and also against D, his executor; executions were issued on the judgments and levied on the property. On a bill filed by some of the judgment creditors of A, alleging that this property with other property belonging to A, was about to be sold under execution, and that a sale by the sheriff would be disastrous to the interests of the creditors, and especially of the junior judgment creditors, and that it would be better for all parties interested therein, that the property should be sold under a decree of a Court of Equity, and suggesting that it would be proper for the Court to interpose to prevent a sale by the sheriff, an injunction was issued restraining the sheriff from proceeding to sell any part of the estate of A; and a decree was subsequently passed by consent, and the property sold by trustees, and the proceeds brought into Court for distribution, all questions as to priorities or preferences of any of the creditors of A, whether of judgment, mortgage, specialty, or other debt or claim, or by way of vendor's lien, being reserved for the further order or decree of the Court. Pending the proceedings under the creditors' bill, D filed a petition alleging that executions had been issued under the judgments recovered against him as executor, and levied on his property, and that as executor he had paid the amount due on said judgments; he therefore claimed to be entitled to be substituted to all the rights and interests of the original vendor. HELD:

That upon proof that D had paid these judgments as alleged, he was entitled to be indemnified out of the proceeds of the land, for the payment of the purchase money of which his testator was security.

C sold a tract of land to B, took his single bills for the purchase money, and retained the legal title until the purchase money should be paid. C recovered judgment on these single bills, and sometime afterward assigned them as security for a debt which he owed -- this debt he discharged, the judgments remaining unsatisfied. The land sold by C was subsequently sold under a decree passed on a bill filed by creditors of B, all liens for unpaid purchase money being reserved. HELD:

That C in virtue of his lien as vendor, was entitled to have his judgment paid out of the proceeds of the property, in preference to other creditors.

Where property is sold under a decree in equity, the taxes due by the person whose property is sold must be first satisfied out of the proceeds.  

COUNSEL:
William H. Tuck, in his own behalf.

The exception to the allowance of the taxes, due by the debtor, should have been sustained, except as to those due to the State, as there was personal property on the land sufficient to pay the same, and the Court ought to have directed an account to ascertain how much was chargeable against the realty. Code of Pub. Gen. Laws, Art. 81, secs. 47, 51.

When executions on some of the judgments against Bowie went into the hands of [**7]  the sheriff, they were levied on crops of corn and tobacco on three farms, comprising nearly fifteen hundred acres of land. If the property had been sold by the sheriff, he should have retained for the taxes and paid the collectors. Code, Art. 81, sec. 71. The property was released from the levy by the issuing of the injunction, and it was then liable to be levied on for taxes, and unless the collector can show there was no personalty, he cannot look to the land. Personal chattels must be first taken for payment of taxes. Code, Art. 81, secs. 49, 50, 53, 54.

The Court erred in allowing the claim of Calvert, use of Boyle, in preference to prior judgments. There was no sufficient evidence of the assignment. It should make no difference that Calvert has since paid Boyle, for if Boyle ever held the lien, he has not re-transferred it to Calvert.

The contract for the purchase between Bowie and Calvert was not in writing. Bowie gave his single bills for $ 600, not expressing on their face the consideration. The notes were never transferred to Boyle, but Calvert obtained a judgment, which was afterwards entered to the use of Boyle. Can the entry of that use give Boyle the benefit [**8]  of the vendor's lien? Surely not.

The Court erred in allowing one of the judgments of Osbourn, as claimed by the Bank of Baltimore, in account F, because the assignment of the lien was not sufficiently proved.

While it is true that a vendor's lien exists independent of special agreement, and as an incident to the contract of sale, and that he who relies on a waiver of the lien, must show the facts which repel its existence, it is equally true that it cannot pass by implication, but only by express agreement, and that the party claiming as assignee of the lien, must establish his claim by the clearest proof.

It exists for the benefit of the vendor, and all claiming its benefit must claim through him, as having an interest in maintaining it. If he waives it, or so deals with the transaction as to cease to have any interest in its longer existence, it is gone as to everybody, as when he assigns a note for the purchase money without recourse, or the note being negotiable, is not protested when due, by which he, as endorser, would be discharged, the lien is gone, and the indorsee or assignee cannot look to the land.

In this case Bowie gave his single bills with sureties,  [**9]  not specifying that they were for the land, the vendor retaining the title. They were indorsed by the vendor to Eversfield, and by him indorsed to Neale, Harris & Co.

This is not the case of a written contract or note specifying land as the consideration, as in Willis vs. Bryant, 22 Md., 373, where the note shewed the consideration to be unpaid purchase money, and the assignor took the risk of collection; nor like Hooper vs. Logan, 23 Md., 201, where the agreement of purchase was in writing, and the assignment in writing carried the lien as part of the agreement, but this is a transaction resting altogether in parol, except as to the indorsement of the single bills; and the question is presented, whether, conceding the evidence to be free from all difficulty, such a security as a vendor's lien can be transferred by parol?

No case has been produced in which such a transfer has been sustained. If the position of the appellees be correct, that where the note is indorsed, it may be shewn by evidence that the indorsement was intended by collateral agreement to carry also the vendor's lien, then you add to and vary the import of the transaction as shewn by the indorsement, to the [**10]  prejudice of persons dealing with the vendee in ignorance of such latent equity.

Judge STORY considers this kind of lien as a trust. If this be correct, it cannot be the subject of parol agreement or assignment. 2 Story's Eq., 1218.

If the vendor's lien were assigned to Eversfield, and by him to Neale, Harris & Co., did it pass to the Bank of Baltimore?

The bank claims as assignee of the judgments, for the single bills were never transferred to it.

The judgments did not represent the vendor's lien--they were merely liens at law. The notes were merged, and no longer the subject of transfer. How could the lien pass as an incident of the contract of sale when the contract--the notes --was not assigned?

These parties dealt with the judgments as liens at law, and cannot, through their efficacy, enforce the vendor's lien. The bank took the judgments subject to all other judgments. Richardson vs. Stillinger, 12 G. & J., 478; Hall vs. Jones, 21 Md.

But the lien did not pass, because, by the legal effect of the mode of transfer adopted, Osbourn was discharged from liability on his indorsement, and no equity remained in him through which the lien could be enforced [**11]  for the benefit of those claiming as assignees.

These were sealed bills, and the law provides how the assignor is to become responsible. Code, Art. 9, secs. 8, 9. The assignment must be under hand and seal, and there must be an affidavit of the obligee at the time of the assignment of the amount due on the bond. Act of 1763, ch. 23, sec. 9; Mayer's Digested Cases, 226; Parrot vs. Gibson, 1 H. & J., 398; Boyer vs. Turner, 3 H. & J., 285; Dorsey vs. Barnes, 2 H. & McH., 477.

If Osbourn or Eversfield was ever bound as assignor, they were discharged by the laches of the holders of the claims.

The money is now claimed to have been paid by Beall's executor to the bank, and the order of the Court directs that he shall stand in its place, as holder of the lien as to one of the judgments. If Beall paid the judgments as executor, out of assets of the estate, he took no assignment of the vendor's lien from the bank, even if competent to transfer it, and by taking an entry of the judgment to his use from the plaintiff's attorney, he obtained only the lien of that judgment, and not a vendor's lien.

Alexander B. Hagner, for the National Farmers' Bank of Annapolis, submitted the [**12]  case on the argument of William H. Tuck.

Samuel H. Berry and Henry M. Murray, for Washington J. Beall.

From the evidence in this case, the vendor's lien on the land sold by Osbourn to Bowie was assigned with the bonds to the first assignee, and by him to Neale, Harris & Co., and by them to the National Bank of Baltimore, and the holders of the bonds and judgments were entitled to this fund arising from the sale of the land, then for the first time brought into Court for distribution.

1st. Because Osbourn held the legal title to the land, never having executed to Bowie a deed thereof. Iglehart vs. Armiger, 1 Bland, 519; Ridgely vs. Iglehart, 3 Bland, 540; Magruder vs. Peter, 11 G. & J., 217.

2d. Because the land was sold under a decree of the Court, to satisfy the claims of creditors of Bowie, and was brought into Court for distribution among them, according to their prior liens.

3d. The vendor's lien on real estate may be assigned with the bonds or notes taken for the same by express agreement, which is fully established by the proofs in this cause. Watson vs. Bane, et al., 7 Md., 117; Dixon vs. Dixon, 1 Md. Ch. Dec., 220; Hayden vs. Stewart, 4 Md. Ch. Dec.  [**13]  , 280.

4th. The vendor's lien to secure the payment of purchase money is an incident of every contract for the sale of real estate, unless waived or relinquished. Morton vs. Harrison, 1 Bland, 491; Iglehart vs. Armiger, 1 Bland, 519; Ringgold vs. Bryan, 3 Md. Ch. Dec., 488; Carr et al. vs. Bell's Admr's, 11 Md., 285.

5th. Because the said Osbourn, by endorsing said bonds, made himself liable as endorser for the ultimate payment thereof. Hayden vs. Stewart, 4 Md. Ch. Dec., 280; Willis vs. Bryant, Trustee, 22 Md., 373.

6th. Because the said judgments having been paid by the said Washington J. Beall, as the executor of one of the securities of Thomas F. Bowie, the purchaser of said land, for which said bonds were given, he became entitled by right of substitution to all the securities and liens held by the original vendor, as security for the payment thereof. Winder vs. Diffenderfer, 2 Bland, 166; Neely vs. Cooper, 2 Bland, 199, and note; Ghiselin vs. Ferguson, 4 H. & J., 522.

C. C. Magruder, for Edward H. Calvert.

The Court below properly allowed the claim of Calvert, use of Boyle, as a vendor's lien. Calvert had not parted with the legal title to the land. Indeed,  [**14]  the agreement between him and Bowie expressly provided that the title should not pass until the purchase money was all paid.

When Calvert made the assignment and agreement with Boyle, he only transferred the judgment and vendor's lien as collateral security for the payment of the debt due Boyle, which was afterwards paid.

The payment of the debt by Calvert, relieved in equity the securities passed to Boyle, and restored Calvert's right to the same. Marriott vs. Handy, 8 Gill, 31.

The facts show a clear case of the retention of the vendor's lien by Calvert, for the payment of the purchase money, and therefore the case comes entirely within the decisions, that when the lien has not been parted with absolutely, or extinguished, it remains in force, and will be held as a security for the protection of the vendor against the purchaser and his vendees, etc. Dixon vs. Dixon, 1 Md. Ch. Dec., 222; Ringgold vs. Bryan, 3 Md. Ch. Dec., 488-495; 2 Story's Equity, secs. 12-17, 18, 19; Repp vs. Repp, 12 G. & J., 341; Magruder vs. Peters, 11 G. & J., 244; Ghiselin vs. Ferguson, 4 H. & J., 520; 1 John. Chan., 308.

The vendor's lien is assignable even by parol. Dryden vs. Frost,  [**15]  1 Leading Cases, 357; 3 My. & Cr., 67.  

JUDGES:
The cause was argued before STEWART, BRENT, MAULSBY, ALVEY and ROBINSON, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*219]  MAULSBY, J., delivered the opinion of the Court.
The appeals in this case, in one record, present three questions, which will be treated in the following order:
First: As to the right of Washington J. Beall, Executor of Wm. Z. Beall, to an allowance, out of the fund to be distributed, of the amount paid by him for purchase money, for which his testator was responsible as security for Thomas F. Bowie, the purchaser.
In 1855 Thomas F. Bowie bought of J. A. Osbourn a tract of land in Prince George's County, called Brookefield, and gave him his two single bills, with Wm. Z. Beall and Fielder Bowie as securities, each in the sum of four thousand seven hundred and seventy-seven dollars and thirty-six cents, for the purchase money; the vendor retaining the legal title to the land. At the April terms of 1860 and 1862, respectively, Osbourn obtained judgments on these single bills against Thomas F. Bowie and Fielder Bowie, surviving obligors of Wm. Z. Beall, who was then dead, and also judgments against Washington J. Beall, Executor of the said [**16]  Wm. Z. Beall. Writs of fieri facias were issued on these judgments and levied on the property of Thomas F. Bowie. In 1865 sundry creditors of Thomas F. Bowie filed a bill alleging that he was possessed of a large amount of property, was greatly in debt, that the said judgments were for said purchase money, that fi. fas. were issued on said judgments against Thomas F. Bowie and Fielder Bowie, surviving obligors, and levied on sundry property of Thomas F. Bowie, and amongst the rest on Brookefield; that the same was about to be sold to satisfy said judgments, that, in consequence of the involved condition of the estate of the said T. F. Bowie, a sale of his property by the sheriff would be disastrous to the interests of his creditors, and that it would be better for all parties interested therein that the same be sold under a decree of a Court of Equity, and the proceeds distributed amongst the creditors according to their respective rights, liens, priorities and equities; and praying for an injunction to restrain a sale to satisfy said executions, which was 

 [*220]  granted. The allegation of the bill on which the injunction was asked was that "the interests of the creditors,  [**17]  and especially of the junior judgment creditors, will be sacrificed, owing to the various characters of the said judgment liens, and encumbrances on the same and the cloud thereby thrown around the title to said property," if the same be sold under the fieri facias.
A decree for a sale was finally had, the property sold by trustees, and the purchase money brought into Court. That for which Brookefield sold was distributed by the auditor in account F, to the payment of these judgments; being part of the proceeds of sale of the property sold by Osbourn to Bowie, to the payment of the purchase money due. The judgments obtained by Osbourn had been entered to various uses, and after the proceedings had depended for several years, the judgment creditor, or his cestui que trusts, tired of waiting; and, as the record discloses, about, or after the time the auditor filed his report, they issued fieri facias, for the same money, on the judgments against the Executor of Wm. Z. Beall, and compelled him to pay the judgments; those against Bowie and Bowie remaining enjoined at the instance and for the benefit of the other creditors of T. F. Bowie.
The auditor's report was filed 16th [**18]  January, 1869, and on April 21st, 1869, the Executor filed his petition, alleging that he had been compelled to pay the money. These amounts were by the account F assigned to Jesse A. Osbourn's use, &c., &c., and by the final order, filed 12th July, 1869, were directed to be paid to Washington J. Beall, Executor of Wm. Z. Beall, the surety on the single bills, he, the Court says, "appearing to have paid the said judgments, and to have received an assignment thereof from the National Bank of Baltimore."
There is in the record no proof that Beall, the Executor, paid the judgments. The only proof is an order of the plaintiff's attorney to enter the judgments of Osbourn, use, &c., against W. Z. Beall's Executors, and against Thomas F. 

 [*221]  Bowie and Fielder Bowie, survivors of Beall, to the use of Washington J. Beall. Washington J. Beall in his petition states that he has paid "the entire amount due on the judgments for the purchase money of said land, as executor of W. Z. Beall, who was one of the sureties of the vendee, as is stated in the proceedings in the cause." It is on this allegation, in the view we take of this case, that the right of the executor to be indemnified out [**19]  of the proceeds of sale of the land, "Brookefield," depends, and not on his right as assignee of the judgments.
His right to be indemnified, as executor, is an equity growing out of all the circumstances disclosed by the record. The complainants in the cause, amongst whom are the parties excepting to the allowance to him as executor, and appealing from the order making a partial allowance, set out in their bill that the purchase money is due from Thomas F. Bowie, the purchaser from Osbourn, and that Wm. Z. Beall was security for the payment of said purchase money; that executions have been issued against Bowie and Bowie, survivors, and they seek to restrain these executions, not on the ground that they are not proper in themselves, or that there is any inequity in them, but in order that they, the other creditors, may be benefitted by a sale other than by the sheriff. If the fi. fas. had been executed, the bill discloses that they would have been fully paid from the property of the principal debtor, and the estate of the security, Beall, would have been relieved from all loss; and having induced a Court of Chancery to prevent this on the ground stated, they now seek to throw the [**20]  executor on the pursuit of his right to the money as assignee of the judgment creditor, or as assignee of the lien of the vendor for the purchase money, and to apply to him all the rules which would apply if he were assignee, by purchase, of the single bills, and were here claiming as assignee of the lien of the vendor.
We think that this would be inequitable in this case. The rules established by Courts of Equity to regulate the pursuit 

 [*222]  of vendors' liens, as such, contemplate and apply to cases of conflicting equities, and are designed to give effect to that equity which is the strongest. In this case all equities combine in favor of the right of the executor of Beall, the surety. As stated, the bill concedes that the purchase money is unpaid, and that it is about to be made out of the property of the purchaser, and sets up no equity against its being done, but simply appeals to the clemency of the Court to sell the property in a different mode, for the benefit of the complainants; and goes on the ground that when the property shall be sold in the mode prayed, the liens and encumbrances on it shall be discharged out of the proceeds, as if the bill had not been interposed.  [**21]  The complainants allege in their bill that they are creditors of Bowie by judgments which are liens only on his equitable estate, which by the Act of 1810, ch. 160, is liable to these liens only after the purchase money due shall have been first paid. If they could defeat the right of the security to indemnity, the effect would be that they would appropriate to themselves, not only the vendee's equitable interest in the property, on which only they have any legal or equitable claim, but the entire estate, of which their debtor never was seized, thus forcing their debtor's security to contribute, to the amount of the unpaid purchase money, a fund for their use, to which they had, neither in law nor in equity, any pretence of right. The only right they acquired by their judgments was to the property, after the payment of the purchase money due. If they could force the surety to pay the purchase money due, to that extent they would derive a benefit in excess of that to which their judgments gave them any claim, and under the form of enforcing liens against their debtor's equitable estate, they would obtain, really, not only their debtor's interest, but in addition, the money which the [**22]  security had been compelled by a Court of Law to pay. Before the complainants can have the equity claimed by their bill, the distribution of the fund brought into Court by the sale of the property, they must do equity, and the first step is 

 [*223]  to ask only so much as their debtor really owned, and that all purchase money due by him be paid to whomever it may be due. There can be no doubt that if no bill had been filed, and all parties had been left to their legal rights, and Beall, the security, had paid the purchase money to Osbourn, he could have compelled Osbourn to assign to him not only his judgment against the principal debtor, but also his lien for the purchase money. All the parties, and the fund, being in this Court, and all the equities of all the parties being disclosed, it is hard to see how a Court of Equity could refuse to indemnify the security, and appropriate the money, which really belongs to the purchase money, to the benefit of other parties.
On the proof appearing in the record, which consists of the order of the plaintiff's attorney to enter these judgments which had been obtained for the purchase money of "Brookefield" to the use of Washington J. Beall,  [**23]  it would seem that he is claiming as assignee, by purchase, of the judgments, and his position might be very different from that shewn by his petition. That avers that he, as executor, paid the amount due for the purchase money, for which his testator was bound as security, and it is just to give him an opportunity to furnish proof of that fact. The cause will be remanded, and on such proof being furnished, we think that he will be entitled to an allowance, out of the fund for which "Brookefield" sold, of the whole amount of purchase money which was paid by him as executor of the security in the single bills given for the purchase money.
It is immaterial whether he paid the money under the judgments obtained against him as executor, de bonis testatoris or de bonis propriis. The only question is as to the fact whether he paid the money as executor, and because judgments against him, as executor of W. Z. Beall, the security, compelled him to do so. If he did not, in fact, pay the money as purchaser, in his own right, of the judgments against himself as executor, the entry of the judgments to 

 [*224]  his use places him in a false position, and ought to be struck out. It is [**24]  in contradiction to the allegation of his petition, and to give him an opportunity to prove that allegation, is what is intended.
The case of Ghiselin & Worthington vs. Ferguson, 4 Har. & John. 522, is not identical with this case, but the analogies are strong in many respects, and we think that the decision of that case may be relied on to sustain, generally, the views expressed in this opinion.
Secondly: As to the claim of Edward H. Calvert.
The facts shown by the record are, that Calvert sold a tract of land, "Cheltenham," to Thomas F. Bowie, taking the single bills in question for part of the purchase money, and retained the legal title until the purchase money should be paid. In November, 1865, Calvert obtained judgment on these single bills, and in March, 1866, entered the judgment to the use of Henry Boyle, as security for a debt due by Calvert to Boyle. Afterwards, Calvert paid the debt to Boyle, and the latter ceased to have any interest in the judgment. He had no interest at any time other than as cestui que use. The entry of the use to Boyle was not struck out, as it ought to have been, when Calvert paid him his debt; but Boyle is not here asking the protection [**25]  of the Court. The claim stands, purely and simply on Calvert's lien for unpaid purchase money, and we can perceive no ground on which it can be denied. It will be found that the bill, answers, and all the proceedings in the cause, in express terms, reserve all liens for unpaid purchase money, and seek to apply to the uses of the general creditors of Bowie only the surplus proceeds of sale of the property, after the payment of all purchase money due. This claim was properly allowed.
Thirdly: As to State and county taxes allowed.
The Court is bound by the distinct language of Article 81, section 71 of the Code of Pub. Gen'l Laws, and cannot, by construction, avoid its provisions. "Whenever a sale of either real or personal property shall be made by any 

 [*225]  ministerial officer, under judicial process or otherwise, all sums due and in arrear for taxes from the party whose property is sold shall be first paid and satisfied."
The Act of 1843, ch. 208, sec. 7, which is codified in section 71 above mentioned, was passed upon by this Court in Fulton, et al. vs. Nicholson, et al., 7 Md. 104, which was a case strongly appealing to equitable [**26]  interposition, if it were possible, and the Court held that all taxes, for personal and real, must be paid out of the mortgaged realty, although personal assets were in the hands of the administrator. The Code, in some of these provisions, is certainly indulgent to delinquent collectors, and the results are sometimes, as in this case, onerous upon the equities of innocent creditors, but this Court has no power to correct the evil, if such it be.
The order of the Court below, in respect of the allowance of taxes, must be affirmed.
So far as any rights involved in these appeals are concerned, the order appealed from in these cases will be affirmed, and the cause remanded, in order that the fund, reserved for further order by the Court below, in the matter of the claim of Beall's Ex'r, may be distributed to him on production of the proof before mentioned. The costs will be paid out of the fund.
Order affirmed, and cause remanded. 

97 of 142 DOCUMENTS 

THOMAS CARRICO vs. THE FARMERS AND MERCHANTS' NATIONAL BANK OF BALTIMORE, and THEODORE WEEMS. SARAH L. HARDESTY, Executrix of CHARLES R. HARDESTY vs. THE FARMERS AND MERCHANTS' NATIONAL BANK OF BALTIMORE, and THEODORE WEEMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 235; 1870 Md. LEXIS 86 

July 1, 1870, Decided 

PRIOR HISTORY:
 [**1]  APPEALS from the Circuit Court for Charles County.

These appeals were taken from the order of the Circuit Court, dated the 2d of November, 1869, ratifying account B, and rejecting accounts A, C and D, filed in the matter of the insolvent estate of George H. Waters. The facts of the case are very fully and clearly stated in the opinion of the Court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Extinguishment of the Vendor's Lien -- Mortgage.

Where the vendor of real estate withheld the deed until nearly the half of the purchase money was paid, and then, upon receiving the bond or note of the purchaser, with approved security for the balance, delivered to him the deed, without any agreement for preserving the vendor's lien, it must be considered as extinguished.

A mortgage of real estate is valid without attestation. 

COUNSEL:
A. B. Hagner and A. Randal, for Thomas Carrico.

The order appealed from is erroneous, because the facts and evidence show that the appellant, Carrico, is to be preferred to all other claimants as the holder of the vendor's lien for the unpaid purchase money paid by him, as surety of the vendee. Code, Art. 16, sec. 130; Art. 64, sec. 3; Art. 48, sec. 10; Willis vs. Wright's Trustee, 22 Md., 373; Schwarz vs. Stein, 29 Md., 112; McGonigal vs. Plummer, 30 Md., 422.

The claim of the bank should be rejected:

1st. Because the mortgage of Waters to Richard Isaac was not legally executed; in this, that there was no affidavit annexed, that "the consideration" therein expressed, "is true and bona fide"--the words are, that the "condition," in said mortgage, "is true and bona fide," &c. Code, Art. 24, secs.  [**2]  29, 30; Act of 1861, (April Session,) ch. 76.

2d. Because Richard Isaac, at the time he obtained this mortgage from Waters, knew that the original purchase money for the land had not been paid to Peter Williams, the vendor, and took this mortgage subject to the vendor's lien, and the bank, the assignee of Richard Isaac, can be in no better condition. Salmon vs. Clagett, 3 Bland, 172; Hudson vs. Warner, 2 H. & G., 422, 426, 428; White & Tudor's Cases, 71 Law Library, 122; Tiernan, et al. vs. Roscaniere's Adm'rs, 10 G. & J., 220; Johnston, et al. vs. Canby, et al., 29 Md., 211; Owens vs. Miller & Mayhew, 29 Md., 159; Central Bk. vs. Copeland and Wife, 18 Md., 305; Timmons and Wife vs. Shannon, 19 Md., 296; Price & Bevans vs. McDonald, et al., 1 Md., 414.

The judgments of Grinnell and Jenkins, and of the appellant, Hardesty, were properly rejected by the Circuit Court--the latter judgment not having been rendered until after the recording of the mortgage of Waters to the appellant, Carrico, and his co-sureties, to secure the payment of the purchase money, and it not appearing that the former judgment was in fact rendered before the date and recording of the said mortgage.

John [**3]  W. Mitchell and Frank. H. Stockett, for the appellant, Sarah L. Hardesty.

Neither the mortgage to Isaac nor that to Carrico, had any attesting witness, and for this reason they were so defective as to give no security on the real estate to the parties to whom they were respectively executed; and the proceeds of the sale thereof should be applied to the judgment liens of Hardesty and Grinnell & Jenkins.

These mortgages were executed after the adoption of the law, as contained in the Code, in reference to such conveyances, and in accordance with the provisions there made, must these instruments be judged. Code, Art. 24, secs. 9, 10, 28.

If, therefore, attestation be necessary to give validity to mortgages of real estate, the mortgages in question, having no attesting witness, are fatally defective, and can claim no share or portion in the proceeds of the sale of the real estate of the insolvent, as against his judgment creditors. The utmost value which could be attached to such instruments, would be to allow them to be evidence of an indebtedness, under the hand and seal of the grantor, which would entitle the holders to the rights of general creditors, but must deprive [**4]  them of a specific lien on the property embraced in the defective instruments. Nelson vs. Hagerstown Bank, et al., 27 Md., 51.

If these mortgages be so defective, then the enrolment of them does not convey even constructive notice of their existence, or of the debts intended to be secured thereby to any subsequent bona fide purchaser. Cockey vs. Milne's Lessee, 16 Md., 207.

The judgment creditors in the present case were such bona fide creditors--acquiring by their judgments, subsequent liens. This, however, is not a case to which notice or the want of notice can be applied, or can affect. It is a controversy between creditors of the same person, and to be determined according to their legal rights or priorities--for the judgment creditors have at least an equal equity with those claiming to hold mortgages.

These creditors have each selected his own remedy to enforce or secure his debt, and if, through a mistake in law, or by reason of a defective execution, either party has selected or used such an instrument or remedy as cannot effect his object without the aid of a Court of Equity, the Court will not correct the mistake by reforming the instrument to the prejudice [**5]  of other creditors having equal equities. Anderson vs. Tydings, 8 Md., 427.

The net proceeds of the sale of the real estate of the insolvent, should be appropriated to the payment in full of the judgments of Grinnell & Jenkins, and Hardesty's executrix, (that of Johns Hopkins having been already paid,) and the residue to the appellant, Carrico, under the judgment which he was compelled to pay as one of the sureties, and the mortgages should, by this Court, be declared void.

William A. Fisher and Peter W. Crain, for the Farmers and Merchants' National Bank of Baltimore.

By executing the deed to Waters, and accepting his bond with sureties, Williams gave up all right to a vendor's lien. Brown vs. Gilman, 4 Wheaton, 255; McGonigal vs. Plummer, et al., 30 Md., 422; Schwarz vs. Stein, 29 Md., 112.

And there is no such proof of notice as would, in any event, be sufficient to fix the lien, as against Richard Isaac and his assignees.

The absence of an attesting witness presents no objection to the validity of the mortgage. None is required by the law of Maryland. Wickes vs. Caulk, 5 H. & J., 41; 4 Kent's Coms., 458; Act of 1856, ch. 154, secs. 25, 26, 27, 62, 73, 103,  [**6]  104, 116, 118; Code, Art. 24, secs. 10, 15, 28, 31, 32, 33, 37, 52, 59, 60, 64, 66.

Even if the absence of a witness would prevent the operation of the instrument as a legal mortgage, it would, nevertheless, take effect as a contract for a mortgage. Alexander vs. Ghiselin, 5 Gill, 180, 185; Johnson vs. Canby, 29 Md., 211; 4 Kent, 173, 437; Wilson vs. Turpin, 5 Gill, 59.  

JUDGES:
The causes were argued before BARTOL, C. J., STEWART, MAULSBY, ALVEY and ROBINSON, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*239]  ALVEY, J., delivered the opinion of the Court.
On the 21st of May, 1859, George H. Waters contracted with Peter Williams to purchase two farms or parcels of land, situate in Charles County, for $ 5,500. By the terms of the contract, Waters was to pay to Williams $ 2,500 of the purchase money on or before the 1st of January, 1860; and as to the balance, he was to pay it in four equal annual instalments, to be secured by bond with approved security, bearing interest from the 1st of January, 1860; and, on compliance with the terms of the contract by the time mentioned, a deed was to be made by Williams to Waters for the lands thus sold.
The $ 2,500 were paid before the 1st of January, 1860, and for [**7]  the remaining $ 3,000 Waters executed his bond or note, with Zachariah Swann, Samuel T. Swann and Thomas Carrico, as his sureties thereon; and upon the contract thus being complied with, Williams, on the 27th of December, 1859, executed two several deeds to Waters for the parcels of land sold, and which deeds were duly recorded, one on the 25th of January, 1860, and the other on the 10th of February, 1860.
On the 11th of August, 1860, Waters, being indebted to Richard Isaac, executed to him a mortgage of the lands purchased of Williams, and which mortgage was placed on record on the 13th of September, 1860. This mortgage is without 

 [*240]  an attesting witness to its execution. Isaac, the mortgagee, on the 8th of March, 1861, assigned the mortgage, and the debt thereby secured, to James W. Isaac, and the latter afterwards assigned it to the Farmers and Merchants' National Bank of Baltimore. Richard Isaac also, on the 14th of June, 1861, assigned the mortgage from Waters to himself to Theodore Weems, to secure a debt due the latter, subject, of course, to the previous assignment to James W. Isaac of the same mortgage.
Waters, on the 22d of January, 1862, for the purpose of indemnifying [**8]  and saving harmless his sureties, Carrico and the two Swanns, executed to them a mortgage of all his personal property, and of the lands purchased of Williams; and therein it was stipulated that the taking and accepting the mortgage by the sureties should not, in any manner, waive, release, or postpone any lien or right they might then or ever thereafter have on the said real estate, either by substitution in the vendor's stead, or in any other manner; the mortgage being only in addition to such right. This mortgage was recorded on the 28th of January, 1862; and like the mortgage from Waters to Isaac, it has no attesting witness to its execution.
In 1863, Waters, being largely indebted, applied for the benefit of the insolvent law, and was duly discharged thereunder. Afterwards, at the December term, 1865, of the Circuit Court for Charles County, Williams obtained judgment against the sureties of Waters for the unpaid purchase money; and which judgment being paid by Carrico, one of the sureties, was entered to his use.
Before the insolvent application of Waters, but subsequent to the date of the mortgage to Isaac, several judgments had been recovered against him, Waters; one by Grinnell [**9]  & Jenkins, and another by the appellant, Hardesty, and both of which remain unpaid.
The assets of the insolvent estate of Waters being in Court for distribution, the auditor stated several accounts, and distributed 

 [*241]  the fund on various hypotheses as to the rights of the several parties claiming.
By account B, being the one ratified by the Court below, after deducting commissions, costs and expenses, the proceeds of the personal estate was distributed to the sureties of Waters, by virtue of their mortgage of the 22d of January, 1862; and the proceeds of the real estate embraced by the mortgage to Isaac of the 11th of August, 1860, were distributed, first, to the Farmers and Merchants' Bank, as assignee, to the extent of its claim; and the balance thereof to the claim of Theodore Weems, by virtue of the assignment to him of the 14th of June, 1861. And whether the Court below was right in ratifying this account B, and rejecting all others, constitutes the subject of review on this appeal; and the questions presented are:
1st. Whether a vendor's lien on the land purchased of Williams existed for the unpaid purchase money, and to which the sureties of Waters were entitled [**10]  to be subrogated on payment of the amount due the vendor, as against the mortgage and judgment creditors of Waters? and, if not,
2d. Whether the mortgage to Isaac of the 11th of August, 1860, is void because of the want of an attesting witness to its execution?
As to the first question it is contended on the part of the appellant, Carrico, that the vendor's lien was not in any manner waived or abandoned by any thing that transpired between Williams, the vendor, and Waters, the purchaser; and that upon payment of the purchase money for which he, Carrico, was one of the sureties, the lien inures to his benefit. And if it be true, as contended, that the lien has not been waived or extinguished, the appellant is altogether correct in insisting that he is entitled to be subrogated to the right of the vendor, upon payment of the purchase money, and that by virtue of such subrogation he is entitled to precedence, as against the proceeds of the particular property on which the lien existed, of all mere judgment creditors of the vendee, and also of all his mortgage creditors who became such with notice of the fact 

 [*242]  of the unpaid purchase money. Ghiselin & Worthington vs. Fergusson,  [**11]   4 H. & J. 522; Magruder vs. Peter, 11 G. & J. 217, 219-245; Welch vs. Parran, 2 Gill 320-329.
But has the lien of the vendor been waived or extinguished?
By the terms of the contract the sum of $ 2,500, part of the purchase money, was required to be paid on or before the 1st of January, 1860, which was done; and the balance was required to be paid in four equal annual instalments, and to be secured by bond with approved security. The bond or note of the purchaser was given, with security approved, and thereupon the legal title to the estate was conveyed. How do these facts affect the vendor's lien?
It has been decided in two recent cases in this Court, (Schwarz vs. Stein, 29 Md. 112, and McGonigal vs. Plummer, 30 Md. 422,) that when the legal title has been conveyed to the vendee, and he has given his note with the responsibility of a third person thereon as security for the unpaid purchase money, the lien will be considered as waived, unless it be made plainly to appear that it was the intention of the parties that it should be retained; and that, in such case, the onus of showing the [**12]  intention to preserve the lien rests with the vendor, or those claiming in his stead. And this, we think, is entirely consistent with the previous decisions of the Court of Appeals of this State, and is certainly in accordance with the great preponderance of opinion of the other American Courts upon this subject.
In the case of Gilman vs. Brown, 1 Mason's Rep., 212, where the legal title had been conveyed as in this case, Judge STORY, in discussing fully the doctrine of the vendor's lien, and the circumstances that give rise to the presumption of its waiver, said: "Looking to the principle, upon which the original doctrine of lien is established, I have no hesitation to declare, that, taking the security of a third person for the purchase money, ought to be held a complete waiver of any lien upon the land; and that, in a case standing upon such a fact, it would be very difficult to bring my mind to a different conclusion. 

 [*243]  At all events, it is prima facie evidence of a waiver; and the onus is on the vendor to prove, by the most cogent and irresistible circumstances, that it ought not to have that effect." Judge STORY'S judgment being against the existence [**13]  of the lien in that case, it was taken to the Supreme Court of the United States for review, (17 U.S. 255, 4 Wheat. 255, 4 L. Ed. 564,) and that Court affirmed the judgment, maintaining through Chief Justice MARSHALL, its organ, that the vendor's lien for unpaid purchase money is waived by any act of the parties showing that the lien is not intended to be relied on, as by taking separate security; and that where the deed is withheld until the first payment is made, and then delivered to the vendee, the vendor taking and relying upon the negotiable notes of the purchaser endorsed by third persons, for the residue of the purchase money, this is such separate security as will discharge the lien.
In accordance with this decision a large number of cases in the various State Courts have been ruled, and it may now be justly regarded as announcing the settled law in this country, with but few exceptions. Hence, in the note of the American edition to the case of Mackreth vs. Symmons, 1 Leading Cases in Equity, top page 364, 365, (3d edition,) it is said: "In regard to the effect upon this equitable lien, of the vendor's taking a security, the American cases agree [**14]  in establishing and applying the following simple and satisfactory rule: that the implied lien will be sustained wherever the vendor has taken the personal security of the vendee only, by whatever kind of instrument it be manifested, and therefore that any bond, note or covenant, given by the vendee alone will be considered as intended only to countervail the receipt for the purchase money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreement between the parties to waive the equitable lien; and, on the other hand, that the lien will be considered as waived whenever any distinct and independent security is taken, whether by mortgage of other land, or pledge 

 [*244]  of goods, or personal responsibility of a third person, and also when a security is taken upon the land, either for the whole or a part of the unpaid purchase money; unless there is an express agreement that the implied lien shall be retained." And as maintaining the propositions stated, a large number of cases are cited, and the first among them is the case of Gilman vs. Brown.
Where the legal estate is retained by the vendor [**15]  until the full payment of the purchase money, as was done by the express terms of the contract in the case of Magruder vs. Peter, 11 Gill & John. 217, the taking a bond or note of the purchaser, with the individual security of a third person thereon, will not operate a waiver of the lien, because the fact of withholding the conveyance of the estate until the purchase money is paid, is evidence clear and indubitable that the bond or note taken is not the only security relied on for ultimate payment. But, in this case, the deed was withheld until the first payment was made, amounting to nearly half of the whole purchase money, and then, upon receiving the bond or note of the purchaser for the balance, with security approved by the vendor, the latter delivered the deed conveying the estate, in accordance with the terms of the contract, without any agreement whatever for preserving the lien. It is, in this respect, quite analogous to the case of Gilman vs. Brown, and is not at all distinguishable, in principle, from the cases of Schwarz vs. Stein and McGonigal vs. Plummer, before referred to; and those cases must control this. We are of opinion, therefore,  [**16]  the lien does not exist.
Then, as to the second question, that in regard to the necessity of an attesting witness to the mortgage. By the Code, Art. 24, sec. 28, it is provided that "deeds of mortgage, conveying any use, estate or interest in land, shall be executed, acknowledged and recorded as absolute deeds of the same;" and by the 10th section of the same Article, it is provided that "every deed conveying real estate, shall be signed and sealed by the grantor or bargainor, and attested by at least one witness."
By section 52 of the same Article, it is declared that certain prescribed forms shall be sufficient to convey real or personal 

 [*245]  property; and all the forms prescribed for conveying real estate, otherwise than by mortgage, or an assignment or release of mortgage, are given with a test, and initial letters to indicate the place and necessity for attestation. But in the form prescribed for a mortgage of real estate, no such indication is given, nor do we think any attestation is required to render a mortgage of real estate valid. It is not that deeds of mortgage are to be signed and sealed by the mortgagor, and attested by at least one witness,  [**17]  as in the case of absolute deeds, but they shall be executed, acknowledged and recorded as absolute deeds. Now what does the term "execute" mean, as applied to the making of a deed? It does not mean the attestation of the deed, for that is no part of its execution. The execution consists of acts of the party making the deed, and who is to be affected by it; but attestation is a different thing, being the act of a third party, having no other relation to the deed than that of a mere witness to its execution. "The last requisite," says BLACKSTONE, "to the validity of a deed is the attestation, or execution of it in the presence of witnesses; though this is necessary, rather for preserving the evidence, than for constituting the essence of the deed." 2 Com. 307. It is not essential to the validity of a deed, unless made so by Statute, that it should be executed in the presence of witnesses. Com. Dig. Fait, B. 4; Wickes vs. Caulk, 5 Har. & John. 36. And as no provision of the Code requires mortgages to be so executed, we cannot do otherwise than declare the one in question to be valid and effectual; the other objection to it proving to be unfounded in fact.
Having [**18]  thus disposed of the two main questions of the case, it results that the other questions certified to this Court by the Court below are unimportant, and therefore unnecessary to be passed upon; and the order ratifying account B, and rejecting all other accounts stated by the auditor, will consequently be affirmed.
Order affirmed. 

98 of 142 DOCUMENTS 

EDWARD A. F. MEARS vs. RICHARD A. REMARE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 246; 1870 Md. LEXIS 87 

July 1, 1870, Decided 

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

This was an appeal from the judgment of the Court below, rendered on an appeal from a justice of the peace, in a proceeding by a landlord against his tenant, for wrongfully holding over after the expiration of his term. On the 15th of November, 1869, W. H. Bayzand, a justice of the peace of Baltimore city, at the instance and upon the complaint of the appellee, issued a summons against the appellant to show cause why he should not vacate certain premises on Charles street, and deliver the same forthwith to the appellee. The summons was made returnable on the 19th of the same month; after two continuances, the cause was tried and judgment rendered for the appellant. From this judgment an appeal was taken by the landlord, and a summons was issued by the Baltimore City Court to the tenant, which was returned non est. Upon this return, the landlord filed a petition, the character of which, together with the action of the Court thereon, are sufficiently stated in the opinion of this Court. The City Court proceeded to the trial of the case ex parte, and rendered a judgment in favor of the landlord for a restitution of the premises, and for damages [**2]  and costs. A motion was made by the tenant to strike out the judgment for the following reasons:

1st. That he had no legal notice that an appeal had been entered from the judgment of the justice of the peace.

2d. That he received no summons to appear in this Court to answer an appeal.

3d. Because the trial was had ex parte, when only one non est had been returned.

Affidavits were filed in support of the motion. The Court overruled the motion and refused to strike out the judgment. Thereupon the present appeal was taken.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Right of Appeal from a Judgment of the Baltimore City Court Unwarrantably pronounced on an Appeal from a Justice of the Peace.

In a proceeding instituted by a landlord against a tenant for years, wrongfully holding over after the expiration of his term, judgment was rendered by the Justice of the Peace for the tenant. The landlord appealed to the Baltimore City Court, and a summons was issued for the tenant and returned non est. Thereupon, a petition was filed by the landlord, alleging that, although the summons was returned non est, it had been in fact served by being made known to the family of the tenant and also by service upon his attorney; the petition asked that the sheriff might be directed to amend his return by stating the facts specially in regard to the service of the writ. Without notice to the tenant, an order was passed by the Court directing the sheriff so to amend his return, which he did; and the Court proceeded to try the case ex parte, and rendered judgment of restitution, together with damages and costs. From this judgment the tenant appealed. HELD:

That the tenant, not having been returned summoned, and only one return of non est having been made, the Baltimore City Court had no jurisdiction of the case, and its judgment therein unwarrantably pronounced, may be reviewed on appeal, and should be reversed.  

COUNSEL:
Edward Israel and Milton Whitney, for the appellant.

The proceedings in this cause were instituted under the special provisions of the Act of Assembly relating to landlords and tenants. The Code of Public General Laws provides the manner in which appeals from justices of the peace shall be heard. Art. 5, secs. 53, 54, 55.

In this case only one summons was returned non est, and the Court proceeded to hear and determine the case ex parte, notwithstanding the party was not within its jurisdiction, and never had been. The judgment of the Court below is void. Brent, Trustee vs. Taylor, et al., 6 Md., 69; 2 Kent's Comms.  [**3]  , 109.

The Court below having proceeded to enter judgment against a party not within its jurisdiction, this Court will entertain an appeal from such action. Bell, et al. vs. Jones, 10 Md., 331; State vs. Mace, 5 Md., 337; Kinnear, et al. vs. Lee, et al., 28 Md., 488; Cockey vs. Cole, 28 Md., 276; Hall, et al. vs. The State, 12 G. & J., 329; Boarman vs. Israel, 1 Gill, 381, 382; Matthews, et al. vs. Dare, et al., 20 Md., 248; Mayor and C. C. vs. Porter, 18 Md., 301; Horner vs. O'Laughlin, 29 Md., 466; Evans' Prac., 24, 28, 168.

Arthur W. Machen, for the appellee.

The Baltimore City Court was in the exercise of an appellate jurisdiction, and its judgment (in the absence of a statute providing for the case,) is not a subject for appeal, and this appeal should, therefore, be dismissed.

The case was properly in the City Court upon an appeal duly taken. Necessarily, its jurisdiction to determine every intermediate question, as well as to give final judgment upon the merits, is exclusive. Rundle vs. Mayor and C. C. of Baltimore, 28 Md., 361; Hough vs. Kelsey & Gray, 19 Md., 451; Balto. and Havre-de-Grace Turnpike Co. vs. N. C. R. Co., 15 Md., 193; Swan vs. Mayor and C.  [**4]  C. of Cumberland, 8 Gill, 154.

The Constitution in terms declares the decision of the Judge holding the Baltimore City Court, to be "final," in case of an appeal from a justice of the peace. Const., Art. 4, sec. 34.

From a special limited jurisdiction, where the proceeding is not after the course of the common law, no appeal lies to any other tribunal. Carter vs. Dennison, 7 Gill, 173; Webster vs. Cockey, 9 Gill, 92; Rundle vs. Mayor & C. C. of Balt., 28 Md., 361; Kinnear vs. Lee, 28 Md., 488.

Unless by the express provision of some Act of Assembly, an appeal will not lie in any case in which a writ of error would not lie; hence, as a writ of error cannot lie to a Court vested with a special jurisdiction, and not proceeding according to the forms of the common law, an appeal does not lie. Savage Man. Co. vs. Owings, 3 Gill, 498, 499.

In the present case, the City Court was not in the exercise of its general jurisdiction as a Court proceeding according to the forms of the common law. Consequently, upon this ground--were there no other--an appeal will not lie to this Court, none being given by statute in such case.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART,  [**5]  MAULSBY, GRASON, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*249]  ROBINSON, J., delivered the opinion of the Court.
This is an appeal from a judgment of the Baltimore City Court, in a proceeding instituted by a landlord, in conformity with the provisions of the General and Local law, against a tenant for years, wrongfully holding over after the expiration of his term. 1 Code, Art. 53, and 2 Code, Art. 4. The case was originally tried before a justice of the peace, and the judgment being in favor of the tenant, an appeal was taken by the landlord to the Baltimore City Court.
The case was regularly docketed, and summons issued for the appellant, which, being returned non est, the appellee filed a petition alleging that, although the summons was returned non est, it was in fact served by being made known to the family of the appellant, and also by service upon his attorney; that in a proceeding of this kind, a summons was unnecessary, and the petitioner prayed that the cause might be put in order for trial and final determination upon its merits, and if deemed necessary, that the sheriff be directed to amend his return by stating the facts specially in regard [**6]  to the service of the writ. Without notice to the appellant, an order was passed by the Court directing the sheriff so to amend his return.
It appears by the amended return, that the sheriff, having called several times at the residence and place of business of the appellant, without being able to make personal service of said writ upon him, made known to the son the nature of the writ, and also called upon the attorney of the appellant and requested him to admit service, which, however, he declined. Under the above facts, the sheriff returned the writ non est.

 [*250]  Upon this amended return being filed, the Court proceeded to try the case ex parte, and the appellee waiving a jury trial, it was heard before the Court, and a judgment rendered in favor of the landlord, the present appellee, for a restitution of the premises, and six hundred dollars damages, and twenty dollars and sixty-five cents costs.
A motion is made by the appellee to dismiss this appeal upon the ground that the Baltimore City Court was in the exercise of an appellate jurisdiction, and from its judgment in the premises, in the absence of statutory enactment, no appeal would lie. It has been repeatedly [**7]  held, that in all cases of appeals from the decisions of justices of the peace, the judgment of the appellate tribunal is final and conclusive. But all of these decisions must be understood as referring to cases in which the Court had jurisdiction of the person or subject-matter. So early as Webster, et al. vs. Cockey, et al., 9 Gill 92, it was held, that if "the judgment was unwarrantably pronounced on the subject," it might be reviewed and reversed on appeal to this Court, and in The State vs. Mace, 5 Md. 337, it was decided that the judgment of the Court of Common Pleas, rendered in a case in which it had no jurisdiction, could be reviewed on appeal by this Court.
In Hough vs. Kelsey & Gray, 19 Md. 451, and Rundle vs. Mayor and City Council of Baltimore, 28 Md. 356, it was held that the decision of the Appellate Court, in regard to the regularity or propriety of the appeal, was final and conclusive, but in Kinnear & Willis vs. Lee & Reynolds, 28 Md. 488, this Court expressly say: "Where an inferior Court assumes jurisdiction, or where an order on its face appears to be partly [**8]  within and partly beyond the scope of the Court's authority, an appeal lies, and the judgment thus unwarrantably pronounced, must be reversed."
The only remaining question, then, is, whether the Court below had jurisdiction in this case at the time the judgment was rendered.

 [*251]  Now, the 900th section of Article 4, of the Code of Public Local Laws, provides, "that an appeal may be prosecuted from any judgment of a justice of the peace, rendered under the provisions of this law, to the Court of Common Pleas, in the manner and under the rules prescribed in cases within the ordinary jurisdiction of justices of the peace." And the 53d section of Article 5, of the Code of Public General Laws, declares, that "if two summonses be returned non est, or one summons be returned served, the Court may hear and determine the case ex parte. Jurisdiction, it is true, is conferred on the Circuit Courts in cases of appeal from the judgments of justices of the peace, but before they can exercise it, the party must either be returned summoned, or there must be two returns of non est; and there is nothing in the provisions of the local law under which this appeal was taken, or in [**9]  the nature of the proceeding itself, to exempt this case from the express requirements of the law. The 903d section of Article 4, of the Code of Public Local Laws, which directs appeals to be tried at the first term, embraces cases only where the appellee has been summoned.
Here the Court undertook to try this case ex parte, upon one return of non est. The appellant had neither legal nor constructive notice, and judgment rendered under such circumstances is, therefore, "coram non judice."
Whatever may be the supposed hardships resulting to the appellee by the reversal of this judgment, they are not to be weighed against the greater evils which would inevitably flow from a disregard of that fundamental principle which declares "no person shall be deprived of his liberty or property without due process of law."
For these reasons, the judgment below must be reversed.
Judgment reversed. 

99 of 142 DOCUMENTS 

JOHN T. CLARK and MARY A. CLARK, his Wife, Executrix of W. H. TENNISON, deceased, vs. FRANCIS J. N. TENNISON, by his next friend, WARFIELD T. BROWNING. JOHN T. CLARK vs. FRANCIS J. N. TENNISON, by his next friend, &c. JOHN T. CLARK vs. FRANCIS J. N. TENNISON, by his guardian, &c.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 85; 1870 Md. LEXIS 71 

June 30, 1870, Decided 

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

DISPOSITION:
Affirmed in part and reversed in part, and cases remanded.  

HEADNOTES:

Merger -- Construction of a Will.

T intermarried with H. At the time of the marriage, the wife was possessed, of a term of years renewable forever, in a city lot. After the marriage, the husband purchased the reversion to the same lot. In the deed conveying the reversion there was no expression of a purpose to extinguish the term. T afterwards died, his wife surviving him. HELD:

1st. That the interest of the wife in the property was not extinguished by merger, but survived to her on the death of the husband.

2d. That such merger would be against the spirit and intention of the Act of 1853, ch. 245.

The will of a husband after devising to his wife absolutely all of his slaves, proceeded as follows: "Item. I likewise give and devise to my said wife all the rest of my estate so long as she remains my widow; at her death to be equally divided with my children, and to them and their heirs forever." The widow afterwards married. HELD:

1st. That the limitation of the property to the widow during widowhood, was valid and effective.

2d. That at the marriage of the widow the estate devolved on the children, it being the intention of the testator that the widow should have the property only during her widowhood.

3d. That the intention of the testator being manifest, there is no intestacy, because the will did not expressly provide what was to become of the property during the intermediate time between the marriage and death of the widow. 

COUNSEL:
E. G. Kilbourn and Levin Gale, for the appellant.

No merger took place by reason of the purchase of the husband of the reversion in his wife's leasehold estate--and there is nothing to show that anything from said property came to the hands of the guardian. Act of 1853, chap. 245; Code, Art. 45; Schindel vs. Schindel, 12 Md., 121 and 312; Lawes vs. Lumpkin, 18 Md., 334; Pool vs. Morris, 29 Georgia, 374; Goode vs. Longmire, 35 Ala., 668; Stall vs. Fulton, 1 Vroom, (N. J.,) 430; Jones vs. Davies, 5 Hurl. & Nor., 766 and 7 Hurl. & Nor., 507; 1 Coke Litt., p. 328, sec. 636; Gage vs. Acton, 1 Salkeld, 326; Cro. Eliz., 712; Preston on Merger, 276, 277, 309.

The will of Wm. H. Tennison did not operate to pass any interest in the residue of his estate between the marriage of his widow and her death, and therefore as to such property he died intestate, and the estate must be distributed without regard to the will.

R. J. Brent and M. A. Mullin, for the appellee.

The testator gave his wife, in as express terms as possible, an estate during widowhood only. His [**2]  intention was clearly to deprive her of all benefit after her marriage. But he has, by inadvertence, failed to limit his estate over, after her marriage, but has limited it to his children at her death. It is, therefore, clear that the children were the primary objects, after giving her the preceding estate.

The rule is to favor the primary objects by construction to aid their claim. Hence, in favor of the primary objects, the Court will supply words, limiting the contingency of their dying without issue living at the time of the death, so as to make the contingency occur during the time of a precedent estate. Barker vs. Cocks, 6 Beav., 82; Galland vs. Leonard, 1 Swanst., 161; Edwards vs. Edwards, 15 Beav., 360.

Words will be supplied where necessary to carry out the apparent intent, and here words must be supplied so as to make the limitation over take effect "at her death or marriage." 1 Jarman on Wills, 427, a and notes, and 431.

A limitation during widowhood is valid even if there be no limitation over. Morley vs. Rennoldson, 2 Hare, 579.

This last case very clearly distinguishes between a limitation and a condition, and shows that "if the gift is until marriage [**3]  and no longer, there is nothing to carry the gift beyond the marriage." See also 10 English Law and Equity, 143; Commonwealth vs. Stauffer, 10 Barr, 350.

At common law, a husband acquired the right to all the personal property of his wife, including her chattels real, and with them he could do what he pleased; he might sell, assign or mortgage the same without his wife's consent. 2 Kent, 134, 135.

Tennison, in fact, reduced this property into possession. He made it his residence and purchased the reversion. Thus the leasehold and the fee uniting in the same person, although the one jure mariti, the other by purchase, there was a merger and Tennison became seized in fee, of the entire property. 4 Kent, 101, 102; Coke upon Litt., 556, (H.) 54, (b.) 338, b; 3 Preston on Conveyancing, 43-49, 294, 295, 306, 307-309; 6 Cruise's Digest, 480, (Greenl. Ed., 570); 2 Sug. on Vendors, 230.

These common law rights of the husband were not taken away by Statute till the adoption of the Code, long after all the rights in this case became vested. Michael vs. Baker, 12 Md., 158; Schindel vs. Schindel, 12 Md., 294, 313; Bridges vs. McKenna, 14 Md., 268.  

JUDGES:
The cause was argued before [**4]  BARTOL, C. J., BRENT, MAULSBY and ALVEY, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*88]  BARTOL, C. J., delivered the opinion of the Court.
These appeals have been argued together, and may be disposed of in one opinion.
The appeals of John T. Clark are:
1. From an order passed on the 17th day of April, 1869, removing him from the guardianship and appointing another guardian in his place.
2. From an order of the 20th day of September, 1869, rejecting the second guardian account exhibited by him, and sustaining the exceptions thereto.
3. The appeal of Clark and wife is from an order of the 17th day of April, 1869, rejecting the third administration account of Mary Ann Clark as executrix.
In the argument of the cases in this Court the appeal from the order removing the appellant Clark from his guardianship was abandoned, that order will therefore be affirmed.
The principal questions presented by the other appeals are:
1st. The question of Merger.
2d. The construction of William H. Tennison's will.

 [*89]  The question of merger arises in this way:
On the 31st day of July, 1853, the testator, William H. Tennison, intermarried with Mary Ann Hoshall, who, at the time of the marriage, [**5]  owned and possessed a house and lot on Charles Street in the City of Baltimore, for a term of ninety-nine years renewable, subject to a ground rent of $ 45 per annum. Afterwards, on the 8th day of April, 1854, William H. Tennison purchased the reversion in the property, and during the coverture he and his wife occupied the same.
It is contended on the part of the appellee, that the effect of the purchase of the reversion by Tennison was to merge or extinguish the term, and to vest in him the whole fee simple. Merger is where two different estates in the same land exist in the same person at the same time, and the less estate is merged into the greater; as a term of years into the freehold, because the two estates cannot coexist in the same person.
On this head of the law a good deal of subtlety and refinement may be found in the decisions--and the rules laid down by the Courts, and by eminent text writers, have not always been consistent. The truth of this observation will appear by reference to the treatise of Mr. Preston on Conveyancing, in the 42d vol. of the Law Library, especially to chapter XII, beginning at page 273 m., and the cases there cited. An examination of [**6]  these has brought us to the conclusion that the general rule laid down by Blackston, 1 vol. 177, "That the estates must come to one and the same person, in one and the same right, is subject to exceptions, and that at the common law merger might take place in some cases where the two estates are held in different rights.
It is suggested by Mr. Preston, as a rule deduced from the authorities, that "if a husband possessed of a term in right of his wife, purchase the immediate reversion, the term will be annihilated; for the purchase was the express act of the husband and amounts to a disposition of the term"--(pages 295 m., 305 m.) While the rule is supposed to be different, where the accession of the freehold to the husband, is by the act of 

 [*90]  law and not by the direct act of the party. These rules are stated with approbation by Chancellor KENT in his Commentaries, vol. 4, 101 m., and it may be conceded, that they are supported by many adjudged cases; but some doubt has been thrown upon them by very high authority. In Gage vs. Acton, 1 Salkeld, Lord HOLT said, "if a man hath a term in right of his wife, or as executor, and purchases [**7]  the reversion, this is no extinguishment, because he hath the term in one right and the reversion in another." And in 3 Term. R. 461, Lord KENYON said, "generally, without any distinction, nothing is clearer than that a term taken alieno jure is not merged in a reversion acquired suo jure."
We refer also to the opinion of HOBART, C. J., in Young vs. Bradford, Hob. 3; and to the observations of POLLOCK, C. B., on this subject, in Jones vs. Davies, 5 Hurl & Nor. 767, as tending to show that the rules stated by Preston and Kent have not been universally followed. Conceding, however, that they are correct, and that according to the weight of authority, the purchase of the reversion by Tennison would operate at the common law to merge and extinguish the term; what was its effect under the laws of Maryland?
The marriage took place, and the purchase of the reversion was made after the passage of the Act of 1853, ch. 245. That Act by its first section protected the leasehold estate of Mrs. Tennison from the debts of her husband, and declared that it should not in any way be liable for the payment thereof.
The second section provided that [**8]  "in order to effect the objects of the foregoing section, the wife should have the benefit of all such remedies for her relief and security, as now exist or may be devised in the Courts of law or equity."
That Act came up for construction in the cases of Schindel vs. Schindel, 12 Md. 108, 121, 312, in which the contest was between husband and wife as to the right of possession and custody of her property, real and personal, during the coverture; it was held that the Act did not operate to vest in the wife the sole and separate estate in her property; but left it 

 [*91]  subject to his marital rights, except in so far as it was protected from liability for his debts.
The general language of the Court in that case, with respect to the marital rights of the husband over the wife's property under the Act of 1853, must be understood with reference to the facts and circumstances of the case, and the questions in controversy between the parties. So far as the marital rights of the husband over the property were involved in that case, they were clearly not impaired or affected by the Act of 1853.
Here a different question is presented. Was all the right and estate [**9]  of Mrs. Tennison in the property extinguished and destroyed by the purchase of the reversion by her husband? Or, in other words, does the doctrine of merger apply, notwithstanding the protection to the wife's property created by the Act of 1853?
It seems to us that the application of the doctrine in this case would be against the spirit and intention of the Act, and tend to defeat its purpose and design.
Although the general marital rights of the husband over the property remained unimpaired by the Act of 1853, as was said in Schindel vs. Schindel, 12 Md., and in Weems vs. Weems, 19 Md., yet in the face of an Act of Assembly, which, for the benefit and protection of the wife's property, exempts it from all liability to the husband's creditors, it cannot be said that his ownership or dominion over it was so complete, that the technical doctrine of merger may be applied. If by the purchase of the reversion the whole estate in fee became vested in him in his own right, then it became liable for his debts, and she would be deprived by his act of the protection to her property secured to her by the Statute, and thus the intent of the law would be defeated.
In [**10]  the deed conveying to Tennison the reversion, there is no expression of any purpose or design to extinguish the term, it is a mere conveyance of the reversion subject to the lease; and in that respect this case differs from Lawes and Wife vs. Lumpkin, 18 Md. 334.

 [*92]  KENT says, vol. 4, 102 m, "merger is not favored in equity, and is never allowed, unless for special reasons, and to promote the intention of the party." For which he cites Lormer vs. Wheelright, 3 Sandf. Ch. 136.
In this case no such intent is disclosed by the deed, or by the acts of the parties; and being of opinion that it would be against equity to allow it to operate in this case, and especially contrary to the intent of the Act of 1853, we conclude that the interest of Mrs. Tennison in the property was not extinguished, but survived to her on the death of her husband; and consequently the only estate in the premises held by her husband at the time of his death, was the reversion therein, or annuity of $ 45, payable by the lessee, and which has devolved on his surviving son, Francis J. N. Tennison.
The next question is the construction of Wm. H. Tennison's [**11]  will. After devising to his wife absolutely all his slaves which constituted the largest part of his estate, he proceeds as follows:
"Item. I likewise give and devise to my said wife all the rest of my estate so long as she remains my widow; at her death to be equally divided with my children, and to them and their heirs forever."
The testator died in September, 1854, leaving two children, one, named Francis J. N. Tennison, a child of a former marriage, and one, named William, the child of his last marriage. William died before the intermarriage of his mother with John T. Clark, which took place August 3d, 1857. Now the question is as to the effect of the marriage of Mrs. Tennison, the widow. The gift of the property is limited to her during her widowhood. It was not denied in the argument that this limitation was effective. Whatever disputes may at one time have existed as to the validity of such a gift, have been set at rest by recent decisions. Lloyd vs. Lloyd, 10 Eng. L. & E. R. 140; Bennett vs. Robinson, 10 Watts 348; Commonwealth vs. Stauffer, 10 Barr 350; Gough and Wife vs. Manning, 26 Md. 347.

 [*93]   [**12]  By this will the gift to the wife is during her widowhood, the limitation over to the children is upon her death. What becomes of the property in the intermediate time between her marriage and her death? The will is silent as to that, and the appellants contend there is an intestacy; while the appellees maintain that the will must be read as if the limitation over was to take effect upon the marriage or death of the widow, in order to carry out the intent of the testator, and that the necessary words to effectuate that intention may be supplied.
In support of this proposition the appellees have referred to several cases, in which the Courts have, in the construction of wills, transposed or changed words, or even supplied words omitted in the will, in order to effect the intention of the testator, where that intention is manifest on the face of the will.
It is unnecessary to refer to the cases particularly, because the construction of every will must depend upon its particular language, and very little aid can be derived from the construction which other and different wills have received.
In this case it is apparent on the face of the will that it was drawn by an inexpert and ignorant [**13]  draftsman.
The plain intent of the testator was that the widow should have the property no longer than during her widowhood. It is equally clear that the limitation over is in favor of the testator's children, who were the primary objects of his bounty, after giving her the preceding estate. He failed to limit it over to them after her marriage, but has limited it to them at her death. To hold that there was an intestacy would defeat this limitation over entirely. It is therefore necessary, in order to carry out the plain intention of the testator, to construe the will as giving the property to the children upon the termination of the estate given to the wife, whether that be by her marriage or her death.
In the case of Commonwealth vs. Stauffer, 10 Barr 350, before cited, the provision of the will was very similar, the gift being to the widow during widowhood, and the limitation 

 [*94]  over upon her death; and the Court decided that upon the marriage of the widow the parties in remainder were entitled.
We think we do no violence to this will by adopting a similar construction, and, therefore, hold that there was no intestacy; but that upon the marriage of Mrs. Tennison,  [**14]  the estate devolved upon the children and ought to be distributed accordingly.
As to the several questions presented by the exceptions to the accounts of the guardian and executrix, it is unnecessary for us to go into an examination of them, indeed the record does not afford us the means of doing so. The vouchers and proofs are not before us, and for the same reason we can express no opinion as to the liability of the guardian and executrix, respectively, for interest; the requisite proof not being before us.
Having expressed our opinion upon the main questions, the only ones about which there appears to be any dispute, there can be no difficulty in the Orphans' Court finally disposing of the cases; and to that end, orders will be passed affirming the order of the 17th day of April, 1869, removing the appellant Clark from the guardianship and appointing another guardian in his place. The other orders of the Orphans' Court, from which these appeals were taken, will be reversed, and the cases remanded for further proceedings, each party paying their own costs on these appeals.
Affirmed in part and reversed in part, and cases remanded. 

100 of 142 DOCUMENTS 

SAMUEL R. SMITH vs. WILLIAM CRICHTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 103; 1870 Md. LEXIS 73 

June 30, 1870, Decided 

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

This was an action of assumpsit instituted by the appellee to recover the balance of a loan made to the appellant. The pleas were never indebted, never promised, and set-off--the character of the last plea will be found sufficiently disclosed in the second prayer of the appellant.

Exception. The defendant offered the following prayers:

1st. That if the jury shall believe from the evidence, that at the time the alleged cause of action accrued, the plaintiff and his son, Malcolm Crichton, were co-partners, and that said cause of action was a partnership transaction, then the plaintiff is not entitled to recover under the pleadings in this action.

2d. That if they shall find that in 1865, the plaintiff was a stockholder in the Chesapeake Oil Company, and in the Maryland Copper Company, and was also President of the said first named corporation, and Director and afterwards President of the said last named corporation, and that at the instance of the plaintiff or his authorized agent, defendant was induced to purchase certain shares of the capital stock of the said Chesapeake Oil Company, and to borrow of the plaintiff the sum of [**2]  $ 300 for the purpose of paying in part for the said stock, and that to secure the same, the defendant transferred to plaintiff the certificates of all the shares so purchased, and also further to secure said loan, transferred the certificate for 250 shares in the Maryland Copper Company, the property of the defendant, and that afterwards and while said shares were so held in pledge by plaintiff, defendant requested plaintiff or his authorized agent, to sell said stock or any portion thereof at its then market value, and apply the proceeds thereof to the payment of said debt, and that plaintiff or his said agent assented thereto, that then it was the duty of the plaintiff to sell the same or such portion thereof as he agreed to sell without unreasonable delay. And if the jury shall further find that plaintiff altogether failed to sell said stock or any portion thereof, and that damage was sustained by the defendant from such failure by any subsequent depreciation in the value of said stock, without fault of the defendant after the lapse of sufficient time for affecting said sale, that then defendant is entitled to have recouped in this action the amount of such damage as the jury may [**3]  find him to have sustained as aforesaid.

3d. If the jury shall find the facts stated in the second prayer, no verbal declarations which the jury may believe from the evidence were subsequently made by the defendant, can operate as a waiver of his right of recoupment as therein stated, unless the jury shall also find that such declarations were made upon some consideration thereto, moving from the plaintiff, or that some action was taken or forborne to be taken by the plaintiff, or some liability incurred by him upon the faith of such declarations.

All of which the Court rejected, and instructed the jury, verbally, to the following effect:

That although it is the right of the pawnee of stock plegded as collateral security for advances, to sell the same in open market at his own option when the debt matures, yet it is not his duty so to do; that the party pawning might at that time redeem the stock himself, but that he could not compel the party to whom he had pledged the stock to sell the same; and that if damage resulted from the omission of the plaintiff to sell in this instance the stock in question, no recovery could be had against him for such omission by the defendant.  [**4]  

After these instructions were given, and before the jury had agreed upon their verdict, the foreman rose and stated that there was a difference of opinion among the jury, some considering that the Court's instructions were positive, that the verdict must be for the plaintiff, and others maintaining that the jury could still exercise their discretion.

The Court then instructed the jury that unless they should find fraud on the part of the plaintiff, their verdict must be for the plaintiff, and there was no evidence in the case from which fraud could be inferred.

To the rejection of his prayers, and to the verbal instructions granted by the Court, the defendant excepted, and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment reversed, and new trial awarded.  

HEADNOTES:

Non-joinder of proper parties as Plaintiffs -- Oral Instructions to the Jury.

In an action ex-contractu, the non-joinder of a party who should have been joined as a co-plaintiff, may be taken advantage of by the defendant at the trial under the general issue; and this rule is not affected by the provisions of the Code, Art. 75, secs. 26, 28. It is within the discretion of the Court to give instructions to the jury orally or in writing; but where verbal instructions are given, it is the right of the party who desires to except thereto, to have them reduced to writing, so that they may be reviewed on appeal.  

COUNSEL:
John V. L. Findlay and Chas. E. Phelps, for the appellant.

The defendant excepted to the instructions granted, not only as instructions, but as verbal instructions. The question is therefore distinctly presented, whether instructions in that form are legitimate under Maryland practice, when counsel have applied for instructions in writing?

The method of separation of law from fact by written [**5]  prayers and instructions, is not only a distinguishing characteristic of Maryland practice, but by usage, legislation and adjudication is embodied in the law of the State.

The Act of 1825, chap. 117, as construed by this Court, (Davis vs. Leab, 2 G. & J., 302; Penn vs. Flack, 3 G. & J., 369;) abolished general prayers which presented no specific propositions of law. Under this construction, the practice of presenting points for decision in the form of carefully digested hypothetical instructions has grown to a special science. It was, at one time, denied that a Court could grant any instructions of its own accord unless in the terms prayed for at the bar. Keener vs. Harrod, 2 Md., 73; Coates vs. Sangston, 5 Md., 133; Key vs. Dent, 6 Md., 142; Snively vs. Fahnestock, 18 Md., 391, and Higgins vs. Carlton, 28 Md., 115, recognize the right of the Court to reject the prayers which may be offered, and instruct the jury in their own words, but they furnish no sanction, direct or indirect, for the practice of delivering oral speeches from the bench in response to prayers for written instructions.

The whole current of Maryland decisions since 1825, show with uniform consistency that [**6]  prayers and instructions to the jury in the contemplation of the common law of the State, are written documents as fully as any part of the pleadings. Evans' Practice, 364, 380, 401.

John Henry Keene, Jr., for the appellee.  

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

OPINIONBY:
STEWART 

OPINION:

 [*106]  STEWART, J., delivered the opinion of the Court.
Exceptions have been taken by the appellant in this case to the ruling of the Court below, in the refusal to grant his three several prayers, and to the verbal instructions given, including the form, as well as the substance of them.
The first prayer involves the question whether the plaintiff, having sued the defendant upon a cause of action alleged to be due alone to the plaintiff, can recover under the pleadings, if, upon proof, it appears to have been a claim due the partnership, of which the plaintiff was a member; and whether the defendant can avail himself of such defence unless by plea in abatement.
It is a well settled principle that all the parties composing a firm must be named as plaintiffs, unless they are dormant partners, and the omission so to describe them may [**7]  be taken advantage of by the defendant, under the plea of the general issue, and in actions upon contract, if the cause of action be joint, all the parties, if alive, must join, and where the action is brought by one of several with whom the contract was made, the defendant can avail himself of the defect, upon evidence at the trial, under the plea of non assumpsit. The allegata 

 [*107]  and probata must agree, and the plaintiff here, claiming in his individual capacity, must sustain his demand as such, and is not entitled to recover upon a cause of action due to him and others, and the pleadings giving notice of the individual account, the defendant has the right to interpose the objection at the trial, under the general issue, to the competency of any such testimony, without resorting to plea in abatement.
This well established rule is not affected by the provisions of the Code, Art. 75, secs. 26-28, in reference to the right of amendment, or by the form of a plea in abatement as prescribed in the 83d division of sec. 22, of the same Article.
Assuming there was conflicting testimony as to the true character of the cause of action, and whether it constituted an individual [**8]  or partnership account, the purport of which it was the province of the jury to determine, upon pertinent instructions from the Court as to the law applicable thereto when their interposition was invoked, we think there was error in the Court below in the refusal of the defendant's first prayer. Mitchell vs. Dall, 2 H. & G. 159, 171; Armstrong vs. Robinson, 5 G. & J. 412; Hoffar vs. Dement, 5 Gill 132; Wallis vs. Dilley, 7 Md. 237, Oelrichs vs. Artz, 21 Md. 524.
The second and third prayers of the defendant were properly rejected, because there was no proof in the record to sustain them, or to shew that the plaintiff was responsible to the defendant for not having made sale of the stock referred to therein.
Under such circumstances they were mere abstract propositions, not founded upon any testimony in the cause.
Under the view we have stated as to the error in the refusal of the defendant's first prayer, it becomes unnecessary to review the propositions announced by the Court in the verbal instructions.
The exception as to the form of the instruction, being verbal, when the [**9]  defendant's prayers were in writing, cannot be supported.

 [*108]  Where the instruction is definite, and contains sound views of the law applicable to the case and intelligible to the jury, it can make no essential difference whether it is communicated to them in writing or orally.
It is true, that in the trial of causes, and the exposition of the law to the jury, the reduction of the instruction to writing is certainly more formal, less liable to hasty error, and may enable the Court the better to mature their views, and more distinctly and formally to express them to the jury as a general rule; but still the law may be sufficiently expounded to the jury through oral instructions. No doubt the Court would not hesitate, where it was requested, and deemed by the counsel to be material, to embody their views in writing, in advance of any oral communication to the jury. This matter, however, is left to the sound discretion of the Court below, and is not the subject of review by this Court.
When verbal instructions are given to the jury, it is certainly the right of the party who desires to except thereto, to have them reduced to writing, so that they may be reviewed on appeal,  [**10]  as was done in the present instance; and when that is the case it is no good cause of complaint, that the Court, in its discretion, chose in the first instance to instruct the jury orally.
Judgment reversed, and new trial awarded. 

101 of 142 DOCUMENTS 

ADOLPHUS C. SCHAEFER, JR., vs. THE BALTIMORE MARINE INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 109; 1870 Md. LEXIS 74 

June 30, 1870, Decided 

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

This action was instituted to recover the value of certain bacon, shipped on board the Steamer Kingfisher, and totally lost on a voyage from Baltimore to Charleston, and which the appellant claimed was covered by a policy of insurance issued by the appellee. The policy was a running policy and contained the following stipulations: "no shipments to be considered as insured until approved and endorsed on this policy by this company, endorsements valued at the same, provided they do not vary from the cost more than -- per cent.;" *** and "beginning the adventure upon the said goods and merchandise from and immediately following the loading thereof on board of the said vessel at as aforesaid, &c." On the 8th of November, 1866, application was made to the company to endorse on the policy, soap and other goods per Steamer Kingfisher. This was accordingly done by the entry of "soap, &c., in boxes," in the policy-book, attached to the policy. On the next day application was made to endorse the bacon on the policy, and the proper officer of the company made the endorsement as applied for, but instead of writing the word "bacon" by itself on a separate [**2]  line, wrote it after and on the same line with the words "soap in boxes, &c.," already endorsed; so that the whole endorsement read "soap, &c., in boxes, and bacon invoice," and was valued at $ 510, the premium at one per cent. being $ 5.10. The course of dealing between the appellant and the company was that the goods to be insured should be thus endorsed, and that afterwards, on the day of the sailing of the vessel or the day after, or sometimes, though not usually after the lapse of several days, the value of the goods, on an invoice furnished by the appellant, and the amount of premium should be carried out and added to the endorsement.

The Kingfisher having been lost, the appellant brought suit for the value of the bacon.

Exception: The plaintiff prayed the following instruction:

If the jury find that the policy offered in evidence, was duly executed by the defendant on the day of its date, and that on or about November 8th, 1866, the plaintiff shipped on the steamer Kingfisher, from Baltimore to Charleston three hogsheads of bacon, of the invoice value shown by the invoice of said bacon offered in evidence, and that the plaintiff applied to the defendant to insure [**3]  said bacon and indorse the insurance on said policy, and that the defendant, by its proper officer, did accordingly indorse said insurance, by writing the word bacon on said policy, after the words "soap, &c., in boxes," so that said endorsement then read as follows: "Nov. 8th, steamer Kingfisher, from Baltimore to Charleston, soap, &c., in boxes, and bacon, invoice and 10 per cent., 1" in the columns, and under the headings appearing in the book, which was offered in evidence, and which was part of said policy; and shall further find, that afterwards the invoice value of the articles embraced under the words "soap, &c., in boxes," was communicated by the clerk of the plaintiff to the defendant, and was endorsed on said policy by the figures 510 in said book; and that said clerk who attended to said insurance for the plaintiff, by accident and inadvertence, and without the knowledge of the plaintiff, and without any fraudulent design on the part of the said plaintiff, or his clerk, omitted to furnish the defendant with the invoice value of said bacon, on or immediately after the sailing of the Kingfisher; and that after the said vessel was over-due, but before any information of her [**4]  loss had been received, the plaintiff looked at said endorsement, and then for the first time discovered that the invoice value of said bacon, with ten per cent. added, had not been entered thereon, or carried out in figures; and that plaintiff immediately sent the invoice of said bacon to the defendant's office, with the request that said value might be extended in said endorsement, and the defendant refused to make said endorsement as requested; and shall further find, that according to the course of business between the plaintiff and defendant under said policy, the invoice value of goods invoiced was frequently extended and endorsed on the said policy after the sailing of the vessel to which the insurance related; and that according to the said course of business, the premiums due from the plaintiff to the defendant, were, from time to time, as the amounts became sufficiently large, settled by the plaintiff's giving notes therefor; and shall also find that the said steamer Kingfisher was wholly lost on said voyage, and that said bacon was lost with her--then the plaintiff is entitled to recover, although the jury may find that the said vessel was lost at the time when the defendant [**5]  was requested to endorse the value of said bacon on the policy.

And the defendant offered the following prayers:

1st. That all the evidence in this cause, the tendency of which is to show that the valuation in the endorsement in the policy-book of $ 510 as offered in evidence, does not include the value of the bacon in said endorsement, shall not be considered by the jury.

2d. If the jury find that the policy offered in evidence was executed by the defendant, and that the defendant endorsed thereon "Nov. 8, steam. Kingfisher, from Baltimore to Charleston, soap, &c., in boxes, and bacon invoice 10 per ct., amount insured $ 510, rate 1, prem. 5.10," as offered in evidence, that then, by a proper construction of said policy and endorsement thereon, the defendant is only responsible for the sum of $ 510, endorsed thereon, as the value of the goods also endorsed; and if the jury find that said sum has been paid, the plaintiff is not entitled to recover under the issues in this case.

The Court rejected the prayer offered by the plaintiff, and granted the prayers offered by the defendant, whereupon, the plaintiff excepted, and the verdict and judgment being against him,  [**6]  he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Exclusion of testimony Admitted subject to Exceptions -- Construction of a Contract of Insurance.

Where, under an agreement of counsel, parol testimony explanatory of a written contract, is admitted, subject to exceptions, a party may ask the exclusion of all the parol evidence, as well that offered by himself as that offered by the opposite party.

S entered into a contract of insurance with the Baltimore Marine Insurance Company. The policy excluded all shipments unless approved and endorsed on the policy -- the valuation to be fixed by the endorsement. By the course of dealing between S and the Company, applications for insurance were indicated by endorsing the names of the articles to be insured in a policy-book attached to the policy; and afterwards, generally on the same or ensuing day, the valuation was extended on invoices furnished by S, on application of the Company. A loss having occurred, it was discovered that one item was simply endorsed in the policy-book, and that its value had not been extended, no invoice having been furnished. On suit by S for the value of this article, HELD:

1st. That this was a valued and not an open policy, and the applicant for insurance having failed to furnish the invoice, as was his duty, was not entitled to recover.

2d. That under this running but valued policy, each and every shipment, for the insurance of which application is made, becomes a distinct insurance to be determined by the provisions of the policy and the endorsements in the policy-book.

3d. That the contract of insurance was not complete, as to any specific shipment, until the endorsement of the value; and it was too late to ask for such endorsement when the shipment was in all probability lost.  

COUNSEL:
I. Nevett Steele, for the appellant.

The first prayer of the appellee excludes all evidence, "the tendency of which is to show that the valuation in the endorsement in the policy-book of $ 510, as offered in evidence, does not include the value of the 'bacon' in said endorsement." Even if the testimony on this subject, offered by the plaintiff, was excluded, there was still the testimony of defendant's own witness, which could not properly be ruled out by the Court on the defendant's application.

But the evidence was clearly admissible. Not only has the Court a right in giving a construction to a written paper to be placed in the position as to all the surrounding circumstances, which was occupied by the parties executing the paper, but in this case the entry was on the face of it, one which left and required something to be supplied by proof, and was uncertain as to the subjects to which the different parts of it applied. The rule is familiar that parol evidence is admissible to shew the subjects and parties to which a contract relates. 1 Parsons on Mar. Ins., 128; 2 Parsons on Mar. Ins., 503, 504; 1 Duer on Insurance, 169-171, 172;  [**7]  1 Arnold on Insurance, 78; 1 Greenleaf on Evid., secs. 275, 288, 297; Birch vs. Depyster, 4 Camp., 385; Preston vs. Greenwood, 4 Doug., 28; Colpoys vs. Colpoys, 3 Jacobs' Rep., --; Gray vs. Harper, 1 Story, 574; 2 Parsons on Contracts, 557, (5th edition.)

Even if the evidence objected to was properly excluded, the second prayer of the appellee should not have been granted. It could only then have been maintained, on the ground that there was no insurance, until the value was extended, and this is not in accordance with the law or the intention of the parties.

The policy attached as soon as the bacon was put on board the steamer. The application was to insure bacon to be shipped per steamer Kingfisher, on the voyage from Baltimore to Charleston. This application was accepted, and the shipment was approved and endorsed on the policy. By the established and admitted course of dealing, the valuation might be entered after the sailing of the vessel. In truth, the valuation was made under the terms of the policy, by simply exhibiting the invoice or purchasing price of the goods, and adding ten per cent. There could not validly be any higher valuation. The premium was not to be [**8]  paid for a month or perhaps for a longer period, and the amount of it was of course readily ascertained by applying the current rate of premium to the amount of the valuation.

The ascertainment of the value and premium was to be made after the policy had attached and become operative, and in that matter each party had a right to rely upon and require good faith on the part of the other. To this extent, the policy was an open policy, to be converted into a valued policy by entering, afterwards the value and the premium; and it was not in the power of either party to invalidate the policy, by refusing, after the goods had been shipped, to make or to have made the proper entry. If this be not so, then in all cases, where the company was not called upon to extend the value, until one day or longer, after the sailing of the vessel, the shipper had no insurance, and the company might invalidate the policy by refusing to make the entry.

In the absence of fraud on the part of the appellant or his clerk, the company was bound by the policy, and should have made the entry when requested. The cause of the delay is found in the error of the company's officer, who instead of entering [**9]  the bacon, which was a separate shipment, on a separate line, added it on the same line with the soap, &c. The appellant applied to the company immediately on discovering that the value had not been carried out, and then, though the vessel was out of time, it was not known that she was lost. Even if her loss had been then known, the company was bound, and under the circumstances should have made the entry. 1 Parsons on Marine Insurance, 44, 319, 329, 330, et seq; Harman vs. Kingston, 3 Camp., 150; Crawford vs. Hunter, 8 Term Rep., 15, note a; Carver vs. Insurance Co., 6 Gray, 214; Hartshorn vs. Insurance Co., 9 American Law Register, 184; Insurance Company vs. Roberts, 4 Duer, 141; 2 Parsons on Marine Insurance, 45, 49.

William S. Waters, for the appellee.

By the terms of the policy, "no shipments were considered as insured until approved and endorsed on the policy" by the defendant. Endorsements were valued at the endorsement, and the consideration of the policy at the rate "as endorsed on the record of the policy." The premium to be fixed at the time of the endorsement. It is also declared in the policy that the goods insured are valued as per endorsement. The essential [**10]  requisites to complete the policy and make a perfect contract of insurance, are to endorse upon the policy the goods to be shipped, the ship, the voyage, the premium, and the value of the goods. When this is done the contract is complete; until it is done there is no contract. The policy does not give any power to the insured to fill it up. The endorsements are to be made with the consent of both parties; and not until the endorsements are made do the minds of both parties so meet as to form an agreement. Until then the insured is not bound for the premium, nor is the insurer bound for the goods. This construction is borne out by the course of conduct of the parties. Neither considered that the contract was completed until the amount of premium and the value of the goods were extended upon the policy. The seeming diversity of the cases can be reconciled when this distinction is applied to them. Baptist Church vs. Brooklyn Fire Ins. Co., 28 N. Y., 161; Orient Fire Ins. Co. vs. Wright, 23 How., 401; Harman vs. Kingston, 3 Camp., 150; Entwisle vs. Ellis, 2 H. & N., 549; Langhorn vs. Cologan, 4 Taunt., 332.

In the inception of the contract the policy was to be a valued policy and [**11]  not an open policy; and according to its terms was not completed as a contract until its value was extended. 1 Arnould on Insurance, secs. 124, 129.

In this case the company could have recovered no other premium than that endorsed upon the policy. And until the assured is bound for the premium there is no contract of insurance. 1 Arnould on Ins., sec. 7; 1 Phil. on Ins., sec. 439.

Even give a wider scope to the power of the plaintiff to endorse and extend the value on the policy in this case, he has neglected it until the company is no longer bound to agree to it. The steamer had already been lost, and the certainty existed that she was lost. Harman vs. Kingston, 3 Camp., 151.

The contract offered in evidence by the plaintiff is a completed contract in all its parts. It is therefore not proper to allow it to be varied by parol evidence. 2 Greenleaf on Ev., sec. 377; 1 Greenleaf on Ev., secs. 275-277-281; Marshall vs. Haney, 4 Md., 498; 2 Arnould on Ins., sec. 462; Mumford vs. Hallett, 1 John., 433.  

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

OPINIONBY:
STEWART 

OPINION:

 [*116]  STEWART, J., delivered the opinion of the Court.  [**12]  
The policy in this case, with its accompaniment, the policy-book, constitutes the written contract between the parties.
In the trial below, objection was made by the defendant to the admissibility of certain proposals of insurance made by the plaintiff to the defendant, for the purpose of shewing that the article "bacon," claimed by the plaintiff to have been insured, was not in fact valued, although it so appears in the endorsement in the policy-book; because the tendency of such parol testimony was to vary the written contract between the parties.
This objection the Court overruled at that stage of the trial.
The parties then agreed that all the evidence, whether conflicting with the written contract or not, should be admitted, subject to exceptions after the testimony was closed.
Evidence was then introduced in relation to the controverted article "bacon," and as to the course of dealing, or manner of transacting the business of insurance between the parties.
When the evidence on both sides was closed, the Court below, upon the application of the defendant, excluded from the consideration of the jury all the testimony tending to show that the valuation in the policy-book does [**13]  not include the value of the "bacon" mentioned therein. This ruling occasioned the plaintiff's first exception, and it is urged in his behalf, amongst other reasons, that this was error, because the 

 [*117]  defendant itself had offered parol testimony which was excluded.
By the agreement all the evidence was admitted, subject to exceptions. Both parties, under the agreement, having offered parol testimony, the defendant might ask to have it all excluded if really inadmissible, without being estopped under the circumstances from excluding that offered by itself.
But it is not material whether the parol testimony was excluded or not, so far as the plaintiff is concerned. If the case is determined by the written contract, the policy and the policy-book, the plaintiff can only recover according to the provisions of the policy, and that expressly excludes all shipments, unless approved and endorsed on the policy, and the valuation to be fixed by the endorsement.
If the parol testimony is admitted explanatory of the circumstances connected with the entry of the article of "bacon," and that it was not, in fact, valued in the endorsement made in the policy-book, and shewing the course [**14]  of dealing between the parties, whilst it proved that the "bacon" was not in fact estimated in the value of the articles carried out, it shows at the same time that if it had not been included with the other articles, "the soap in boxes, &c.," but had been written on a line to itself in the policy-book, it would not have had its value extended and endorsed in due time, because of the omission of the plaintiff to furnish the invoice of prices and values.
According to the tenor of the policy, and the custom of dealing between the parties, the policy was designed not to be an open but a valued policy upon all articles insured, and though a running and continuing policy, leaving every specific shipment itself, to constitute a distinct subject of insurance.
When the value of the interest at risk is not fixed in the policy by agreement between the parties, but is estimated by a certain standard to be made out in case of loss, it is an open policy. 1 Arnould on Insurance, p. 324, sec. 130.
Under the open policy the prime cost must be proved. In a valued policy it is agreed. The effect of the valuation is to 

 [*118]  settle conclusively the prime cost. Lewis vs. Ricker, 2 Burrows 1196. [**15]  
This running but valued policy, as other policies, constitutes the contract between the parties, and must be construed by the same rules as govern in the construction of other contracts, purely to accomplish the purposes, and carry into effect the meaning and intention of the parties.
Being designed as a valued policy, it was not complete as to any specific shipment until the endorsement of the value; and it was, certainly, too late to ask for such endorsement when the shipment was in all probability lost. The contract of insurance requires the purest good faith and fairness on both sides.
Indemnity is designed on the one side for possible loss, for which the insured must pay a reasonable price for the risk, and this is the premium for that risk incurred by the other, and which forms the consideration inducing the insurance--a quid pro quo.
But where the loss is known to have occurred, there is no foundation for the contract of insurance. Under such circumstances there is no hazard requiring to be guarded against.
Under this running but valued policy each and every shipment, for the insurance of which application is made, when endorsed, becomes a distinct insurance, to be [**16]  determined by the provisions of the policy and the endorsements in the policy-book.
The proposal is made on the one side, and accepted on the other.
The policy does not attach upon the mere application of the party desiring insurance upon a particular shipment, but it must be assented to by the other before the contract is perfected.
According to the course of dealing between these parties when the application was made, the insurance was not considered consummated, but when the invoice was furnished, and the valuation endorsed in the policy-book, nothing further remained to constitute the contract complete.

 [*119]  The party might make the application simply, and afterwards decline to complete the insurance, but the application being made and the valuation furnished, and both endorsed and extended in the policy-book, there was a subsisting contract, and the running policy became a valued one, quoad hoc.
It appears to have been the custom of the company, when application had been made for insurance, but no valuation endorsed, leaving the insurance on the subject matter inchoate and incomplete, to send down to have the invoice brought up, and the appropriate entry made [**17]  in the policy-book; and which seems to have been done in this instance, but the plaintiff denies or has no recollection of this matter.
The onus of furnishing the invoice was on the plaintiff; the affirmative testimony of the company, when contrasted with the negative on the other side, according to the rules of evidence is entitled to the preponderance.
But however the fact may have been, it was certainly the duty of the insured if he desired, in good faith, to consummate the insurance to perfect the contract, by furnishing in proper time the evidence of the valuation, and the laches is on his part.
There seems to have been a disposition on both sides to act with entire fairness, and the difficulty has grown out of inadvertence and human infirmity. No doubt, the plaintiff intended to have the "bacon" insured, but his mere application, without further evidence as to the quantity and value, to be furnished by him to the company, did not cause the policy to attach, and could not, per se, constitute a binding and mutual contract between the parties under this policy, to charge the company with the loss of the bacon.
The information as to the value ought to have been furnished [**18]  in reasonable time.
The neglect to do so until such a time had elapsed as to render the loss of the vessel with its contents highly probable, does not authorize the plaintiff to ask to have the valuation endorsed.

 [*120]  If it could, after such an interval, be endorsed, it might as well be demanded after the loss was known and the risk determined.
If it could be done, in either case, then the endorsement of the valuation was a useless ceremony, and the simple endorsement of the application for insurance would be sufficient to constitute a contract between the parties.
We think such a construction is not warranted by the written contract between the parties, evidenced by the policy and policy-book, nor by the course of dealing between them, nor by any just principle of indemnity under contracts of insurance.
The plaintiff's prayer was properly refused, as it contained an erroneous view of the law applicable to the case.
Whether the defendant's first prayer was entirely correct or not it is unnecessary to decide, because we do not perceive that its sanction by the Court below has at all injured the plaintiff; and the same remark is applicable to its second prayer. See Donville  [**19]   vs. Sun Mutual Ins. Co., 12 Lawrence 259; Edwards et. al. vs. St. Louis Ins. Co., 7 Mo. 382.
Judgment affirmed. 

102 of 142 DOCUMENTS 

THE MONUMENTAL BUILDING ASSOCIATION, NO. 2, OF BALTIMORE CITY, vs. PETER HERMAN, MAGDALENA HERMAN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 128; 1870 Md. LEXIS 76 

June 30, 1870, Decided 

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

In June and October, 1868, John, Elizabeth, Peter, and Magdalena Herman, brothers and sisters, executed two mortgages to the appellant. On the 16th of February, 1869, a petition was filed by the appellant, under the provisions of Article 4, section 782, &c., of the Code of Public Local Laws, for the sale of the mortgaged premises, and on the following day a decree was obtained. The property was sold and reported by the trustee, and the usual order of ratification nisi passed. On the 6th of April following, the appellees Peter and Magdalena excepted to the final ratification of the sale, on the ground that they were infants when they signed the deeds. On the 30th of November, 1869, the Circuit Court passed an order setting aside the sale. From this order the complainant appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Contract of Infants avoided.

Two mortgages were executed by infants and adults. On their failure to pay the mortgage debt, a decree for the sale of the mortgaged premises was obtained, a sale was made thereunder, and the usual order of ratification nisi passed. The infant mortgagors excepted to the final ratification of the sale on the ground of their infancy when they signed the deeds. There was no evidence that the infants received any part of the money loaned, or that they were capable of perpetrating a gross fraud; and it was uncertain whether or not the mortgages were for their benefit. The exceptions were held good, and the sale was set aside.  

COUNSEL:
W. H. S. Burgwyn and Wm. Shepard Bryan, for the appellant.

An infant's deed is not void, but voidable after he arrives at age. He cannot avoid it during infancy. Stafford vs. Roof, 9 Cowen, 626; Bool vs. Mix, 17 Wendell, 119; Zouch vs. Parsons, 3 Burrows, 1802.

The appellees having--not only by the suppression of the truth,  [**2]  but by false representations as to their being of lawful age--induced the appellant to deal with them as persons capable of making a binding contract, are estopped in Equity from setting up their infancy as a defence against their liability on their contracts; for in Equity, infancy gives no privilege to cheat men. Becket vs. Cordley, 1 Brown C. C., 314; Story's Equity Juris., (Redfield,) secs. 385 and 385, a., 64, e.; 2 Sugden on Vendors, (428, m. p.,) sec. 30; Nelson vs. Stocker, 5 Jurist. N. S., 262; Alexander vs. Walter, 8 Gill, 297; McClellan vs. Kennedy, 8 Md., 230; Smith's Principles of Equity, 165 and 166; Earl of Buckinghamshire vs. Drury, 2 Eden, 72; Hall vs. Timmons, 2 Richardson's Eq. R., (S. C.,) 120; Cory vs. Gertcken, 2 Madd., 40-50; Hillyer vs. Bennett, 3 Edw. Ch., 222; Smith vs. Evans, 5 Humphreys, 70.

The appellees, before they can come into a Court of Equity asking the relief prayed for, must return or offer to return to the appellant, the money loaned them on the security which they now attempt to destroy; for it is a maxim of Equity "that he who comes into Equity must do equity." Watts vs. Cresswell, 9 Vin. Ab., 415; Clere vs. Earl of Bedford, 13 Vin. Ab.  [**3]  , 536; Savage vs. Foster, 9 Modern R., 38; 2 Eq. Cas. Ab., 489; Sugden on Ven., 175, 611, (13 Ed.); Nelson vs. Stocker, 5 Jurist. N. S., 262; Badger vs. Phinney, 15 Mass., 363.

Thomas A. Hopkins, for the appellees.

The sale was properly rejected, because the exceptants were infants under the age of twenty-one years at the time they executed the mortgages, and so continued up to the time of the sale of the mortgaged property. There can be, therefore, no question as to whether the mortgages were void or voidable only. But conceding they were only voidable, the infants had not attained their majority, and could not, therefore, exercise their election, either to affirm or avoid. Neither can the mortgages be enforced against them until they shall have attained the legal capacity to contract.

That the exceptants made false representations as regards their true age is denied, but admitting they did misrepresent upon this subject, still they are not estopped from setting up the defence of infancy. Fridge vs. State, use of Kirk, 3 G. & J., 103; Macpherson on Infants, 482; Johnson vs. Pic., 1 Kel., 905; 2 Kent Com., 240; Tucker vs. Moreland, 10 Peters, 59, 75; 1 American Leading [**4]  Cases, 107, 108, 109, 110; 15 Massachusetts, 220; 1 Pickering, 202; 4 Vermont, 149, 152, 153; Zouch vs. Parsons, 3 Burrows, 1802.

The only contract binding on an infant is the implied contract for necessaries. 1 American Leading Cases, 104.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
STEWART 

OPINION:

 [*130]  STEWART, J., delivered the opinion of the Court.
This was a proceeding below, to foreclose two mortgages under the provisions of the Code of Public Local Laws, Art. 4, secs. 782, &c., applicable to the city of Baltimore, exclusively.
An ex parte decree had been passed, a sale of the property ordered, and a report of sale thereunder made by the trustee.
Objections were filed against the ratification of the sale by two of the mortgagors, alleging that they were infants, under the age of twenty-one years, when they executed the mortgages. The mortgagee denied the fact of infancy, and insisted upon the insufficiency of the objections. The infancy of the objecting mortgagors was proved, and from the testimony as to the circumstances connected with the execution of the mortgages by them, it appears they were called upon to sign [**5]  the same, and upon being interrogated as to their age, stated they were of age, but the evidence upon this subject is very meagre, and the infants seemed to have been passive in the transaction; and there is no evidence that any money was paid over to them. Under the provisions of our Statutory law, persons under the age of twenty-one years, are made competent to perform various binding acts, and there 

 [*131]  certainly is no distinct proof of fraudulent representation established.
The Court below, by its order, sustained the objections, and refused to ratify the sale, and the appeal is taken from that order.
It has been urged here, for the mortgagee, that there was error in this order. 1st. Because, notwithstanding the infancy of the parties, they cannot avoid their deed during their infancy. 2d. That not only their suppression of the truth, but false representation that they were of age, shows such fraudulent conduct, as to estop them, in equity, from the benefit of their plea--infancy giving no privilege to cheat and defraud other parties. 3d. That before they can ask to be relieved from their contract, they must return the money loaned them, upon the well known principle,  [**6]  that whoever comes into Equity must be prepared to do equity.
By the common law, persons, under the age of twenty-one years, are not bound by their contracts, except for necessaries, nor can they do any act, to the injury of their property, which they may not avoid, when arrived at full age. Their responsibility for crime or fraudulent dealing, depends more on their discretion and power to discriminate right from wrong, what is just or otherwise, than on their age. Infants have this indulgence from their supposed want of judgment in their transactions with others, and the law takes this care of them to prevent them from being imposed upon, or overreached by persons of more years and experience.
They are allowed to contract for their benefit with power in most cases, to recede from their contract when it may prove prejudicial to them, but in their contract for necessaries, such as board, apparel, medical aid, teaching and instruction, and other necessaries, they are absolutely bound, and may be sued and charged in execution; but it must appear that the things were absolutely necessary, and suitable to their circumstances, and whoever trusts them does so at his peril, or as it is said,  [**7]  deals with them at arms length.

 [*132]  Their power, thus to contract for necessaries, is for their benefit, because the procurement of these things is essential to their existence, and if they were not permitted so to bind themselves they might suffer.
If the infant has been supplied by his parents, guardian or friends, there can be no legitimate demand, on this account even, because there is no occasion for their being furnished by others.
Some of their other contracts are absolutely void, such as those where there is no apparent benefit to the infant, but others are merely voidable, and the law allows them when they come of age and are capable of considering over again, what they have done, either to ratify or to avoid the contract.
Whenever the act done, may be for the benefit of the infant, it is only voidable--if it were absolutely void, the adult party contracting with him, would be equally discharged.
If the infant bargain and sell his lands, by deed, he may avoid it at any time, but his purchase is only voidable, and vests the freehold in him, until he disagree thereto, because a contract is presumed and may be for his benefit, and because the freehold cannot be in [**8]  the grantor, contrary to his own act, nor can it be in abeyance.
They may be sued in Equity and their defence committed to a special guardian; and actions may be prosecuted in their behalf, by a next friend, because if the infant were not allowed to defend his possession, he might be deprived of all he had during his minority; and so of injuries done by an infant, as in the contract for necessaries, he may be sued before his arrival at age, because otherwise, a license would be given to them to commit injuries.
Where the Court can see that the contract is to the infant's prejudice, it is void; but where for his benefit, or uncertain in its nature, it is valid or voidable only at the election of the infant when of age.
It is uncertain whether the mortgages in this instance are beneficial to the infants or not, and they have the right to 

 [*133]  affirm or to avoid them when of age, and before that period, to intervene and prevent a ratification of the sale of the property under this ex parte proceeding, which might have the effect to prejudice their interests. But it has also been urged, that the infants were guilty of fraud, and are, therefore, precluded from the benefit [**9]  of their infancy. Whilst infants are protected against contracts, other than for necessaries, it is undoubtedly true that they are liable for torts and injuries, infancy being a shield and not a sword, it does not afford a shelter for fraudulent acts. If the infant disaffirm an executed contract, and the specific consideration can be restored, in whole or in part, the infant is treated as a trustee of the other party, and must give it up; but where the articles received by him are consumed or the money spent, the party advancing them is without remedy.
In actions ex debito arising from wrongs, as trespass, or assault, or constructive torts, or frauds, infants are liable; but the fraudulent act, to charge them, must be wholly tortious, for if ex contractu, though fraudulent, it cannot be changed into a tort to make them answer in trover or case. If the infant, without any contract, wilfully takes away the goods of another, trover lies, because it is a fraudulent trespass.
Where he affirms himself to be of age, and borrows money, and gives his obligation for it, and avoids it by reason of his non-age, no action lies against him for the deceit, because,  [**10]  though liable for actual torts or trespass, &c., which are vi et armis, yet he is not bound for the action sounding in deceit; but in the case where he pretends to be of age, and thus defrauds persons by buying goods, and then pleads his infancy, though the person injured cannot recover the value of the goods, he may indict and punish the infant as a common cheat, if arrived at a sufficient age of discretion; or if he judicially perjure himself in regard to his age or otherwise, he may be punished for the perjury.
Where he has advanced money upon an executory contract on the part of the adult, he cannot disaffirm it and sue for 

 [*134]  the advance, if made on a valuable consideration, partially enjoyed, when he has had the benefit of the contract.
Whilst there is good reason, where a person of sufficient discretion and capacity to perpetrate a fraud, takes upon himself to trade and act as of age, and is guilty of inexcusable fraud, to presume him to be of age, and to allow no evidence to be admitted to the contrary--and there may be cases of gross conduct and high-handed fraud and depravity in representing himself to be of full age, and making a contract, with deliberate [**11]  intent, afterwards, to evade it by reason of his privilege of infancy as would justify a Court of Equity in withholding its protection even where he had parted with his lands--yet he is not, in all cases, liable under his fraudulent contract, because the law, in protecting him against artifice and superior age, makes due allowance for the indiscretion and weakness of youth, before it has acquired adequate appreciation of the value of character and the force and effect of moral obligation.
There is no evidence in this case that the infants received the money loaned, nor is there any proof as to their capacity and ability to perpetrate a gross fraud, or of such artful contrivances, deceitful representations, or fraudulent practices as would sanction the equitable interference of the Court in holding them estopped from pleading their infancy.
But it is also insisted, that upon the principle that he who seeks equity should do equity, these minors ought to restore the money. These minors are respondents, defending their possession, and seeking no other equity in this proceeding.
The Court below would not have been authorized to decree a sale of the property embraced in these mortgages [**12]  when advised of the facts, subject to the ratification of the infants, upon a day allowed them to shew cause against it, upon their reaching full age; and the same reasons govern when objections are made to the ratification of the sale founded upon similar grounds. See Fridge vs. State, 3 G. & J. 103; Brawner 

 [*135]  and Wife vs. Franklin, 4 Gill 463; 2 Kent Com., Lecture 31, of Infants; Bacon's Abridgment, title Infancy.
We find no error in the order of the Court below, setting aside the sale made by the trustee.
Order affirmed.
BARTOL, C. J., dissented.  

103 of 142 DOCUMENTS 

MILTON W. WARFIELD vs. WILLIAM BOOTH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 63; 1870 Md. LEXIS 69 

June 29, 1870, Decided 

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

The defendant's third plea alleged that the plaintiff had not paid the note given in pursuance of the contract, at maturity, and still refused to pay it, and by so doing had refused to perform the stipulations by him to be performed.

To this plea the plaintiff demurred and the Court sustained the demurrer. The question raised by the first bill of exceptions was the variance between the contract alleged in the declaration and that offered in evidence; that raised by the second bill was the admissibility of parol testimony in explanation of the written contract; and that raised by the third bill was as to the admissibility of the testimony to show that the plaintiff had failed to pay the promissory note at maturity. All of these exceptions are explained in the opinion of the Court.

Fourth Exception: The plaintiff offered the following prayer:

If the jury find from the evidence in the cause that the defendant made and entered into the agreement offered in evidence, and received from the plaintiff the sum of three hundred dollars and the promissory notes in said agreement mentioned, and that the defendant afterward and [**2]  before the bringing of this suit, returned to Lisbon and the neighborhood thereof, and resumed his practice as surgeon and physician at said place and in the neighborhood thereof, then the plaintiff is entitled to recover in this action under the fourth count of the declaration.

The defendant asked the following instructions:

1st. That there is no evidence in the cause entitling the plaintiff to recover under the first three counts of the declaration.

2d. That there is no evidence in the cause entitling the plaintiff to recover under the fourth count of the declaration.

3d. If the jury should find that the paper writing dated the sixth of March, 1867, which has been offered in evidence, was executed by the defendant, yet under the fourth count in the declaration the plaintiff cannot recover, because the contract set forth in said fourth count is not the same contract offered in evidence, but materially varies therefrom.

4th. If the jury find a verdict for the plaintiff, they can only find a verdict for such amount as will be an equivalent for the pecuniary loss sustained by him in his business of physician and surgeon by the abstraction of business from him [**3]  by the defendant.

5th. That the plaintiff can only recover in this action such sum as from the evidence the jury shall find to be the value of the practice obtained by the defendant, which would or might have been enjoyed by the plaintiff, if the defendant had not resumed the practice of his profession at and in the neighborhood of the village of Lisbon.

6th. If the jury find for the plaintiff upon the fourth count, they can only find for him such sum as from all the evidence they shall find to have been the value of the practice which he took between the time when the defendant resumed his practice and the time of instituting this suit, by reason of the defendant's so resuming his practice.

The Court granted the prayer of the plaintiff as also the first and sixth prayers of the defendant, but refused the other prayers of the defendant. The defendant excepted to the ruling of the Court in granting the plaintiff's prayers and rejecting his second, third, fourth and fifth prayers; and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Variance -- Contracts void from Public Policy -- Parol Testimony to explain a Written contract -- Rescission of Contracts -- Recoupment -- Measure of Damages.

W, a physician, practising in the town of L, sold to B, by written agreement, "his good will of practice for the sum of $ 1,000; $ 300 in hand paid and his notes for one and two years for the remainder; said W to quit the practice in favor of B." The $ 300 was paid down and W discontinued practice. On the maturity of the first note, B did not pay it, and W resumed practice. B thereupon sued W for breach of contract. The declaration alleged a contract limited in its terms to the town and neighborhood of L. HELD:

1st. That by the terms of the contract it was confined to the limits over which W's practice had extended, and there was no variance between it and the one alleged in the declaration.

2d. That the contract was limited to L and vicinity, and was not obnoxious to objection on the ground of public policy.

3d. That it was competent to prove by extrinsic parol testimony that the contracting parties were physicians; and that the practice of W was confined to L and neighborhood, in order to render intelligible the terms "good will of practice," and to show the subject-matter to which the contract referred.

4th. That evidence of the failure of B to pay the note was admissible in mitigation of damages by way of recoupment; but not as proof of an abandonment or rescission of the contract.

5th. That the measure of damage suffered by B, was such sum as the jury might find to have been the value of the practice which he lost by W resuming practice, from the time of such resumption to the time of instituting suit, diminished by the balance of the price due W, under the contract and secured by the notes.  

COUNSEL:
James Macubin and Wm. M. Merrick, for the appellant.

The written agreement offered [**4]  in evidence, has, in, of and by itself, all the essentials of a contract; is of that solemn nature which evinces the design to make it the repository and evidence of the final intentions of the parties thereto, and is perfectly plain and intelligible, according to the ordinary and popular signification of the terms thereof; and, therefore, cannot be varied by oral testimony. 1 Greenleaf on Evidence, secs. 275, 277, 278, 280, n. (4) 281, n. (3;) Murray vs. Spencer, 24 Md., 522; Abbott vs. Gatch, 13 Md., 331.

If taken alone, (unaided by oral testimony,) it is materially variant from the contract alleged in the narr. and is, therefore, inadmissible. 1 Greenleaf on Ev., secs. 63, 66, 68, 69; 2 Greenleaf on Ev., sec. 11; 1 Chitty's Pl., 311.

It is void as against public policy, because general in its terms, and is of that class of contracts that Courts will not so far favor as to seek, by interpretation to make them valid; especially where the terms are hard and insufficient, as in this case, if the appellee's construction of it be correct. Mitchell vs. Reynolds, 1 P. Wms., 181; 1 Story's Eq. Jur., 292; 2 Waterman's Eden on Injunction, 365-1, and 366; Whitney vs. Slayton, 40 Maine,  [**5]  224; Shackle vs. Baker, 14 Ves, Jr., 468; 2 Parsons on Contracts, 747.

The refusal to pay the note which matured in March, 1868, and the accompanying defiance, was a rescission or abandonment of the contract, or an authority to the appellant so to regard it, in so far at least as to preclude any right of action on the contract by the appellee. 2 Parsons on Contracts, 517, 678, 679; Rodemer vs. Hazlehurst, 9 Gill, 293.

The acceptance of a note is not an absolute payment or extinguishment of a debt, without an express agreement so to receive it, even though a receipt is given for the debt. Md. & N. Y. Coal and Iron Co. vs. Wingert, 8 Gill, 177; Glenn vs. Smith, 2 G. & J., 512, 1 Parsons on Cont., 464, notes m. and n.; 2 Greenleaf on Ev., secs. 136 and 136 a.; Cline vs. Miller, 8 Md., 285; Beall vs. Pearre, 12 Md., 566.

The defendant was entitled to recoup the amount due on the notes. Waterman on Set-Off, Recoupment and Counter-Claim, secs. 416, 421, 422, 423, 424, 425, 426, 427, 431, 432, 433, 436, 488; Abbott vs. Gatch, 13 Md., 332; Stewart vs. Rogers, 19 Md., 117, 118; Balt. M. Ins. Co. vs. Dalrymple, 25 Md., 309; Dowler vs. Cushwa, 27 Md., 367.

If there was a right [**6]  to recover at all, the true measure of damages was the value of the good will as fixed by the agreement, less a fair proportion of that value, for the time the appellee enjoyed its benefits, and less also the amount due on the notes. Sedgwick on Damages, 103, 105, 106, 295, 296, 297, 298, 299, (5th ed.;) Whitney vs. Slayton, 40 Maine, 224; Middlekauff vs. Smith, 1 Md., 341; Abbott vs. Gatch, 13 Md., 332, 333; Cooke vs. England, 27 Md., 35; Rodemer vs. Hazlehurst, 9 Gill, 293, 294, 295 and 296.

Thomas Donaldson and Geo. W. Sands, for the appellee.

Upon the authority of all the cases both at law and in equity, the good will and practice of any profession, craft or trade, is a subject of bargain and sale. Hitchcock vs. Crocker, 6 Adol. & Ellis, 453; Butler vs. Burleson, 16 Vermont, 178; Davis vs. Mason, 5 T. R., 118; Burns vs. Guy, 4 East, 190; Mitchell vs. Reynolds, 1 Peere Williams, 182. There was no material variance between the agreement offered in evidence, as set out in the appellant's first exception, and the alleged contract, as declared upon by the plaintiff in the Court below, and, therefore, the written agreement was admissible in evidence.

The testimony set [**7]  out in the appellant's second bill of exceptions, was properly admitted, not as explaining, altering or varying the terms of the agreement, but simply as fixing the vicinage over and around which the practice of the appellant extended--as showing the subject-matter to which the contract referred. The contract entered into by the parties was limited to certain reasonable bounds--being the actual extent of the appellant's practice--and, therefore, the contract was not against public policy. Mitchell vs. Reynolds, 1 Peere Williams, 181, 182.

The evidence offered by the defendant to maintain the issues on his part joined, set out in his third bill of exceptions, was properly rejected, upon the ground that actions for damages are not subject to set-off or recoupment on account of money alleged to be due on contracts. Slayback vs. Jones, 9 Ind., 470; Cram vs. Dresser, 2 Sandf., 120; 39 Maine, 429; Pierce vs. Hoffman, 4 Wis., 277; Phillips vs. Keifer, 2 Metc., (Ky.,) 478; Waterman on Set-Off, Recoupment and Counter-Claim, 154, 155, 156, 158, 160, 161, 162, 163.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*68]  BARTOL, C. J., delivered [**8]  the opinion of the Court.
This action was instituted by the appellee, who recovered exclusively upon the fourth amended count of the declaration, the Court below having instructed the jury that there was no evidence entitling him to recover under the other counts.
The fourth avers that the defendant sold to the plaintiff "his good will of practice as surgeon and physician at and in the neighborhood of the town of Lisbon, in Howard County," and agreed "that he, the said defendant, would quit the said practice on the 1st day of May, 1867, in favor of said plaintiff."
The contract offered in evidence is in writing as follows:
"Article of agreement entered into this 6th day of March, 1867, by Dr. M. W. Warfield, on the one part, and Dr. William Booth, on the other, hereby said Warfield sells to said Booth his goodwill of practice for the sum of one thousand dollars, three hundred in hand paid, and his notes for one and two years for the remainder. Said Warfield to quit the practice on the 1st day of May, 1867, in favor of said Booth. The proceeds of the co-partnership, until the first of May, to be equally divided.
"M. W. WARFIELD,
WM. BOOTH."
Objection was made to the admissibility [**9]  of the written contract in evidence, on the ground of variance. It has been argued that it is materially variant from the contract set out in the declaration; because the latter purports to be limited in its terms to the town and neighborhood of Lisbon, while the written article is general and unrestricted, being a sale of the plaintiff's goodwill of practice without any restriction, and an agreement to quit the practice generally; which, it is contended, 

 [*69]  besides being variant from the contract declared on, is void as against public policy.
The first point to be considered is the question of variance, and this depends upon the construction of the contract.
Warfield sells his goodwill of practice, and agrees to quit the practice in favor of Booth; that is to relinquish to Booth the practice which he had, and not to compete with him within the limits or range of country over which his practice had extended. It does not import an agreement on the part of Warfield to quit the practice altogether and in every place. "His goodwill of practice" which he sells could extend no farther than his practice as a physician and surgeon had extended, and that is what he agrees [**10]  to quit or relinquish in favor of Booth. So construed the written contract was admissible in evidence under the declaration. It was competent to prove by extrinsic parol evidence that the contracting parties were physicians and surgeons, so as to make intelligible the terms "goodwill of practice" found in the contract, and to show what trade or profession was meant. It was also competent to prove that the practice of Dr. Warfield as a physician and surgeon had been confined to the village of Lisbon and its neighborhood, so as to show the subject matter to which the contract referred.
For such purpose parol evidence is always admissible. Its office is not to alter or contradict the writing, but to apply it to the subject matter, in order that it may be executed according to the true intent of the parties. It is a familiar rule that "where the agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms." 1 Greenleaf on Ev., sec. 282. The rule is thus correctly stated by ISHAM, J., in Noyes vs. Canfield, 27 Vt. 79, [**11]  (85.) "Whenever an ambiguity arises from extrinsic matters, or when from the language used the object or extent of the contract cannot be determined, parol testimony is admissible to remove the ambiguity, or to ascertain 

 [*70]  the object upon which the contract was designed to operate. It is a mere rule of interpretation to find out the meaning of the written words as the parties used them."
We refer also to McCreary vs. McCreary, 5, G. & J., 147; Creamer vs. Stephenson, 15 Md. 211; and to Stockham vs. Stockham, 32 Md. 196, in which the same rule has been recognized.
Such we understand to be the character of the parol evidence contained in the second bill of exceptions, and there was no error in admitting it. There can be no doubt or question that the contract so construed and limited in its extent and operation, is valid and binding upon the parties, and is not obnoxious to any objection on the ground of public policy.
In the case of Guerand vs. Dandelet, 32 Md. 561, this Court had occasion to consider the subject of contracts in restraint of trade, and it was held that such contracts when only in partial [**12]  restraint of any particular trade or employment, as where the restraint is limited to a particular locality, if founded upon a sufficient consideration are valid and will be enforced. This case falls clearly within the decision of Guerand vs. Dandelet, and the contract sued on is valid and binding.
The questions presented by the third bill of exceptions arise as follows:
It was proved by the plaintiff that in execution of the contract and in accordance therewith, he paid the defendant $ 300 cash, and gave his promissory notes at one and two years for the respective sums of $ 300 and $ 400.
The defendant then offered to prove that the note of $ 300 had matured, and payment thereof had been demanded and refused, before the alleged breach of the contract had been made by the defendant, by his resuming the practice of his profession at and in the neighborhood of Lisbon.
And further offered to prove that the said note is still held by him and remains unpaid. This testimony was objected to 

 [*71]  by the plaintiff as inadmissible, and the objection having been sustained by the Circuit Court, and the testimony rejected, the defendant excepted.
In disposing of the exception, it [**13]  is necessary to consider the several purposes or objects for which the evidence was offered, as stated by the defendant:
1st. The testimony was offered as tending to prove an abandonment or rescission of the contract on the part of the plaintiff, and was relied on as a bar to the action. Clearly, it was not admissible for that purpose. The contract was performed by the plaintiff, according to its terms, by paying $ 300 in money, and giving his notes for the balance of the consideration; surely, it cannot be pretended that the failure to pay the notes puts an end to the contract.
In Franklin vs. Miller, 4 Adol. & Ell. 599, LITTLEDALE, J., says: "It is a clearly recognized principle, that if there is only a partial failure of performance by one party to a contract, for which there may be a compensation in damages, the contract is not put an end to." But this is a plainer case than Franklin vs. Miller. The consideration of the contract, as stipulated by the parties, was the payment of $ 300 in cash, and the promissory notes of the plaintiff for the balance of the $ 1,000, the price agreed on. The defendant accepted the money and the security; it would be a novel [**14]  doctrine in the law to hold that the plaintiff's failure to pay his notes at maturity works a rescission of the whole contract, and divests the rights acquired by the plaintiff by the performance of the contract on his part according to its terms.
2d. Was the evidence that the notes were held by the defendant, and were overdue and unpaid, admissible in mitigation of damages, or by way of recoupment or reduction of the plaintiff's claim of damages on account of the breach of contract? Or, in other words, is the defendant entitled to set-off, or recoup out of the plaintiff's claim, to the extent of the balance of the purchase money or consideration due to him under the contract, and still remaining unpaid?

 [*72]  The doctrine of recoupment is comparatively modern in the law, and the cases in which it has been considered are not entirely harmonious. In the recent work of Mr. Waterman, on "Set-off, Recoupment and Counter-claim," in which the cases have been collected with much labor and care, the author says, in section 452, "but the instances and extent to which the right of recoupment may be exercised by the defendant is, to a considerable degree, yet unsettled."  [**15]  
Judge BRONSON, in Batterman vs. Pierce, 3 Hill 171, says: "The principle of allowing the parties to adjust the whole controversy in one action, has not been applied with entire uniformity," and adds, "that the doctrine, although founded in the plainest principles of justice, is not of very long standing; and while it was in a forming state, it may well have happened that the rule should sometimes be overlooked, both by Court and counsel. But the principle is now too firmly settled to be shaken by a few straggling cases, or the occasional dicta which seem to look in the opposite direction."
It was said by SHAW, C. J., in Dorr vs. Fisher, 1 Cush. 271, that "the general tendency of modern judicial decisions has been to avoid circuity and multiplicity of actions, by allowing matters, growing out of the same transaction, to be given in evidence by way of defence instead of requiring a cross action, when it can be done without a violation of principle or great inconvenience in practice."
In Ives vs. Van Epps, 22 Wend. 155, Judge COWEN said: "Recoupment is now uniformly applied where a man brings an action for breach of [**16]  a contract between him and the defendant, and the latter can show that some stipulation in the same contract was made by the plaintiff, which he has violated. There the defendant may, if he choose, instead of suing in his turn, recoup his damages arising from the breach committed by the plaintiff, whether they be liquidated or not. The law will cut off so much of the plaintiff's claim as the cross damages will come to." This doctrine has been recognized and applied in this State.

 [*73]  In Beall vs. Pearre, 12 Md. 550, it was held that in an action upon a promissory note given for merchandise, the vendee, defendant, might recoup or reduce the plaintiff's claim by proving damages growing out of a breach of warranty by the vendor as to the quality and condition of the property sold.
In Abbott vs. Gatch, 13 Md. 314, which was an action of assumpsit for work done and materials furnished by the plaintiff in the construction of a mill, there was a written contract between the parties, and the defendant claimed, by way of recoupment, damages by reason of an alleged breach of the contract, on the part of the plaintiff, in failing [**17]  to complete the mill at the time stipulated. The Court said, (p. 332): "In many cases a defendant may recoup for damages resulting from the plaintiff's failure to execute his contract. Formerly, a cross action was deemed to be the proper remedy; but now the law is settled, that the matter may be urged by way of defence."
The Balt. M. Ins. Co. vs. Dalrymple, 25 Md. 269, was an action of tort, brought against a bailee, for an illegal conversion of stock pledged; it was decided that the defendant was entitled to recoup the amount of the debt to secure which the stock had been pledged. The same question was decided in Dowler vs. Cushwa, 27 Md. 354.
These cases are sufficient to show that the doctrine of recoupment has become the settled law of this State. Is it applicable to the present case? Here the damages claimed by the plaintiff are for an alleged breach of contract on the part of the defendant in resuming his practice, after having sold his good-will of the same to the plaintiff, and agreed to relinquish it in his favor. The consideration of this contract was the sum of $ 1,000, of which $ 300 was paid, and the balance remains [**18]  unpaid, and is still due to the defendant. Why may not the defendant be allowed in this suit to set-off this balance in reduction of the plaintiff's claim? There would seem to be great injustice in denying to him such a defence.

 [*74]  In Dyer vs. Dorsey & Edelin, 1 G. & J. 440, a suit was brought on a covenant for the conveyance of an outstanding title to land. The County Court instructed the jury that the true measure of damages was the sum of money which it was necessary for the plaintiff to pay for the outstanding title, and that from this sum they should deduct whatever sum of money remained in the hands of the plaintiff on account of the purchase made by him from the defendant.
The ruling of the County Court was affirmed; and the case of the Baltimore Ins. Co. vs. McFadon, 4 H. & J. 31, was cited to show that such a set-off was within the true intent and spirit of the Act of 1785, chapter 46, section 7.
If the contract sued on here had stipulated simply for the payment of $ 1,000 as the consideration, $ 300 thereof in cash, and the balance in one and two years, without any provision requiring the plaintiff to give his promissory notes for the [**19]  deferred payments, the case would fall directly within the principle of Dyer vs. Dorsey & Edelin. We do not perceive that, taking the promissory notes of the plaintiff in any respect, changes the rights of the parties. It is settled, that the acceptance of a note is not a payment or extinguishment of a debt unless there is an express agreement so to receive it. Md. & N. Y. Coal and Iron Co. vs. Wingert, 8 Gill 170; Glenn vs. Smith, 2 G. & J. 493, 512.
The claim of the defendant for the balance due upon the contract, remained unextinguished by the acceptance of the promissory notes, and he was clearly entitled to set-off the same in the suit, in reduction of the plaintiff's claim. The evidence offered by him in the third bill of exceptions, ought to have been admitted for that purpose.
For the reasons before stated, we are of opinion the second and third prayers of the defendant were properly rejected, and the Circuit Court was correct in sustaining the demurrer to the third plea. We also affirm the ruling of the Circuit Court in the first and second bills of exceptions, but reverse on the third bill of exceptions.

 [*75]  The fourth,  [**20]  fifth and sixth prayers of the defendant relate to the measure of damages; the first two were refused, and the last was granted; this, we think, stated the rule correctly, that is to say, such sum as the jury might find to have been the value of the practice which the plaintiff lost between the time when the defendant resumed his practice and the time of instituting this suit, by reason of the defendant's so resuming his practice.
But the defendant is entitled to set-off against this sum, the balance of the price or consideration due him under the contract, and secured by the plaintiff's notes.
Judgment reversed and new trial awarded. 

104 of 142 DOCUMENTS 

JOHN CAIN, JOSEPH CAIN, DANIEL LARUE, and others, vs. ELISHA WARFORD, GEORGE M. GILL, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 23; 1870 Md. LEXIS 64 

June 28, 1870, Decided 

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

The bill of complaint in this case set forth that a certain Rachel Colvin being seized of a large real and personal estate, was for a long time prior to August, 1850, of an unsound mind, and continued so until she died; that on the representations of Elisha Warford, that it was necessary to take certain steps to establish the lunacy of the said Rachel, and to have a committee or trustee appointed to take charge of her person and manage her estate, and upon his offer that, for the hereinafter named consideration he would take the necessary steps to establish her lunacy and to obtain the appointment of a committee or trustee; and in case of her death intestate, that he would sue for and demand such shares as the complainants John and Joseph Cain, and Richard Cain, and Mary Larue, the two latter since deceased, might be entitled to as her heirs-at-law, and would reduce the same to possession, they, in connection with Daniel Larue, the husband of Mary, agreed to make and constitute him their attorney, and to give him one-half of their share as a remuneration for his labor, trouble and disbursements in carrying out the said [**2]  objects, and as a fund to pay all expenses and lawyers' fees; except that the remaining half of the shares of these complainants were to defray their proportionate share of the expenses, meaning thereby legal taxed costs necessarily incurred for the recovery of the said shares; that accordingly John and Richard Cain severally executed his power of attorney; that Richard executed his power of attorney dated the 31st of August, 1850, of which Exhibit A was a copy, and at the same time received from the said Warford an instrument in writing, of which Exhibit B was a copy; that John, on the same day, executed a similar power of attorney, and received from the said Warford a contract containing the same provisions as Exhibit B; that the complainants Joseph Cain and Daniel Larue, together with his wife Mary, jointly executed a similar power of attorney, dated 7th of December, 1850, and received from the said Warford a contract similar to Exhibit B.

Exhibit A was an assignment to Warford, for the consideration of $ 1,000, of all the interest to which Richard Cain might become entitled as heir-at-law and next of kin to Rachel Colvin, in the event of her death intestate; and an obligation [**3]  in such event, to make conveyances to said Warford of all of said interest; and also a power of attorney authorizing him to take all necessary measures to establish the lunacy of the said Rachel, and obtain the appointment of a committee or trustee to take charge of her person and property; and also to collect and give acquittances for whatever shares might be payable to the party executing said paper.

Exhibit B was an agreement of Warford to pay to Richard Cain "one-half of his share of said estate, deducting whatever expenses might be necessary for the recovery of said share, and if the said Warford should never receive any of said estate by virtue of the aforesaid power of attorney, then the said Cain should not receive or demand any moneys of the said Warford, but the said Warford agreed to clear him of any cost or expenses whatsoever concerning this matter."

The bill further charged that certain proceedings were instituted in the Orphans' Court of Baltimore city; and on the law side of the Superior Court a certain action of ejectment was brought, looking to the recognition of the rights of the complainants and others, in the real and personal estate of the deceased Rachel [**4]  Colvin, which resulted in a compromise between Richard Colvin, the devisee under the pretended will of the said Rachel Colvin on the one hand, and her heirs-at-law on the other.

The bill further charged that the consideration expressed of $ 1,000 was nominal, and that the true object of said papers, Exhibits A and B, was to constitute Elisha Warford their attorney to defend their rights, and to agree to allow him one-half of their respective interests, which was to cover all his disbursements, except the mere legal expenses--that they executed said papers without the advice of counsel, whereas Elisha Warford acted under the advice of counsel, and that he represented that these two Exhibits substantially contained the contract as set forth in the bill of complaint; that Warford claimed that these papers express a contract; that he was authorized to contract with and assign to G. L. Dulany, an attorney at law, in consideration of his retainer and professional services in representing and defending the interest of the heirs-at-law of Rachel Colvin, one-half of the whole right, title and interest of the heirs-at-law, and a moiety of the remaining half for his own compensation, so [**5]  that the parties executing the powers of attorney are entitled to only one-fourth of their proper shares respectively.

The bill repudiated this claim, and insisted that the heirs-at-law were entitled to one-half of their respective interests, without abatement for counsel fees.

The bill further charged that Joseph Cain, one of the parties to the bill, was of a weak mind, and incapable of attending to business, except when aided by the counsel and assistance of friends; and that subsequent to his execution of the powers of attorney, he made an assignment of all his interest in Rachel Colvin's estate to said Warford.

The bill further charged that after a long series of litigation, Warford compromised the same by the execution of a deed of compromise between himself, acting under the aforesaid powers of attorney, and Richard Colvin, the devisee under the will of Rachel Colvin, by which deed they conveyed to G. M. Gill, F. W. Brune and Edmund Perry, certain property of which Rachel Colvin died seized, upon certain trusts and uses therein mentioned.

The bill prayed that the trustees be required to account to the complainants for one full moiety of their respective interests,  [**6]  free and discharged from any claim of said Warford--and that the accounts between the respective parties be adjusted on that basis.

The defendant, Warford, answered, claiming that by the true construction of Exhibits A and B, he was entitled to a moiety of the shares, after Dulany's moiety was paid--and denying that Joseph Cain was of weak mind, but admitting that he only paid him for his interest $ 500.

By agreement of counsel, the validity of the contract made by Elisha Warford with Grafton L. Dulany, or of the compromise made between Elisha Warford and Richard Colvin, was not contested, but the complainants denied the right of said Warford to claim a moiety of their interest, after deducting the interest conveyed and assigned to the said Dulany or the said Colvin, or the trustees as in said bill set out; Warford consented and agreed that the claim of the complainants, if properly maintainable, might be asserted and enforced against the property conveyed to the trustees.

Commissions were issued and testimony taken thereunder.

On final hearing, the following opinion was delivered by Judge DOBBIN:

The object of the bill is to obtain from the Court instructions [**7]  to the trustees, Messrs. Gill, Brune and Perry, to guide them in the distribution of the rents, issues and profits of the trust estate committed to them, till the corpus of the estate shall be distributed, and then in the distribution of that corpus.

It is not necessary for the purpose of this opinion, that I shall enter into a detailed statement of the pedigree of the parties, and the manner in which they came to claim or to own their respective shares, and as the validity of the contract made by Elisha Warford with Grafton L. Dulany, and of the compromise made between Elisha Warford and Richard Colvin are not disputed, the instructions now to be given as to the disputed points, will depend, first, upon the validity of the assignment of his interest by Joseph Cain to Elisha Warford, and secondly, upon the construction to be given to the assignments and powers of attorney, (Exhibit A,) by which Elisha Warford was made the active agent in the litigation, which grew out of the Colvin estate, and the contracts, (Exhibit B,) by which Warford agreed to pay to the constituents of the powers the shares they were respectively to receive.

The validity of the assignment of Joseph Cain's [**8]  interest, for the purpose of the anticipated litigation, is assailed upon the ground, that the consideration named in it, $ 1,000, was not in fact paid, and upon the further ground, that at the time he executed it, and at the time at which he executed the final assignment of his interest to Warford, as his own property, he was of weak and imbecile mind, and incapable of taking care of his interests in making a bargain.

The proof in the cause shows, that the assignment and power of attorney from Cain to Warford, and the contract of the same date, by which Warford bound himself to pay to Cain a part of the proceeds, which should result from the proposed litigation, made together one transaction, growing out of the following circumstances: Joseph Cain and a number of other persons, among whom was Elisha Warford himself, were the heirs and representatives of Rachel Colvin, who owned a large estate, and was incurably lunatic. It was obvious to them all, that upon her death, a great litigation would arise as to the distribution of her estate, and as the claimants in association with Warford, were numerous, scattered widely through the country, and all resident away from the scene of [**9]  the expected litigation, the controversy could only be efficiently carried on by the agency of some one, who would, for an adequate remuneration, devote himself to the management of the case. This task, by bargain among them, was undertaken by Warford, and in order to put him in a condition to prosecute the affair advantageously, it was deemed expedient to give to him an assignment of their respective interests in the estate, accompanied with a power of attorney in the same instrument, to do whatever might be necessary for the end proposed, (Exhibit A,) and as the apparent effect of this assignment and power, would be to put the fund when collected, in the hands and power of Elisha Warford, they took from him a contract to pay to them the share of the proceeds, which it was agreed they were to have, the rest to be retained by Warford for his compensation, (Exhibit B.) The consideration for the assignment and power was stated to be one thousand dollars, but as Warford was to retain only so much as was considered the equivalent for his labor and out-lay of money, the real consideration was that labor and out-lay of money.

In reference to the arrangement witnessed by these papers,  [**10]  no fraud is alleged in the bill, and certainly they are no more impaired by the fact, that the consideration was nominal, and was not pretended to have been actually paid, than a deed would be, which made a part of an honest and bona fide transaction, because it stated a nominal consideration of one dollar, which had not been in fact paid, and left the real consideration to be witnessed by the other papers in the transaction. If a deed be impeached for fraud, no consideration other than that named in the deed will be allowed to be proved, but if not so impeached, any additional consideration not inconsisent with that stated, may be alleged and proved in support of the deed. Here the additional consideration of labor, which is money's worth, and money itself to be expended, constitute a consideration perfectly consistent with that named in the assignment and power. I think, therefore, that upon the facts of this case, there is no weight to be given to the objection, that the thousand dollars was not in fact paid.

Upon the question of Joseph Cain's mental capacity to make a contract, I am of opinion that though the evidence is contradictory, the weight of it is in favor of his ability [**11]  to contract. He seems to have been an illiterate and uncultivated man, and not of strong mind. But he had sense enough to marry and rear a family of children, and to make the ordinary bargains incident to his condition, and never has been placed under restraint as one unable to take care of himself. When all the functions of business and personal conduct are satisfactorily performed, according to one's station in life, Courts do not lightly pronounce a man mentally disqualified with reference to a particular transaction. Now with respect to the general arrangement evidenced by the assignment and power of attorney, and the contract, he entered into it, in common with a number of others, about whose ability to take care of themselves there does not seem to be the slightest doubt. And as to the final purchase of Joseph Cain's interest for $ 500, I am of opinion that if he had mental capacity enough to deal with reference to it at all, and I think he had, the inadequacy of consideration furnishes no ground for avoiding the contract. Of the value of the possible interest he was selling, the law makes him the judge, and in estimating it now, long after events have ripened it into a reality,  [**12]  we must, as far as we can, look at it from the point of view from which Cain probably contemplated it, when it might well have been considered almost a forlorn hope.

The other question in the case is as to the construction to be put upon the contract from Elisha Warford to the complainants, filed with the bill as Exhibit B. That paper seems to me to admit of no other construction than that the phrase, "share of said estate," means, what came to Elisha Warford, upon the settlement or compromise with Richard Colvin, for that compromise stood in the place of an adjudication, by which one-half of the whole estate was decreed to Elisha Warford. Being then in his hands, as so much recovered, he was to apply it, in the first instance, to the payment of the "expenses necessary for the recovery of said share," which expenses, included the portion Mr. Dulany was to have for his services, and what remained was to be divided into two equal parts, one of which was to be retained by Elisha Warford, and the other was to be divided among his constituents according to their respective interests.

My instructions therefore, to the trustees, are to divide the rents, issues and profits of the [**13]  trust estate into two parts, one of which they will pay over to the representatives of the late Mr. Dulany; the other part they will again divide into two portions, one of which they pay over to Elisha Warford, as the compensation, by the terms of the Contract B, for his labor and attention bestowed upon the litigation, whereby the trust fund was obtained, the residue they will divide into eight equal parts, one of which parts they will pay to the complainant, John Cain, and one other eighth to the complainants, Mary Larue's heirs, and one other eighth to the complainants, Richard Cain's heirs, one other eighth to the complainant, Anna Hudnot or her assigns, one other eighth to the defendant, Elisha Warford, in his own right, and the remaining three-eighths to Elisha Warford, the defendant, as assignee of the shares, respectively, of Joseph Cain, Walter McCann, and John Cain of Charles.

And when the time shall arrive, at which by the terms of the deed of trust the corpus of the estate shall be divided and paid over, they shall divide and pay over the said corpus in the proportions above mentioned.

And forasmuch as the purposes for which the said Elisha Warford received the [**14]  assignment and powers of attorney, (Exhibit A,) have been gratified by the realization of the estate, the payments of the rents, issues and profits, and of the corpus of the estate, will be made directly to the complainants, (except Joseph Cain,) or their authorized agent or solicitor, and not through the hands of their former attorney in fact, Elisha Warford.

The Court thereupon passed a decree affirming the validity of the assignment and power of attorney marked Exhibit A, and the contract marked Exhibit B, and instructing the trustees to divide the trust estate in accordance with the foregoing opinion.

From this decree the present appeal was taken.  

DISPOSITION:
Decree affirmed and cause remanded for further proceedings.  

HEADNOTES:

Mental weakness as affecting a Contract -- Construction of a Contract.

Feebleness of mind, in the absence of fraud or deception practised on the party in consequence of such infirmity, does not invalidate a contract.

Certain heirs-at-law and next of kin of Rachel Colvin appointed W, a special attorney to take the necessary steps to have her declared a lunatic; and he was empowered at the same time, in the event of her death intestate, to collect such shares of her estate as the parties might be entitled to, paying over to them, after deducting necessary expenses, one half, and retaining the other half for himself. Under proceedings instituted by another, Rachel Colvin was declared a lunatic. After her death, upon issues from the Orphans' Court of Baltimore City, a will of the testatrix dated in 1848 was established. Subsequently W, in prosecution of the arrangement made with him by the heirs and next of kin, employed D, an attorney at law, to institute and conduct an ejectment suit, contracting to pay him a fee of one half of what might be recovered of the shares, which he, W, represented or might thereafter represent. This suit resulted successfully. HELD:

That W, in his settlement with the heirs and next of kin by whom he was employed, was entitled to deduct the amount which he contracted to pay D, as a part of the expenses necessary for the recovery of their shares.  

COUNSEL:
Wm. Meade Addison and Robert J. Brent, for the appellants.

The exact question at issue can be seen by the following statement: Mrs. Dulany, the widow of G. L. Dulany, is entitled to one moiety, and the other moiety is to be divided into sixteen shares. It is conceded by both parties that Warford owns eight shares, and the complainants three shares, and hence five shares are in dispute. These five litigated shares arise thus: Two shares claimed both by Joseph [**15]  Cain and Warford--Three shares, being one-half of the interest of the complainants or their ancestors, claimed both by them and by Warford.

The gist and substance of this suit is to instruct the trustees as to the disposal of the trust fund. Nothing is claimed against Warford, except so far as the instructions asked to be given to the trustees may affect him. The complainants stand in the attitude of parties alleging rights as to a trust fund, concerning which it is necessary for the Court to give directions to the trustees; and in this case the trustees ask to be protected.

The deed of trust refers to Elisha Warford as the assignee and attorney of the complainants; and the complainants come into Court to notify the trustees that the power of attorney of Warford does not give him the control over this fund as he claims, and they ask to be protected by the Court.

Two questions are involved:

First. Was the contract with Joseph Cain a valid contract? The complainants submit that the evidence establishes Joseph's imbecility of intellect, and that Warford took advantage of his weakness in the purchase of his interest. On 24th January, 1852, he bought Joseph Cain's interest [**16]  for $ 500. And on the 11th of June, 1864, he bought John Cain's share for $ 1,250. The feeble state of Joseph's mind invalidates the contract. Long vs. Long, 9 Md., 348; 1 Story's Eq., 234, 5, 6, 7, 8.

The fiduciary relations existing between them avoids the contract between Warford and Joseph Cain. Michaud vs. Girod, 4 Howard, 503; Cumberland Coal and Iron Co., 20 Md., 117; Hoffman Steam Coal Co. vs. Cumberland Coal and Iron Co., 16 Md., 456; Brooks vs. Martin, 2 Wallace, 70, 78, 84, 85; 1 Story's Equ. Juris., 322, 323; Fox vs. McCrath, 1 White & Tudor's Leading Cases, 155.

The law, with wise forecast, seeing that where the relation of attorney and client, or agent and principal exists, the former has it in his power to take the latter at disadvantage in purchases and sales, provides that he shall derive no benefit to himself from such transaction, and superseding the necessity of proving what it would often be difficult to establish, requires the agent or attorney to establish the fairness and adequacy of the consideration. It also requires him to show that full information was given to the principal of every circumstance that would enable him to act intelligently and to [**17]  his best interest. 1 Story's Equ., 218, 219, 220, 310, 311, 322-3; Brooks vs. Martin, 2 Wallace, 84; Hunter vs. Atkins, 8 Cond. Ch'y Rep., 497; Michaud vs. Girod, 4 Howard, 553-7; Brock vs. Barns, 40 Barbour, 521-8.

Elisha Warford having failed to offer any evidence whatever on these points, stands in the predicament of one guilty of a constructive fraud, and can take no advantage by his purchase.

Second. What is the true construction of the contract of Warford with the heirs?

The true construction of the contract is that Warford was to have but a moiety of what should be recovered, out of which he was to pay counsel fees. If the agreement was doubtful, it should be construed most strongly against Warford, for it is his obligation. Buchanan's Lessee vs. Stewart, 3 H. & J., 329; Howard vs. Rogers, 4 H. & J., 278; Carroll's Lessee vs. Granite Manufacturing Co., 11 Md., 411; Ex Parte Plitt, 2 Wallace, Jr., 480.

Wm. Henry Norris, for the appellees.  

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

OPINIONBY:
BRENT 

OPINION:

 [*34]  BRENT, J., delivered the opinion of the Court.
There are three questions presented upon this appeal--the [**18]  capacity of Joseph Cain to enter into a contract, the validity of the assignment made by him of his interest in the estate of Rachel Colvin, and the construction of the paper designated in the record as Exhibit B.
Upon these several questions, we think the law and facts are properly stated in the opinion of the Judge below.
The weight of evidence is very clearly in favor of the mental capacity of Joseph Cain to contract. That he was weak and feeble in mind, there is no doubt, but he is represented as attending to the ordinary affairs of life, making his own contracts in the community where he lives, and providing, in an humble manner it is true, for the support of a wife and children. In the absence of any proof of fraud or deception practised upon him in consequence of his weak mind, we cannot conclude that a contract with him is void because of a want of mental capacity to make it. In the assignment of his interest to Warford in 1852, the only circumstance which was relied upon to prove that undue advantage had been taken of his weakness, was the inadequacy of the consideration paid him. If grossly inadequate, it might lead to such a conclusion. But taking into consideration all [**19]  the surrounding circumstances at the time the sale was made, we do not think the argument of the appellants' counsel upon this point is tenable. Rachel Colvin was then living, and although she had been declared a lunatic, the fact was disclosed in proceedings, growing out of her lunacy, for the appointment of a trustee and committee to take charge of her property and person; that she had made two wills, disposing of her property, in each one of them, to the exclusion of Joseph Cain. Not only was there a contingency that one of these wills might be established, but the contingency also existed that Joseph Cain might die before her, in which event his children, being grand-nephews, would receive nothing, even if she died intestate, or she might recover her sanity and make 

 [*35]  a valid will still excluding him and his children. Under all the uncertainties of his interest (if he was to have any) in the estate of Rachel Colvin, we cannot conclude that the price paid for it by Warford was so small as to render the sale fraudulent and void.
When Warford made the purchase, he did not occupy such a fiduciary or confidential relation to Joseph Cain as to bring the transaction within the [**20]  stringent rules of law regarding purchases by an agent from his principal, or attorney from his client, or trustee from his cestui que trust. By Exhibits A and B, which are to be construed together as forming one transaction between the parties, Warford was appointed special attorney to take such steps as might be necessary to declare Rachel Colvin a lunatic, and after her death he was empowered to collect such shares of her estate as the parties might be entitled to, paying over to them, after deducting expenses, one-half, and retaining the other half for himself. At the time of the purchase from Joseph Cain, the proceedings in lunacy were complete, and as Rachel Colvin was still living, no duties or powers had devolved upon Warford under the second part of the agreement or power of attorney. He cannot, therefore, be considered as occupying, at the time of the sale alluded to, any such fiduciary or confidential relations in the matter of the interest purchased by him, as to cast upon him the burden of proving that the transaction was free from suspicion, until at least a prima facie case of improper conduct on his part is made out by the complainants.
The next question is,  [**21]  whether, upon the construction of the paper referred to as Exhibit B, Warford is entitled to deduct from the gross shares of the heirs, the amount agreed by him to be paid to Mr. Dulany, for his services as an attorney in the ejectment suit, in which there was a recovery of the real estate left by Rachel Colvin. By the terms of this paper, "whatever expenses may be necessary for the recovery of said share," were to be deducted. What is to be considered as constituting expenses, will depend upon the particular circumstances 

 [*36]  of the case. In Brady vs. Dilley & Greenwade, 27 Md. 570, the proper and reasonable fees of an attorney were held to be embraced in the term "expenses," it appearing that his services were indispensable to the trustee in the proper discharge of his trust. In this case, the counsel for the complainants, by their agreement in the record, do not contest the validity of the contract made by Elisha Warford with Mr. Dulany to pay him for his services, as an attorney, one-half of the amount recovered, but it is insisted that it is not to be deducted as a part of the expenses. Before the institution of the ejectment suit, the will [**22]  of Rachel Colvin, upon issues from the Orphans' Court, had been declared valid after a lengthy and no doubt expensive trial. These costs, and the necessary employment of counsel, as nothing in that suit was recovered by the heirs, had to be borne by Elisha Warford according to the terms of his agreement. Yet, notwithstanding the will had been declared valid as to personalty, and was prima facie valid as to realty, he instituted the ejectment suit in behalf of the heirs who had appointed him their special attorney, and employed Mr. Dulany to conduct it for a contingent fee. This suit resulted successfully, and Warford now claims that the amount agreed to be paid to Mr. Dulany should be considered, in his settlement with the heirs, as a part of the "expenses necessary for the recovery of their shares." We think the circumstances of this case fully justify the conclusion, that it should be so considered. That the fee of Mr. Dulany was reasonable, has not been denied or controverted in the argument. To deduct it from the amount coming to Elisha Warford, under the agreement he entered into with the heirs, would be inequitable, as he would then not only receive nothing for the labor [**23]  and services which he had given to this long and expensive litigation, but would be left burdened with the costs and expenses he had incurred in the first trial.
We do not understand that the compromise with Richard Colvin is contested. The amount, therefore, in the hands 

 [*37]  of Elisha Warford for distribution is what he received under that compromise. The distribution of it is properly directed by the decree of the Court below, which we shall affirm.
Decree affirmed and cause remanded for further proceedings. 

105 of 142 DOCUMENTS 

CHARLTON W. BILLINGSLEA, Executor of RICHARD GREEN, and others, vs. THOMAS WARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 48; 1870 Md. LEXIS 67 

June 28, 1870, Decided 

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

The facts will be found in the opinion of the Court.  

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

Equity Pleading -- Raising the Question of the Competency of a Witness in the Appellate Court -- Specific Performance -- Part Performance.

Where a complainant sets up an agreement, which would be invalid by the Statute of Frauds unless in writing, and the defendant by his answer denies the agreement, it is not necessary for him to plead the Statute or insist on it as a bar; but the complainant must establish the agreement by written evidence, or by proof of part performance take the case out of the Statute.

The testimony of a witness was taken before a person not a commissioner under an agreement of counsel which declared that the evidence was taken "subject to all exception on account of the incompetency of the witness." HELD:

That this was sufficient under the Code, Art. 5, sec. 26, to raise the question of competency in the Appellate Court.

W, in July, 1860, entered on a tract of land as tenant of G. In September, G, by parol contract, sold the land to W, to be paid for in lime and limestone taken from it. By the terms of the contract, W had the option to retain or surrender the land. He had, prior to the time of the purchase, furnished limestone and lime to G, from the tract, under a previous agreement, and continued to do so after the purchase. G died in March, 1861, and W filed a bill for specific performance against his executor. HELD:

1st. That the contract not being mutual cannot be enforced in equity.

2d. That the acts of part performance not appearing to be done in pursuance of the contract of purchase were not such as to take the contract out of the Statute of Frauds.  

COUNSEL:
R. J. Brent and Jos. L. Brent, for the appellants.

The alleged contract was not final and mutual. Both parties must be bound. Geiger vs. Green, 4 Gill, 474; Mundorff vs. Kilbourn, 4 Md., 463, 4; Stoddert vs. Bowie, 5 Md., 18-34, 5, 6; Smith vs. Crandall, 20 Md., 482-500.

It being apparent from the contract, as declared on, that Ward was not bound, it follows that he is not entitled to specific performance, unless he shows actual performance.

It is necessary for Ward to prove performance, because if his contract were in writing, its performance is the only consideration to sustain it; and if it be verbal, it requires performance to make it certain, and to entitle him to escape the Statute of Frauds. It will be noted that the bill does not set out that the agreement was parol, and hence the defendants had no notice that he intended to rely on a parol agreement, but inferred that it was written, as appears by their answer; but they nevertheless denied the existence of the agreement, and required strict proof of [**2]  it, which is equivalent to a plea of the Statute of Frauds. Small vs. Owings, 1 Md. Ch. Dec., 363.

Conceding, for the sake of the argument, that Ward did deliver lime and limestone to Green or on his order; yet, prima facie, that only implies a money indebtedness of Green to Ward; and some proof must be adduced to show that the lime deliveries were in part performance of the very contract set out. If those deliveries be referable to any other contract or agreement than the one set out in the bill, then they cannot be claimed as part performance of the contract. Fry on Specific Performance, sec. 387 and note, 100 Law Library.

The alleged deliveries cannot be regarded as acts done in part performance of the contract of sale. Ches. and Ohio Canal Co. vs. Young, 3 Md., 490; Mundorff and Wife vs. Kilbourn, 4 Md., 462; Whitridge vs. Parkhurst, 20 Md., 84; 2 Story's Eq., sec. 762.

Ward's possession is referable to his tenancy, and not to the agreement to purchase. 2 Story's Eq. Jur., sec. 763; Fry on Specific Performance, sec. 286 and note, 100 Law Library.

R. R. Boarman and A. W. Machen, for the appellee.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT,  [**3]  MAULSBY, MILLER and ROBINSON, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*50]  BARTOL, C. J., delivered the opinion of the Court.
The object of this suit, which was instituted by the appellee, is to obtain a specific performance of a contract alleged to have been made by him with Richard Green, in his life time, for the purchase of a parcel of land situated near Texas, in Baltimore county, containing a valuable lime quarry.
The bill of complaint also prays for a writ of injunction to restrain the appellants, the executor and devisees of Richard Green, from prosecuting an action of ejectment, which they had instituted against the appellee for the parcel of land in question.
The alleged contract of sale is not evidenced by any writing as required by the Statute of Frauds, and the appellee seeks to take it out of the operation of the Statute, by proving acts done by him under and in part performance of the contract.
The bill alleges that "the contract was made about or during the month of September, 1860; that the price stipulated as agreed to be paid by the appellee was about $ 8,616, the agreement being that he was to pay Green the same price which Green had paid or agreed to pay for it,  [**4]  and it was further agreed as part of the contract, that the appellee should have the privilege of paying for it in lime and limestone, to be furnished by him at a fair market price, in such quantities and at such times as Green should require them."
It is alleged in the bill that the appellee "under and in part performance of the contract took possession of the land with the consent of Green, and has continued in possession thereof, that he has expended considerable sums of money in working and improving the same. That in further performance of the contract he furnished large quantities of lime and limestone to Green, and to others at the request and upon the credit of Green, and that Green always as long as he lived affirmed said contract of sale, though no deed was ever executed 

 [*51]  by him to the appellee for the land." Richard Green died in May, 1861, eight months after the alleged contract.
The appellants, in their answer, deny all knowledge of the alleged contract of sale and aver that no such contract was made. They also deny that the appellee entered into possession of the property under or in execution of any contract of sale; and aver that his possession was under [**5]  and by virtue of a different contract or arrangement made with Green, and not as purchaser; and they further allege that the lime and limestone delivered by the appellee to Green, in his life time, was not delivered under or in execution of any contract of purchase or in part payment for the land; but for other accounts and under other contracts and arrangements particularly set out in the answer, but unnecessary to be repeated here. It is sufficient to say that the averments of the bill are distinctly denied by the answer, both as to the alleged contract of sale, and the acts of part performance relied on in the bill of complaint.
"Where a complainant sets up an agreement in his bill, which would be invalid by the Statute of Frauds unless in writing, and the defendant by his answer denies the agreement, it is not necessary for him to plead the Statute or insist on it as a bar; but the complainant at the hearing must establish the agreement by written evidence" or by proof of part performance take the case out of the Statute.
This was decided in the case of the Ontario Bank vs. Root, 3 Paige 478. The same rule seems to have been recognized by the late CHANCELLOR [**6]  in Small vs. Owings, 1 Md. Ch. 363. In our judgment it is a correct rule of chancery pleading, and therefore we hold that the appellants in this case may rely upon the defence of the Statute although they have not made that specific defence in their answer.
The rules which govern Courts of Equity in dealing with cases of this kind are well established and have been repeatedly declared by this Court. In Chesapeake and Ohio Canal Co. vs. Young, 3 Md. 480, the rule was stated as follows: "where 

 [*52]  the party claims to take the case out of the Statute of Frauds, on the ground of part performance of the contract, he must make out by clear and satisfactory proof the existence of the contract as laid in the bill; the act of part performance must be of the identical contract set up. It is not enough that the act is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill."
In 4 Md. 459, 462, the Court said, "we need not multiply authorities to show that in cases for specific performance, the complainant must establish the very contract set up in the bill;  [**7]  and that all acts of part performance, relied upon to take the case without the operation of the Statute of Frauds, must be clear and definite, and refer exclusively to the alleged agreement."
We refer also to Wingate vs. Dail, 2 H. & J. 76; Owings vs. Baldwin, 8 Gill 337; Shepherd vs. Bevin, 9 Gill 32; Stoddert vs. Bowie, 5 Md. 18; Smith vs. Crandall, 20 Md. 482. Many more cases might be cited to the same effect.
These are the rules by which we must be guided in disposing of the present case. Our simple duty is to examine the evidence and to determine whether the existence of the contract stated in the bill has been established with sufficient certainty; and whether the acts of part performance alleged, and relied on, have been proved clearly and satisfactorily as the rule requires.
Before referring to the testimony in the case, it is proper to dispose of the preliminary question raised by the exception to the evidence of Thomas Ward, the party complainant.
It has been contended by the appellee that no objection to this testimony can be made in this Court, because no exception thereto,  [**8]  or to the competency of the witness, was filed in the Court below, as required by the Code Article 5, section 26.
We think this case does not fall within that provision of the Code; or rather we are of opinion the testimony was excepted to below.

 [*53]  The witness was not examined in the regular way before an authorized commissioner; but his deposition was taken by agreement before C. S. Mullin, Esq., and in the agreement the question of the competency of the witness was expressly reserved, and the testimony was taken, subject to all exception on account of the incompetency of the witness, as well as to the tenor and effect of his evidence. The evidence could only be received under and by virtue of the agreement, and the complainant cannot ignore or repudiate any part of it, or deny to the defendants the benefit of the exception expressly reserved. In our opinion Thomas Ward was not a competent witness, under the 2d section of the Act of 1864, ch. 109, and therefore his evidence must be excluded from our consideration.
The other witnesses who testify in support of the alleged contract of sale are Michael Ward, Owen Ward, Edward Rider, Purnell Griscom, and John Price. Their [**9]  testimony is to the effect that Richard Green stated in their hearing, that he had sold the limestone quarry and kilns to Thomas Ward. The witness Michael Ward states that Green told him "Thomas had purchased the property, that he was to pay eight thousand six hundred and odd dollars, that Thomas was to have it at what it cost him, and that he was to pay for it in lime and limestone."
If the decision of the case rested upon the testimony of these witnesses alone, we should have little hesitation in agreeing with the judge of the Circuit Court, that the contract of sale had been sufficiently proved so far as parol evidence could be sufficient for that purpose. But the force of this testimony is somewhat weakened by the evidence of Thomas D. Cockey, Peter F. Cockey, William Young, Elias G. Richardson, and Charlton W. Billingslea; from which it would appear that the appellee, after the death of Green, represented the contract as one not final or conclusive; but leaving him the option to retain the property or to surrender it. A contract will not be enforced in Equity unless it is proved to be mutual and binding upon both parties.

 [*54]  But if it were conceded that the evidence [**10]  of the contract of sale is positive and definite, it seems to us that there has been a failure of satisfactory evidence to prove the acts of part performance of the contract, without which the appellee cannot be entitled to the interposition of a Court of Equity to enforce its execution.
It is clear from the evidence that the appellee did not enter into possession under or in virtue of the contract as purchaser.
The alleged contract was made in September, 1860, the proof is that the appellee was in possession of the property as early as July, 1860. This is proved by the testimony of Powell Griscom, who occupied a neighboring quarry, and also by the evidence of Jacob Green, and by complainants' Exhibit "Richard Green," which shows that he delivered lime from the quarry in July and August, 1860. Now it is evident that the possession of the appellee was not under or in execution of the supposed contract of purchase; but began before such contract is alleged to have been made, under an entirely distinct contract as tenant, and continued without any change or alteration in the mode of holding, so far as is disclosed by the evidence, down to the time of Richard Green's death.
There is [**11]  no evidence whatever of any improvements or meliorations made by the appellee under the contract of purchase.
On this subject the only testimony tending to show such improvements was that of Thomas Ward, the complainant, which we have said is inadmissable. The evidence of P. Griscom is that no such improvements were made by Thomas Ward. This is the inference from his testimony, he was interrogated with regard to improvements, and speaks of none except such as were made before Ward took possession.
So with regard to the delivery of lime and limestone, as alleged under the contract and in part payment of the price.
The proof is that before the supposed contract Ward delivered lime and limestone to Richard Green, and to other persons, on his order and account, which he continued to do 

 [*55]  in the same manner up to the time of Richard Green's death; but there is no evidence of any change in their mode of dealing, nor is there any proof whatever to show that such delivery of lime and limestone after the month of September, 1860, was in execution of any contract of purchase or had any reference to such contract.
In reference to this part of the case, the rule of law requires distinct [**12]  and unequivocal evidence of the acts of part performance, and that they were done in execution of the contract of purchase.
On this point, so far from furnishing such evidence, the case of the appellee is wholly unsupported by any distinct or satisfactory proof.
For these reasons a decree will be passed reversing the decree of the Circuit Court of the 13th day of June, 1868, from which this appeal was taken, dissolving the injunction and dismissing the bill of complaint.
It appears from the record that the Executors of Green have sued Ward in Equity for a settlement of his accounts with the estate of Green, which suit is still pending in the Circuit Court for Baltimore County. In that case the rights of the parties growing out of the matters of account may be adjusted and determined. The decree in this case being reversed the subsequent proceedings thereunder fall with it; and no opinion need be expressed upon the accounts of the auditor contained in this record.
Decree reversed and bill dismissed. 

106 of 142 DOCUMENTS 

STATE OF MARYLAND vs. THE NATIONAL BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 75; 1870 Md. LEXIS 70 

June 27, 1870, Decided 

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

This suit was instituted by the appellant in accordance with the requirements of Resolution No. 4, of the General Assembly of Maryland of 1868, to recover certain sums of money claimed to be due and payable by the appellee, under the Acts of Assembly of 1853, ch. 441, and 1865, ch. 144, for the augmentation of the Free School Fund of the State.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Bank chartered by the State changed to a National Bank -- Right of the State to exact a bonus or tax.

The Bank of Baltimore was chartered by Act of Assembly, 1853, ch. 441. By the 5th section of that Act, the Bank was required to pay to the State on the first Monday of each January, 20 cents on every $ 100 of the capital stock paid in during the year preceding. In July, 1865, it surrendered its charter to the State, and organized as a National Association under the 44th section of the Act of Congress, 1864, ch. 106. The Act of Assembly of 1865, ch. 144, authorized State Banks to reorganize under the Act of Congress, provided all sums required by their charters "to be paid to the State continue to be paid as heretofore." On a suit for the dues of the Bank of Baltimore under the Act of 1853, ch. 441, sec. 5, accruing after its conversion into a National Bank, HELD:

1st. That the Bank had a right to surrender its charter to the State, as provided in the 17th section of the Act of 1853, ch. 441.

2d. That the bonus imposed by the 5th section of the Act of 1853, ch 441, was a price paid for the right of exercising the powers, and enjoying the immunities conferred by the charter, and after its surrender the State had no right to exact the bonus.

3d. That after the reorganization of the Bank as a National Association the bonus could only be exacted as a tax, which the State had no authority to impose 

COUNSEL:
Attorney General Jones, for the appellant.

The plaintiff's first prayer should have been granted. It involves the proposition, that if the facts stated be found to be true, the legal result was a contract between the State and the appellee, whereby the latter became bound to pay the sum stated in the prayer.

The 5th section of 1853, ch. 441, expressly stipulates for such payment. The 10th section proposed to continue the existence of the corporation on the condition of the assent to and adoption of the Act, by a majority of the stockholders--which was given as required. By the 17th section provision was made for closing its banking operations and dividing its assets and property amongst the stockholders.

It thus appears that terms were proposed by [**2]  the State and accepted by the Corporation, and a contract in law was the result. Gordon's Exs. vs. Mayor, &c., of Baltimore, 5 Gill, 231; Same vs. Same, 3 Howard, 133.

If a charter is voluntarily accepted, the Corporation is bound by all it contains. Bushwick vs. Ebbets, 3 Edw., 353.

A charter must be accepted or rejected by the corporate body in toto, otherwise a corporation might reject the obligation imposed, and accept the benefit conferred upon them. Rex vs. Westwood, 2 Dow & C., 21.

The legal effect of the Act of 1865, ch. 144, was to substitute the provisions of the Act of Congress "To Provide a National Currency," &c., for the charter granted by Maryland in 1853; and to propose to the said Corporation this substitute, with the additional powers and conditions contained in the Maryland Act, for its acceptance or rejection, as its interest might prompt. It is not denied that the Bank might have utterly rejected the Maryland Act of 1865, ch. 144, and have closed its banking business and distributed its assets under sec. 17, of 1853, ch. 441; and then, that such of its stockholders as desired might, as individuals, have associated themselves into a banking association [**3]  under the Act of Congress. But in no other way, without the assent of the State, could it have escaped from its liability to the State under its alleged contract in accepting the Act of 1853, ch. 441.

I. Nevett Steele, for the appellee.

The provision in the 3d section of the Act of Assembly of 1865, ch. 144, in the following words: "provided, that the existing laws of the State providing for taxes on the State Banks for purposes enumerated therein, shall extend and apply to all State banks and other institutions availing themselves of the provisions of this Act, when they shall have become banking associations under the Act of Congress; and all sums required by the charters of said institutions and banks to be paid to the State, shall continue as heretofore to be paid," is in so far as it seeks to impose on the appellee the tax or bonus of twenty cents on every hundred dollars of its capital stock actually paid in, as provided by the Act of the General Assembly of Maryland of 1853, ch. 441, sec. 5, inconsistent with and not authorized by the 41st section of the Act of Congress of 1864, ch. 106.

It has been settled by the Supreme Court of the United States, that Congress [**4]  has the constitutional power to incorporate a bank, and that the States have no power to tax a bank so incorporated. If, therefore, the Act of Congress of 1864 had contained no special provision in reference to the taxation of banking associations by the States, it is clear that such an association, established and existing under that Act, would have been exempt from State taxation. The object of that Act was to provide a currency for the whole country; and the banking associations which it authorized, were not only a necessary means to accomplish that object, but were also to be depositories of the public moneys, and financial agents of the Government. The power on the part of the States to tax their capital, would include the power to destroy them, if the States so wished, and is clearly prohibited, according to the decision of the Supreme Court in the case of McCulloch vs. The State of Maryland, 4 Wheat., 316.

But the Act of Congress in its 41st section does provide specially for taxation by the States. That section enacts that "in lieu of all existing taxes, every association shall pay to the Treasurer of the United States," certain duties or taxes, and then goes on to provide,  [**5]  "that nothing in this Act shall be construed to prevent all the shares in any of the said associations, held by any person or corporation, from being included in the valuation of the personal property of such person or corporation, in the assessment of taxes imposed by or under State authority," but not at a greater rate than is assessed on other moneyed capital, in the hands of individual citizens, nor at a rate to exceed that imposed on the shares of any State banks, and "that nothing in this Act shall exempt the real estate of associations from either State, county or municipal taxes, to the same extent, according to its value, as other real estate is taxed." The authority to tax given by this section and the limitations which accompany it, being part of an Act of Congress passed, (to use the language of the Supreme Court,) "in the exercise of undoubted constitutional powers," are, under the Constitution of the United States "the supreme law of the land," and all State legislation inconsistent with them, is void and of no effect. The school tax imposed by the Act of Assembly of 1853, and continued by the Act of 1865, instead of being a tax upon shares of stock at their assessed [**6]  valuation in the hands of their owners, is a special tax to be paid by the bank on its capital paid in, and is not only inconsistent with the 41st section of the National Currency Act, but in direct and obvious violation of its language and spirit.

The Currency Act, by its 44th section, provides that any State bank may, "by authority of this Act, become a National association under its provisions," &c., and "shall have the same powers and privileges, and shall be subject to the same duties, responsibilities and rules, in all respects, as are prescribed in this Act for other associations organized under it, and shall be held and regarded as an association under this Act." This provision does not depend upon State legislation to give it effect and operation, and therefore the Act of Assembly of 1865, ch. 144, was not necessary to enable State banks to become National associations. It was unnecessary in reference to the Bank of Baltimore for the further reason, that by the 17th section of the Renewal Act of 1853, ch. 441, it had the power, by the action of its President and Directors, or of a majority of its stockholders, to close its banking business and finally abandon its banking [**7]  powers and privileges, and having done this, it would of course have been competent for its officers and stockholders to organize themselves as a National banking association. Act of Congress, 1864, (Public, No. 85); Act of Assembly, 1853, ch. 441; Act of Assembly, 1865, ch. 144; Act of Assembly, 1868, ch. 239; McCulloch vs. State of Maryland, 4 Wheaton, 316; Osborne vs. Bank of United States, 9 Wheaton, 738; Weston vs. City of Charleston, 2 Peters, 449; Howell vs. State, 3 Gill, 14; Van Allen vs. The Assessors, 3 Wallace, 573, 581; People vs. The Commissioners, 4 Wallace, 244; Veazie Bank vs. Fenno, 8 Wallace, 533, 549; Opinion of Attorney General of Maryland in "Senate Journal and Documents," 1865.

If the last clause of the 3d section of the Act of 1865, ch. 144, is unconstitutional, it follows, that the prayers of the appellant were properly rejected. They both rest upon the hypothesis of a contract, express or implied, between the State and the bank, by which the latter continued to be liable to the payment of the school tax after it became a National association. Neither the stockholders of the State bank nor the new banking association itself, could validly make such a contract.  [**8]  The limitations as to State taxation prescribed by the National Currency Act were not intended merely for the benefit of the shareholders of the banking associations, but for the benefit of the country and the government, by protecting the associations from burthens which might prevent them from successfully effecting the public objects and discharging the public duties for which they were created. Therefore, neither the stockholders, before organization, nor the bank, afterwards, could waive their limitations. Nor could the State, by legislative contract, that is, by legislation to be subsequently assented to by the bank, do that which by the Constitution of the United States and a law made in pursuance thereof, it was prohibited from doing. If the stockholders had supposed that they were bound by any such contract with the State, it would have been a fraud upon the United States Government for them to have reported to the Comptroller of the Currency that they had organized themselves under and in accordance with the United States Statute of 1864, when in reality they had contracted to pay a tax which that law prohibited.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, MAULSBY [**9]  and ALVEY, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*80]  MAULSBY, J., delivered the opinion of the Court.
The Act of 1853, chapter 441 re-chartered several of the banks of this State whose charters were about to expire, and amongst others, the Bank of Baltimore, since converted into 

 [*81]  a National Association under the Act of Congress of 1864, chapter 106.
The 5th section of the Act of 1853, provided that each of the banks should annually pay to the Treasurer of the State of Maryland, on the first Monday of January, the sum of twenty cents on every hundred dollars of the capital stock actually paid in, to be applied in augmentation of the Free School fund, and that if any of said banks failed to make said payment, within six months after it became payable, its charter should be forfeited, and be deemed null and void.
The 17th section did not provide a mode in which the banks, or any of them, should evidence a determination to close banking operations, or a particular means by which said operations should be closed, and the assets distributed, as seemed to be supposed in the argument of the Attorney General; but provided simply, that if the President and Directors, or a majority of the [**10]  stockholders in general meeting assembled, should, at any time, determine to close the banking operations of any of said banks, it should not be lawful for such corporation thereafter, to resume the exercise of its banking powers and franchises.
There is no provision of the Act of 1853, restraining any of the banks incorporated by it from ceasing to exercise the powers and franchises conferred by it, at any time when the President and Directors, or a majority of the stockholders might so determine. On the contrary, the 17th section expressly recognizes the right to do so, at any time during the corporate existence authorized by the Act.
The Bank of Baltimore availed of the rights and franchises granted, and assumed the obligation to pay twenty cents on every hundred dollars of its capital stock paid in annually, so long as it should continue its existence under the authority of the Act. The franchise granted was to conduct banking operations. All other provisions of the Act were incident to the exercise of this franchise. The right of "closing its banking operations" necessarily pertained to the corporation, 

 [*82]  from the nature of its being, and, as stated, was recognized [**11]  by the 17th section.
The bank was in existence under the authority of the Act of Assembly of 1853, when the Act of Congress of 1864 was passed. The latter Act was passed "to provide a National currency, secured by a pledge of United States bonds, and to provide for the redemption and circulation thereof." It proposed to effect this by means of authorizing associations to be organized "for carrying on the business of banking." The 5th and following sections, to 43d inclusive, provided in detail for the means and the manner in which they were to be applied. The 44th section provided, "that any bank, incorporated by special law, or any banking institution organized under a general law of any State, may, by authority of this Act, become a National association under its provisions," and proceeded to detail the manner in which a banking institution might become organized as a National association, as in the preceding sections the manner had been detailed in which persons might organize for the same purpose.
The power of Congress to pass the Act of 1864, is not made a question in this case, which is against a defendant existing under its authority, and we are, therefore, relieved of the [**12]  duty of expressing an opinion on that subject. In this opinion, we must assume the constitutionality of all those parts of the Act of 1864 which are necessarily involved in the decision of the case before us. It provided full and perfect means by which to enable the Bank of Baltimore to become changed and converted into a National association.
The record shows that, on the 13th of July, 1865, the owners of the capital stock of the Bank of Baltimore organized an association under the Act of Congress, and determined to conduct their business, from and after the first day of August, under the title of the National Bank of Baltimore, and that on the 17th day of July the Governor of the State, by his proclamation, announced that the charter of the Bank of Baltimore, as granted by the General Assembly, had 

 [*83]  been surrendered, and that its corporate powers, under said charter, would thenceforth cease.
The charter being surrendered and annulled, on what ground can the State demand the price which was payable whilst the charter continued, for the privileges granted by it?
"The bonus imposed by the charter of banks, is not a tax on the franchises granted, but a price to be paid for [**13]  the right of exercising the powers, and enjoying the immunities conferred by the charters." 6 Gill 288.
This suit is against the National Bank of Baltimore, to recover the bonus imposed by the Act of 1853, on the Bank of Baltimore, which has accrued and become payable, as alleged, since the change and conversion of the Bank of Baltimore into The National Bank of Baltimore.
The right to recover is not, and could not be maintained on the ground that the State is entitled to the price to be paid by the Bank of Baltimore for the right of exercising the powers and enjoying the immunities conferred by its charter. That has been surrendered and annulled. The right to recover is vested on the ground of contract, and it is contended that, by the Act of Assembly of Maryland, of 1865, chapter 144, the Bank of Baltimore was enabled to abandon its charter, and avail of the provisions of the Act of Congress, and to continue "to use its corporate name for the purpose of prosecuting and defending suits instituted by or against it, and of enabling it to close up its affairs," and to have all its assets, real and personal, vested in the association organized under the Act of Congress, [**14]  without other transfer, on condition "that the existing laws of the State providing for taxes on the State banks, for the purposes enumerated therein, shall extend and apply to all State banks and other institutions, availing themselves of the provisions of this Act, when they shall have become banking institutions under the Act of Congress, and all sums required by the charter of said institutions and banks to be paid to the State, shall continue as heretofore to be paid."

 [*84]  The money sued for was payable to the State under the Act of 1853, as a price for the right of exercising the powers and enjoying the immunities of the State charter. When that charter was surrendered and annulled, the money could no longer be payable for that right. If the duty of continuing to pay it could be imposed on the new association created by the Act of Congress, and existing under its authority, it could only be by virtue of power in the State to impose it as a tax. It is clear that it could be demanded only as payment for a right granted by the State, or as a tax imposed by the State. It is clear that the State had no power to impose it as a tax.
In McCulloch vs. The State of Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579, [**15]  the Supreme Court said: "The State governments have no right to tax any of the constitutional means employed by the Government of the Union to execute its constitutional powers," and "the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner, control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the National Government."
And in Howell vs. State, 3 Gill 14, our own Court of Appeals said: "State sovereignty extends to everything which exists by its own authority, or is introduced by its permission, but not to those means employed by Congress to carry into execution powers conferred by the Constitution of the United States."
The prayers of the plaintiff below rested on the ground of contract, and were addressed to the point, that it ought to be left to the jury, on all the facts and circumstances of the case, to find an implied agreement by the defendant, to pay the money sued for. It could not be competent to the jury to find an implied contract by the defendant to pay to the State a bonus for the privileges and franchises of defendant's charter. No charter from the [**16]  State was in existence. The defendant derived the franchises and privileges which it enjoyed 

 [*85]  from the Act of Congress. It would have been contrary to law for the jury to so find. So, it could not be competent for the jury to infer a promise by defendant to pay to the State a tax which the State had no right to demand. The attempt by the State to impose such a tax would be void, and there could be incumbent on the defendant no duty to pay it, on which a promise to pay could be raised by implication. In no view do we think that the jury could have been justified in finding a contract by the defendant on which the action could have been maintained, and we, therefore, concur with the Court below in the propriety of rejecting the appellant's prayers.
Judgment affirmed. 

107 of 142 DOCUMENTS 

DOE on the demise of WALTER T. ALLENDER, Administrator d. b. n. of WALTER PRICE vs. PETER SUSSAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

33 Md. 11; 1870 Md. LEXIS 62 

June 23, 1870, Decided 

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

This was an action of ejectment brought by the appellant to recover possession of certain property, alleged to be leasehold, in the city of Baltimore. Both parties claimed under the will of one William Price, which was admitted to probate in October, 1831, and their respective titles depended on the construction of a clause in the will, which is set out fully in the opinion of this Court. The appellant was the administrator d. b. n. of Walter Price, a son and devisee of the testator, and the appellee was the tenant of one Amalia Kuhn, who had acquired the title of Sarah John Price.

Sarah assigned the property in question to one William Price who assigned it to Amalia Kuhn. Sarah died without issue. The plaintiff offered in evidence the original lease of the property, and proved that the property in question was embraced in that lease. He also proved that the defendant was in possession as tenant of Amalia Kuhn, and that she claimed title by virtue of the deed to her from William Price, assignee of Sarah John Price.

The plaintiff offered the following prayer:

If the jury shall find from the evidence the will of William [**2]  Price, offered in evidence, and that the property therein devised to Sarah John Price, is the same as that demanded in this suit, &c., and is a portion of the leasehold property originally leased to John Deaver by James and Ann Giles, and that said last mentioned lease is still existing and unexpired, and that Sarah John Price entered under the will of William Price, and took possession of the said property as leasehold, and conveyed the same to William Price, who conveyed the same to Amalia Kuhn, and that the tenant in possession claims title under the said Amalia Kuhn, and she claims title under the deed from William Price to her, and that the said William Price, the testator, died prior to October 15th, 1831, and the property has been ever since held and claimed under the title devised by said will, and that Sarah John Price died in 1861, or thereabouts, unmarried, and without ever having had issue, and that Walter Price, the party named as executory devisee in the will of William Price is dead, and the plaintiff's lessor is his administrator, upon the finding of all these facts, the plaintiff is entitled to recover.

The defendant asked the following instruction:

That [**3]  upon the evidence of the title submitted by the plaintiff, he is not entitled to recover in the present action of ejectment, by reason of the devise over to Walter Price, under the will of William Price, being too remote.

The Court refused to grant the prayer of the plaintiff and gave the instruction asked for by the defendant. The verdict and judgment being for the defendant, the plaintiff appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Appeal -- Executory devise -- Limitation of estates.

A judgment was rendered and the exception signed on the 5th of June, 1866; on the 21st of the same month an appeal was taken, but the record was not transmitted to the Court of Appeals until October, 1869. HELD:

On motion to dismiss, that the appeal was taken in due time.

A limitation over of leasehold property after the death of the first taker "without leaving lawful issue or descendants." is not void for remoteness. The words "without leaving lawful issue or descendants" applied to a devise of leasehold property, mean a dying without issue living at the death of the first taker. 

COUNSEL:
Arthur W. Machen, for the appellant.

In bequests of personal property, the words "dying without leaving issue" restrain the failure of issue to the time of the death of the first taker, and the bequest over is valid. Biscoe vs. Biscoe, 6, G. & J., 236; Usilton vs. Usilton, 3 Md. Ch. Dec., 36. The same construction, of course, obtains in cases of chattels real. 2 Jarman on Wills, (3d ed.,) 473. The rule is different in cases of real estate.

In this will the words are "issue or descendants of the same." Issue is nomen generalissimum. In 2 Jarman on Wills, 89, it is said: "The word issue, when not restrained by the context, is coextensive and synonymous with descendants, comprehending objects of every degree." The words "issue [**4]  or descendants of the same," cannot, therefore, mean more than the word "issue" when standing alone. Moreover, the rule of construction depends on the force of the word "leaving," which in cases of personal property, confine the limitation to the point of time when the death takes place. And as the validity of the limitation depends exclusively on the point of time when it is to vest, the use of this word settles the question.

John H. Ing, for the appellee.

The judgment in the Superior Court was entered on the 5th June, 1866. To make up the record the appellant produced the certificate of administration on Walter Price's estate, bearing date 17th August, 1869; and the appellant filed the official copy of William Price's will, which is certified of the date of the 18th August, 1869. The appeal in this case is therefore too late and should be dismissed. Article 5, sec. 7, of the Code of General Laws.

Should the Court however entertain the appeal, it is submitted that the limitation over to Walter Price, in the will of William Price was too remote. Biscoe vs. Biscoe, 6 G. & J., 236.  

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

OPINIONBY:
MILLER 

OPINION:

 [**5]  
 [*14]  MILLER, J., delivered the opinion of the Court.
The record shows that judgment was rendered and the exception signed in this case on the 5th of June, 1866. The appeal was taken on the 21st of the same month, and, being thus in time, the delay in the transmission of the record is presumptively the fault of the clerk and not of the appellant. The case does not come within the operation of the new rule on that subject, recently adopted by this Court, which took effect on the 1st of January, 1870, after the present record had been brought up. The fact that official copies of two documents, used in evidence and contained in the exception, appear to have been made as late as August, 1869, cannot affect the appeal which the record shows was taken in due time. The motion to dismiss is, therefore, overruled.
The property in dispute appears to be leasehold, and the prayers on either side raise the question of the construction of a clause in the will of William Price, executed in 1828, and admitted to probate the 15th of October, 1831, under which it is assumed the title is derived. By this will the testator devised to several of his grand-children certain houses and lots in the [**6]  city of Baltimore, among which, that in dispute is alleged to be embraced in the following clause: "And to my grand-daughter, Sarah John Price, her heirs, executors, administrators and assigns, my lot of ground on Alice Anne street, with the three story brick house thereon, (including basement,) adjoining that on the same street above devised to my grandson, William Price. But in case of the decease of 

 [*15]  all or either of my grand-children above named without leaving lawful issue or descendants of the same, then I give and devise the property so bequeathed to him, her or them so dying, unto my said son, Walter Price, his heirs, executors, administrators and assigns forever." Sarah John Price died several years since, without ever having had children, and never having been married. The plaintiff is the administrator of Walter Price, and his prayer places his right to recover upon the ground that the devise over to his intestate is good, leaving it to the jury to find that the defendant derives his title from and claims under Sarah John Price, and that the latter derived her title from the will of her grandfather as above stated. The defendant's prayer which was granted,  [**7]  denies the plaintiff's right to recover upon the evidence of title he had submitted, because the devise over to Walter Price is too remote.
No doubt could exist of the correctness of the construction placed upon this will by the Court below if the subject of the devise were a freehold estate. The authorities on this point are too numerous and clear to leave room even for argument. There is, however, a distinction, subtle it may be, but too well settled now to be overturned, between an executory limitation of personal property upon a dying "without leaving issue," (the words of the present will,) and the same limitation of real estate. This distinction, the leading authority for which is Forth vs. Chapman, 1 Peere Wms. 663, runs through all the decisions, and applies even where real and personal estates are comprised in the same gift.  Biscoe vs. Biscoe, 6 G. & J. 232; Usilton vs. Usilton, 3 Md. Ch. 36; Budd vs. Posey, 22 Md. 48; Woodland and Wife vs. Wallis, 6 Md. 151; and Wallis vs. Woodland and Wife, et al., 32 Md. 101. In most, if not all the Maryland [**8]  cases in which this distinction has been taken and followed, the subject of the limitation has been money or personal chattels. But, in Forth vs. Chapman, there was a devise of both freehold and leasehold estates to two nephews, and if either 

 [*16]  "should depart this life and leave no issue of their respective bodies," then over, and the question arose whether the limitation over of the leasehold premises was void as too remote. The Court was of opinion and decreed that the devise over was void, among other reasons, because of a distinction between things merely personal and chattels real. But afterwards, when the case came before Lord PARKER upon appeal, his Lordship reversed the decree and said, "if I devise a term to A, and if A die without leaving issue remainder over, in the vulgar and common sense, this must be intended if A die without leaving issue at his death, and then the devise over is good." And the Lord CHANCELLOR, in reference to the objection that, as the will in the same clause and the same words, carried both freehold and leasehold estates, the same words could not be taken in two different senses, said: "It might be reasonable enough to take [**9]  the same words as to the different estates in different senses, and as if repeated in two several clauses, viz: I devise to A my freehold land, and if A die without leaving issue, then to B; and I devise my leasehold to A, and if A die without leaving issue, then to B, in which case the different clauses would (as he conceived) have the different constructions above mentioned to make both the devises good, and it was reasonable it should be so ut res magis valeat quam pereat." No case has been more thoroughly adopted by the Maryland decisions than this, and it presents the very case of a limitation of a leasehold estate.
In Beauclerk vs. Dormer, 2 Atk. 314, also a leading case upon this law of executory devises and contingent limitations Lord HARDWICKE said: "It would be of very mischievous consequence and introduce great confusion if the Court should admit of a distinction between chattels personal and chattels real" in this respect. In Peake vs. Pegden, 2 Term. R. 720, there was a devise of leasehold premises to a grandson and the heirs lawful of him forever, "but in case he should happen to die and leave no lawful heir" then over,  [**10]  and Lord 

 [*17]  KENYON held the limitation over good on the authority of Forth vs. Chapman, which he said had been uniformly followed by a series of decisions down to that time. The case before him he also said was that of a chattel interest and the words "leaving no lawful heir" must mean leaving no issue at the time of the death of the first taker. In Crooke vs. De Voudes, 9 Ves. 197, freehold and leasehold estates were devised in the same will to a grandson and the heirs of his body lawfully issuing, with limitation over "if he has no such heirs," and the limitation over as to both was held void, but Lord ELDON took the distinction between those words and the words "if he leaves no such heirs," which latter as to the leasehold estates he said would upon the authority of Forth vs. Chapman, import a failure at the time of his death. This case is cited with approval in Newton vs. Griffith, 1 H. & G. 111. In his elaborate opinion in Cadogan vs. Ewart, 7 Adol. & Ellis 636, Lord DENMAN said, the words, "depart this life without leaving issue lawfully begotten," would, "if the question arose upon a term [**11]  for years or other personal estate, now be held to mean a dying without issue living at the death of the first taker." Other authorities of equal weight might be cited to the same effect, but these must suffice to establish the distinction, and determine its applicability to devises of leasehold estates. For certain purposes under our laws a leasehold interest like the present under a lease for ninety-nine years, renewable for ever, may have impressed upon it some of the qualities of real estate, but it is wanting in the essential quality which the authorities show the Courts have mainly considered in establishing the distinction by which they would determine a devise over of a freehold, under a similar clause, to be void. It is still an estate less than a freehold; it does not descend to the heir but is assets in the hands of the executor or administrator to be administered and distributed by him as other personal property, under the authority of the Orphans' Court. Code, Art. 93, sec. 220; Williams vs. Holmes, 9 Md. 281.

 [*18]  Upon these authorities and for these reasons we are of opinion the limitation over in the clause of the will under review,  [**12]  if the subject be a leasehold estate, is not void for remoteness, and hence there was error in the Court's rulings upon the prayers for which the judgment must be reversed, and the cause remanded for a new trial.
Judgment reversed and new trial awarded. 

108 of 142 DOCUMENTS 

THE COMMONWEALTH OF VIRGINIA vs. THE STATE OF MARYLAND, THE CHESAPEAKE AND OHIO CANAL COMPANY, WILLIAM W. CORCORAN and others, Trustees, and JOHN S. GITTINGS, ALLEN BOWIE DAVIS and others, Bondholders.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 501; 1870 Md. LEXIS 55 

June 20, 1870, Decided 

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

The bill in this case was filed by the appellant on the 21st of December, 1867, against the Chesapeake and Ohio Canal Company--William W. Corcoran, George W. Riggs, J. B. H. Smith, Horatio Allen and J. Philip Roman, trustees of the preferred bondholders, and John S. Gittings, Allen Bowie Davis, Charles H. Carter and Mrs. Isabella Brown, bondholders.

Its object was to procure a decree determining the legal and equitable priorities of the holders of the various classes of bonds issued by the Chesapeake and Ohio Canal Company; ordering their payment accordingly out of the revenues of the company properly applicable to such payment, and the granting, in the meantime, of an injunction restraining the company from applying its net revenues to any other purpose than the discharge of the prior liens thereon of the complainant, as alleged in her bill. Subsequently, by agreement, William Price and William H. Marbury, holders of certain bonds or certificates issued by the Chesapeake and Ohio Canal Company, in 1836, to the creditors of the old Potomac Company, were made parties defendant.

All the defendants having answered, in June,  [**2]  1868, the case was heard in the Court below, and fully argued on all the points involved, and in October, 1868, an opinion was filed by his Honor, Judge PINKNEY, in which he sustained an exception to the jurisdiction of the Court, interposed by the Canal Company, on the ground that the State of Maryland was a necessary party to the suit, without whose presence no final decree could be passed. In March, 1869, after further argument, a second opinion was filed by Judge PINKNEY, in which he held that an Act of Assembly was necessary to enable the State to appear to the suit, and an order signed directing the cause to stand over until such Act could be passed. By the Act of 1870, ch. 59, the Attorney General was instructed to appear and answer for the State, and in the event of an appeal, the clerk of the Court from which the appeal should be taken, was required to transmit the original papers to this Court.

Under the authority thus conferred, the Attorney General appeared for the State and filed an answer in her name and on her behalf. All the necessary parties being thus before the Court, and it being considered important and desirable that a speedy and final decision of the questions [**3]  involved should be rendered, the case was submitted, upon bill, answers, exhibits, and an agreed statement of facts, and a pro forma decree was passed, on the 31st of March, 1870, refusing the injunction and dismissing the bill. From this decree the complainant appealed.

A statement of the circumstances which gave rise to the bonded debts of the Chesapeake and Ohio Canal Company, whose priorities are the principal subjects of controversy, will contribute to the understanding of the interesting and important questions presented and determined in this case.

The charter of the Chesapeake and Ohio Canal Company, was in the first instance, granted by the State of Virginia, in the year 1824, and was shortly afterwards confirmed by the Congress of the United States and the Legislatures of Maryland and Pennsylvania. As originally incorporated by this concurrent legislation, the company had no express power to borrow money; but by an Act of the General Assembly of Virginia, passed on the 20th of January, 1844, confirmed by the General Assembly of Maryland, by the Act of 1843, ch. 124, and by Congress on the 7th of February, 1845, express authority was conferred on the President and [**4]  Directors "to borrow money, from time to time, to carry into effect the objects authorized by the charter, to issue bonds or other evidences of such loans, and to pledge the property and revenues of the company for the payment of the same, and the interest to accrue thereon, in such form and to such extent as they might deem expedient, provided that nothing in said Acts should be construed to impair the prior rights or liens of the State of Maryland under the mortgages executed by the company to her, except in so far as the same might be waived, deferred or postponed by her Legislature."

Ten years prior to this, the State of Maryland had loaned to the company, under her Act of 1834, ch. 241, $ 2,000,000, and had obtained from it a mortgage of all its lands, tenements, works, property, rights, net tolls and revenues to secure this loan with the interest to accrue thereon, at the rate of six per cent. per annum. This mortgage was the first lien upon the property and revenues of the company.

By the Act of 1835, chap. 395, the State of Maryland subscribed $ 3,000,000, and by the Act of 1838, chap. 396, $ 1,375,000 to the capital stock of the company--exacting, however, as a condition [**5]  to these subscriptions, a guaranty, after the expiration of three years, of a dividend of six per cent., payable semi-annually out of the profits of the company. This guaranty was duly executed--as to the Act of 1835, ch. 395, on the 21st of September, 1836, and as to the Act of 1838, ch. 396, on the 15th of May, 1839. In payment of these two subscriptions, amounting together to $ 4,375,000, the State issued her bonds to the company, from time to time, upon which it was a further condition of the subscriptions, that it should pay the interest for the three years ending on the 1st of July, 1842. It failed, however, to meet this engagement, and the State was compelled to provide the sum necessary for the purpose, amounting to $ 663,611.94. To secure this sum, the company, as required by the Acts of 1838, ch. 386, and 1838, ch. 396, executed on the 15th of May, 1839, mortgages to the State upon its property and revenues, which constituted the second lien upon them.

Before the end of the year 1841, the Canal had reached Dam No. 6, but the means of the company from loans and subscriptions were then exhausted, and the work was still fifty miles east of Cumberland, its destination. From [**6]  1841 up to 1845, but little was done beyond using the work as beneficially as possible, from Georgetown to Dam No. 6, but no effort was made from want of the necessary funds to continue its construction from Dam No. 6 to Cumberland. Its receipts were less than its expenses, its treasury empty and its credit exhausted. In this crisis of its existence, application was again and again made to the State for further assistance. Finally the Legislature, on the 10th of March, 1845, passed the Act of 1844, ch. 281. It authorized the company to borrow upon its bonds such sums, not exceeding $ 1,700,000, as might be required to pay for the completion of the Canal to Cumberland. The bonds were to be made payable in not less than thirty-five years, to bear not more than six per cent. interest, payable semi-annually on the first day of January and July, in each year, and to appear on their face, to be preferred liens on the revenues of the company; said bonds, without any preference or priority over each other on account of date, to be preferred liens on the revenues and tolls that might accrue to the company from the entire and every part of the Canal and its works between Georgetown and Cumberland,  [**7]  which revenues and tolls were pledged and appropriated for their payment, principal and interest.

The State expressly waived, deferred and postponed her prior rights and liens upon the revenues of the company in favor of these bonds, "so as to make them and the interest to accrue upon them preferred and absolute liens on said revenues, according to the provisions of the second section of the Act, until the bonds and interest should be fully paid." The proviso in the second section, subject to which the bonds thus authorized to be issued were to become preferred liens upon the revenues of the company, was, that "the President and Directors were, from time to time, and at all times thereafter, to have the privilege and authority to use and apply such portion of said revenues and tolls as in their opinion might be necessary to put and keep the said 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."

Authority was given to the company by the sixth section to execute any deed, mortgage or other instrument of writing, that might be deemed necessary or [**8]  expedient, to give the fullest effect to the Act. The seventh section required the company to execute a new mortgage of its canal, lands, tolls and revenues to the State, subject to the liens and pledges of the Act, as an additional security for the payment of the $ 2,000,000 loan under the Act of 1834, ch. 241. In pursuance of the provisions of this Act of 1844, ch. 281, the company, in 1848, issued bonds, which are known as "Preferred bonds," to the amount of $ 1,699,500. Of them, the State of Virginia, under her Act of March 7th, 1847, guaranteed $ 300,000. The proceeds were exclusively expended in finishing the canal from dam No. 6, west to Cumberland. On the 5th of June, 1848, the company, in pursuance of the sixth section of the Act of 1844, ch. 281, executed a mortgage in fee upon all the revenues and tolls of the entire canal and its works, between Georgetown and Cumberland, to Phineas Janney, W. W. Corcoran, Horatio Allen, David Henshaw, and George Morey, trustees of the bondholders, "to secure, after payment of the debts then existing, and that might thereafter be contracted and in arrear for repairs on the canal, and for officers' salaries, first the interest on the preferred [**9]  bonds, semi-annually, &c." Some of the original trustees died, and others were duly appointed in their stead.

On the 8th day of January, 1846, the Canal Company executed, in conformity with section seven of the Act, a new mortgage to the State upon all its property, net tolls and revenues, to secure the two million loan of 1834.

Subsequently, that portion of the canal completed before the passage of the Act of 1844, ch. 281, viz: from Dam No. 6, east to Georgetown, absolutely needed repairs. The current receipts of the company were utterly inadequate for this purpose, and the Preferred bonds, by the terms of the Act, were exclusively applicable to the finishing of the work from Dam No. 6 to Cumberland. In this emergency, application was made to Virginia by the President and Directors in 1849 for a loan of $ 200,000, to be applied exclusively to the needed repairs. Instead of granting aid in the form requested, the Legislature of Virginia by her Act of March 15, 1849, authorized her Treasurer to guarantee the company's bonds to the amount of $ 200,000, provided her Board of Public Works should certify to him that they were satisfied that the payment of the principal and interest [**10]  of such bonds, according to their terms, was "sufficiently secured," and provided certain other pre-requisites were complied with. A question having arisen touching the power of the company to issue these bonds, and to make them as was designed, by a pledge of its revenues, superior and prior to the Preferred bonds issued under the Maryland Act of 1844, ch. 281--the legal opinion of Attorney General George R. Richardson, was called for by Governor Philip Francis Thomas upon the subject, and on the 28th of June, 1849, Mr. Richardson submitted to the Governor his written opinion affirming the existence of such corporate power. Accordingly, the Board of Public Works of Virginia, being satisfied that the payment of these Repair bonds was "sufficiently secured," so certified to the Treasurer, and the guarantee of Virginia was immediately given to them. They were at once issued, payable on the 1st day of July, 1869, with coupons for interest payable semi-annually, were sold at a premium, and the proceeds applied to the necessary repairs between Dam No. 6 and Georgetown.

It was charged in the bill that the company, not having sufficient means to meet the coupons on the Preferred bonds [**11]  falling due on January and July 1st, 1851, and January 1st, 1852, made an arrangement with Selden, Withers & Co., bankers of Washington city, under which they agreed to take up these coupons, and to hold the same until the company should be able to redeem them, and the interest to accrue thereon in the meantime; the future revenues of the company, subject to certain existing priorities, being at the time expressly pledged to secure them; that in consequence of said arrangement, Selden, Withers & Co., took up and held the coupons of those dates, amounting to $ 143,000, for $ 140,000 of which the company afterwards issued to the firm certificates of debt bearing interest, payable semi-annually; that these certificates, with the coupons represented by them, were afterward transferred by Selden, Withers & Co. to the appellant, and that they constituted, in her hands, a lien upon the tolls and revenues of the company by virtue of the Act of 1844, ch. 281, and the mortgage executed in pursuance thereof.

It was further charged in the bill that the coupons on the Repair bonds, due July 1st, 1852, and amounting to $ 6,000, were paid by the company, but those on the Preferred bonds, amounting [**12]  to $ 50,985, due on the same day, it was unable to pay; that it continued unable to pay the coupons on both Repair and Preferred bonds; and on the 29th of July, 1853, the Board directed the coupons on the Preferred bonds from July 1st, 1852, to January 1st, 1854, both inclusive, to be funded, by the issue of certificates bearing interest payable on the 1st of April and October. That the appellant, as guarantor of $ 300,000 of the Preferred bonds and $ 200,000 of the Repair bonds, having paid the coupons on the entire amount of $ 500,000, under the above resolution of the 29th of July, 1853, surrendered the coupons on the Preferred bonds so paid by her up to January 1st, 1854, inclusive, and received a certificate for $ 35,400. The coupons on the Repair bonds of January 1st and July 1st, 1853, and January 1st, 1854, which she also paid as guarantor, not being included in such resolution, were not funded, but were retained in her possession, and were not paid to her until December, 1869.

In August, 1867, the company paid the coupons of July 1st, 1852, and January 1st, 1853, upon the Preferred bonds which the holders had neglected to fund, as authorized by the resolution of July [**13]  29th, 1853, and also the interest upon the certificates from 1857 up to 1st of April, 1867.

The appellant continued to pay the coupons on the whole of the bonds guaranteed by her, both repair and preferred, from the first default of the company up to January 1st, 1861. From January 1st, 1861, to January 1st, 1865, she paid all the coupons that were presented, and since January 1, 1865, she has been, and still is, in default.

In December, 1869, the present administration of the company, finding that they had $ 160,000 of net revenue in the treasury, which they were anxious to distribute, and believing, from the written agreement of the principal bondholders, which was laid before them, that the mode of distribution agreed on by them would be satisfactory to all the bondholders, appropriated such sum without prejudice to the rights of any of the bondholders to the payment of the coupons of January 1st and July 1st, 1853, January 1st and July 1st, 1854, on the Repair bonds, being the oldest outstanding ones.

Also to the payment of the coupons on the Preferred bonds of July 1st, 1853, and January 1st, 1854, which were unfunded, and of the coupons of July 1st, 1854.

Also [**14]  to the payment of the interest on the certificates of Selden, Withers & Co. to July 1st, 1854.

And also to the payment of the interest on the funded certificates from 1st of April, 1867, to 1st of October, 1869.

Under the resolution of the Board making this appropriation, the aggregate sum of $ 58,435 was paid to the appellant.

An injunction, obtained at the instance of Mr. John S. Gittings, the Fredericktown Savings Institution, Lewis Markell and others, having prevented the other bondholders from being paid as contemplated, an agreement in writing was entered into between the solicitors of the appellant and of the company, by which it was stipulated that the sums so paid to the former should not be held by her and appropriated to the several accounts upon which they were paid, but should be appropriated to such account as this Court should, in this case, decide to be proper.

In regard to certain creditors of the old Potomac Company, who were admitted as parties defendant in this case, it may be stated that said company assigned its charter to the Chesapeake and Ohio Canal Company by deed of August 15th, 1828; the consideration of the assignment being the payment [**15]  by the Canal Company of the debts of the Potomac Company, amounting, as was supposed, to $ 175,800. In 1836, certain creditors of the Potomac Company who refused to invest in the stock of the Canal Company, surrendered their claims against the former, and received in lieu thereof the bonds or certificates of debt of the latter, for one-half of the amount of their respective claims, upon the condition that they were to be in full satisfaction of all their claims against the late Potomac Company and the Chesapeake and Ohio Canal Company as assignee thereof. The interest on these bonds was regularly paid by the Canal Company to the 1st of January, 1841, since which time, it has paid nothing. The holders of certain of these bonds of the Canal Company, who were allowed to come in as defendants in this suit, claimed priority over all creditors of the Canal Company, upon the ground that they held a vendor's lien upon its property, and, therefore, upon its revenues.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Order of Priority in the payment of the Bonds of the Chesapeake and Ohio Canal Company -- Creditors of the Potomac Company -- Repair bonds -- Preferred bonds, issued under the Act of 1844, ch. 281 -- Claim of Selden, Withers & Co., assigned to Virginia -- Liens and Claims of the State of Maryland -- Rights under a Charter -- Construction of the Act of 1844, ch. 281 -- Holders of Coupon bonds issued under a Statute, chargeable with knowledge of the provisions of the Statute and its true Judicial construction -- Liberal rules of Interpretation to be applied in expounding the privileges, &c., of the Chesapeake and Ohio Canal Company -- Rights of a Guarantor -- Subrogation -- Negotiability of Coupon bonds payable to bearer -- Interest recoverable on Interest Coupons from their maturity, against the Corporation which issues them -- Provision in an Act of Assembly waiving the State's Liens in favor of other Creditors, construed.

The Chesapeake and Ohio Canal Company having received from tolls and revenues, a surplus applicable to the payment of its preferred or lien creditors, a bill in equity was filed to which the several classes of such creditors, contesting priorities inter sese as well as against the State of Maryland, were made parties. The object of the suit and of the parties was to obtain an adjudication of these priorities, so as to determine the application of this and other like surplus revenue hereafter to accrue. The questions presented depend upon the construction of the several laws of Congress, Virginia and Maryland chartering and aiding this company, the mortgages executed by it to secure the various loans it had contracted, the purposes to which the money raised by such loans was applied and the powers conferred upon the company by its original and supplemental charters; and it was by the Court, HELD:

1st. That the creditors of the old Potomac Company, by accepting the bonds of the Canal Company issued to them on the terms prescribed in certain resolutions of that company, as a full satisfaction of their claims, lost any lien or priority, they may have had resting upon the obligations in their favor imposed by the original charter of the Canal Company, what they thus accepted and received being substantially different both in amount and security from what they were entitled to under that charter.

2d. But these creditors are entitled to a lien on the tolls and revenues of the Canal to the extent of $ 5,000, per annum, in the order of preference assigned to them by the Act of 1844, ch. 281, being prior to the liens of the State of Maryland, but subsequent to the interest due, and in arrear on the Preferred construction bonds, authorized to be issued by that Act.

3d. The Repair bonds of $ 200,000, in amount, guaranteed by the State of Virginia and constituting a loan effected in 1849, and expended in repairing and fitting for transportation a portion of the Canal, constitute the first lien on these tolls and revenues, and are at present entitled to priority of payment over every other claim.

4th. These Repair bonds being now due and the interest coupons thereon having remained unpaid in part by Virginia, as guarantor, the order of payment out of the revenues of the Canal, is to pay first all the over-due coupons, not paid by Virginia, then the principal of the bonds and then to re-pay to Virginia what she has paid, as guarantor.

5th. The Preferred bonds issued under the Act of 1844, ch. 281, of which a part were also guaranteed by Virginia, stand next in priority, and by that Act have preference over the liens of the State of Maryland.

6th. The principal of these bonds not being yet due, all the over-due interest coupons thereon, must be paid in the order of seniority whether taken up and paid by Virginia as guarantor or not.

7th. The arrangement between the Canal Company and Selden, Withers & Co., for payment of the interest on the Preferred bonds for the years 1851 and 1852, was in effect an advance or loan of money by that firm to the company to enable it to pay and extinguish that portion of its interest debt.

8th. The coupons for those years were both in fact and in law paid and extinguished by the Canal Company, with their money borrowed from that firm and applied for that express purpose, and that firm was not by this transaction subrogated to the rights of the original holders of the coupons thus paid.

9th. Interest on the over-due coupons of both the Repair and Preferred bonds, though recoverable against the Canal Company, cannot be paid before the liens of the State of Maryland; the waiver of the State's liens in the Act of 1844, ch. 281, being only in favor of the bonds and simple interest thereon.

10th. After the liens above stated shall have been paid, the entire surplus revenues of the Canal Company must be applied in discharge of the principal and interest of the liens and claims of the State of Maryland.

Where the charter of a new corporation provided for the surrender and transfer of the rights and franchises of a prior corporation, with its assent, on certain conditions in favor of the stockholders and creditors of the latter; these conditions cannot be abrogated or impaired without the consent of such stockholders and creditors, by any subsequent acts of the new corporation or the law making power which created it.

The Act of 1844, ch. 281, authorizing the issue of the Preferred bonds, making them preferred liens on the tolls and revenue of the Canal, and pledging the same to their payment, contains a proviso, that the "President and Directors of the Canal Company shall from time to time and at all times hereafter, have the privilege and authority to use and apply such portion of said revenues and tolls as in their opinion may be necessary to put and keep said 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 said company." HELD:

1st. That by this the company is not restricted to the use of receipts in hand when there is occasion for repairs, but if an emergency for repairs arises to meet which such receipts are insufficient, they can anticipate them, and under the powers granted by the charter, may issue bonds for the purpose, on the pledge of future revenues in preference to any other claim or lien thereon.

2d. And if a subsequent emergency shall arise for another loan for the same purpose of repair, the same power may be exercised and the debt thus created will have priority over all other liens including those for previous repairs.

Where coupon bonds payable to bearer, on their face refer to the Act of Assembly, a public statute of a State, under which they purpose to be issued, those who take them are in law chargeable with knowledge of all the provisions of such statute and of the true construction to be placed upon them by the Courts.

The Chesapeake and Ohio Canal Company though a private corporation as distinguished from a public municipal body, yet being designed to promote great public interests, liberal rules of interpretation for its benefit must be adopted in expounding its granted privileges, rights and powers.

A guarantor having paid part of the debt of the principal debtor for which the guaranty was given, cannot claim re-imbursement out of the funds of such debtor, until the debt of the common creditor is fully satisfied.

Where a party at the instance of a mortgagor pays part of the mortgage debt, but takes no assignment of the mortgage, he is not by such payment subrogated to the right of the mortgagee as against a subsequent mortgage; to effect such subrogation there must be something more than mere payment and silent receipt of the money by the first mortgagee.

It is a settled doctrine of American law that coupon bonds payable to bearer issued by a corporation under proper authority, have all the qualities of commercial paper and are negotiable instruments.

Coupons attached to such bonds being contracts for the payment of a definite sum of money on a given day, may be sued on without producing the bonds, and interest thereon recovered against the corporation from their maturity.

An Act of Assembly waiving the State's liens in favor of other creditors of a corporation, in which the State is interested, is to be construed by the same rules that govern the interpretation of other statutes; its terms cannot be extended by construction beyond the plain natural signification and import of the language used.

A provision in such a statute waiving the State's liens in favor of certain bonds to be issued "so as to make said bonds and interest to accrue thereon" preferred liens "until said bonds and interest shall be fully paid" is a waiver only in favor of the bonded debt and simple interest that may accrue thereon, and does not extend to interest that may accrue on interest coupons attached to such bonds.  

COUNSEL:
John P. Poe and Bradley T. Johnson, for the appellant.

The $ 200,000 of Repair bonds guaranteed by Virginia, under her Act of the 15th of March, 1849, constitute the first lien upon [**16]  the tolls and revenues of the Canal Company, and they should, therefore, be applied to the payment -- first, of the over-due and outstanding coupons upon such Repair bonds in the order in which they fell due -- that is, the oldest coupons first; and, after the payment of all the coupons, second, to the payment of the principal of the bonds themselves, all of which matured on 1st of July, 1869. Parkhurst vs. Northern Central Railway Company, 19 Md., 472; Garrett vs. May, 19 Md., 177; White Water Valley Canal Co. vs. Vallette, 21 How., 414.

After the payment in full of interest and principal of the Repair bonds, the oldest outstanding coupons on the Preferred bonds are next entitled to be paid. These are the coupons due January 1st and July 1st, 1851, and January 1st, 1852, which were taken up and held by Selden, Withers & Co., under the arrangement with the Canal Company.

For these coupons, the company, on the 1st of December, 1851, gave to Selden, Withers & Co., two certificates or special bonds for $ 50,000 each, and on November 17th, 1852, three other such certificates or special bonds for $ 20,000, $ 10,000 and $ 10,000 respectively--in all $ 140,000--for the payment of [**17]  which, with interest thereon, the future revenues of the company, "subject to existing priorities," were expressly pledged; the coupons themselves being also retained by Selden, Withers & Co. as additional security. Upon the failure of these gentlemen, in 1855, largely indebted to the appellant, these coupons and certificates for $ 140,000 were assigned and transferred to the appellant, and have since been, and are now held by her and in her possession as such assignee.

They collectively represent the oldest outstanding and unpaid interest on the Preferred bonds, which was never extinguished, nor designed to be extinguished, by the transaction between the Canal Company and Selden, Withers & Co., but was merely assigned and transferred to them; and these coupons and certificates, therefore, remain in the hands of the appellant a valid lien, by subrogation, upon the revenues of the company, to the same extent as the coupons themselves would be, if still in the hands of the original holders, instead of all being now in her possession as a bona fide holder for value from the parties who purchased them from these original holders. 1 Hilliard on Mort., 535; McGiven vs. Wheelock, 7 Barb.  [**18]  , 29; Walker vs. Stone, 20 Md., 198; Brown vs. Topham, 3 Cush., 534; Brawner vs. Watkins, 28 Md., 226; Freeman vs. McGaw, 15 Pick,, 82; Morris vs. Oakford, 9 Barr, 498; Ellicott vs. Sleeper, 2 N. H., 525.

The outstanding coupons upon the Preferred bonds are then to be paid in the order of their maturity.

The coupons upon the bonds, both repair and preferred, bear interest from the dates of their respective maturity. Fitzhugh vs. McPherson, 3 Gill, 408; Knox vs. Aspinwall, 21 Howard, 539; Wilson vs. Russell, 13 Md., 494; Aurora City vs. West, 7 Wallace, 105; Gelpcke vs. Dubuque, 1 Wallace, 206; 2 Parsons on Bills and Notes, 393; Act of 1844, ch. 281, sections 1, 2, 4 and 5, 10; Hollingsworth vs. Detroit, 3 McLean, 472; Wright vs. Eaves, 10 Richardson Eq., 582; Farwell vs. Sturdivant, 37 Maine, 308; Austin vs. Imus, 23 Vermont, 286; Little vs. Riley, 43 New Hamp., 109; Sanford vs. Bulkley, 30 Conn., 344; Mann vs. Cross, 9 Iowa, 327; Singleton vs. Allen, 2 Strobhart Eq., 166; O'Neall vs. Bookman, 9 Richardson, (Law,) 80.

The appellant is entitled to be re-imbursed the amount of the coupons upon the $ 200,000 of Repair bonds and $ 300,000 of Preferred bonds, which, upon the [**19]  default of the company, she paid, as guarantor, with interest thereon, from the times of such payment, notwithstanding she has failed to make good her guaranty for some years past--and her default since the war in meeting her financial engagements is no reason why she should be prevented from recovering a debt confessedly due her for a guaranty faithfully and fully met before the war, especially as such debt, if now recovered, may aid her in redeeming the guaranty which the desolation and disaster of civil war have temporarily disabled her from making good. 1 Eq. Cases Abr., 93, No. 5; Kunkel vs. Fitzhugh, 22 Md., 571.

The creditors of the Potomac Company now holding the obligations of the Canal Company, are at most, simple contract creditors of the latter company, without liens of any sort, and certainly not entitled to be paid until after the bondholders and the mortgage claim of the State of Maryland are satisfied. Bronson vs. Railroad Co., 2 Black, 524; Mumma vs. The Potomac Co., 8 Peters, 285; Hayden vs. Stewart, 4 Md. Ch. Dec., 280; Watson vs. Bane, 7 Md., 117; Schnebly vs. Ragan, 7 G. & J., 120; Willis vs. Bryant, 22 Md., 373.

Attorney General Jones, for the State [**20]  of Maryland.

The Canal Company had, and has, no authority to fund its unpaid interest coupons upon the bonds issued under the Act of 1844, ch. 281, whatever bonds the Court may hold to have been authorized.

Although, inter partes, interest which has accrued becomes a debt, and the parties may agree that it shall be considered principal and bear interest, (3 Gill, 408;) yet mortgagors cannot agree to compound interest and make it a charge on the mortgaged premises, to the prejudice of any portion of the mortgagees' debt secured by such mortgage, or to the prejudice of subsequent mortgagees of the same property. Fitzhugh vs. McPherson, 9 G. & J., 51.

The extent of the waiver or postponement, by the State of Maryland, of its mortgages in favor of the bonds authorized, under the Act of 1844, ch. 281, to be issued with preferred liens on its revenues, to complete the canal to Cumberland, was expressly limited in the Act, by a proviso, "that the whole amount of bonds authorized to be issued shall not exceed the sum of $ 1,700,000. The Act was the subject of judicial consideration and construction by the Court of Appeals, in the case of Brady vs. The State, 26 Md., 269.

Unless [**21]  it can be shewn that the power to "apply such portion of revenues and tolls as in the opinion of the President and Directors of the company, might be necessary to put and keep the canal in good condition and repair," &c., includes the power to borrow money on bond and mortgage, and without the assent of the prior mortgagees, to create in favor of such bonds a first lien over all others on tolls and revenues afterwards to accrue, the complainant's claim to such priority on "the Repair bonds for $ 200,000, guaranteed by it," must fail. A mortgagor cannot, without the assent of a prior mortgagee, determine that the security of such prior mortgagee will be improved and rendered more available to such mortgagee, by borrowing more money for that ostensible purpose, and execute any form of contract or pledge, to take priority of such former mortgage.

If this view be correct, all the payments by the Canal Company of interest on what are known as Repair bonds, and for all certificates of indebtedness for interest accrued, have been misapplications of the tolls and revenues of the company. And in any account to be taken between the appellant and the Canal Company, the State of Maryland [**22]  and the preferred bondholders, the sums already received by the appellant, viz: some $ 22,000 in 1867, and $ 58,435 in December, 1869, must be credited to the interest on the Preferred bonds which it may show that it has paid on account of its guarantee thereof as aforesaid.

As to the claim of Virginia, as assignee of Selden, Withers & Co., the proceedings of the company show that the transaction was a loan by the firm, to enable the Canal Company to pay interest on its bonds; and that the company issued its bonds, "with the corporate seal of the company," for the money so borrowed. The interest coupons thus redeemed by the company were thus merged in the higher security--and the bonds create only a general indebtedness, and not a specific lien.

Bernard Carter and Charles Marshall, for the Chesapeake and Ohio Canal Company.

The object of this suit is to have a determination of the rights of the various lien creditors of the Chesapeake and Ohio Canal Company. The claim of the complainant, and the rights asserted by the various defendants, are stated clearly in the bill and answers, and with respect to most of them, the Canal Company has no interest other than to have [**23]  the law applicable to these claims finally ascertained, so that the money now ready for distribution, and the future revenues of the canal, may be properly applied. There are several classes of creditors of the Chesapeake and Ohio Canal Company, and each class claims that the debts due to it constitute the first lien on the tolls and revenues of the company. The company therefore hope that all questions arising out of these conflicting claims may now be finally adjudicated, and that the Court may find it within the scope of its power and duty in the present case, to lay down a chart by which all future Boards of the President and Directors of the company may be saved from the perplexities with which they would be met in the absence of such judicial determination.

Frederick W. Brune and I. Nevett Steele, for W. W. Corcoran and others, trustees under the deed of the 5th of June, 1848, and Isabella Brown and others, bondholders secured by said deed.

At the date of the passage of the Act of 1844, ch. 281, the State of Maryland was the virtual owner of the canal, and its entire property and revenues, by reason of the mortgages and liens given to the State by the canal for loans [**24]  and subscriptions amounting to an aggregate of $ 10,000,000.

At that time the canal was finished as far as Dam No. 6, leaving a link to be completed, before the great object of reaching the coal fields around Cumberland could be attained.

To pay for the work on this unfinished link, it was found, would require at least $ 1,700,000, and this sum the State was entirely unable or unwilling to advance or assume, but looking to the extremity of the situation of the canal, and with it the State's large investment, the State agreed, in the Act of 1844, ch. 281, as a last alternative, to waive its liens to a limited extent, and upon certain conditions, for the purpose, if possible, of enabling the Canal Company itself to finish its work to Cumberland, by a pledge of its unencumbered revenues. This Act was therefore passed.

The holders of the bonds issued under that Act advanced their money, relying on the pledges and promises contained therein to be performed on the part of the State and of the company, and they are entitled now to claim the full benefit of such pledges and promises.

The preference and priority of these bonds under the pledges contained in the Act of 1844,  [**25]  and the mortgage of the 5th of June, 1848, would be clear, but for the pretensions of the appellant, which claims a paramount lien for certain other bonds, termed "Repair" bonds, to the amount of $ 200,000, which it alleges are entitled to a preference of payment out of the revenues and tolls even to the Preferred bonds.

The State of Virginia has only paid a portion of the interest falling due on these bonds, leaving a large portion of the interest unpaid. The principal on these bonds has become due since the bill in this case was filed, and the first enquiry is: Has the appellant a paramount lien on the revenues of the Canal for the payment of these bonds or their interest, to the exclusion of the preferred bondholders?

We say it has not:

1st. Before the Act of Virginia, of Jan'y, 1844, confirmed by the Maryland Act of February 8th, 1844, the company had no authority to issue bonds nor even to borrow money, without the consent of a majority of the stockholders. Act of 1824, ch. 79, secs. 4, 11.

These two Acts contain a proviso that nothing in them shall be construed to impair the prior rights or liens of the State of Maryland, under its mortgages; but the same [**26]  shall be held binding, and be accordingly respected, except in so far as the same may thereafter be waived, deferred or postponed by the Legislature of said State. There has been no legislation in Maryland sanctioning the issual of the Repair bonds which were guaranteed by the appellant under the Act of March 15th, 1849.

2d. By the first and second sections of the Act of 1844, ch. 281, the Canal Company was authorized to issue a limited amount of bonds, in a prescribed form, for the specific purpose of completing the Canal to Cumberland; these bonds are the Preferred bonds, and in favor of these particular bonds, thus to be issued, the State, not only in the fourth section of the Act of 1844, and in the language of the previous Acts, "waived, deferred and postponed its own rights and liens," but it declared that it did so, "so as to make said bonds and the interest to accrue thereon, preferred and absolute liens" on the revenues of the company. And in the second section, the State further required that the bonds so authorized to be issued, should appear on their face to be preferred liens on the revenues of the company, and declared that the revenues from every part of the Canal [**27]  from Georgetown to Cumberland, were pledged and appropriated to the payment of the same.

The Canal Company not only assented to this legislation but confirmed it by the deed of trust of June, 1848, authorized in the sixth section.

This Act was also recognized and ratified by the State of Virginia, in the Act passed March 8th, 1847, in which it guaranteed $ 300,000 of these Preferred bonds upon the condition that the completion of the Canal to Cumberland was to be thereby secured and their Board of Public Works satisfied, that the revenues of the Canal, after completion, "pledged by the Act of 1844, to the payment of the principal and interest of the Preferred bonds, should be sufficient for that purpose."

The State of Maryland has not passed or sanctioned any legislation changing or modifying the priority thus secured to the holders of these Preferred bonds, and we deny that either the State of Maryland, or Virginia, or the Canal Company, or all combined, could impair this priority, without the consent of the bondholders.

3d. There is nothing in the first section of this Act, referring to debts for repairs, which reserves the right to the company to issue the Repair [**28]  bonds guaranteed by the complainant under the Virginia Act of March, 1849.

4th. The last proviso in the second section of this Act, does not authorize the company to issue the "Repair" bonds.

The privilege reserved to the company by that proviso in regard to the use of the revenues for repairs, &c., is confined to the application specifically of the revenues when accrued and received, and cannot be tortured into an authority to issue bonds in anticipation of revenue.

5th. This construction upon the meaning of the State, in reserving to the company the right to apply the revenues in paying for repairs, is confirmed by the provisions of the third and fifth sections of the Act of 1844.

6th. If the right claimed for the Canal Company to issue the Repair bonds and give them a lien superior to the Preferred bonds, is in conflict with the provisions and intentions of the Act of 1844, this right is still more restricted and opposed, by the language of the mortgage of June, 1848, executed in accordance with the sixth section of said Act.

The second enquiry is, whether the appellant, as the alleged assignee of Selden, Withers & Co., is entitled to any, and if any, what [**29]  lien or priority of payment, out of the assets of the company, derived from its tolls and revenues?

The appellees not only deny this priority, but maintain that these coupons can have no legal existence, but as vouchers or evidences of debt between the company and their bankers, Selden, Withers & Co., and making them only creditors, having no lien or claim on the revenues of the company until after the preferred bondholders and the State of Maryland are fully satisfied.

The appellees are entitled to the payment of their unpaid coupons, with interest from their maturity. The Act of 1844, in its first and second sections, secures the interest to accrue on the bonds as effectually as the bonds themselves, and it is well settled that the interest of a mortgage debt bears interest. Murray vs. Larmer, 2 Wall., 122; Thompson vs. Lee County, 3 Wall., 330-332; Aurora City vs. West, 7 Wall., 105.

The Potomac Company cannot now maintain a vendor's lien against the Canal Company or its revenues; and no mere creditor or assignee of a creditor of the Potomac Company, can claim to enforce such a lien or piece of a lien, and particularly after the lapse of more than thirty years since [**30]  the acceptance by such creditor of the Potomac Company, of the obligations of the Canal Company in discharge of its claims on the Potomac Company, without even asserting, so far as the record shows, any claim to a lien or right to it, at the time of receiving such obligations. Schwarz vs. Stein, 29 Md., 118, 119; Hayden vs. Stewart, 4 Md. Ch. Dec., 280; Watson vs. Bane, 7 Md., 117.

George H. Williams, for John S. Gittings, The Fredericktown Savings Institution, Lewis Markell, and others.

The imperative necessity to keep the canal in repair, makes it the duty first to apply the tolls for that purpose; and if tolls on hand do not suffice, then it is equally a duty to anticipate them by pledge; and to pledges so given for such purposes, all other pledges or mortgages are, of necessity, subordinate, and must yield.

If the Act of 1844, ch. 281, properly construed, were against this duty, it would be violative of the rights of the public, whose lands were taken for purposes, which the Act would permit to be frustrated. Courts, therefore, will not give it such a construction as would work this result, unless there was no escape from it. But the Act, so far from being intended [**31]  to work such results, adopts the correct principles by preserving the preferences in favor of money lent for repairs.

The true construction of the Act then, and the deed of trust securing what are termed the preferred bondholders, recognize the priority of loans for repairs, and, as a consequence, the Repair bonds are entitled to precedence. The Legislature did not, by this Act, design that the corporation should be permitted to disable itself from doing what was necessary for self-preservation.

Power (or duty rather) to use and apply revenue for repairs, includes power (nay, duty) to anticipate this revenue for such a purpose. Whether such necessity existed in fact, and who were the judges, (in the absence of mala fides,) of such necessity, are questions conclusively settled by the Act of Assembly, which confines the management of the canal to its President and Directors, and were the contingency to occur by which the management should be transferred to the trustees, then they are directed how to apply its revenues, by the words "in the manner hereinbefore provided," and which means, "repairs first." Gardner vs. London, Chatham & Dover Railway Co., 2 Ch. App. Cases (Eng.  [**32]  Law Reports,) 216, A. D., 1867.

The State of Virginia, as the holder of such Repair bonds, is not entitled to any priority. As against other holders, by contract with them and the company, she has guaranteed their faithful payment according to their tenor. It is admitted that she is in default, and the payment of but a fractional part of her undertaking gives her no rights at law or in equity. She must be postponed until those holding her guaranty are paid in full. Garnett vs. Blodgett, 39 N. Ham., 150; Swann vs. Patterson, 7 Md., 170.

Selden, Withers & Co., not being original sureties for the Canal Company, were volunteers as to their alleged payment of coupons; and no contract (supposing there were any such) between them and the Canal Company, could subrogate them to the rights of creditors, whose coupons they paid. To such a contract, the holders of such coupons must have been consenting parties; and no such consent is to be imputed to a creditor who merely silently receives payment of his due. Swann vs. Patterson, 7 Md., 170. As to when payment works an assignment, vide Walker vs. Stone, 20 Md., 198. And no assignment by them to the State of Virginia, could give higher [**33]  claims than they themselves possessed.

Moreover, the coupons were simple contract debts, which were merged by the acceptance of bonds under seal of the Canal Company; and acceptance of these sealed instruments worked an extinguishment of the coupon debt. Moale vs. Hollins, 11 G. & J., 14.

The supplemental bill involving matter subsequently happening, and to which complainant was a party, and the object of the bill being for the same purpose as these proceedings, the order for consolidation was improperly refused, and the cause should be remanded for that purpose. Campbell's Case, 2 Bland, 241.

Benjamin Price, for the Potomac bondholders.

The question submitted for decision then is, whether the bonds issued by the Chesapeake and Ohio Canal Company, under the 12th section of its charter, to the creditors of the Potomac Company, are not entitled to a priority in payment over all other debts of the company.

It is alleged that whatever might have been the rights of the Potomac bondholders originally, these rights have been changed by the Act of 1844, ch. 281, sec. 5. The holders of the Potomac bonds never gave their consent to this Act, nor was their consent ever [**34]  asked.

The true character and meaning of the Act of 1844, ch. 281, is: The State having liens as creditor, and priorities as stockholder in the Chesapeake and Ohio Canal Company, waived her liens and priorities to such capitalists as were willing to complete the work from Dam No. 6 to Cumberland. The Preferred bonds, therefore, succeed to the State's priority and no more, and this is all the State intended to accomplish by that Act.

The Potomac Company assigned its charter to the Chesapeake and Ohio Canal Company, by its deed of August 15th, 1828, by the operation of which deed the Canal Company stood in the place of the Potomac Company, and was invested with all its franchises. Canal Co. vs. Railroad Co., 4 Gill & John., 108, &c.

The consideration of this assignment was the payment by the Canal Company of the Potomac Company's debts. This was authorized by the charter of the Canal Company. Act of 1824, ch. 79, sec. 12.

The amount of these debts were ascertained to be $ 175,800, and the Canal Company was required to pay towards these debts the proportion which the revenues of the Potomac Company might bear upon an average of five years to the whole amount of $ 175,800.  [**35]  Some difficulty occurred in ascertaining the average of the Potomac Company's revenues. At length the Canal Company, at a general meeting of its stockholders, proposed that the average revenues should be assumed to be three per cent., and upon this basis the creditors agreed to settle, and the bonds or certificates of debt were issued as the creditors came in and signed their assent to the terms proposed. The consideration, then, was to pay the creditors of the Potomac Company, not the company itself.

These bonds, issued by the Canal Company, represent the price which it paid to the Potomac Company for the very site upon which the canal has been constructed, and the Canal Company paid interest on the bonds up to 1841, when it stopped for want of means.

This case, therefore, fulfils all the conditions upon which chancery raises, by construction of equity, a lien in favor of a vendor for the payment of unpaid purchase money. The moral foundation on which such a lien rests, exists in all its parts and incidents in this case. 2 Story's Equity, sec. 1219, 1224 to 1228; 1 White & Tu. Eq., 65 Law Lib., 233, &c.

The difference between this claim and that of a vendor's lien is [**36]  that in this instance, it is not the vendor who claims, but the vendor's creditor, with whom the contract was made and to whom the consideration was given by the charter.

The only debt of the Canal Company which could interfere with the lien of the Potomac bondholders, was that which was authorized by Act of 1844, ch. 281, for the security of which a mortgage was executed by the Canal Company upon all its property and revenues. The bonds issued under that Act are called the "Preferred bonds," and are secured by the aforesaid mortgage.

The Potomac bonds are not secured by mortgage, and if they rested solely upon the doctrine of equity, which creates a lien in favor of unpaid purchase money, the lien would prevail against the mortgage, and the case would be free from difficulty. Charter, sec. 3.

The preferred bondholders had ample and sufficient notice of the lien of the Potomac bondholders. Ringold vs. Bryan, 3 Md. Ch. Dec., 496; Price vs. McDonald, 1 Md., 497; West vs. Reid, 2 Hare, 259; Jones vs. Smith, 1 Hare, 43; Cooper vs. Ferryhaugh, 2 Bro. C. C., 291; White & Tu. Eq. Ca., 71 Law Lib., 132, et seq. & 144; 1 Story's Equity, 399 and 400; LeNeve vs. LeNeve, 2 White [**37]  & Tu. Eq. Ca., 132, et seq.

Persons dealing with a corporation are bound to take notice of the stipulations of its charter. 21 How., 441. Such notice is of the most conclusive nature, and is not susceptible of being explained away or rebutted. Nelson vs. Allen, 1 Yerger, 360; Graves vs. Graves, 1 A. K. Marshall, 165; Moore's Ex'rs vs. Blackwell, 6 B. Monroe, 67. The Canal Company solemnly contracted, by its charter, to pay these debts--can it accept a part and reject a part? The Mayor, &c., of Lyne Regis. vs. Henley, 1 Scott's Rep., 44 and 45.

The property of these creditors has been taken from them without their consent. It is true as the Court says, in 14 Peters, 45, they have their remedy--but what remedy? The Potomac Company, their original debtor, can no longer be sued--that is determined in Mumma's Case, 8 Peters, 285. Their remedy, therefore, is against their substituted debtor--substituted against their consent. Now with this debtor they have agreed to accept the terms according to the arrangement made by the Legislature. This is a duty of the Canal Company made so by their charter. 1 Barb. S. C., Rep., 289; Smith vs. Chesapeake and Ohio Canal Co., 14 Pet., 45.

The [**38]  mortgage executed under the Act of 1844 is made to trustees. It was the special duty of these trustees to enquire into the facts affecting the title of the property mortgaged. Notice to the trustees is notice to the bondholders. Astor vs. Wells, 4 Wheat., 487; Jackson vs. Sharp, 9 John., 168; Toft vs. Stephenson, 9 Eng., Law & Eq., 80; 1 Hill., on Mort., 683, 684.

The right of the Potomac bondholders is not only an equitable but a legal right. It is a part of the title of the Canal Company. Platt on Con., 3 Law Lib., 10 to 19, (marg;) Burnett vs. Lynch, 5 Barn. & Cres., 596; 8 Dowl. & Ryl., 368; 2 Platt on Leases, 5.

It is the duty of a Court of Equity not to decline to enforce rights for which there is no other remedy. Bacon vs. Robinson, 18 How., 485.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*527]  MILLER, J., delivered the opinion of the Court.
After a persistent and successful struggle of more than forty years with many disasters and innumerable difficulties, the Chesapeake and Ohio Canal Company has at last received from its tolls and revenues a surplus over and above its ordinary expenses, applicable [**39]  to the payment of its preferred or lien creditors. Under the proceedings in this cause a part of this surplus has been paid into Court, and the immediate question now to be decided is, to whom shall this fund be paid? Inasmuch, however, as there is a confident and apparently well-founded expectation that there will hereafter be large and increasing revenues annually accruing, to be applied to the same purpose, all parties in interest desire an adjudication by this Court of the priorities of the several classes of creditors of the Canal Company, not only to the fund now to be distributed, but to such future earnings. Most of the questions that will necessarily govern future distributions, arise and must be decided in order to settle the proper disposition of the present fund. We shall, therefore, address ourselves to the decision of these priorities. The several classes of claimants, parties to this proceeding, and who are contesting priorities and preferences inter sese as well as against the State of Maryland, are:
1st. The holders of obligations or bonds to the amount of $ 56,896.48, issued to such of the creditors of the former Potomac Company as came in and accepted the terms [**40]  offered by the resolutions of the Canal Company in 1834, for a portion of their several claims as then agreed upon.

 [*528]  2d. The holders of what are termed "Repair bonds," to the amount of $ 200,000, issued in 1849, guaranteed by the State of Virginia, due on the 1st of July, 1869, and bearing coupons for semi-annual interest.
3d. The holders of what may be termed "Preferred construction bonds," to the amount of $ 1,699,500, issued under the Maryland Act of 1844, ch. 281, due thirty-five years after date, with coupons for semi-annual interest, $ 300,000 of which were also guaranteed by Virginia.
The State of Virginia, having paid as guarantor part of the over-due coupons of each class of bonds, and being also assignee of the claim of Selden, Withers & Co., for payment of other coupons of the Preferred construction bonds, is complainant in the cause. The State of Maryland, the largest and most generous creditor of the Canal Company, has, by an Act of her Legislature, consented to be a party to the bill and submits her rights to the adjudication of the Court. All the legislation of Congress, of Virginia and of Maryland, chartering and aiding this corporation, is referred to [**41]  and made part of the bill and answers. The necessities, resources, revenues, loans and financial condition of the Canal Company, from time to time, as set forth in the annual reports of its several presidents, with accompanying documents, are also spread upon the record, giving to the Court all necessary information to enable it fully to understand the important questions it is called upon to decide. A detailed statement of what is thus disclosed, constituting as it does a familiar part of the legislative, judicial and financial history of the State, is unnecessary and could not be given without protracting this opinion to an inordinate length. We shall content ourselves, therefore, with only such reference thereto as is essential to a fair understanding of the several legal points that have been argued and arise for decision.
1st. The holders of the obligations issued to the creditors of the Potomac Company assert for their rights, an absolute priority over all other claims. The argument for this preference, 

 [*529]  in which there is most force, is that by its charter, and as a fundamental condition thereof, the Canal Company was bound and assumed the obligation to pay the claims [**42]  of these creditors, in the mode prescribed by the 12th section of the Act of 1824, ch. 79. It is unquestionably true, that the assent of the Potomac Company, with the transfer of its property, rights and franchises, was essential to, and made a condition upon which the Canal Company obtained its corporate existence, and the provisions in the charter of that company in favor of the stockholders and creditors of the former company, could not be abrogated or impaired, without their assent, by any subsequent acts of the Canal Company, or even by any legislation conjoint or separate on the part of Congress, Virginia or Maryland. It is also true, that by such transfer the Canal Company received substantial and most valuable property, rights and privileges, and may be regarded as having held them clothed with a trust in favor of these creditors, to be performed in the mode specified in its charter. If these creditors, therefore, were now standing upon the terms of the charter, expressly or substantially executed, and had done nothing which could be fairly construed as a waiver or abandonment of the privileges thus secured to them, the preference now claimed could not be successfully resisted.  [**43]  But it was clearly competent for them to waive any lien or priority thus existing and protected, and if they have done so by accepting different terms, and another and different security for their debts, they have lost their preference by their own act, and can have no just cause of complaint. It becomes important, then, to ascertain what the charter of the Canal Company gave them, and what they have accepted and received. The 12th section of the Act of 1824, ch. 79, makes it "the duty" of the Canal Company, "so long as there shall be and remain any creditor of the Potomac Company, who shall not have vested his demand against the same in the stock of the Canal Company, (which the Act enables him to do) to pay such creditor or creditors annually, such dividend 

 [*530]  or proportion of the net amount of the revenues of the Potomac Company, on an average of the last five years preceding the organization of the" Canal Company, "as the demand of such creditor or creditors at this time, may bear to the whole debt of $ 175,800." By this, the sum of $ 175,800, the supposed aggregate amount of debts, is made the basis on which the dividend is to be apportioned. The net average revenues [**44]  for five years being ascertained, it is easy to calculate what per cent. this would pay on the sum stated as the total amount of debts, and the same per cent. must necessarily be paid on the amount due the creditors respectively. Smith vs. Chesapeake and Ohio Canal Co., 14 Peters 47. Thus, if the net average revenue should be ascertained to amount to three per cent. on $ 175,800, then each creditor was to receive an annual payment of three per cent. on the entire amount of his claim, thereby making a permanent investment of his debt at an interest of three per cent. This was the extent of the responsibility assumed by the Canal Company, and no lien or preference was given to these creditors beyond the express terms of this contract or obligation. Now what have they accepted and received, and in what position as lien-holders do they now stand? From the face of the obligations or bonds issued to them, and now represented in this case, it appears that it having been found difficult to decide what were the net revenues of the Potomac Company, or whether, under a strict construction of the law, it had any net revenues, two resolutions were adopted by the Canal Company [**45]  in 1834; by the first of which they offered to pay on the 1st of July, 1834, to such of the creditors of the Potomac Company as have not subscribed their claims to the stock of the Canal Company, one-half the amount certified to be due them under the second section of the Act of 1824, ch. 79, provided no such payment shall be made to any creditor who shall not, before a certain time, file in the office of the Canal Company his acceptance of the terms offered by this resolution, as a full satisfaction of his claims against the late Potomac Company and the Canal Company 

 [*531]  as assignee thereof; and by the second, it was provided that the payment, thus authorized to be made, shall be paid out of the tolls of the Canal Company already received and which may not be indispensable for the completion of the canal below Dam No. 5, and if the disposable tolls on the 1st of July, 1834, shall not be sufficient to satisfy the demands then made, interest shall be allowed from that day until the whole amount admitted to be due under the first resolution, shall be paid, which interest shall be paid, semi-annually, out of the toll account, in preference to any other demand.  [**46]  Each of the creditors whose claims are now before us, signed his acceptance of the terms offered in these resolutions in full satisfaction of his claim against the late Potomac Company and against the Canal Company as assignee thereof, and received from that company its bond for one-half the amount of his debt, issued pursuant to a resolution passed on the 10th of October, 1835, with interest to be paid thereon half-yearly from the 1st of July, 1834. These bonds were actually issued to the several creditors, as they respectively came in from time to time and assented to the prescribed terms, between the 10th of June, 1836 and the 12th of November, 1845, and the semiannual interest was paid upon them to the 1st of January, 1841. This statement of the case clearly enough shows there was a wide and substantial difference between what was secured by the charter and what was actually accepted and received. Instead of an annuity or perpetual dividend of a certain sum, on the whole amount of their respective claims, they agreed to accept part of the principal with semi-annual interest thereon, if not paid at a specified time, and received the bonds of the Canal Company as security [**47]  therefor. Though called in the proceedings of the Canal Company, and even in the Act of 1844, ch. 281, an adjustment of their claims "under the 12th section" of the charter, it was in fact a compromise and acceptance of substantially different terms, of different amounts and secured in a different way. Being accepted with full knowledge of all the facts, in legal effect and operation, 

 [*532]  it constituted a waiver of any lien or priority these creditors may have had resting upon the terms of the charter and the character of the original transaction, and consequently, let in to absolute priority over such claims the mortgage to the State of Maryland, of the 23d of April, 1835, to secure its loan of $ 2,000,000.
But though these creditors have thus lost, by abandonment and waiver, any original lien or priority they may have held, we are yet of opinion they are entitled to the position in the order of preference, assigned to them by the Act of 1844, ch. 281, and to the extent there prescribed. The fifth section of that law in effect provides, that when the revenues of the Canal Company shall be more than sufficient to pay the interest due and in arrear on the bonds which [**48]  that Act authorized to be issued, the sum of $ 5,000 shall be annually appropriated by the Canal Company, to pay the interest on the bonds issued to the creditors of the Potomac Company, and out of the surplus net revenues a sinking fund shall be provided for payment of the principal of the Preferred bonds. In the mortgage for the benefit of the preferred bondholders, the revenues and tolls are devoted in the same manner--1st, to pay the semi-annual interest on the Preferred bonds; 2d, to pay $ 5,000 annually to the creditors of the Potomac Company; and 3d, to provide the sinking fund before mentioned. By a fair and just construction of this Act, the State has, to this extent, waived its liens in favor of these creditors, and by operation of this law and the mortgage referred to, they have a valid lien upon the tolls and revenues of the canal to the extent of $ 5,000 per annum, prior to the liens of the State, but subsequent to the interest due and in arrear on the Preferred construction bonds. In our opinion, this is their true position in the order of priority, and this is the extent of their lien, and we accordingly so decide and adjudge.
2d. The rights of the holders of the $  [**49]  200,000 Repair bonds are next to be considered and determined. The history and purpose of this loan are fully set forth in the record. 

 [*533]  It is sufficient to state here, that it appears to have been effected for the purpose of repairing and fitting for transportation that portion of the canal which lies between Dam No. 6 and Georgetown; that these repairs were absolutely essential to make that portion of the work westward from Dam No. 6 to Cumberland, for the construction of which the Preferred bonds issued under the Act of 1844, ch. 281, were applied, of any practical value whatever. In fact, the repair of this part of the canal seems to have been indispensable to the successful operation, if not to the very existence of the work, and the receipt of any revenue to be applied to the payment of any creditor. At all events, it is perfectly clear, that without these repairs, the security of the preferred bondholders, dependent upon tolls and revenue, would have been utterly worthless. The revenues actually received and in hand were wholly insufficient for the purpose. The loan was effected upon the guaranty of the State of Virginia. This guaranty was obtained upon the faith of [**50]  a pledge by the company, of its revenues for their payment, and not until an opinion had been expressed by the Attorney General of Maryland, upon the question being submitted for his opinion by the Governor of the State, that the company had power to issue their bonds and pledge the tolls and revenue of the work for the purpose of raising money to put and keep the canal in good condition and repair, and that this pledge would make such bonds superior and prior, not only to the liens of the State, but also to the bonds issued under the Act of 1844, ch. 281. The bonds thus guaranteed were issued in 1849, were sold for a premium, and, as the record sufficiently discloses, the proceeds were applied to the contemplated repairs, and for purposes clearly covered by the terms of the last proviso to the second section of the law of 1844. Is the debt thus created entitled to priority over all existing liens? The counsel for the preferred bondholders deny the power of the company to effect such a loan, to issue such bonds, or to anticipate its revenues, by any borrowing of money for the purpose of repair on any 

 [*534]  pledge of the same, so as to create thereby any priority over [**51]  their lien. Their argument is, and of necessity must be, that the only power which the company had over this matter, was to use and apply from time to time, as revenues were actually received and in hand, so much thereof as might be needed for the purpose of repair. Is this position sound? By the Act of 1843, ch. 124, amending its charter, power was conferred upon the Canal Company, in express terms, to borrow money from time to time, to carry into effect the object of its charter, (chief among which was the construction of the canal and repairing and keeping it in order,) to issue bonds and other evidences of such loans, and to pledge its property and revenues for the payment of the same, and the interest to accrue thereon, in such form and to such extent as its President and Directors, or a majority of them, may deem expedient; provided the prior rights and liens of the State of Maryland under the mortgages theretofore made to it, should not be impaired, and such mortgages should be held binding, except in so far as the same should thereafter be waived, deferred or postponed by the Legislature of the State. By the Act of 1844, ch. 281, the State waived its lien in favor of the Construction [**52]  bonds, to be issued for the completion of the canal from Dam No. 6 to Cumberland, and declared them to be preferred liens on its tolls and revenues, which were pledged for payment of the same and the interest to accrue thereon; provided, however, "that the President and Directors of said company shall, from time to time, and at all times hereafter, have the privilege and authority to use and apply such portion of said revenues and tolls as, in their opinion, may be necessary to put and keep the said 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 said company." It is too plain to admit of doubt, that by this Act the State waived her liens upon the tolls and revenues in favor of the application of so much thereof as might be necessary for repairs and 

 [*535]  other purposes mentioned in this proviso. This reservation was inserted in the law for the very purpose of preserving the life of the corporation, by preventing, and, in effect, prohibiting alienation or suspension of vital powers by a stringent pledge of all its revenues [**53]  and resources in favor of the Construction bonds about to be issued. To those about to purchase these bonds, the State, by this law, said, in effect, you shall have a lien on the tolls and revenues for payment of the principal and interest of your investments, but only on so much of them as shall remain after the objects mentioned in this proviso shall have been secured; in other words, the liens of the State are postponed to that of the bondholders, but before either shall be paid, the company shall have power to use and apply its revenues in such way as to preserve the existence of the canal, and keep it a living operative work, capable of earning tolls and revenues, and subserving the great public purposes for which its charter was granted. If, then, an emergency for repairs arises, to meet which the receipts from tolls and revenues are insufficient, can the company anticipate them and resort to the power granted by its charter, and issue bonds for the purpose, upon the faith and pledge of its after-accruing revenues, in preference to any other lien or claim thereon? Why not? It is very clear, that but for the exercise of the power to borrow money on such faith and pledge, the canal [**54]  would long since have ceased to exist, and if the company has no such power now, the work may become useless and dead at any time. The proviso referred to certainly does not, in express terms, restrict the use and application thereby authorized, to receipts from tolls actually in hand when there is occasion for repairs, and it would be a narrow and illiberal construction so to confine it. There is nothing in the nature of this corporation, or the purposes intended to be subserved by it, that would warrant such a construction. On the contrary, our predecessors have said that though "it is a private corporation, as distinguished from a public municipal body, it is not of that ordinary kind 

 [*536]  which is created merely for the pecuniary benefit of its stockholders, but like that of the Baltimore and Ohio Railroad 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 the designs of the Legislature, and securing the rights of the State [**55]  in a work of such magnitude, and involving such vast public interests." Brady vs. The State, 26 Md. 290, 303.
The sovereignties that created this corporation, exerting in its behalf the right of eminent domain, taking from citizens their private property for its use, designed the construction and perpetual maintenance of a great public channel of internal and inter-State commerce, which they declared should be forever "esteemed and taken to be navigable as a public highway, free for the transportation of all goods, commodities and produce whatever, on payment of tolls to be imposed," and it would be strange if there could be found in any law passed for the express purpose of aiding its construction and maintenance, any provision restraining its power to avail itself of its revenues and resources in such a way as to secure its existence, or if by any law, any authority had been conferred or permission granted, so to bind itself by pledges of its tolls and revenues in favor of any class of creditors, as to disable it from doing what was essential to self-preservation, and thereby work its own destruction. Indeed, it has been argued with great force and upon high [**56]  authority, that the Legislature could not authorize this corporation so to manacle itself, by any contracts, mortgages or pledges that it could not fulfil its duty to the public for the purpose of its creation, and that quite independently of any legislation, power must be deemed to be reserved for the purpose of keeping it a "living, going concern;" that like bottomry bonds, which avail for the benefit of all in interest, owners and mortgagees, and take precedence of all other claims, so loans for repairs vital to the 

 [*537]  existence of an enterprise like this, likewise availing for the benefit of all interested, must also take precedence of all liens and incumbrances of every kind whatever; that the imperative necessity to keep in repair, as a claim above all other claims, makes it the duty of this corporation, first, to apply its tolls for that purpose, and if tolls in hand do not suffice, then it is equally its duty to anticipate them by pledge, and to pledges so given for such purposes, all other pledges and mortgages are of necessity subordinate and must yield. But without either assenting to or denying the correctness of the position thus broadly stated, the preference [**57]  of these Repair bonds may, we think, be safely rested on the narrower ground of granted power. For, adopting those liberal rules of interpretation we are bound to apply, in construing for its benefit grants of powers and privileges to this company, we are of opinion the power to effect this loan, to issue these bonds and pledge the future accruing tolls and revenue for their payment in priority over the Preferred bonds and the liens of the State, is contained in the amended charter (Act of 1843, ch. 124,) and in the last proviso to the second section of the Act of 1844, ch. 281. It is said in behalf of the preferred bondholders, that this construction will defeat the objects of this Act of 1844, and the intent of all parties at the time of its passage, with whose rights that law professes to deal; that absolute preference was by that law given to the Preferred bonds, and the State waived its lien for their benefit only and for the specific amount of bonds thereby authorized to be issued; that every one supposed ample security was provided by this Act, for payment of the interest on the bonds thus preferred, and the ultimate payment of the principal protected; that the bonds profess [**58]  upon their face to be preferred liens on the revenues of the company, and no one would have invested his money in them if he had supposed their security and priority could be impaired and superseded by a loan for repairs; that if this construction is to prevail, there is no limit to the power to effect loans for the same purpose, whenever 

 [*538]  the company may deem it expedient to make them, which will supersede even the present Repair bonds themselves, and thus the security of the Preferred bonds, as well as the liens of the State, will be completely destroyed and all hope of ultimate payment of these debts will be lost. In answer to this, it may well be retorted, of what value would these Preferred bonds now be, or will they be hereafter, if the power to raise money by loan on the pledge of its revenues for the purpose of repair does not exist in the company? It cannot be doubted the only value they now bear, arises from the fact that the proceeds of the Repair bonds were expended in making repairs for their benefit, as well as of every other lien creditor, and from the fact, that since that period money has from time to time been borrowed on similar pledges and used for similar [**59]  purposes. No doubt all parties, at the time the law of 1844 was passed, supposed the revenues of the canal, under the contracts which that Act required to be made, would be sufficient to subserve all the ends that law professed to accomplish, and that all regarded the security as ample; but here, as in a thousand other instances where investments have been made in enterprises of like character, the most confident expectations have been frustrated and the best founded hopes disappointed. All that in reason can be said, is that those who loaned their money on these bonds relied upon a security which they thought was sufficient, which they were willing to accept, but which has hitherto failed them. They took security only upon expected tolls and revenues, and only on so much of them as might remain after repairs and other expenses were first provided for. There is certainly no equity in the pretensions they now assert. But the conclusive answer to their whole complaint is, that by the face of their bonds they were referred to the Act of Assembly, a public statute of a State, under which they professed to be issued, and are in law chargeable with knowledge of all its provisions and of [**60]  the true construction to be placed upon them by the Courts. And besides this, the mortgage taken for their 

 [*539]  benefit, recites the proviso in the second section of this Act, as well as all its other provisions, and devotes the mortgaged tolls and revenues to their security only, "after payment of the debts now existing and that may hereafter be contracted and in arrear for repairs on the canal and officers' salaries." It is true, if an emergency shall arise for another loan, for the same purpose of repair, the power to effect it can be exercised, and, upon the construction we have given to the law, the debt thus created will have priority over all other liens, including that of the present Repair bonds, but it is not to be assumed this power will be abused, and, from the present condition of the work, it is reasonable to expect the receipts in hand from time to time will always more than suffice for everything needed for repair or contemplated by the proviso referred to. If, however, some unexpected calamity should again unfortunately befall the canal, the exercise of the power is confided to the good faith and sound discretion of those to whom the law has entrusted [**61]  the management of the work, and clothed with the duty of protecting the interests of all who have invested their money in it. It is not necessary to pursue the subject further. After the best consideration we are able to bestow upon it, we are satisfied the construction we have given is correct, and accordingly adjudge and determine that these Repair bonds now constitute the first lien on the tolls and revenues of the Canal Company, and are entitled to priority of payment out of the fund in Court.
The principal of these bonds has fallen due since the bill in this case was filed. The State of Virginia was guarantor of the whole, principal and interest, and has paid but part of the interest coupons, remaining as to the rest and the entire principal, in default. By her contract of guaranty she, as well as the Canal Company, became indebted to the holders of the bonds, her contract being to pay them in case the company failed therein. The latter is, therefore, the principal debtor and the bondholders are creditors of both, 

 [*540]  and it is the money of the principal debtor that is now to be distributed. In this state of case it is very clear, no part of this fund can be appropriated [**62]  to the defaulting guarantor, until the claims of the common creditors of both are fully satisfied. The distribution must therefore be, first to the payment in full of all the over-due and unpaid coupons not taken up by Virginia, next to the principal of the bonds, and then Virginia must be re-imbursed what she has paid as guarantor.
3d. Having settled the priority of the Repair bonds, little need be said of the position of the Preferred construction bonds. That is so clearly fixed by the Act of 1844, ch. 281, as to require no comment. They stand next in priority, and the liens of the State have been expressly waived in their favor. Of these, $ 300,000 were guaranteed by Virginia, part of the over-due interest coupons on which she has paid, and as to the rest is still in default. The principal is not yet due. By the terms of the law, all the bonds are placed on the same footing, "without any preference or priority over each other on account of date," and a sinking fund is directed to be provided for the payment of the principal. The over-due interest on these bonds is, therefore, first to be paid, and the fair and just rule to be followed in making distribution for this purpose, is [**63]  to pay all the outstanding over-due interest coupons, in the order of seniority, whether taken up and paid by Virginia as guarantor, or not. In such distribution as holder of the coupons paid on the bonds guaranteed by her, Virginia is entitled to share in payment pari passu with holders of unpaid and over-due coupons on those not guaranteed.
In this connection, it is proper to consider and dispose of the claim of Selden, Withers & Co., of which the State of Virginia has become assignee. In reference to this claim, the bill charges that the Canal Company, being unable to pay all the interest on the Preferred bonds, due January 1st and July 1st, 1851, and January 1st, 1852, made an arrangement with Selden, Withers & Co., by which it was stipulated the latter 

 [*541]  should take up the coupons due on those days, and hold them until the company should be in a condition to pay and redeem them and the interest to accrue thereon in the meantime, the future revenues of the company being at the same time pledged to secure the same; that in consequence of this arrangement, that firm did take up and hold said coupons, thereby being subrogated to the rights [**64]  of the original owners, amounting to the sum of $ 143,000 for $ 140,000, of which the company afterwards issued to them certificates of debt bearing interest payable semi-annually; that these certificates, with the coupons represented by them, have been transferred to, and are now held by, Virginia, and constitute a lien upon the tolls and revenues of the canal by virtue of the Act of 1844, ch. 281, and the mortgage in favor of the bondholders executed in pursuance thereof. The bondholders and the State of Maryland, in their answers, deny the complainant was, or is, entitled on account of such assignment, to any lien or priority over their respective claims.
From the proof adduced in support of the allegations of the bill, which must be stated somewhat in detail, it appears the Directors, finding their company would be unable to meet the interest on these bonds falling due January 1st, 1851, at a meeting of their Board, held November 17th, 1850, appointed, by resolution, a committee to negotiate and procure for and on behalf of the company, a loan or advance of such sum of money as would be required to meet and discharge such interest, with power to procure said [**65]  loan or advance upon such terms, and with such agreements or arrangements in regard to the deposit of the revenues of the company as they may deem expedient, and authorizing their President to issue the necessary instructions for carrying the same into effect, and also to execute, with the common seal of the company, any bond or instrument of writing, he might deem proper or necessary for effecting and concluding the negotiation of said loan or advance. They also, at the same time, passed a resolution, that subject to existing priorities, sanctioned 

 [*542]  and authorized by the Act of 1844, ch. 281, the revenues of the company hereafter to accrue, be pledged for the payment of the principal and interest of the loan or advance that may be obtained under the preceding resolution, and that, from time to time, as in his judgment it may be necessary or expedient, the President be authorized and required to issue requisitions for the payment of said principal and interest, until the whole of said loan or advance is paid. At a meeting held on the 8th of January, 1851, the President reported, that in pursuance of these resolutions, and upon the terms therein mentioned, the committee [**66]  had arranged with Selden, Withers & Co. to make such advance as was required for payment of the January, 1851, coupons of interest, and that firm had advanced therefor the sum of $ 50,000 at legal interest, to be paid from time to time as the funds of the company would permit. He also read his correspondence with that firm and with the collectors at Georgetown and Cumberland, relative to the deposit of the revenues of the company with them; all of which was approved by the Board. At the meeting, held June 2d, 1851, the President stated he had conferred with the same firm in relation to advances required for payment of the interest falling due July 1st, and that they had expressed their willingness to advance the amount required on the terms and conditions of the advance made in January last; whereupon, similar resolutions to those of the preceding November, as to the execution of a bond and pledge of revenues, were passed in reference to the advance for payment of the July interest. On the 13th of November, 1851, Selden, Withers & Co., addressed a letter to the Board, in which they say: "On settlement of our bank books with your company, we find we have [**67]  inadvertently returned to you as checks the coupons amounting to $ 93,000, which coupons we should have retained as security for our advances for interest on the Preferred bonds of the company. We request, therefore, the return to us of the coupons to the amount stated." This letter was read at a meeting of the 

 [*543]  Board, held on the same day, and it was ordered that coupons on the Preferred bonds heretofore paid by that firm, and delivered to the Treasurer, to the amount of $ 93,000, be returned to them as requested, and that that amount of coupons be charged on the books of the company to that firm, the same having been heretofore credited to their account. At the same meeting, the President called to the notice of the Board the propriety of giving said firm satisfactory security for the money which they have advanced or may advance to enable the company to pay the interest on the Preferred bonds; and thereupon a resolution was passed that, after paying current expenses and the interest on certain specified loans for repairs, including the $ 200,000 Repair bonds, the tolls and revenues of the company are hereby pledged to the payment of all the money, and six per [**68]  cent. interest thereon, which this firm have advanced or loaned, or which they shall hereafter advance or lend to the company, and that the President be authorized and required to issue, from time to time, requisitions for the payment of such money, and in consideration of the money expended for, and services rendered to the company by said firm, it is hereby resolved that the account of the company shall be kept with them, and the tolls and income of the company shall be deposited with and be disbursed by requisitions drawn upon them, until all the money which the company shall owe them shall be fully and fairly paid. At a meeting held January 2d, 1852, a letter of the firm bearing date the 1st of December preceding was read, in which they expressed a willingness to advance $ 50,000 for payment of the coupons due January 1st, 1852, under resolutions heretofore passed by the Board, and the president stated that at the request of the firm, and in compliance with the resolutions of November, 1850, and June, 1851, two bonds of the company each for $ 50,000, dated December 1st, 1851, payable on demand and bearing interest from the 1st of January, 1852, were issued to [**69]  them on account of advances made and to be made by them for the payment of coupons of interest 

 [*544]  on the bonds of the company, which was approved. At another meeting held December 8th, 1852, the president stated that on the 17th of November preceding, three other bonds, amounting together to $ 40,000, payable on demand with interest from the 1st of January, 1852, had also been issued to the firm in conformity to the same resolutions of November, 1850, and June, 1851, on account of advances made by them for payment of the coupons of interest on the bonds of the company. This is all the record discloses on the subject of the original character of this transaction. It was agreed, however, that certain notices in the National Intelligencer of that period should be regarded as in evidence, from which it appears the Canal Company, on the 6th of December, 1850, gave notice that the interest coupons due January 1st, 1851, both on the Repair and Preferred bonds, would be paid on presentation and delivery by Selden, Withers & Co., accompanied with a notice from that firm that they would pay the same at their banking house in Washington. A similar notice from the firm [**70]  was published on the 21st of June, 1851, as to payment of the interest due July 1st, 1851, on both classes of bonds, and on the 25th of June, 1852, a notice was published from its Treasurer, stating the company would be compelled to suspend payment of the interest coupons due July 1st, 1852, on the Preferred bonds.
We have thus stated at length this proof, because it embraces all the information we have, and is probably all that can be now furnished of the origin and character of the transaction on which this claim is based, and it is entirely by this that its validity must be determined. It has not been argued, and could not be pretended, that the five bonds or certificates of debt, amounting, in the aggregate, to $ 140,000, issued to this firm under these resolutions, even if they contained a pledge of the revenues of the company for their payment, standing by themselves, apart from the coupons to that amount they are supposed to represent, constitute, as against the bondholders or the State, any valid prior lien. By themselves, 

 [*545]  they are simply contracts or obligations of the company, whose payment must be postponed to that of all existing liens. If, in their struggle [**71]  and zeal to maintain its credit, the President and Directors of the company exceeded their powers and induced this firm to advance their money on the faith alone of these securities, that were and are now unavailing, it is a misfortune which a Court of Justice cannot remedy by depriving other lienors of their legal rights and priorities. The only plausible argument that can be urged in support of this claim, is that the original transaction effected a subrogation and substitution of these bankers, whose money was applied in paying the coupons, in the place and to the rights their owners held under the Act of 1844, and the mortgage in their favor. This right of subrogation is asserted not only against the holders of subsequently maturing and unpaid coupons, and the bondholders themselves, but also against the State of Maryland, who by waiver of her liens occupies as to these coupons and bondholders the position of subsequent mortgagee. It is manifest, however, to our minds, after a careful examination of all the evidence on the subject, that the original arrangement between the company and this firm, (even if an agreement between these parties alone to that effect could establish the [**72]  priority, and work the substitution now claimed,) did not contemplate the purchase and holding by the latter of the coupons, in the same manner as they were held by their owners, but an advance or loan of money to the company on security of a pledge of its future revenues and for other considerations, to enable the company to pay and extinguish this portion of its interest debt. The money so applied was in fact the money of the company borrowed for that purpose. The resolutions and proceedings of the Board throughout speak of the transaction as a loan or advance to the company, and not until long after the January and July interest of 1851 had been paid, and the coupons delivered over to the Treasurer, was the idea of retaining them as security for the loan suggested by the firm, and clearly 

 [*546]  nothing that was then done could affect the rights of other lienors, which supervened immediately upon payment of the coupons. Nothing can be found in the resolutions, on the terms and conditions of which the firm was willing and did make the advances, providing for retention of the coupons as security. They neither sought nor received any assignment [**73]  of their liens from the parties whom they paid, nor any assent from them that their coupons should be so treated after payment, as to remain a lien in preference to those subsequently falling due. Mere payment to these creditors worked no such assignment and mere silent receipt of money due them furnishes no ground for presuming any such assent. In Swan vs. Patterson, 7 Md. 164, a mortgage was assigned by the mortgagee to one party, and the equity of redemption by the mortgagor to another, who created subsequent incumbrances on the property and gave his notes, with an endorser as surety, to the assignee of the original mortgage, for interest due thereon. These interest notes were paid at maturity by the endorser, who claimed, by reason of such payment, to be subrogated, to this extent, to the rights of the original mortgagee, and, therefore, entitled to priority over the subsequent mortgage. He took no assignment from the original mortgagee and the Court rejected his claim, saying "it may be that when he endorsed these notes he supposed he would have the benefit of the security held by the creditor, but if this was his view he should have entitled himself [**74]  to such indemnity by an agreement to that effect, or by an assignment pro tanto, when the notes were paid." The parties here by mere payment of the coupons certainly cannot occupy a more favorable position than did this endorser by payment of these interest notes. The cases are entirely analogous, and the law of the former must control our decision of this. Looking carefully to the whole transaction, we find it to be simply a loan of money to a mortgagor, by a third party in no way connected with the mortgage, on the credit of the mortgagor and on an agreed security given by him and accepted by the lender, which money was applied by the lender, under the directions 

 [*547]  of the borrower, to the payment and discharge in part of the mortgage debt, no assignment of the mortgage being taken or asked by the lender either at the time of the loan or of the application of his money. We think no case can be found-- certainly none has been cited--in which the doctrine of subrogation or of equitable assignments has been carried to the extent of protecting a party thus acting, against a subsequent mortgage. The cases of Walker vs. Stone, 20 Md. 195, and [**75]  Brawner vs. Watkins, 28 Md. 217, 226, are not in conflict with Swan vs. Patterson, and announce no doctrine nor establish any rule of equity within which the present case can be brought. Finding, then, that these coupons were, both in fact and in law, paid and extinguished by the Canal Company, with their money borrowed and applied for that express purpose, this claim to priority by substitution or subrogation must be and is rejected.
4th. The remaining question the case presents is, do the over-due interest coupons, of both the Repair and Preferred bonds, bear interest from their maturity, which is to be allowed payment out of the revenues of the company in preference to the claims of the State of Maryland? The Supreme Court, in a series of cases, have decided that where coupon bonds, like the present, payable to bearer, are issued by a corporation under proper authority, both the bonds and the coupons, by universal usage and consent, have all the qualities of commercial paper, and are negotiable instruments; that the coupons being written contracts for the payment of a definite sum of money on a given day, drawn and executed in a form and for the purpose [**76]  of being separated from the bonds, may be sued on without producing the bonds to which they were attached, and that interest being due, as a general rule, on a debt from the time payment is unjustly neglected or refused, interest may be recovered from their maturity on such coupons. Aurora City vs. West, 74 U.S. 82, 7 Wall. 82, 19 L. Ed. 42. The same thing has also been decided by the Courts of several States, and it may now be regarded as a settled doctrine of American law. Without questioning, but, on the contrary, 

 [*548]  fully recognizing and adopting this law as applicable to cases inter partes--between the coupon holder and the debtor corporation, where the rights of no other parties are involved or affected--we yet consider the question now to be decided in this case, one of an entirely different character. It is not whether this interest could be recovered against the debtor company, but whether the State of Maryland has waived its liens so as to allow it to be paid in preference to its claims. The State has not permitted that waiver to rest in parol, to be made out by inference from acts in pais, nor left it to the construction of verbal agreements,  [**77]  or even of deeds or other written instruments of that character. It is plainly expressed in a law passed by the Legislature, a public statute of the State, which is to be construed by the same rules that govern the interpretation of other statutes. It is true that in respect of its rights as stockholder in this corporation, and mortgagee of its property and revenues, the State stood in the same position as a private party, yet having dealt with those rights by a public Act of legislation, knowledge of which is to be imputed to every one, there is no reason why the terms of such a law should be extended by construction, beyond the plain, natural signification and import of the language used. It must be construed with a view to the original intent and meaning of its makers, to be collected from the language employed, and the occasion and necessity of its passage. Canal Co. vs. Railroad Co., 4 G. & J. 1, 162. When application was made by the company to the Legislature in 1844, for further aid to complete the construction of the Canal from Dam No. 6 to Cumberland, the State had not only advanced in subscription for its stock, more than three and a half millions [**78]  of dollars, but held mortgages and pledges of its entire property and revenues for loans and advances of over two millions more. Having these vast interests at stake, with these valid liens for several millions of dollars entitled to absolute priority over every other claim, the Legislature, unwilling to burden the people with further taxation for further loans, but still 

 [*549]  desiring to aid the completion of the work, and yet to preserve as far as was consistent with the relief proposed to be given, the State's liens and priorities, said to the company, you may issue your bonds for a sum which shall not exceed one million seven hundred thousand dollars, and in favor of this debt, with interest to accrue thereon, the liens of the State upon the revenues of the canal shall be waived. This waiver is expressed in the 4th section of the Act of 1844, ch. 281, in these terms: "And be it enacted, that the rights and liens of this State, upon the revenues of the Chesapeake and Ohio Canal Company, shall be held and considered as waived, deferred and postponed in favor of the bonds that may be issued under the aforegoing sections, so as to make the said bonds and interest to accrue  [**79]   thereon preferred and absolute liens on said revenues, according to the provisions of the second section of this Act, until said bonds and interest shall be fully paid." This language is certainly plain and admits of but one construction. The waiver extends no further than the preference is created and allowed--the latter being made the exact measure of the former, and given to the "said bonds and interest to accrue thereon." The term "interest" used in this connection, means nothing more than the simple interest that may accrue upon the bonded debt. It does not mean interest to accrue upon interest coupons the company might see fit to attach to their bonds. It is nowhere said in this Act that the liens of the State shall be waived in favor of compound interest, or allowance of interest upon interest to any extent, and there is no rule of construction that will permit us to interpolate into the statute words that will convey such a meaning. The construction which would extend this waiver to the limit now insisted on by the bondholders, has no more of equity to commend than it has of law to support it. It finds no sanction in any other part of the statute,  [**80]  nor in the occasion or necessity of the Act itself. Could we view the matter in the light of, and gather the intent of the framers of this Act at the time it was passed, from subsequent 

 [*550]  events and misfortunes that have hitherto befallen the enterprise, and consider the hardships resulting from either construction, the preponderance of equity by no means rests with that upon which the bondholders insist; for if it be considered by them a grievance and a hardship that they have received no interest on their investments for many years, it is equally hard--and measured by the amount involved, much harder--that the State, as stockholder and mortgagee, has never received a cent from its vast expenditure of money in this undertaking. Unless, therefore, there is to be found some plain language in the statute by which the Legislature has said these bondholders may now receive more than a million of dollars in the shape of compound interest, or of interest upon interest, before anything shall be applied to the State's liens, there is no hardship in confining them, as to priority over the State, to their debts and simple interest thereon. Surely they cannot ask a Court of [**81]  Justice to strain by construction the language of a law waiving the State's large liens for their benefit, in order that a result like this may be accomplished. But as we have said, the State having waived its priority only in favor of the liens created and sanctioned by the Act of 1844, ch. 281, in our opinion the language of the waiver clause in that law, (which is applicable to both the Repair and Preferred bonds,) will admit of no other construction than the one we have placed upon it. It extends to the bonded debts and simple interest that may accrue thereon until they are paid. It does not embrace interest on the over-due interest coupons of either class of bonds, and no priority, therefore, attaches in favor of any interest on these unpaid coupons.
This disposes of all the questions necessary to be decided, and settles the rights and priorities of the several classes of creditors, parties to this proceeding. It will be easy to state an account distributing the fund in Court and adjusting the rights of parties in accordance with these views. This fund and all like revenues hereafter accruing must, therefore, be applied, as follows:

 [*551]  1st. All the unpaid coupons on [**82]  the $ 200,000 of Repair bonds, not paid and held by the State of Virginia as guarantor, must be first paid in the order of their seniority, then the principal of said bonds with interest thereon from the time they matured until paid, then the coupons on these bonds that have been paid by Virginia as guarantor.
2d. After the principal and interest of the Repair bonds have been paid as above stated, the revenues must then be applied, first, to payment of over-due and unpaid coupons on all the Preferred construction bonds in the order of seniority; and in this distribution those paid and held by Virginia, as guarantor of $ 300,000 of said bonds, are to share in payment pari passu with those unpaid and held by other parties, but nothing in such distribution is to be paid to that State as assignee of any claim of Selden, Withers & Co. After the over-due interest has been thus liquidated the accruing interest on these bonds must be paid, and then $ 5000 per year to the holders of the bonds issued to the creditors of the Potomac Company, and then the sinking fund for the payment of the principal of the Preferred construction bonds must be raised, applied and paid in the mode prescribed [**83]  by the 5th section of the Act of 1844, ch. 281.
3d. After the above stated payments shall have been made, the entire surplus revenues of the company must be applied in discharge of the principal and interest of the liens and claims of the State of Maryland.
We are of opinion the complainant is entitled to maintain this bill, and that the supplemental bill filed by Gittings and others, should be consolidated with the present proceedings. The pro forma order dismissing the bill will, therefore, be reversed and the cause remanded to the Circuit Court of Baltimore city for further proceedings in conformity with the views expressed in this opinion. The costs must be paid out of the fund in Court.
Order reversed and cause remanded. 

109 of 142 DOCUMENTS 

EUGENE F. GUERAND vs. FRANCOIS DANDELET.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 561; 1870 Md. LEXIS 57 

June 20, 1870, Decided 

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

DISPOSITION:
Order affirmed.  

HEADNOTES:

Practice in the Court of Appeals -- Contracts in Restraint of Trade or Business -- What Constitutes a Breach of the Contract -- Good-will of a Trade or Business.

On an appeal from an order granting an interlocutory injunction, the Court of Appeals, in determining the propriety of the order, is confined exclusively to the bill and the exhibits filed therewith.

The proprietor of a certain dyeing and scouring establishment leased the same for the term of ten years, and, for a valuable consideration, sold the custom and good-will thereof, together with the right to use the same name and style as theretofore, and carry on the business of dyeing and scouring; he likewise covenanted that he would not, at any time thereafter, exercise or conduct, in the city of Baltimore, the trade or profession of a dyer or scourer, nor, directly or indirectly, compete with the lessees and vendees for the good-will and custom so sold. HELD:

1st. That this covenant was valid, not being too comprehensive in its restriction, and its violation would be restrained by injunction.

2d. That the re-establishment or resumption of the business in the name of the son, was a breach of the covenant of the father, the allegation of the bill, which must be taken as true, being, that the name of the son was used as a mere cover and blind to conceal the interest of the father.

The parties to whom the sale of the good-will and custom was made, had entered into a partnership which was to continue during the term of the lease. Before the expiration of the time so limited, one of the partners sold and conveyed all his interest in the partnership and the property thereof to his co-partner, who, after the expiration of the lease, and upon his failure to procure its renewal, continued the business of dyeing and scouring at a house adjoining. HELD:

That the circumstance of the dissolution of the partnership did not release the covenantor from his obligation to observe his covenant. The party continuing the business became entitled to the benefit of the covenant by virtue of the articles of co-partnership between himself and his co-partner, and the subsequent assignment of the latter.

The good-will of a trade or business is an interest which may be valued as between partners, and may, therefore, be assigned with the premises and the rest of the effects, by the partner retiring, to the one remaining in the business.

Contracts restraining the exercise of a trade or profession in a particular locality, when founded upon a sufficient consideration, are good and valid, if there be a fair and reasonable ground for the restriction The restraint, however, to be lawful, must be confined within reasonable limits.

The adequacy of the consideration of a contract in restraint of any trade or business, will not be inquired into by the Court. It is sufficient, if the contract show on its face a legal and valuable consideration. 

COUNSEL:
Joseph S. Heuisler and Wm. Pinkney Whyte, for the appellant.

The clause in the contract between F. Guerand and the appellee and Feuillan, if correctly construed by the appellee, as binding Guerand to forbear forever from carrying on the dyeing and scouring business in Baltimore city, was void as being in restraint of trade. The time was unlimited, and the prevention of competition in the whole city of Baltimore was injurious to the public and void. Ross vs. Sagdben, 21 Wend., 166; Hitchcock vs. Coker, 6 A. & E., 438; Pierce vs. Fuller, 8 Mass., 223; 1 Smith's Lead. Cases, Pt. 2, p. 648, 650.

But if the covenant were binding on F. Guerand, it was not binding on his posterity. His son, the appellant, has a right to carry on the business, as it is admitted he is really the party carrying it on.

But the true construction of the clause is, that F. Guerand bound himself, during the lease, not to compete with the good-will of that establishment while Dandelet & Feuillan were occupying that store, as his tenants under the ten year lease. The whole of the covenant is to be looked to in its construction.

There [**2]  is an adequate remedy at law, if the contract has been violated, and equity cannot be invoked.

Arthur Geo. Brown and George Wm. Brown, for the appellee.

This is a proper case for the intervention and protection of a Court of Equity. Am. Law Reg., Feb. 1870, 65, et seq.; McClurg's Appeal, 58 Penna., 51; Catt vs. Tourle, 4 Chanc. Ap. Cases, 659; Harrison vs. Gardner, 2 Madd. Ch., 198; Williams vs. Williams, 2 Swanst., 253; Butler vs. Burleson, 16 Vermont, 176; Beard vs. Dennis, 6 Indiana, 200; Palmer vs. Graham, 1 Pars., 476.

Contracts restraining the exercise of a trade in particular localities are valid, and the sufficiency of the consideration will not be inquired into. Barney vs. Davis, 2 G. & J., 382; McClurg's Appeal, 58 Penn., 51; Catt vs. Tourle, 4 Ch. Ap. Cases, 659; Mitchell vs. Reynolds, 1 P. Wms., 181; Davis vs. Mason, 5 T. R., 118; Hayward vs. Young, 2 Chitty, 407; Bunn vs. Guy, 4 East, 190.

Francois Guerand having covenanted that he would not, "directly or indirectly, compete with the aforesaid lessees and vendees for the good-will and custom sold," &c., cannot suffer or permit his house, No. 124 N. Howard street, to be used for a dyeing or scouring [**3]  establishment, nor sell it with the knowledge that it will be so used; and such business, by whomsoever there conducted with his assistance or connivance, is a violation of his contract. Davis vs. Barney, 2 G. & J., 382, 401, &c.

The appellee being, by purchase, the absolute owner of the custom, good-will and name of Guerand's dyeing and scouring establishment, has a right to the name and franchise as against all the world. Croft vs. Day, 7 Beav., 84; Sykes vs. Sykes, 3 B. & C., 54; Howe vs. Howe, &c., 50 Barb., 236.

On appeals from orders granting injunctions, the appellate Court is confined to the case made by the bill, and will not consider the answer. Alexander vs. Worthington, 5 Md., 471; Guyton vs. Flack, 7 Md., 398; McCann vs. Taylor, 10 Md., 419; Hyde vs. Ellery, 18 Md., 499; Haight vs. Burr, 19 Md., 132.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MAULSBY, ALVEY and ROBINSON, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*564]  ALVEY, J., delivered the opinion of the Court.
This is an appeal from an order granting an interlocutory injunction to restrain the appellant and his father, Francis Guerand, from carrying on a dyeing and scouring establishment, at No. 124 North [**4]  Howard street, in the city of Baltimore, and from advertising the same in any newspaper, or by card, circular or otherwise.
In determining upon the propriety of the order appealed from, we are confined, on this appeal, exclusively to the bill and the exhibits filed therewith; for if the answer, which is required to be filed as a condition precedent to the right of appeal, could be taken into consideration, we should be reviewing the order by the light of other facts than those presented to the Judge below and upon which he acted. This would not be at all consistent with the exercise of mere appellate jurisdiction, to which this Court is confined.
The appellee, the complainant below, by his bill and exhibits, presented, we think, a clear case for the injunction that was granted. By the lease of the 17th of October, 1859, Francis Guerand, the father of the appellant, let to Jean Feuillan and the appellee his house and lot, No. 124 North Howard street, theretofore used as a dwelling, store and dyeing and scouring establishment, for the term of ten years, at an annual rent of $ 1,000; and in this lease we find incorporated an agreement by which the lessor sells to the lessees the custom, [**5]  good-will, name and utensils then in, upon and about the leased premises, theretofore known as "Guerand's Dyeing and Scouring Establishment," together with the right to use the same name and style as theretofore, and carry on the business of dyeing and scouring, for the sum of $ 3,000, payable in installments; and Guerand, the lessor, covenanted that, on the payment of the purchase money for the custom, good-will, name and utensils sold, he would not, at any time thereafter, "exercise or conduct, in the city of Baltimore, the trade or profession of a dyer or scourer, nor directly or indirectly compete with the aforesaid lessees and vendees for the good-will and custom sold as aforesaid."

 [*565]  The purchase money for the custom, good-will, name and utensils has all been paid, and the term of the lease has expired, and there has been no renewal of it. The co-partnership between the complainant and Feuillan, entered into at the date of the lease, has been dissolved, and upon such dissolution, Feuillan, in pursuance of the terms of the articles of co-partnership, sold and assigned to the complainant all his interest in the partnership and its property and effects. The complainant,  [**6]  shortly before the expiration of the lease, applied for its renewal to him, but the amount of rent asked being largely increased over the former rent, he declined to accept a renewal on the terms proposed to him; and, on having to surrender the premises at No. 124 North Howard street, he rented the premises next door thereto, and established himself, by a considerable outlay of money, in his regular business of dyer and scourer, where he has continued to carry on such business to the present time. And the ground of complaint now is, that since his removal from No. 124 North Howard street, Guerand has recently opened, or caused and permitted to be opened there, a dyeing and scouring establishment, with conspicuous signs and advertisements of the business, intended to re-call former customers; such signs and advertisements containing the name of E. F. Guerand, the son, as proprietor; but it is alleged that the use of such name is a mere cover and blind adopted with the intent to conceal the interest of the father in the establishment; that the capital employed in the business, as well as the property occupied by the establishment, belongs to Francis Guerand, and not to the son in whose [**7]  name the business is apparently conducted. It is also alleged that the competition thus brought into existence is seriously injurious to the business of the complainant, and that it is in derogation of the contract with Francis Guerand of the 17th of October, 1859.
By the contract the restriction on the exercise of the trade in the city of Baltimore is plain and unequivocal. Guerand covenanted that he would not, at any time thereafter, be 

 [*566]  engaged in the particular business, nor directly or indirectly compete for the good-will and custom sold. The restriction as to locality is limited, but as to time it is without any limit whatever; and it has been contended by the appellant that the whole covenant is void, because its observance would operate to the prejudice of trade and industry.
As a general rule, it is true, a contract, whether under seal or otherwise, in unlimited restraint of trade, or of any particular vocation, is absolutely void, as being contrary to public policy, as well as oppressive in its operation upon individual industry. This has been the law from an early period in the history of English jurisprudence, as is abundantly shewn in the elaborate judgment [**8]  of LORD MACCLESFEILD, in the leading case of Mitchel vs. Reynolds, 1 P. Wms. 181. But while this is the general rule, the same leading case just referred to fully establishes the principle that contracts only in partial restraint of any particular trade or employment, if founded upon a sufficient consideration, are valid and enforceable.
The restraint, however, to be lawful, must be confined within reasonable limits. "Where it is larger and wider than the protection of the party with whom the contract is made can possibly require," said the Court in Hitchcock vs. Coker, 6 Ad. & El. 454, "such restraint must be considered as unreasonable in law, and the contract which would enforce it must be therefore void." If the restraint therefore be general, and not confined to any particular locality, the shortness of the time for which it is imposed will not make it good. Ward vs. Byrne, 5 M. & W. 548. But if it be reasonable as to locality, the fact that it is indefinite as to its duration will not affect its validity. Add. on Conts., 100. "Contracts restraining the exercise of a trade or profession in a particular locality, [**9]  " says the author just cited, "are good and valid when there is a fair and reasonable ground for the restriction, as in the case of the sale of the good-will of a trade or business carried on in a particular locality, where the vendor covenants or agrees not to carry on the same business in the same 

 [*567]  place, in opposition to the purchaser;" and he cites for this passage of his work the cases of Prugnell vs. Gosse, Aleyn, 67; Broad vs. Jollyffe, Cro. Jac., 596; and 2 Rolle R. 201.
It is objected to the present covenant that it is too comprehensive in its restriction; that, as it restrains the covenantor indefinitely as to time from exercising his trade at any place within the city of Baltimore, it is therefore void. But we perceive nothing in it to render it obnoxious to the objection. The authorities sustain restrictions more comprehensive than that imposed by this covenant; as in the case of Green vs. Price, 13 M. & W. 695, where a perfumer sold to his copartner his share of the business of the firm, and covenanted not to carry on the same business in the cities of London and Westminster, or within six hundred miles from those cities. The [**10]  Court of Exchequer held the covenant to be valid as to the restraint of the practice in London and Westminster, but void as to the residue; and that judgment was affirmed in the Exchequer Chamber, after full argument. 16 M. & W. 346. And in the case of Atkyns vs. Kinnier, 4 Exch. 776, there was a covenant by a surgeon not to practice or reside at any time within two and a half miles of the plaintiff's residence in London, and such covenant was held to be valid, and it was declared to be no objection to it that it imposed the restriction during the life of the covenantor, "for that," said PARKE, B., "enables the good-will of the business to become the subject of purchase and sale." See also the cases of Davis vs. Mason, 5 T. Rep. 118; Bunn vs. Guy, 4 East, 190; Mallan vs. May, 11 M. & W. 665, where the restrictions were larger than in the present case, and yet the contracts were adjudged good.
This, it must be borne in mind, is the case of a contract for the sale of the custom and good-will, in connection with the utensils of an establishment, for a valuable consideration; and if such restriction as is attempted [**11]  to be imposed by it be not allowed, the subject of the contract would never be saleable, as it could at any moment be rendered valueless by the competition 

 [*568]  of the vendor. The general rule against covenants in restraint of trade is founded doubtless upon the policy of the law which favors trade and enterprise, and the reason of the exception engrafted upon that rule is, as was observed by MAULE, J., in Rannie vs. Irvine, 7 Man. & Gr. 969, "that the exception is in futherance of the rule itself. If it were held that a party selling the good-will of a business could not restrain himself from using for his own profit that which he has agreed to sell, that would operate as a restraint of a very injurious kind." And, in the case just referred to, the assignor of a lease and the good-will of the business of a baker agreeing that he would not, during the term assigned, solicit the custom of or knowingly supply bread or flour to any of the customers then dealing at the premises, without the consent of the assignee, it was held not to be an unreasonable restraint of trade.
Whether the consideration for the restraint is adequate or not, is a question that the [**12]  Court will not inquire into. It is sufficient that the contract shows on its face a legal and valuable consideration; but whether adequate or inadequate to the restraint imposed, must be determined by the parties themselves, upon their own view of all the circumstances attending the particular transaction. If it were otherwise, it would be the Court and not the parties, that would make the contract. All that the Court is required to do, in passing upon the validity of the covenant, is to determine whether the restraint is reasonable and consistent with law, and whether there be a legal consideration to support it. This is now the established doctrine, as decided in the cases of Hitchcock vs. Coker, 6 Ad. & El. 439; Archer vs. Marsh, 6 Ad. & El. 966; Leighton vs. Wales, 3 M. & W. 551; Pilkington vs. Scott, 15 M. & W. 657; Sainter vs. Fergusson, 7 C. B., 716. And here there certainly appears a legal consideration for the covenant.
It was urged in argument, that the restriction should not, by construction, be extended beyond the period of the partnership between the parties to whom [**13]  the lease was made, and 

 [*569]  the custom and good-will were sold; and as the partnership terminated with the expiration of the term of the lease, the complainant individually, has no right to the relief sought in this case. In that, however, we do not agree. The vendor bound himself, for the period of his life, to refrain from all competition for the good-will and custom sold. And the circumstance that the parties to whom the sale was made, have dissolved their partnership, does not release the covenantor from his obligation to observe his covenant. The complainant has become entitled to the benefit of the covenant by virtue of the articles of co-partnership between himself and Feuillan, and the subsequent assignment of the latter. Good-will "is an interest which may be valued between the parties, and may, therefore, be assigned with the premises, and the rest of the effects, to the remaining partner, as an accompaniment of the ordinary good-will of the establishment." Story on Partn., sec. 99. And in the case of Hitchcock vs. Coker, 6 Ad. & El. 439, it was said, by Chief Justice TINDALL, speaking for the Court: "The good-will of a trade is a subject [**14]  of value and price. It may be sold, bequeathed, or become assets in the hands of the personal representative of a trader. And, if the restriction as to time is to be held to be illegal, if extended beyond the period of the party by himself carrying on the trade, the value of such good-will, considered in those various points of view, is altogether destroyed." There is no reason, therefore, for holding the restriction to extend only to the time that the vendees continued their joint interest in the covenant.
The covenant being valid, the next question is, does the fact that the business has been re-established or resumed in the name of the son, avoid a breach of the covenant of the father? We think not. The allegation of the bill is, that the name of the son is used as a mere cover and blind to conceal the interest of the father. If this be so, as we are bound to assume on this appeal, the case is unquestionable. The father's covenant is that he will not, directly or indirectly, 

 [*570]  compete for the good-will and custom sold to the complainant and Feuillan. This restrains him from the use of any means whatever whereby the value of the thing sold, and for which he has received [**15]  his price, may be in any manner impaired or lessened. He can neither compete himself, nor employ or combine with others to do it. What he cannot do directly, he cannot do indirectly. And that is what was decided in Davis vs. Barney, 2 Gill & John. 382. There the party selling out his coaches and teams on a certain road, obligated himself to withdraw all his pretensions to any part of the particular route, and pledged himself not to be concerned, directly or indirectly, in any line of stages in opposition to the vendees. And the Court, in construing the contract, and defining the extent of the restriction imposed, held, that the defendant could, not only not become interested in any opposition, but that he could not, in any manner, aid or become instrumental in setting up, or carrying on, an opposition line of stages; and that without such construction, the word "indirect," employed in the contract, would have no meaning or effect whatever.
But, it is contended, that if there be a breach of the covenant, the remedy at law is adequate, and, therefore, a Court of Equity should not interfere. To this proposition, however, we do not accede, as the authorities fully [**16]  maintain the right and duty of a Court of Equity to restrain, by injunction, the violation of contracts of the character of the one before us. Harrison vs. Gardner, 2 Madd. Rep., 198; Williams vs. Williams, 2 Swanst. 253; Whittaker vs. Howe, 3 Beav. 383; Catt vs. Tourle, 4 Ch. App. Cases 659. We shall, therefore, affirm the order of the Court below granting the injunction.
Order affirmed. 

110 of 142 DOCUMENTS 

JAMES H. COX, SR., Claimant of Property Attached as of DE WITT C. CARY vs. JAMES S. WATERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

34 Md. 460; 1870 Md. LEXIS 104 

June 20, 1870, Decided 

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

This is an appeal from an order of the Court below overruling a motion to quash the attachment issued at the suit of the appellee against the goods, &c., of De Witt C. Cary. The motion to quash was made by a claimant of the property attached under a subsequent attachment.  

DISPOSITION:
Judgment reversed and cause remanded.  

HEADNOTES:

Attachment -- Sufficiency of the Account filed by the Attaching creditor.

An account produced by an attaching creditor and annexed to his affidavit, which stated the indebtedness to be, "to cash loaned him (the debtor) at sundry times on call, $ 7,500," is a sufficient compliance with Article 10, section 4 of the Code of Public General Laws.

Where the indebtedness is for money loaned at various times, it is not necessary, in order to comply with the provisions of the attachment law, that the account should specify the dates and amounts of the several sums loaned. 

COUNSEL:
O. F. Bump, for the appellant.

N. Rufus Gill, for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*461]  BARTOL, C. J., delivered the opinion of the Court.
The motion to quash the attachment in this case, is based upon the alleged reason "that a sufficient voucher or account is not annexed to the affidavit."
The account is as follows:
"BALTIMORE, June 29th, 1870.

"DE WITT C. CARY,
"Dr. to JAS. S. WATERS.

"To cash loaned him at sundry times on call,   $ 7,500"
No objection is made to the affidavit, it is in due form as prescribed by the Code, Article 10, section 4. That section also requires that "the creditor shall produce the bond, account or other evidences of debt, by which the said debtor is so indebted."
In this case it [**2]  does not appear that the appellee holds any bond, note or other written evidence of the debt. The presumption is that the liability rests only on the verbal contract of the debtor. No other voucher therefore could be produced, except an account showing the nature and the amount of the alleged indebtedness. That is done here, the account is for cash loaned to the defendant on call, $ 7,500. If the account had been thus stated it would have been quite unnecessary to specify more particularly the date of the loan; or whether the whole sum was lent at one time, or at different times, making up in the aggregate the sum claimed.
But the whole objection seems to grow out of the statement in the body of the account, that the cash was loaned "at sundry 

 [*462]  times," and the supposed defect consists in the omission to state the items, specifying the several sums loaned, with the dates thereof.
There has been no adjudication by this Court on this precise point. In general it is sufficient if the account be such as would sustain a declaration in assumpsit. In Stewart vs. Katz, 30 Md. 334, 346, the account was for merchandize sold and delivered, and was objected to [**3]  as "not sufficiently explicit and certain in its items and details." But this Court held it to be sufficient, as "it was wanting in none of these particulars, and was made out in the mode usually adopted by merchants engaged in extensive business, and was perfectly intelligible."
In a case of that kind where the indebtedness is for goods sold, it seems to us to be necessary, in order to comply with the provisions of the attachment law, that the account produced should state items and details; and that an account simply "for goods bargained and sold at sundry times," and stating merely the aggregate amount of the debt would not be a substantial compliance with the Code, because it would not give to the debtor, or other persons interested any certain notice or information as to the real nature and character of the claim. But where the demand is for money loaned, the case is very different, it does not embrace elements of quantities and prices; the transaction is more simple and intelligible. If the aggregate is stated, it is not essential to set out in the account the dates and amounts of the several sums loaned; and certainly no objection can be made to the omission to produce written [**4]  vouchers, or other evidence of the debt, where none exist.
In our judgment the account accompanying the affidavit in this case is sufficient; and the judgment of the Court of Common Pleas overruling the motion to quash the attachment, will therefore be affirmed, and the cause will be remanded.
Judgment reversed and cause remanded. 

111 of 142 DOCUMENTS 

GEORGE A. THRUSTON vs. FREDERICK MINKE and JACOB HUMBIRD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 487; 1870 Md. LEXIS 53 

June 3, 1870, Decided 

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

The case is stated in the opinion of the Court. The appellee, Humbird, was made a party defendant, as being the mortgagee of the appellant for his undivided fourth part of the ground on which the hotel was erected, with other parts of the whole property, not demised to the appellee, Minke. Humbird never appeared.  

DISPOSITION:
Reversed and remanded.  

HEADNOTES:

Condition in a Lease in restraint of Building, construed -- Covenant not running with the Land -- Easement -- How and for whom, condition in a Lease in restraint of Building, enforced in Equity.

T and M were seized in fee as tenants in common of a lot of ground situate at the north-west corner of Baltimore and George streets in the town of Cumberland. T owning one undivided fourth and M three undivided fourths thereof. The lot was improved by a three story brick building, known and occupied as the "St. Nicholas Hotel." A part of the lot fronting on Baltimore street was vacant or unimproved. On the 24th of October, 1867, T leased to M for the term of ninety-nine years renewable forever, his undivided fourth interest in a portion of the vacant or unimproved part of the lot, commencing at the westerly wall of the hotel and binding thereon. By the lease the privilege was given to the lessee, his representatives and assigns to use so much of the westerly wall of the hotel building as bound along the first line of the property demised, as a party wall to the height of the third story floor of the hotel building only; "provided, however, and the lease was on the condition, that the lessee and his assigns, should not at any time thereafter erect, build or construct on the part of the lot demised, which fronted eleven feet on Baltimore street, next to the hotel building, and ran back -- feet in the depth, any building or tenement, any portion or part of which should be higher than the then level of the third story floor of the hotel building; and provided further, that in using such part of the westerly wall of the hotel building, as a party wall, the lessee and his assigns should not weaken or materially injure or affect the same." On the 30th of October, 1867, T together with his wife sold and conveyed to C, his heirs and assigns, in fee, his undivided fourth part of the parcel of ground so demised to M, subject, however, to the said lease and to all and singular the covenants and conditions therein. The express object of the condition in the lease, as alleged in the bill of complaint of T, was to protect the hotel fully, by preserving the free light and ventilation of the west end of the third story of the main hotel building. The bill charged that M, the lessee, had directly violated and broken the condition in the lease, and was then erecting a brick building to a height several feet above the roof of the main hotel building, and that the effect of such violation of the condition of the lease, was to shut out and obstruct the light and ventilation from the hall of the third story of the hotel, and greatly to injure and impair the value of the same and of the complainant's interest therein. The bill prayed an injunction and a removal of the building. The injunction was issued. M answered admitting the lease and the erection of the new building, but denied that any injury was produced by it. After hearing the injunction was dissolved. On appeal, HELD:

1st. That the condition in the lease, was in its nature an independent covenant or condition made with the lessor as owner of the hotel property, for its benefit and protection, and was not in any respect intended for the benefit of the lessor as owner of the reversion in the property leased.

2d. That it was not a covenant running with the land demised, and did not pass to the assignee of the reversion.

3d. That the effect of the condition was to create a right or interest in the nature of an incorporeal hereditament or easement, appurtenant to the contiguous hotel property, and arising out of the parcel of land demised.

4th. That the lessor as part owner of the hotel property is entitled to the benefit of the condition in the lease, and it did not pass to his assignee of the reversion.

5th. That an action at law would not afford adequate pecuniary compensation for the damage and injury done by the violation of the condition in the lease, in obstructing the light and ventilation of the third story of the hotel, and the lessor is therefore entitled to relief by injunction. 

COUNSEL:
George A. Thruston, for the appellant.

The appellant and his heirs, regarding the condition in the lease as a condition solely, can alone enforce the remedy for breach of it against the leasehold estate in the land of the tenant and of his assigns. And it does not pass to or vest in Campbell, even if the conveyance to him had not been expressly subject to its conditions. Taylor's Land. and Ten., secs. 277, 280, 288, 293, 295; 4 Kent's Comm., 126.

The condition itself is an implied agreement between the parties to the lease, which can be enforced between them as such. It was a penalty restraining the injury of other property. Smith on Land. and Ten., 362, 363, (side, 281.)

The injury of the interest of one tenant in common, arising from acts done by another, not on [**2]  and of the joint estate, but on the sole property of the one, and to and against the interest of the other in the joint estate, will be prevented by Courts of Equity, by injunction, where such acts are not within the usual legitimate exercise of the right of enjoyment of the estate held in common, and not done on or in the joint property. Story's Eq. Jur., sec. 916; Hawley vs. Clowes, 2 Johns. Chy. Rep., 122.

Where the injury is irreparable, particularly if not capable of perfect ascertainment of damages in money by an action at law, the Court will interfere, even in a trespass by a stranger. If the appellant had sued at law, and permitted the appellee to finish the building, the right to keep the light and ventilation unobstructed by insisting on the condition would have been irretrievably lost, and this where there is not only privity of title, but an absolute reservation and deed for it. It is not such as can be compensated in money. Here the right and title of the party claiming the injunction is not only clear, but fixed in the most solemn way known to the law. Amelung, et al. vs. Seekamp, 9 G. & J., 472.

The condition is part of the inheritance of the appellant's interest [**3]  in the hotel property. Jerome, et al. vs. Ross, 7 Johns. Chy. Rep., 315, (336.)

Where there is privity of title, it is not necessary to shew irreparable mischief. George's Creek Co. vs. Detmold, 1 Md. Ch. Dec., 372.

There is privity of title between the parties, notwithstanding the conveyance of the reversion to Campbell; and the estate of the latter is only affected as he has expressly, knowingly and intentionally acquired it.

The very condition on which the lessee holds his title to the leasehold makes a direct privity of title; and his deed of agreement distinguishes from all cases quoted of trespass, waste, &c.

The appellant is not bound to show any injury at all except the violation of the agreement itself.

J. H. Gordon, for the appellee, Minke.

The bill does not present a case for an injunction. If it be a bill to prevent a trespass, it must show that the injury to be prevented would be irreparable and not capable of compensation in damages. Amelung vs. Seekamp, 9 G. & J., 472, 473, &c.; White vs. Flannigan, 1 Md., 543; Canal Co. vs. Young, 3 Md., 489; Cherry vs. Stein, et al., 11 Md., 1; Geo. Creek Co. vs. Detmold, 1 Md. Ch. Dec., 371; Jerome vs.  [**4]  Ross, 7 John. Ch. Rep., 315; 2 Story's Eq., sec. 925; Hilliard on Injunctions, 279, 280, 281.

The bill must also state the facts that would make it appear to the Court that the injury would be irreparable, and not merely say so in general words. Carlisle vs. Stevenson, 3 Md. Ch. Dec., 499; Ches. and Ohio Canal Co. vs. Young, 3 Md., 489; Amelung vs. Seekamp, 9 G. & J., 474; 2 Story's Eq., sec. 925; Attor'y Gen'l vs. Nicholl, 16 Vesey, 338; Hilliard on Injunc., 270, 271; Green vs. Keen, 4 Md., 98.

This is not a case to prevent a multiplicity of suits; there is only one party to sue. Jerome vs. Ross, 7 John. Ch. Rep., 323, 324; Hilliard on Injunc., 280.

The appellant stood by without objection, and thereby gave an implied assent. Hilliard on Injunc., 24, sec. 43; Binney's Case, 2 Bland, 99, 104, 120; 10 Vesey, 165, 166; Birm. Canal Co. vs. Lloyd, 18 Vesey, 515.

Injunction is not a proper remedy between tenants in common. The parties being tenants in common of the hotel property, nothing but a destruction of the property by one of them would justify an injunction. Twort vs. Twort, 16 Vesey, 130, 131; Hale vs. Thomas, 7 Vesey, 589; 2 Story's Eq., sec. 916; Hawley vs.  [**5]  Clowes, 2 John. Ch. Rep., 122; Hilliard on Injunc., 372, 373, sec. 31; 3 Brown, 119.

There was a sufficient remedy at law. Hilliard on Injunc., ch. 1, secs. 23, 29; ch. 10, secs. 1, 2.

The answer is conclusive, unless disproved. And the evidence does not disprove it. Gelston vs. Rullman, 15 Md., 260, 267.

The appellant conveyed away all his right to Campbell before bill filed, and therefore had no right to injunction.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*491]  BARTOL, C. J., delivered the opinion of the Court.
It appears from the record, that before the 24th day of October, 1867, the appellant and Frederick Minke, (the appellee,) were seized in fee as tenants in common, of a lot of ground in the town of Cumberland, on the north-west corner of Baltimore and George streets; the appellant owning one fourth, and Minke three-fourths thereof. The lot was improved by a three story building known and occupied as "St. Nicholas Hotel." The building was situated on the corner of the streets mentioned, leaving on the west thereof, a part of the lot fronting on Baltimore street, vacant or unimproved. [**6]  
On the 24th day of October, 1867, the appellant leased to Minke, for the term of ninety-nine years, renewable forever, his undivided fourth part of a portion of the vacant or unimproved part of the lot; commencing at the westerly wall of the hotel and binding thereon; the parcel so leased is described in the lease, and need not be more particularly noticed here.
After describing the parcel demised, the lease contains, among others, the following provisions:
"With the privilege to said lessee, his representatives and assigns to use so much of said westerly wall of said hotel building, as binds along the first line of the property hereby 

 [*492]  demised, as a party wall, to the height of the third-story floor of said hotel building only; provided, however, and this lease is on this condition, that said lessee and his assigns shall not at any time hereafter erect, build or construct, on the part of the lot hereby demised, which fronts eleven feet on Baltimore street next to said hotel building, and runs back -- feet in the depth, any building or tenement, any portion or part of which shall be higher than the present level of said third story floor of said hotel building; and [**7]  provided further, that in using such part of said westerly wall of said hotel building as a party wall as aforesaid, the said lessee and his assigns shall not weaken or materially injure or affect the same."
The bill of complaint filed by the appellant states that the above conditions were put in the lease "for the express purpose of preventing Minke, or his assigns, from shutting up, or excluding the light from the west window in the third story hall of the main hotel building, and other windows on the west side of said hotel building, in the third story, and also to prevent Minke from building any tenement or house higher than the third story floor of said hotel building, for the space of eleven feet westerly therefrom."
And the bill charges "that Minke has directly violated and broken said condition."
That "said Minke, without any agreement on the part of the complainant, or waiver or release of said condition, and in opposition to the repeated remonstrances of the complainant, is now proceeding to erect and construct a building, and is actually constructing the same of brick, to a height several feet above the roof of the main hotel building, and shutting up the whole space [**8]  of eleven feet in width on Baltimore street, for the whole depth of thirty-two and a quarter feet; by occupying the whole thereof with such building."
The bill further charges that Minke is proceeding to construct a large wooden cornice on and against the westerly wall of the hotel building, at and near the front thereof, on Baltimore street, and putting the same far over and above the roof 

 [*493]  of the main hotel building, thereby, as alleged, increasing the danger to the same in case of fire. And the effect of such violation of the conditions of the lease is alleged to be to shut out and obstruct the light and ventilation from the hall of the third story of the hotel, and greatly to injure and impair the value of the same and of the complainant's interest therein.
An injunction was issued to prevent and restrain Minke from proceeding with the construction of the proposed building, contrary to, and in violation of the covenant and conditions contained in the lease.
The appellee, Minke, answered the bill, and proof was taken, and the Circuit Court, on hearing the cause upon the pleading and proofs, passed an order dissolving the injunction. From that order the present appeal [**9]  was taken.
In the progress of the case in the Court below, the fact was disclosed that the appellant, Thruston, after making the lease, on the 30th day of October, 1867, conveyed to John B. H. Campbell all his reversionary interest and estate in the property demised, and assigned the covenants therein, and the respondent contended that the effect of such conveyance and assignment was to confer upon Campbell the exclusive right to enforce the particular covenant or condition under consideration, and to divest the complainant of the right to maintain any action at law or in equity for the breach or violation thereof. This defence was ruled good by the Circuit Court, and its decree dissolving the injunction appears to have rested mainly on that ground.
In this view we do not concur. It is plain, from the nature of the condition, that it was inserted, as alleged in the bill, only for the benefit and protection of the hotel property, in which the lessor retained his estate, and that it was not in any respect intended for the benefit of the lessor as owner of the reversion in the property leased. It was, in its nature, an independent covenant or condition, made with Thurston, as owner [**10]  of the contiguous property, for the benefit and protection of which it was intended; it was not a covenant running 

 [*494]  with the land demised, and did not pass to the assignee of the reversion.
The effect of the condition was to create a right or interest in the nature of an incorporeal hereditament or easement appurtenant to the contiguous hotel property, and arising out of the parcel of land demised by the lease. The principle is correctly stated by the Court in Whitney vs. Union R. Co., 11 Gray 359, as follows:
"When it appears, by a fair interpretation of the words of the grant, that it was the intent of the parties to create or reserve a right in the nature of a servitude or easement in the property granted, for the benefit of the other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right shall be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subsequent grantees of the respective parcels of lands."
In Clark vs. Martin, 49 Pa. 289, it appeared "that Drosddorf [**11]  and Roberts bought a corner lot from Alexander Henry, subject to a perpetual rent, and with the condition written in the deed that they, their heirs and assigns, should not erect any building on the back part of it higher than ten feet, Henry being then the owner of the lot adjoining on the south. The corner lot afterwards passed successively to five different owners, the last of whom was Martin, the defendant, and in all the deeds the same condition was repeated. Of the adjoining lot, Henry died seized, and his testamentary trustee conveyed it to the plaintiff, Clark; and the rent reserved on the corner lot by Henry was purchased by Martin." The question before the Court was, "whether Clark, as owner of the adjoining lot, had any such right to the condition or terms imposed upon Martin's title, as entitled him to claim in equity, that Martin should be compelled to observe them." This question was decided in the affirmative.
LOWRIE, C. J., in delivering the opinion of the Court, said: "He (Martin) took his title expressly on the terms mentioned. 

 [*495]  He was not to erect on the back part of his lot any building higher than ten feet, afterwards changed to eleven. To whom does [**12]  he owe the duty? No one doubts that it is to the grantor, who reserved or imposed the duty and to his heirs and assigns. But did the grantor reserve this duty to himself, his heirs and assigns, as a mere personal duty and thus retain in himself, or them, the vain right of saying that lot is not mine, but the owner is subject to my pleasure in the mode of building upon it?"
"Common sense forbids this, and the law would not allow itself to be troubled with such vain engagements. It is not pretended that this restriction was intended for the benefit of the ground rent reserved by Henry, and such a pretence would be entirely unreasonable; for a restriction that diminishes the value of the lot, and the houses that may be erected on it, cannot increase the security of the rent issuing out of it. We have no other resource, therefore, than to attribute the restriction to the purpose of benefitting the adjoining lot then owned by Henry. Common sense cannot doubt its purpose, and thus it becomes plain that the duty created by the condition and restriction, is a duty to the owner of the adjoining lot, whoever he may be."
We have cited the opinion of the Court in the above case at considerable [**13]  length, because the conclusions therein stated appear to us to be sound, and abundantly supported by reason and authority, and are strictly applicable to the present case. It follows from them that the appellant, as partner of the hotel property, is entitled to the benefit of the condition in the lease, and that it did not pass to Campbell by the assignment of the reversion. Is he entitled to relief by a writ of injunction to prevent its violation? Several grounds of defence have been urged and relied on by the appellee, in the argument in this Court, which remain to be considered.
1st. It is said that the complainant knew of the intended erection of the building in the manner now complained of, and that it has been built in that way with his acquiescence and consent, and by his agreement. This defence is stated in the 

 [*496]  answer, and being new affirmative matter, it was incumbent on the defendant to sustain it by proof; this he has failed to do. On the contrary the weight of the testimony supports the averment of the bill that the respondent, Minke, is proceeding to construct the building in violation of the condition in the lease, "without any agreement with the complainant,  [**14]   and in opposition to his repeated remonstrances." There is no evidence of acquiescence or laches on the part of the complainant.
2d. It is objected that "the parties being tenants in common of the hotel property, nothing but a destruction of the property by one of them would justify the injunction," and, in support of this position, we have been referred to Hale vs. Thomas, 7 Ves. 589; Twort vs. Twort, 16 Ves. 130, 131; 2 Story's Eq. Jur., sec. 916.
The principle here invoked has no application to the present case. The parties are not tenants in common of the parcel of ground mentioned in the lease, to restrain the unlawful use and occupation of which the injunction is asked. Here, the injunction is not sought for the purpose of restraining the defendant, Minke, in the use or occupancy of the property held in common, but to prevent him, as tenant of the contiguous lot, from violating the condition of the lease, to the injury of the hotel property. The rules regulating the granting of injunctions at the instance of one tenant in common to restrain his co-tenants in the use of the common property have, therefore, no application to [**15]  this case.
3d. It has been contended that the averments in the bill and the proof in the cause do not show a case of irreparable damage, without which, it is said, the complainant is not entitled to an injunction, and that there is full and adequate relief at law, and, for these reasons, the injunction was properly dissolved.
In Amelung vs. Seekamp, 9 G. & J. 468, the Court of Appeals (adopting the language of Chancellor KENT, in Jerome vs. Ross, 7 Johns. Ch. 333) say "that an injunction is not granted to restrain a mere trespass, where the injury is 

 [*497]  not irreparable and destructive of the plaintiff's estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of the law."
This rule has been re-asserted by this Court in several subsequent cases, and applies where the alleged trespass is by a stranger or party claiming adversely. "But, in the case of waste, where there is a privity of title as between tenants for life or years, and the reversioner, it is not necessary for the plaintiff to show irreparable injury or destruction to the estate, to entitle [**16]  him to the remedy by injunction." George's Creek Co. vs. Detmold, 1 Md. Ch. 371.
"Equity will restrict a lessee to the specific performance of his covenants." Hilliard on Injunctions, 462, sec. 8.
In 2 Story's Eq. Jur., sec. 927, it is said: "Where easements or servitudes are annexed by grant or covenant or otherwise to private estates **** the due enjoyment of them will be protected against encroachments, by injunction."
That is the nature of the right that has been encroached upon here. In this case the covenant or condition in the lease is express and positive, and, as we have before said, the appellant, as part owner of the hotel property, for the protection or benefit of which it was made, has a right to insist on its observance by the lessee.
The consequence of its violation in the manner charged in the bill, as shown by the evidence, is, to shut out, or materially obstruct the light and ventilation of the third story of the hotel.
For such damage and injury, an action at law would not, in our opinion, afford an adequate and complete remedy, and, therefore, the appellant is entitled to relief by injunction.
For the reasons stated, the [**17]  order of the Circuit Court dissolving the injunction will be reversed, with costs to the appellant, and the cause will be remanded.
Reversed and remanded. 

112 of 142 DOCUMENTS 

THE MAYOR, RECORDER AND ALDERMEN OF THE CITY OF ANNAPOLIS vs. WILLIAM HARWOOD and HESTER A. HARWOOD, his Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 471; 1870 Md. LEXIS 51 

June 2, 1870, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Anne Arundel County, in Equity.

The bill in this case was filed on the 17th of March, 1869, by the appellees against the appellants and one Edward Powers, who was employed by them as a tax collector in the city of Annapolis, to restrain said Powers from selling the property of the appellees for payment of their proportion of a special tax for paving a street in said city. The injunction was issued as prayed. Afterwards the appellants answered and in their answer moved for a dissolution of the injunction. The defendant Powers failed to answer. The cause having been argued and submitted upon bill, answer, exhibits and general replication, a decree was passed on the 4th of Jan'y, 1870, making the injunction perpetual. From this decree the present appeal was taken.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Acts of Assembly -- Construction of the Act of 1867, ch. 240, amendatory of the Charter of the City of Annapolis -- Assessment of Paving taxes -- Equity Practice.

It is not competent to show by extrinsic evidence, that the provisions of an Act of Assembly are different from those set out in the published volume of laws, the printed Act being an exact transcript of the copy recorded in the office of the Court of Appeals in conformity with the requirement of the Constitution.

Under the Act of 1867, ch. 240, which empowered the Mayor, Recorder and Aldermen of the City of Annapolis, "to levy and collect taxes, not exceeding one per centum on all the property of the citizens of said city" and "to pass ordinances *** for paving and keeping in repair the streets, lanes and alleys in said city, and for extending and widening the same to any particular part or district of the city," the city had no power to assess the entire expense of paving a particular street, upon the owners of property binding thereon, as being specially benefitted by the improvement in the enhancement of the value of their property.

A municipal corporation having assessed upon the owners of property binding on a particular street, the entire expense of paving the same, was, at the instance of one of the property holders, restrained by injunction from collecting his proportion of the tax so imposed. The defendants answered and therein moved for a dissolution of the injunction. After argument and submission upon bill, answer, exhibits and general replication, the injunction was made perpetual. HELD:

That this was error.

A decree continuing an injunction, will not be reversed, because one of the defendants had failed to answer the bill.  

COUNSEL:
S. Thomas McCullough and Alexander B. Hagner, for the appellants.

The decree of the 4th of January, 1870, should be reversed for the following reasons:

1st. Because the same was passed improvidently, the answer of one of the defendants not having been filed, and no decree interlocutory obtained against him, and the cause was not then ready for [**2]  decree. Eden on Injunctions, 1 Water., 116, 1 n., (1); Depeyster vs. Graves, et al., 2 John. Ch. Rep., 148; Heck vs. Vollmer, et al., 29 Md., 507.

2d. Because the appellees' bill does not aver such a case of impending, irreparable damage as justifies the interposition of a Court of Equity by injunction. Hamilton, et al. vs. Ely, et al., 4 Gill, 34, 37; Fort and Wife, et al. vs. Groves, 29 Md., 188, 192, 193; Chesapeake and Ohio Canal Co. vs. Young, 3 Md., 480, 485, 489; Green vs. Keen, 4 Md., 98, 100, 106; Amelung, et al. vs. Seekamp, 9 G. & J., 468, 473, 474; Shipley vs. Ritter, et al., 7 Md., 408.

3d. Because if the averments of the bill were sufficient, yet the answer of the appellants swears away the equities relied on, and the injunction should therefore have been dissolved. Dorsey, et al. vs. Hagerstown Bank, 17 Md., 408, 412.

4th. Because even if the Court below were right in sustaining the injunction, yet it should only have been retained until final hearing, and should not have been made perpetual at that stage of the case. Dorsey, et al. vs. Hagerstown Bank, 17 Md., 408, 412, 413; Huston, et al. vs. Ditto, et al., 20 Md., 306, 332; Mills vs. Hoag, 7 Paige,  [**3]  18: Cooke vs. Bay, 4 Howard, (Miss.,) 485.

5th. Because the charter of Annapolis, as actually passed by the Legislature on the 19th of March, 1867, expressly confers upon the corporation the power to "tax any particular part or district of the city for paving the streets, lanes and alleys therein;" and the Court should be governed by the law which really did pass when it is brought to their notice, rather than by a form of a statute which never did pass the Legislature, although erroneously printed in the volume of laws. 6 Bac. Ab., 364; Sedgwick on Stat. & Con. Law, 69; People vs. Purdy, 2 Hill, 31; Thomas vs. Dakin, 22 Wend., 9; Warner vs. Beers, 23 Wend., 103, 112, 114, 135, 137, 140; Comm'l Bank of Buffalo vs. Sparrow, 2 Denio, 101; Spangler vs. Jacoby, 14 Illinois, 297, 298, 299, 300; Prescott vs. Board of Trustees of the Illinois and Michigan Canal, 19 Ill., 324, 325, 326, 327; Rex vs. Jefferies, 1 Stra., 446; 1 Green, 91, 480, 482, 484, 485, 489, 500, &c.; Purdy vs. The People, 4 Hill, 384, 386, 387, 390, 394; The Prince's Case, 8 Coke's Rep., 28; Rex vs. Robotham, 3 Burr., 1472; Cooley's Con. Law, 135; Smith's Com., 945, 949, 950, 951, 952; 1 Code, Art. 37, sec. 46.

6th.  [**4]  Because, if this Court should consider itself bound by the printed form of the law which never did pass the Legislature, rather than by the actual law as it really was adopted, then according to the proper construction of the powers of the corporation gathered from the printed law in connection with the other legislation on the subject, the appellants had the power to collect the assessment imposed by its ordinance upon the appellees, as their proportion of the special benefit conferred upon the property lying along North East Street, from the paving of that street. 6 Bac. Ab., 380-390; Dwarr. on Stat., 690, 691, 692, 693, 694, 695, 697, 698, 699, 700, 701, 704, 712, 718, 721, 726, 731, 763; Md. Dig., (Merrick & Miller,) 529, secs. 47, 48, page 532, sec. 105; Sedg. on Stat. & Con. Law, 230-241, 247, 250; Smith's Com., ch. XIV, page 751; Act of 1797, ch. 54; Act of 1818, ch. 194; 2 Code, Art. 2, sec. 43, Art. 4, sec. 837, et seq., Art. 11, sec. 118; Purdy vs. The People, 4 Hill, 402, 403; 1 Story's Com. on Con., 383; Warner vs. Beers, 23 Wend., 182, 183; Mayor, &c. vs. Moore and Johnson, 6 H. & J., 380, 381; Mayor, &c. vs. Harwood, 6 H. & J., 383, 389, &c.; State, use of, &c. vs. Boyd,  [**5]  2 G. & J., 374; Canal Company vs. Railroad Company, 4 G. & J, 6, 152, &c.; Mayor, &c., of Baltimore, vs. Root, 8 Md., 96, 105; Mayor & City Council of Baltimore vs. Clunet, et al., 23 Md., 450, 467, 468; Mayor & City Council of Baltimore vs. Greenmount Cemetery Co., 7 Md., 517; Act of 1865, ch. 31, sec. 3.

William Harwood, for the appellees.

Section 43, Article 2, of the Public Local Laws, provides that the Mayor, Recorder and Aldermen of the city of Annapolis shall have power "to tax any particular part or district of the city for paving the streets, lanes and alleys therein," &c.

Section 1 of chapter 240, passed March 19th, 1867, expressly repeals the above section of the Code of Public Local Laws.

Section 41 of chapter 240 of the Act of 1867, provides that the Mayor, Recorder and Aldermen shall have power to levy and collect taxes, not exceeding one per centum on all the property of the citizens of said city. This is the only power to tax granted the corporation.

The appellees are charged with a special tax. A special tax is unconstitutional, as being in violation of the Bill of Rights.

The power to levy and collect what is called a paving tax, by assessment [**6]  on the inhabitants of a particular district, deemed to be specially benefitted by the improvements, to pay for which the tax is levied, is granted to the corporation of the city of Baltimore by express legislative enactment. The constitutionality of the grant is sustained on the ground that the so-called tax is a just charge for benefits derived from the improvement, and that the assessment of damages and benefits of the improvement and of the taxes on account thereof is provided for so as to secure an impartial and just assessment, with provision also for affording the enjoyment of the right of trial by jury in some stage of the proceeding. The Court of Appeals has repeatedly decided that the power to tax particular districts for public improvements may constitutionally be exercised when thus guarded and restricted, if expressly granted, and not otherwise. Alexander and Wilson vs. The Mayor and City Council, 5 Gill, 383.

The Act of 1867, ch. 240, makes a distinction between the new streets and the old streets of the city. First, it confers power on the corporation to establish new streets, lanes and alleys, and to widen and extend, stop up or discontinue new streets, lanes and [**7]  alleys, but not to widen the old streets. On the contrary, it expressly says nothing herein contained shall relate to or in any manner affect any streets, lanes or alleys which have been at any time heretofore opened and used as public highways, &c. It afterwards confers power to pass ordinances for paving and keeping in repair the streets, lanes and alleys in said city, and for extending and widening the same to any particular part or district of the city, for paving the streets, lanes and alleys therein, &c.

The clause, "and for extending and widening the same to any particular part or district of the city," as it stands in the law, is a clause closely connected with the preceding clause.

It confers power to pass ordinances "for extending and widening," but not the streets, lanes and alleys generally. This is not its meaning, for a previous provision says "nothing herein contained shall relate to or in any manner affect any streets, lanes or alleys which have been at any time heretofore opened and used as public highways." It cannot, then, apply to the parts of the streets which have been "heretofore opened and used as public highways." 

JUDGES:
The cause was argued before BARTOL,  [**8]  C. J., STEWART, MAULSBY and ROBINSON, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*476]  MAULSBY, J. delivered the opinion of the Court.
In this case an injunction was obtained by the appellees to restrain the appellants from selling, through their collector, the property of the appellees for payment of a proportion of "special tax," for paving two hundred and forty-five feet of North-East street, in the city of Annapolis. The power is claimed by the appellants under the Act of 1867, ch. 240. That Act, so far as pertains to this case, in the printed volume of Laws, is in the following words: "to impose and appropriate fines, penalties and forfeitures for the breach of their by-laws and ordinances, and to levy and collect taxes, not exceeding one per centum, on all the property of the citizens of said city; to pass ordinances for the prevention and extinguishment of fires, for paving and keeping in repair the streets, lanes and alleys in said city, and for extending and widening the same to any particular part or district of the city, for paving the streets, lanes and alleys therein, or for sinking wells, making pumps, water-pipes, fountains, hydrants 

 [*477]  and water-plugs, which may appear for [**9]  the benefit of each particular part or district." The Act, as printed, is correctly taken from the copy which was recorded in the office of the Court of Appeals, in conformity with the provisions of the Constitution of 1864, which was in operation when it was passed. The appellants insist that the Act, as recorded and printed, did not contain all the provisions which it contained when it was, in fact, passed by the two Houses, and they produce a copy certified by the chief clerks of the Senate and House of Delegates respectively, to be a true copy of the Act as passed, with contents different from those above quoted, and they offer to prove that the difference was occasioned by mistake of the clerk in engrossing the same, after its final passage, preliminary to its examination by the committee on engrossed bills, and to the affixing of the great seal, signature by the Governor and recording. The Act, as printed, the appellants admit, was duly examined by the committee, sealed, signed and recorded, and the question is whether it is competent, by extrinsic evidence, to prove the contents of an Act of Assembly to be different from those set out in the copy, which has been attested in [**10]  all the forms prescribed by the Constitution. The Act of 1867, was to take effect from its passage.
Although this question did not arise in the Court below, yet, as it might be raised in the course of further proceedings in the cause, and has been fully argued by the counsel of the appellants, we will consider and determine it.
The 29th section of Article 3, of the Constitution of 1864, provides that "every bill, when passed by the General Assembly, and sealed with the great seal, shall be presented to the Governor, who shall sign the same in the presence of the presiding officers and chief clerks of the Senate and House of Delegates. Every law shall be recorded in the office of the Court of Appeals, and in due time be printed, published and certified under the great seal to the several Courts, in the same manner as has been heretofore usual in this State. The 

 [*478]  object of these careful provisions was to guard against controversy in respect to the contents of laws. To attest the verity of the contents of a law all these solemnities are invoked. Not only must it be sealed with the great seal, and signed by the Governor, but it must be so signed in the presence of those [**11]  officers of the two Houses, who are best qualified to know whether the contents of the paper, being signed, are the identical contents of the law which passed their respective Houses. Then it is to be recorded, and from the Record Office is to be again certified under the great seal, printed and published. We cannot perceive on what principle the Court could be justified in going behind evidence so fully presented by the Constitution, and inquiring, on extrinsic proof, into the verity of the contents of an Act of Assembly so attested.
The claim of the appellants against the appellees was made on the 11th of March, 1869, and on the 17th of the same month, the bill was filed. When the controversy originated, therefore, the Act of 1867 had passed through all the forms of attestation prescribed by the Constitution, and it is manifest, from the answer of the appellants, that they claimed the power in virtue of the Act as printed in the Statute book. There is in the answer no averment of error or mistake in respect to the contents of the Act. We are informed by the counsel of the appellants, that the suggestion of error was first made in the argument in the Court below. But however the [**12]  question may have arisen, or however it might be raised in the course of further proceedings, the result must be the same. We think that the Court cannot go behind the proof prescribed by the Constitution in inquiring into the contents of statutes. A similar question arose in the case of Fouke vs. Fleming & Douglass, 13 Md. 392, where the Court said, "seeing that the engrossed bill and the published copy of the law correspond, we do not feel authorized to assume they are erroneous, and decide the law to be according to the evidence of the proceedings of the Legislature, as furnished by the journals of the two Houses." Whilst it is not said in 

 [*479]  terms that no evidence would be admissible to prove the contents of an Act of Assembly to be different from the engrossed and printed statute, yet as the journals would be the next best evidence, a refusal to consider them would indicate the opinion of the Court to be that no extrinsic evidence could be admitted. In the case of Dowling vs. Smith, 9 Md. 242, in which the Judges delivered separate opinions, LE GRAND, C. J., and ECCLESTON and MASON, Judges, concurring in the judgment, though not [**13]  taking the same grounds, Judge MASON said that the Act in question, in that case, became perfected law from its final engrossment. It was passed by the House on the 7th of March, by the Senate on the 8th, and was engrossed on the 10th. It was argued that the engrossment of an Act of Assembly is the copying, after all amendments, preliminary to their reading and final passage, but this view is not sustained by a reference to the dates of final passage and engrossment of the Act in question in the case of Smith and Dowling. By the practice of our General Assembly there is a final engrossment, after the passage of a bill, made for examination by the committee on engrossed bills, sealing with the great seal, &c. To that final engrossment the Court referred in Fouke vs. Fleming & Douglass.
In the cases referred to by the appellants' counsel in 1 Denio, 9, 14 Ill. 297, and 19 Ill. 324, the question was, whether the Acts of the Legislature under review in those cases had been, in fact, passed in conformity with the provisions of the State Constitutions. In inquiring into that fact, the Courts held that it was proper to go behind the evidence [**14]  of the statute books. Here the question is one of evidence to prove contents.
The question next to be considered is, had the appellants, under the provisions of the Act of 1867, the power to collect the assessment made on the appellees for their proportion of the special benefit to the property situate on North East street? The power cannot be derived from the authority given "to levy and collect taxes not exceeding one per centum on all the property of the citizens of said city," and must be derived, 

 [*480]  if at all, from the power "to pass ordinances *** for paving and keeping in repair the streets, lanes and alleys in said city, and for extending and widening the same to any particular part or district of the city."
The argument is that the power to pass ordinances for paving and keeping in repair the streets, lanes and alleys involves, by necessity, the power to charge the cost thereof on the property binding on the street, on the ground that the latter is necessary to carry into effect the former expressly granted power, and must therefore be implied.
The rules of construction applying in this case are well settled, and may be found in 10 Md. 277, [**15]  and 21 Md. 91.
The words of the statute are first to be resorted to, and if these are plain in their import, must be followed, and no room is left for construction. Such powers may be implied as are reasonably incidental to the exercise of powers expressly granted. A corporation is the creature of the law, and is incapable of exercising any other powers than those conferred by the Act of incorporation, or in any other manner than it authorizes.
The words of the Act of 1867 are plain in their import. The power to "levy and collect taxes, not exceeding one per centum on all the property of the citizens of said city," and the power to pass ordinances "for paving and keeping in repair the streets, lanes and alleys," are contained in the same sentence in section 41 of that Act. The means of carrying into effect the power to pave and keep in repair are expressly granted in the power to levy and collect taxes, and no other manner of exercising the taxing power being granted by the Act of incorporation than "to levy and collect taxes not exceeding one per centum on all the property of the citizens of said city," none other can be used.
Whether another mode might have been [**16]  more expedient or had been usually granted to like corporations, was a matter to be considered by the Legislature. We think that the appellants had no authority, under the Act of 1867, to make the assessment in question on the property of the appellees.

 [*481]  The decree of the Circuit Court made the injunction perpetual. This was error, and it would be necessary to reverse the decree and remand the cause if the appellants could be benefitted by any further proceedings that could be taken. But the only question really in the cause is the power of the appellants, under their charter, to make the assessment in controversy, and, having determined that they do not possess that power, no further proceedings could change the final result, and they sustain no injury from the error in the decree.
The injunction was not granted to restrain a trespass on the ground of irreparable damage, to which point much of the argument of the appellants' counsel was addressed, and many authorities cited. It was to restrain a corporation from selling the property of the complainant without lawful authority. In the case of The Mayor, &c., of Frederick vs. Groshon, 30 Md. 436, the [**17]  Court said: "But there is another ground upon which the appellee is entitled to the injunction, and that is that corporations will be restrained by a Court of Equity from a gross abuse of their powers, when to the injury of individuals. That Courts will not suffer powerful corporate bodies, with whom it is always very difficult to deal on equal terms, to take, under color of authority, proceedings which are of an illegal character, or which are of doubtful legality, if, by so doing, they place those against whom they are proceeding in a condition of peril, from which it might be difficult for them to extricate themselves." Pinchin vs. London & Blackwall Railway Co., 31 Eng. L. & E. Rep. 252; Bonaparte vs. Camden & Amboy R. R. Co., 1 Baldwin 231; West. Md. R. R. Co. vs. Owings, 15 Md. 199, 204.
The rule that, in general, all defendants must answer before an injunction can be dissolved, was insisted on by the appellants' counsel as entitling them to a reversal of the decree because Powers, their co-defendant, had not answered before decree. The injunction in this cause was continued, and the rule does not apply. But if it were otherwise,  [**18]  Powers was a nominal party merely. He was the agent of the appellants, 

 [*482]  and attempting to exercise supposed powers under them. The injunction would have been equally effective if he had not been named, and it had been directed to the appellants, their agents and servants.
In our opinion the decree must be affirmed.
Decree affirmed, with costs. 

113 of 142 DOCUMENTS 

CHARLOTTE E. CANNON, Administratrix of CHARLES K. CANNON, vs. GEORGE A. CROOK and Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 482; 1870 Md. LEXIS 52 

June 2, 1870, Decided 

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

The case is stated in the opinion of the Court.  

DISPOSITION:
Judgment reversed and cause remanded.  

HEADNOTES:

Summary Proceedings -- Plenary Proceedings -- Practice in the Orphans' Court -- Proceedings by an Administratrix under Article 93, section 238, of the Code -- Incompetency of a Witness under the Act of 1868, chapter 116 -- Depositions of witnesses in the Orphans' Court of Baltimore City.

There is a clear distinction between summary proceeding under section 40, Article 5, of the Code of Public General Laws, and plenary proceedings under sections 249 and 250 of Article 93. The test of plenary proceedings, is whether a petition or bill is filed, and the parties against whom it is filed, appear and answer. Summary proceedings are without bill or petition and answer; and in such the Court is authorized and sometimes required to hear testimony, and such testimony is to be taken orally, and on immediate notification by a party of an intention to appeal from the decree, order, decision or judgment, the testimony is to be reduced to writing, under the direction of the Court, from its own notes or such memoranda as it may elect; or in case the testimony may not be recollected by the Court, and it have no other means of stating it correctly, the witness or witnesses may be re-called for the purpose of refreshing the recollection of the Court.

In no case under section 40, Article 5 of the Code, can testimony be taken orally in open Court, the witnesses discharged, and after judgment, re-called, re-examined, and the testimony then reduced to writing as an original proceeding.

On a petition by an administratrix under section 238, Article 93, of the Code of Public General Laws, alleging concealment of the property of her intestate, the proceedings are plenary and must be conducted in the manner prescribed by sections 249 and 250 of the same Article.

And in the same proceeding a defendant is not competent under the Act of 1868, ch. 116, to testify to any matter of contract between the defendants, or either of them, and the intestate.

Under section 182, Article 4, "City of Baltimore," (Act of 1867, ch. 373, sec. 3,) authorizing the Orphans' Court of Baltimore City, to appoint a stenographer for that Court, the depositions of witnesses taken without the aid of the stenographer, are not required to be signed by the deponents. 

COUNSEL:
R. W. Applegarth and James Frame, for the appellant.

John H. Ing, for the appellee.  

JUDGES:
The cause was argued before BARTOL, C. J., BRENT, MAULSBY and ALVEY, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*483]  MAULSBY, J., delivered the opinion of the Court.
In this case a petition was filed by the appellant in the Orphans' Court of Baltimore city, charging that the appellees had concealed certain household furniture, effects, &c., of Charles K. Cannon, deceased, and had refused to deliver the same to her, his administratrix, and praying for relief, and that a citation might issue against the appellees, commanding them to appear and answer under oath.
They appeared and answered, denying all concealment of property belonging to the intestate. Testimony was taken orally, and the Court rendered a judgment dismissing the petition. Thereupon the appellant filed a prayer of appeal, and requested that the testimony of the witnesses examined be reduced to writing. After the judgment and appeal prayed, witnesses were called, sworn and their testimony taken in [**2]  open 

 [*484]  Court, and reduced to writing. Though not expressly stated, it yet appears from the record that the witnesses, so called and sworn, were the same witnesses who had been examined orally before rendition of the judgment. The Court, on the last examination, refused to permit questions to be asked and exceptions to be noted, because the same questions had not been put, and exceptions taken, on the former oral examination. The petition was filed under section 238, of Article 93, of the Code of Public General Laws.
These proceedings appear to have been regarded in the Court below as summary, and to have been so conducted. This was erroneous. In Pegg, et al. vs. Warford, 4 Md. 385, re-affirmed in Peters' Adm'r vs. Peters, 20 Md. 172, it is said, "whenever a bill or petition is filed in the Orphans' Court, whether or not the parties are cited to appear, if, in point of fact, they do appear and answer, the proceedings are plenary."
The distinction between summary proceedings, under section 40, of Article 5, of the Code, and plenary proceedings, under sections 249, 250, of Article 93, is clear. The test of plenary proceedings is whether [**3]  a petition or bill is filed, and the parties against whom it is filed appear and answer. Summary, are proceedings in the Orphans' Court without bill or petition and answer, as in the matter of an account or claim against the estate of a testator or intestate presented for passage, and like matters. In such matters the Court is authorized, and sometimes required, to hear testimony, and such testimony is to be taken orally, and, on immediate notification by a party of an intention to appeal from the decree, order, judgment or decision, the testimony is to be reduced to writing, under the direction of the Court, from its own notes, or such memoranda as it may elect; or in case the testimony may not be recollected by the Court, and it have no other means of stating it correctly, the witness, or witnesses, may be re-called for the purpose of refreshing the recollection of the Court. In other words, the testimony is to be reduced to writing in the same manner in which a Court of Law is authorized and required 

 [*485]  to state in a bill of exceptions, testimony produced before it. Whatever cost, if any, may be incurred in the course of reducing to writing the testimony, shall be borne,  [**4]  in the first instance, by the party at whose request it may be done.
But in no case can it be permissible that testimony shall be taken orally in open Court, the witnesses discharged, and after judgment, re-called, re-examined and the testimony then reduced to writing, as an original proceeding. The 40th section of Article 5, does not contemplate or authorize such a proceeding. It is unknown to any practice of any Court.
In this case the proceedings were plenary, and ought to have been conducted in the manner prescribed by sections 249, 250, of Article 93, of the Code. The depositions ought to have been taken in writing and recorded, and either party had a right to require an issue, or issues, to be directed to a Court of Law. All the proceedings in the Orphans' Court subsequent to the filing of the answers were erroneous, and the judgment must be reversed and cause remanded, in order that they may be conducted according to law. The proof in the record is not properly before this Court, and no judgment or decree can be founded on it. If it were, whilst we would be inclined to the opinion that the appellant was entitled to relief, it would be difficult, if not impossible, to measure [**5]  the relief to which she would be entitled, because of the indefinite character of the proof. A party claiming relief must sustain his claim by proof sufficiently clear and distinct to enable the Court to adjudge with certainty, and the Court must not be left to vagueness and uncertainty.
Both parties will have opportunities, on another trial, to produce such proof as they may think proper, and if neither shall prefer to submit the questions in dispute to a jury on issues to be framed, and this Court may be called on to review another judgment or decree of the Orphans' Court, the proof must come within the principle stated.
It appears from the record that one of the defendants was permitted to testify in behalf of the defendants, and, as the 

 [*486]  same error might occur on another trial, it is proper to say that she is not competent to testify to any matter of contract between the defendants, or either of them, and the appellant's intestate. The construction by this Court of the Act of 1864, which, in this respect is applicable to the Act of 1868, will be found in Cooke vs. Cooke, 29 Md. 538, 550, 551.
Section 182, Article 4, "City of Baltimore," contained [**6]  in Supplement to the Maryland Code, 1861 to 1867, is relied on by the counsel of the appellees to sustain a motion to dismiss the appeal, on the ground that the depositions of the witnesses were not signed by them. The only effect of the section referred to is to authorize the Orphans' Court of Baltimore city to appoint a stenographer, and to require his attendance and services in taking down the testimony, when required, and in that case the depositions, after being written out by the stenographer, are to be signed by the deponents; but it does not affect in any way the power and duty of the Court to cause the depositions to be taken in writing by any other instrumentality authorized by law. It provides but an additional instrument for taking in writing depositions, and not an exclusive instrumentality.
The judgment of the Orphans' Court will be reversed, with costs of this Court to the appellant, and the cause remanded, in order that further proceedings may be taken in the Orphans' Court, in conformity to the opinion of this Court.
Judgment reversed and cause remanded. 

114 of 142 DOCUMENTS 

OSCAR KING vs. JOSEPH HICKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 460; 1870 Md. LEXIS 50 

May 30, 1870, Decided 

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

DISPOSITION:
Judgment reversed and new trial ordered.  

HEADNOTES:

Appeal -- Practice under the Act of 1864, ch. 6 -- Entry of Judgment by Default.

In an action under the Act of 1864, ch. 6, after sundry unexecuted writs of summons, the defendant was returned "summoned," but did not appear at the return day; no motion for judgment by default against him was made, and no order taken by the plaintiff on that day, or on any day previous to the next return day. After several return days had passed, on motion of the plaintiff in writing, a judgment nisi for want of appearance by the defendant was entered. At the succeeding Term, the judgment by default was extended, and during the same Term, the defendant appeared and moved that the judgment by default, and the extension thereof, be stricken out. The motion was overruled. On appeal, HELD:

1st. That an appeal lies from the order overruling the motion to strike out the judgment.

2d. That on failure of the defendant to appear on the day to which he was returned "summoned," the plaintiff was entitled, on motion in writing during the time intervening between that day and the next return day thereafter, to have a judgment by default entered against the defendant, but having failed to do so within that time, he could not claim the right afterward.

3d That the plaintiff having, by his own laches, lost his right to claim a judgment by default, the cause must be disposed of by the Court below, as if the suit had been instituted independently of the Act of 1864, ch. 6.

4th. That the defendant having appeared, has the right to plead in the usual form without affidavit.  

COUNSEL:
R. Stockett Matthews, for the appellant.

The judgment, termed "judgment nisi," and entered April 13th, 1866, was irregular and void, and should have been stricken out, as not being in compliance with the Act of 1864, ch. 6. This Act being in derogation of the common law, is to be construed strictly, and there is no evidence in the record that a judgment was taken for default of an appearance by the defendant. Act of 1864, ch. 6, sec. 5; Smith vs. Vanderhorst, 1 McCord, 328.

Admitting that the judgment of April 13th, 1866, was regular and proper, the judgment extended thereon, and of the date of May 17th, 1866, was irregular, because damages were allowed, and there was no inquisition by a jury, nor assessment of damages by the Court on proof. Act of 1864, ch. 6, sec. 9; Act of 1864, ch. 175, sec. 62; Mailhouse vs. Inloes, 18 Md., 328; Sasscer vs. Walker, 5 G. & J., 110; Smithson & Owens vs. U. S. Tel. Co., 29 Md., 162.

The motion to strike out was made at the term at which the judgment was entered, and disclosed merits, and for these reasons alone, it should have been stricken out. Rutherford [**2]  vs. Pope, 15 Md., 579; Kemp & Buckey vs. Ridgely, 18 Md., 130; Green vs. Hamilton, 16 Md., 317.

A. Leo Knott, for the appellee.

The judgment of the Court of Common Pleas of Baltimore city, in overruling the motion to strike out, being within the discretion of the Court below, is final and conclusive, and cannot be reviewed by this Court, and the appeal must, therefore, be dismissed. Boteler vs. State, 7 G. & J., 109; Compton vs. Compton, 2 Gill, 241; Randall vs. Glenn, 2 Gill, 430; Mayor, &c., of Balto. vs. Reynolds, 18 Md., 270; Hawkins vs. Jackson, 6 H. & J., 151; Washington vs. Hodgskin, 12 G. & J., 355.

Granting that the appeal can be entertained by this Court, the record discloses no grounds for reversing the order of the Court below.

There was no irregularity in obtaining the judgment by default; and it was extended in the form and mode prescribed by law. Act of 1864, ch. 6; Act of 1864, ch. 175.

While in Mailhouse vs. Inloes, 18 Md., 328, it was determined by this Court that a judgment under the Act of 1858, ch. 323, on open account, properly authenticated, could be obtained, it was held that the Court below had no power to allow interest which must [**3]  be ascertained by a jury on a writ of enquiry. But this objection was subsequently removed by the Legislature. Act of 1864, ch. 175.  

JUDGES:
The cause was argued before STEWART, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
STEWART 

OPINION:

 [*462]  STEWART, J., delivered the opinion of the Court.
The action below, in the Court of Common Pleas for the city of Baltimore, was instituted on the 8th of July, 1865, by the appellee, for the recovery of an account alleged to be due by the appellant.

 [*463]  The plaintiff filed his account, with an affidavit thereon, and a narr., containing the common counts. There were successive unexecuted writs against the defendant, but, under the writ issued the 3d of October, 1865, and returnable to the second Monday of October, 1865, one of the return days, the defendant was returned "summoned," but did not appear on that day, and no motion for judgment by default against him was made, and no order whatever taken by the plaintiff on that day, or on any day before the next return day. After sundry return days, and the entire September term of the Court, and nearly the whole of the succeeding January term had transpired, and but a few weeks before the [**4]  May term, to wit: on the 13th day of April, 1866, the plaintiff made his motion, in writing, for judgment nisi against the defendant; and on that day, judgment by default, for want of appearance by the defendant, was entered.
On the 17th day of May, during the May term, the judgment was extended, and, during the same term, on the 9th of June, 1866, the defendant appeared, and moved, in writing, with sundry reasons, to strike out this judgment by default, and the extension thereof, and amongst his reasons, alleged, in his second reason, that the judgment entered against him was irregularly obtained and extended.
On the 12th of June, 1866, the defendant also filed his petition, with affidavits, undertaking to show merits, and praying to have the judgment set aside. At the January term, on the 23d of February, 1867, the Court overruled the defendant's motion, and from this ruling he has appealed.
This judgment of the Court below, if unreversed under this appeal, is, to all intents and purposes, final, and concludes the rights of the parties affected thereby. There can be no question of the right of the defendant, according to the law of the land, to take his appeal from such judgment.  [**5]  
It is equally clear, that during the term in which judgment is rendered, it is under the control of the Court, and may be stricken out for fraud or irregularity. Code, Art. 75, sec. 38.

 [*464]  To ensure speedy recovery of demands in the Court of Common Pleas of the city of Baltimore, the Act of 1864, ch. 6, provides summary proceedings, and besides the three stated terms of that Court, in January, May and September, for the return of process and trial of causes, prescribes other return days, at which the same proceedings may be had in the prosecution of writs, as if they were made returnable to the regular term of the Court, and gives to persons instituting suits in that Court, the option to have the writ made returnable to the return day or to the next succeeding term. According to this law, if the defendant, being summoned, fails to appear on the return day, judgment for default, on motion of the plaintiff in writing, may be entered against him, which shall be stricken out on his appearance being entered before the first return day thereafter, that is, by the next return day after the one to which the writ was made returnable; and if the defendant fails to appear within [**6]  this prescribed time, the plaintiff may have his writ of enquiry or final judgment. It seems clear, from the tenor of this Act, that diligence and despatch were its leading intent and policy. For that purpose it prescribes the additional return days, and that when the defendant has been summoned to appear at any return day, he must appear within the time intervening between that day and the next return day. The plaintiff also must make his motion for judgment by default against the defendant, within the same period. The striking out of the judgment by default, as a matter of course, if the defendant does appear within the prescribed time, occurs within the same interval. If the defendant fails so to appear, the plaintiff, if he has made his motion for default in time, is then, and not before, entitled to his writ of enquiry or final judgment. Mailhouse vs. Inloes, et al., 18 Md. 328.
The terms of this law are more imperative than any rule of the Court, and it is manifest, from their purport, that where the defendant does not appear on the return day, and is thus liable to be defaulted, but the plaintiff makes no motion to 

 [*465]  have the default entered during [**7]  the interval between the first and the next return day, he, in effect, waived the benefit provided by the law for the entry of the judgment by default.
This law, prescribing modes of proceeding, unusual, must be strictly pursued, and neither by its letter nor spirit, does it authorize the plaintiff, to have judgment by default entered against the defendant, at any time subsequent to the day prescribed by the law.
The plaintiff, if such license were allowed, would, in fact, be permitted to have his judgment by default, and final judgment afterwards, without the allowance of any day to the defendant between the two judgments. The plaintiff, it seems, elected to have the summary process provided by this law, and the writ against the defendant was made returnable to one of the return days described in the writ, to wit: on the second Monday of October, 1865, and, in obedience to the writ, the sheriff summoned the defendant to appear on that day, and he failed to appear; but, notwithstanding this default of the defendant, the plaintiff quietly slept upon his rights, and made no motion to have judgment by default against the defendant until after that whole term had elapsed, and a large [**8]  part of the ensuing term, to wit: on the 13th of April, 1866.
Parties electing and undertaking to make use of the summary provisions of that law, should be vigilant and strict in pursuing its policy and following the directions specifically prescribed thereby, otherwise they cannot claim its benefits. This law, neither by its letter nor spirit, gives the least countenance to such want of diligence, nor does it authorize the plaintiff to demand this judgment by default against the defendant, and neither the clerk nor the Court was empowered, under its provisions, to enter or order the judgment by default against the defendant, on the plaintiff's motion, made on the 13th day of April, 1866.
Undue and unfair advantage might be taken against an absenting and defaulting defendant, if the plaintiff were permitted, 

 [*466]  under color of the law, to take his judgment by default at any time it might suit his purposes; but, although the defendant is in default, so is the plaintiff guilty of laches, and the defendant, under such circumstances, is entitled to be protected against any judgment being rendered against him without the sanction of law. The onus is on the plaintiff to [**9]  show a legal foundation for his judgment by default in such cases.
If the plaintiff is vigilant to secure his judgment, although by default, if it is entered according to law, it stands as any other judgment, and will have all the legal intendments in its favor.
Assuming, in this case, that the demand of the plaintiff was within the provisions of this law--that the necessary affidavit was made on the part of the plaintiff; that he took the proper steps to institute his action; that the defendant was regularly summoned to appear on the return day, and failing to do so, that he was liable to be defaulted on the motion of the plaintiff; that the plaintiff was entitled to have judgment entered against him for such default, yet, if he failed to make his motion on that day, or before the next return day, for the judgment by default, he has neglected to avail himself of the privilege allowed to him, to have his judgment by default against the defendant, and it would be, not only to the prejudice of the defendant, but without any sanction from this law, and in disregard of its express provisions to permit the plaintiff to have such judgment entered, whenever it may suit his inclination or [**10]  convenience.
The plaintiff having, by his own laches, lost the benefit of obtaining the summary judgment by default against the defendant, the cause must now be disposed of by the Court below, as if the suit had been instituted independently of the Act of 1864, ch. 6.
The defendant having appeared, has the right to plead in the usual form, without affidavit.

 [*467]  Finding the judgment below to have been improvidently entered, and the allegation in the second reason of the defendant sustained, there is no occasion to make further reference to the other reasons relied upon by the appellant.
Judgment reversed and new trial ordered. 

DISSENTBY:
MILLER 

DISSENT:

MILLER, J., delivered the following dissenting opinion:
With great deference to the opinion of the majority of my brothers who heard this case, I am constrained to withhold my assent to the construction they have placed upon the Act of 1864, ch. 6, under which this action was instituted. The suit was against the partners of two separate firms, and I shall assume the cause of action and the affidavit thereto were in conformity to the sixth and eighth sections of that Act. The appellant, a partner of one of the firms, was summoned [**11]  to appear on the second Monday of October, 1865, one of the return days for process established by the first section of the Act in question. He never appeared, and the regularity of the judgment by default, for want of an appearance, and its subsequent extension by the Court, depends upon the construction of the fifth section of that Act, which is in these words:
"If a defendant, regularly returned "summoned" to appear at a stated term, or a return day of the Court from which the original writ was issued, shall fail to appear on the day to which the writ was returnable, judgment for his default may, on motion of the plaintiff, made in writing and filed with the Clerk of the Court from which said original writ was issued, be entered by the said Court or by the said Clerk, against the said defendant, which said judgment shall be stricken out on his appearance being entered at any time before the first return day thereafter; and if the said defendant shall fail to appear within the time above limited, the party plaintiff may 

 [*468]  sue out his writ of inquiry, or otherwise enter upon final judgment, according to the course of the Court."
In my opinion this is the only section of [**12]  the law wherein any provision is made for a judgment, final or otherwise, in case of a continuing failure to appear on the part of the defendant. Neither the sixth nor the seventh sections have any application to such a case. By the sixth, it is provided that every suit where the cause of action is a contract, express or implied, shall stand for trial or judgment on the first return day after the defendant's appearance, whether that return day be the first day of a succeeding term, or one of the return days fixed by the first section, unless the time be extended by the Court, on cause shown. By the seventh, it is provided in the same way that if the cause of action be such as is mentioned in the preceding section, and the plaintiff makes the prescribed affidavit to his claim, he shall be entitled to his judgment on the first return day after the defendant's appearance, whether that be the first day of a succeeding term or one of the prescribed return days, notwithstanding the defendant may have pleaded, unless his plea contains a good defence, and is supported by affidavit. Neither of these sections makes any reference to or contemplates the case of a failure to appear, and [**13]  neither undertakes to declare that the plaintiff can, under any circumstances, obtain a final judgment on the return day of the writ, whether that return day be the first day of a term or not. It can hardly be imagined the Legislature intended to authorize a proceeding as summary as that; on the contrary, both these sections contemplate that something will be done by the defendant on the return day of the process. If he appears, the case goes over to the next return day and then stands for trial or judgment; if he appears and pleads, the same result follows unless his plea sets up a good defence and is verified by affidavit. This appears to me the only construction of which these sections are susceptible, and so construed, they provide a mode of obtaining judgments in the specified cases sufficiently speedy and summary. It 

 [*469]  remains then to consider the case of a continuing default to appear, which is provided for by the fifth section and whether the judgment by default in this case was properly entered under that section. The plaintiff did not take the judgment by default until the 13th of April, 1866, after several return days succeeding that to which the defendant was [**14]  summoned to appear. The record shows, however, it was then regularly entered and the defendant still failing to appear at any time before the next return day thereafter, which was the second Monday in May, 1866, the first day of the succeeding May Term, the Court on the 17th of that month ordered the judgment to be extended. This was a final judgment properly entered in this case upon the assumption already made as to the cause of action and affidavit, under the fifth section of this Act provided the previous judgment by default, was regularly and lawfully taken. The final judgment which the latter clause of this section authorizes, in a case such as this is assumed to be, is the extension of the judgment by default, by the Court under the 9th section of this Act or under the Act of 1864, ch. 175.
The fact that the plaintiff did not take his judgment by default at some period before the return day immediately succeeding that to which the defendant was summoned to appear, constitutes, in the opinion of the Court, an irregularity fatal to that judgment. I am unable to discover any thing in this section which commands the judgment thus to be entered, and forbids its entry at [**15]  any other period, nor can I perceive any good reason for giving to it that construction. The language of the section is, that if the defendant fails to appear on the return day of the writ, judgment for his default may, on motion of the plaintiff in writing, be entered by the Court or clerk, but there is nothing which fixes the time when it must be entered; it certainly does not say it shall be entered before the next return day and not afterwards. In my opinion the judgment by default was lawfully entered on the 13th of April, 1866. The delay which the plaintiff permitted 

 [*470]  did not, nor can it in any case, operate to prevent the defendant from having a day for his appearance allowed him between the judgment by default and the final judgment. According to my construction of this section, the judgment by default, whenever entered, is, ipso facto, by force of the words of the law itself, stricken out by the entry of an appearance by the defendant at any time before the next return day thereafter; and if in this case the defendant had appeared at any time between the 13th of April, the date of the judgment by default, and the second Monday of May, the [**16]  next return day thereafter, the Court would have had no authority to extend the judgment as it did on the 17th of May, for that appearance would have stricken down the judgment by default, which alone gave the authority to enter up the extended judgment. It was the defendant's duty to appear, and his default continued all the while up to the date of the extended judgment, which it is conceded the plaintiff could lawfully have obtained six months before. How, or in what possible way, could the defendant be prejudiced by the plaintiff's omission to have a judgment entered against him at an earlier date? Unless a party can be said to be in a worse condition when there is no judgment against him, than when there is one, I confess, with all deference, my inability to comprehend the reasoning which places the construction the Court has given to this law, on the ground of protecting defendants against judgments obtained in the summary mode this law authorizes. Can a defendant, thus in default, have any cause of complaint, that the plaintiff has not pursued him with all the despatch the law allows? When a plaintiff undertakes to pursue the summary proceedings allowed by this Act, the Court [**17]  will protect the defendant by requiring its provisions to be complied with and not permit a judgment to stand if recovered in a mode which the law does not authorize, but unless there is some express prohibition in the Act against any delay, and I can certainly find none applicable to a case like this, the mere fact that the plaintiff did not proceed to 

 [*471]  obtain his judgment at the earliest possible moment the law would permit, ought not, in my judgment, to deprive him of the benefit of his judgment subsequently obtained. A fair and just construction of the section which controls this case, in my opinion, permits a judgment by default for want of an appearance to be entered at any time after the return day of the writ, and permits that judgment to be extended at any time after the first return day succeeding the entry of the judgment by default if no appearance has then been entered by the defendant. I am therefore of opinion this judgment ought not to be stricken out for any of the reasons assigned in the opinion of the Court.
I am instructed by Judge GRASON to say that he concurs in this opinion.  

115 of 142 DOCUMENTS 

THE WASHINGTON FIRE INSURANCE COMPANY OF BALTIMORE, AND THE ATLANTIC FIRE AND MARINE INSURANCE COMPANY vs. JAMES E. KELLY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 421; 1870 Md. LEXIS 49 

May 27, 1870, Decided 

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

These actions were instituted by the appellee on two policies of insurance issued by the appellants respectively, to recover for a loss resulting from the destruction by fire of the well known buildings called "Barnum's Museum," on Broadway, New York. They were insured in the names of Benjamin F. Beekman and Gilbert T. Reeder, in the Washington office, on May 9th, 1867, to the amount of $ 2,500, for one year from the 14th of May, and in the Atlantic office, on the 7th of June, 1867, to the same amount, for a like period from the date of the policy. No description was made of the interest which the assured had in the property, and no representation as to it was given to the companies or expressed in either policy. At the time of the insurance, Beekman and Reeder had only an equity of redemption in the property, subject to four mortgages, amounting to $ 350,000.

On the 11th of February, 1868, Beekman and Reeder contracted in writing to sell the premises to a certain Charles W. Budd, for the sum of $ 462,000, which he agreed to pay--$ 10,000 in cash, $ 52,000 on the delivery of the deed; the amount of the four mortgages was assumed;  [**2]  and a mortgage for the residue $ 50,000 was to be given. The deed and necessary papers were to be delivered, and the money paid on or before the 1st of April, 1868. On the day of the contract, Budd assigned all his interest to the appellee, for the sum of $ 1.00, subject to the performance of the covenants. The $ 10,000 were paid, but no possession was given under the contract, nor was anything else done before the fire, which occurred on the 2d of March, 1868. The loss was total. On the 5th of March, a deed was executed and delivered by Beekman and Reeder, to the appellee, as of the 11th of February, 1868. On the day of the execution of the deed, Beekman and Reeder agreed in writing with the appellee, to collect the amount of all their policies, or so much thereof as might be collectable, and make certain applications of it for his benefit. On the 1st of June, 1868, they made an absolute assignment of all the policies, including those issued by the appellants, to the appellee.

Mr. Frank P. Clark, an insurance broker of Baltimore, testified on behalf of the appellants, that as the agent of the Baltimore underwriters, "he visited New York shortly after the destruction by fire of [**3]  the premises insured, and before the 12th of March, 1868, when proof of loss was furnished, and called on Messrs. Beekman and Reeder, and having become acquainted with the disposition of the property, he said to them that the companies considered themselves entitled, if they paid under their policies, to be subrogated to that extent to the rights of the assured, as against the vendee of the premises, and that if they, Beekman and Reeder, would so subrogate them, the companies would at once pay the respective amounts which they had underwritten; Mr. Reeder was disposed to assent to this proposition, but Mr. Beekman interposed, and said that it could not be done, for that it was agreed with the vendee, at the time of the agreement of purchase, which had been given in evidence by the plaintiff in this case, that the policies of insurance held by Beekman and Reeder should stand for the benefit of the purchaser, in the event of loss, whereupon the said Beekman and Reeder declined the proposition made by witness, stating, at the same time, that they had no interest in the insurance money, but were claiming the same only for the plaintiff."

To this the appellants filed the following [**4]  counter-statement of Beekman, contained in a letter written by his counsel from New York, which was admitted, by consent, as if orally testified to by Beekman, viz:

"He (Beekman) says that the only verbal arrangement about insurance at the time of the contract, or before the fire, was, that when the contract should be carried out, and the deed delivered, Budd should, on the one hand, have the benefit of existing policies, and on the other hand should pay Beekman and Reeder a pro rata proportion of the premiums for the unexpired portion of the policies from the time of the delivery of the deed."

The policies were offered in evidence. The policy of the Washington Company contained, in its fourth paragraph, the following language:

"If the said property shall be sold or conveyed, or if this policy shall be assigned, without the consent of the company obtained in writing hereon *** then, and in every such case, this policy shall be null and void."

Its third condition was also as follows:

"3. Policies of insurance subscribed by this company, shall not be assignable without the consent of the company, expressed by endorsement made thereon; in case of assignment [**5]  without such consent, whether of the whole policy or of any interest in it, the liability of the company in virtue of such policy, shall thenceforth cease; and the company reserves to itself the right to elect, either to consent to the transfer or to return a ratable proportion of the premium and cancel the policy."

A portion of its second condition, was in the following words:

"If the interest in property to be insured be a leasehold interest, or other interest not absolute, it must be so represented to the company and expressed in the policy in writing, otherwise the insurance shall be void."

The policy of the Atlantic Company contained no special provision against sale or conveyance of the insured premises, and no clause precisely analagous to the second condition of the Washington policy. The fourth of its conditions, however, was in these words, viz:

"4. Every policy of insurance made by this company shall be sealed with its seal, signed by the President and attested by the Secretary; and the person for whose interest the insurance is made, must be declared and named therein, nor can any policy or interest therein be assigned, but by consent of the company,  [**6]  expressed by an endorsement made thereon."

Exception: The plaintiff presented two prayers, both of which were granted: The first, to the effect that Beekman and Reeder, on the facts and exhibits admitted in the agreement of counsel, had an insurable interest in the premises insured, at the time of the fire, and the second that, on the said facts and exhibits, there was no such sale or conveyance as would forfeit the rights of the assured, under the Washington Company's policy. The first prayer applied to both cases, the second to that against the Washington alone.

The defendants offered the following prayers:

1. In the case of the Washington Fire Insurance Company. That as it is admitted that Beekman and Reeder, at the time of application for the insurance in controversy, and the execution of the policy in suit, had only an equity of redemption in the premises insured, subject to the incumbrances set forth in the deed of 5th of March, and referred to in the contract of 11th of February, if the jury find that Beekman and Reeder made no representation or statement that such was the character of their estate or interest in the premises, to the said defendant, at or before [**7]  the execution and delivery of said policy, or at any other time, and that no such statement and representation of interest is expressed in the policy, then under the terms and conditions of the policy, and the facts admitted in the agreed statement of facts, the plaintiff is not entitled to recover.

2. In both cases. Even if the said policies attached, notwithstanding the facts referred to in the first prayer, that the assured, Beekman and Reeder, had no interest in the premises insured at the time of the fire, (under the facts admitted,) except such as the vendee of said premises had not paid for, and in estimating that, the jury must take into consideration not only the $ 10,000 paid in cash, but the mortgages for the assumption of which such contract of sale provides, and the plaintiff can only recover such proportion of the amount underwritten, as the amount of the purchase money thus left unpaid shall bear to the whole.

3. In both cases. Should the Court decline to grant the defendants' first prayer, then they (the defendants) were entitled, on payment of the loss under their policies respectively, to be substituted or subrogated pro tanto to the rights of Beekman and [**8]  Reeder, under the contract of sale given in evidence against the vendees and their assigns at the time of the loss, upon the admitted facts and the evidence of the witness, Clark, (if the jury believe the same,) and the plaintiff is not entitled to recover.

4. In both cases. Should the Court decline to grant the defendants' first prayer, then that under the facts admitted, they (the defendants) were entitled, on payment of the loss under their policies, respectively to be subrogated pro tanto to the rights of Beekman and Reeder, at the time of the loss, against the vendee, under the contract of February 11th, or his assigns, and that under the said facts admitted, if the jury believe that the said Beekman and Reeder, before suit brought, and before the assignment of the policies to the plaintiff, refused so to subrogate the defendants to their said rights, and declared to the agent of the defendant that they would not do so, then the plaintiff is not entitled to recover.

5. In the case of the Washington Insurance Company. That by reason of the facts admitted, the right of Beekman and Reeder to recover under the policy of the defendants, had been divested, and was so divested [**9]  under the terms and conditions of said policy, when the loss took place, and the plaintiff cannot recover in this case against said defendant.

6. In the case of the Washington Insurance Company. That if the jury believe that, at the time of the contract of the 11th of February, given in evidence, it was understood and agreed by and between the parties thereto, that the policies held by Beekman and Reeder on the premises to which said contract of the 11th of February referred, should be retained and held by said Beekman and Reeder for the benefit of the vendee under said contract, and his assigns, and that said Beekman and Reeder did so retain and hold said policies for such benefit, without the consent of the insurers, and that the papers of March 5th and June 1st (filed with the agreed statement of facts) were executed in pursuance and fulfilment of such previous understanding or agreement, then in view of all the facts admitted in said statement, and of the terms and conditions of the policy of said Washington Fire Insurance Company, the plaintiff is not entitled to recover against said company.

7. In the case of the Atlantic Company. The same in its behalf, as prayed by [**10]  the Washington Fire Insurance Company, in its own behalf in the sixth prayer.

The Court rejected the prayers of the defendants.

To the granting of the plaintiff's prayers, and the rejection of their prayers, the defendants respectively excepted; and the verdict and judgment being against them, they appealed.  

DISPOSITION:
Judgment affirmed in both cases.  

HEADNOTES:

Insurable interest -- Interest not absolute -- Construction of conditions in Policies of Insurance -- A contract to Sell, not an Alienation of the Insured property -- What is not an Assignment of the Policy -- Subrogation.

A mortgagor in possession, and before foreclosure, has an absolute and insurable interest in the property.

A condition in a policy of insurance, that "if the interest in property to be insured be a leasehold interest or other interest not absolute, it must be so represented to the company, and expressed in the policy in writing, or otherwise, the insurance shall be void," does not embrace the case of a mortgage on the insured property, of which the assured is otherwise the entire owner, and where his interest exceeds the insurance thereon; and the failure by the assured, at the time of insurance, to communicate the existence of the mortgage, does not relieve the insurance company from its liability under the policy, to pay in case of loss.

A mere contract for the sale of the insured premises, without delivery of possession, or execution of a deed therefor, with only a part of the purchase money paid, is not a sale within the meaning of the proviso contained in the policy of insurance, that it shall be null and void if the property insured shall be sold or conveyed, without the consent of the company in writing. To constitute a sale within the meaning and purpose of the proviso, the right to the property and to the possession thereof, must pass from the vendor to the vendee.

On the 11th of February, 1868, the owners of certain premises, which were insured to the extent of $ 61,500, agreed to sell the same for $ 462,000, which the vendee agreed to pay -- $ 10,000 in cash, $ 52,000 on delivery of the deed, to assume payment of the mortgage debts, amounting to $ 350,000, and to execute a mortgage on the premises to secure the balance of $ 50,000 On the same day, the vendee assigned the contract to K, and directed the conveyance to be made to him. The $ 10,000 was paid, but possession was not given, nor was anything else done under the contract before the fire, which occurred on the 2d of March, 1868. On the 5th of March, the deed was executed and delivered to K; and the grantors, on the same day, agreed, in writing, to collect the amounts due on the insurance policies, and apply the same for the benefit of K. A formal written assignment of the policies and of the claims arising thereon, were, on the 1st of June following, executed to K. A witness testified that one of the vendors told him that it was agreed with the vendee, at the time of the contract of sale, that the policies of insurance held by the vendors, should stand for the benefit of the purchaser in the event of loss. A policy taken out by the vendors contained a condition that, in case of assignment, whether of the whole policy, or of any interest therein, without the consent of the company expressed by endorsement thereon, the liability of the company, in virtue of such policy, should thenceforth cease. On an action brought by K, the assignee of the assured against the insurance company, HELD:

1st. That the verbal agreement or understanding that the assured, the vendors of the property, should hold the policy for the benefit of the party with whom they made the contract of sale, and that so holding, and continuing to hold it at the time the property was destroyed by fire, was not an assignment of the policy, or of any interest therein, within the terms of the restriction.

2d. That the insurance company, on payment of the loss under its policy, was not entitled to be subrogated pro tanto, to the rights of the assured against the vendee, or his assigns, under the contract of sale.

3d. That the assignee of the assured was entitled to recover the whole amount of the insurance.  

COUNSEL:
Thomas W. Hall, Jr., and S. Teackle Wallis, for the appellants.

The policy of the Washington Insurance Company never attached, because the interest of Beekman and Reeder in the premises was not "absolute," within the meaning of the second condition, and was not represented to the company or expressed in the policy to be otherwise than absolute, as the condition required. The object of the clause was obviously to let the company know into what relations it was entering, and with whom, as well as to advise it of all the risks to which the interests and temptations of the parties so disclosed might expose them. Bouvier's Law Dictionary, "Absolute;" New York Life Ins. Co. vs. Flack, 3 Md., 353; National Ins. Co. vs. Crane, 16 Md., 286; Mutual Ins. Co. vs. Deale, 17 Md., 38, 49; Edmunds vs. Mutual Safety Co., 1 Allen, 307, 311;  [**11]  Reynolds vs. The State Mutual Ins. Co., 2 Grant, Pa., 327-9; Columbia Ins. Co. vs. Lawrence, 2 Peters, 25, and 10 Peters, 507; Carpenter vs. Provid. Ins. Co., 16 Peters, 505; Catron vs. Tenn. Ins. Co., 6 Humph., 189.

The facts admitted shew a sale and conveyance of the property within the meaning and purpose of the provisions of the Washington Company's policy, such purpose being obviously not to reduce the amount of liability in proportion to the extent of alienation, but to prohibit the assured, under penalty of losing his whole insurance, from bringing into the contract, without the consent of the company, any new parties, new interests or new risks. This is shewn, beyond peradventure, by the fact that the provision against alienation is coupled with that against assignment of the policy, a clause having no other object than that just indicated, as has been repeatedly decided. The alienation, in this case, brought new parties, new interests, and new risks into the transaction, just as effectually as if the contract had been consummated three days before the fire, instead of three days after. Balt. Fire Ins. Co. vs. Loney, 20 Md., 36; Ayres vs. Hart. Ins. Co., 17 Iowa, 185,  [**12]  186, and 21 Iowa, 196, 198; Finley vs. Lycoming Ins. Co., 30 Pa., 310; Hartford Fire Ins. Co. vs. Ross, 23 Indiana, 181; Edmunds vs. Mutual Safety Co., 1 Allen, 311; Davenport vs. New England Mutual Co., 2 Gray, 338; Keeler vs. Niagara Ins. Co., 19 Wisconsin, 537; 2 Burrill's Law Dic'y, "Sale;" 33 Howard's Pract. Rep., 400.

Even if the policy was not avoided, as to the Washington Company, by the sale given in evidence, and the two companies should be held as occupying equal ground on this point, they were still responsible for nothing more than the proportionate interest remaining in Beekman and Reeder at the time of the fire; and, for the purpose of arriving at this, the mortgages assumed must be taken as cash purchase money paid to the extent of $ 350,000, in addition to the $ 10,000 actually paid.

The companies were entitled, in any event, to be subrogated to the rights of the assured vendors, against the vendee, on payment of the loss, and having tendered payment on these terms, which the assured declined, they cannot now be held liable. Pentz vs. Receiver of the AEtna Fire Ins. Co., 9 Paige, 969; Carpenter vs. Prov. Ins. Co., 16 Peters, 501, 502; AEtna Fire Ins. Co.  [**13]  vs. Tyler, 16 Wend., 397; Ins. Co. vs. Woodruff, 2 Dutcher, 554, 555; Hart, et al. vs. Western Railroad Corporation, 13 Met., 105, 107, 108; Smith vs. Ins. Co., 17 Penn., 260; Kernochan vs. N. Y. Bowery Fire Ins. Co., 5 Duer, 1, and 17 N. Y., 428; Parsons on Marine Ins., 227.

If the jury believed the testimony of Mr. Clarke, assumed in the hypothesis of fact adopted by the sixth and seventh prayers, to the effect that, at the time of the contract of sale of 11th of February, it was agreed between the parties that the policies should be held for the benefit of the vendee, and that they were accordingly so held till the fire, without the knowledge or consent of the underwriters, and were finally assigned after the fire, in pursuance and fulfilment of such understanding, such arrangement was a mere circumvention of the conditions against assignment of the policy, or any interest therein, and as clear a violation of these conditions, in law, as if the assignments had been actually made in writing, without the assent of the companies, before the fire.

I. Nevett Steele, for the appellee.

Beekman and Reeder had an insurable interest in the premises insured at the time of the [**14]  fire. They were the owners of the property, subject to a contract to convey it at a future time, if the vendee should perform the conditions of sale. Any interest, even though not amounting to property in, or title to the subject of insurance, is insurable. It follows that there was no error in granting the first prayer of the appellee. 2 American Leading Cases, 550; Allen vs. Insurance Co., 2 Md., 111; Franklin Fire Ins. Co. vs. Coates & Glenn, 14 Md., 297.

The contract entered into by Beekman and Reeder for the sale of the property to Budd, did not forfeit their insurance under the proviso against alienation contained in the policy of the Washington Insurance Company. Without any such proviso in the policy, if the assured had parted with their whole interest in the thing insured before the fire, they would have had no cause of action, because they would have had no insurable interest. This proviso does nothing more than secure, by express stipulation, that which would otherwise be implied by law. "There must be an actual and complete alienation to call it into action." In the case now before the Court, there was nothing but a contract to convey, at some subsequent time. The [**15]  vendee might never be willing or able to perform the conditions which would entitle him to a conveyance and possession of the property. In the meantime, Beekman and Reeder were in possession, retaining the title, and having received only a very small part of the purchase money. Such a contract, not fulfilled by the vendee, so far as to entitle him to possession and a conveyance, was not a sale or conveyance of the property, within the meaning of the proviso. If this be so, the second prayer of the appellee was properly granted, and the fifth prayer of the appellants properly rejected. 2 American L. Cases, 618-626; Hitchcock vs. Insurance Co., 26 N. Y., 68; Jackson vs. Mass. Mutual Fire Ins. Co., 23 Pick., 418, 424, 425; Masters vs. Madison Ins. Co., 11 Barbour, 624; Ayres vs. The Harford Ins. Co., 21 Iowa, 193, 198; Trumbull, et al. vs. The Portage County Mutual Ins. Co., 12 Ohio, 305; Phoenix Ins. Co. vs. Lawrence, 4 Met., (Kentucky,) 9; Perry Co. Ins. Co. vs. Stewart, 19 Penn., 45; Tittemore vs. Vt. Ins. Co., 20 Vermont, 546; Holbrook vs. Ins. Co., 1 Curtis, C. C., 193; Orrell vs. Hampden Fire Ins. Co., 13 Gray, 431; Conover vs. Ins. Co., 3 Denio, 254; Smith vs. Mutual Fire Ins.  [**16]  Co., 50 Maine, 96; Heaton vs. Manhattan Ins. Co., 7 Rhode Island, 502, 507, 508; 1 Phillips on Insurance, 490.

The insurance is not void under the conditions of the policy of the Washington Insurance Company, requiring that "the interest in property to be insured, if a leasehold interest or other interest not absolute, shall be so represented and expressed in the policy," &c. This language is obscure and vague, and, looking as well to the fact that it is the language of the company as to the character of the condition, it ought to be taken strongly against the company and very strictly construed. The word "other" seems to indicate that by "interest not absolute," is meant something similar to a leasehold interest. But whatever may be the meaning of the word absolute as here used, it would seem to be clear, that the condition cannot be extended to the case of the owner of feesimple property who has encumbered it by mortgage or otherwise. If it were intended to require the insured to specify or give notice of incumbrances on his property, the company was bound to use plain language to communicate its meaning. It is scarcely possible to suppose that the company so intended by the [**17]  language of this condition, and if it did, the condition would be a trap, which the Courts would not permit to serve its unjust purpose.

In equity, Beekman and Reeder were the fee-simple owners of this property, and the mortgages were but debts due by them, for the security of which they had given a lien on the property. The condition did not require them to say whether their fee-simple estate was legal or equitable. The first prayer of the appellants was, therefore, properly rejected. Hough vs. City Fire Ins. Co., 29 Conn., 10, 19, 20; Gaylord vs. Lamar Ins. Co., 40 Missouri, 13; David vs. Hart. Fire Ins. Co., and Tonghurt vs. Conway Fire Ins. Co., Digest of Decisions on Fire Insurance, 584, 587; Swift vs. Manufacturers' Ins. Co., 18 Vermont, 305; Buffum vs. Bowditch Mutual Fire Ins. Co., 10 Cush., 543; Wilson vs. Conway Fire Ins. Co., 4 Rhode Island, 156; Hope Mutual Ins. Co. vs. Brolasky, 35 Penn. State Rep., 282; 1 Bosworth, (N. Y.,) 507.

It is believed that Mr. Clark was mistaken in his evidence, and that the stipulation as to the insurance in the contract of sale was to be taken to be the contract between the parties; but, assuming that he is correct, and that at the [**18]  time of the contract to sell, Beekman and Reeder agreed that their policies of insurance should be held for the benefit of the vendee in the event of a loss, such an agreement would not forfeit the policies. They did not part with their insurable interest nor assign the policies, but retained both. They brought no new party into contact with the insurance companies, and did not attempt to change, in any respect, their own legal relations to those companies. It will not be questioned, that, after the loss, they had the undoubted right to assign all their claim, &c., under the policies, as they might deem proper, and this was in fact all that they did. The vendor, under an executory contract for the sale of property, has a right, either with or without an agreement to that effect with the vendee, to insure the whole value of the property. This point covers the sixth and seventh prayers of the appellants. 2 American Leading Cases, 567, 568, 569; Insurance Co. vs. Updegraff, 21 Penn., 513; Insurance Co. vs. Wheeling, 11 Leigh, 354; Reed vs. Lukens, 44 Penn., 202; Thomas' Executors vs. Von Kapff, 6 G. & J., 372; Cromwell vs. Brooklyn Fire Ins. Co., 39 Barb., 227.

The third and fourth [**19]  prayers of the appellants were properly rejected, because, under the facts on which they were founded, the appellants had no legal claim to be subrogated to any rights of Beekman and Reeder, nor in fact had Beekman and Reeder any rights upon which the subrogation could operate.

The insurance here was not upon a debt, but upon the property, and the premium paid was the premium on the insurance of property. Besides, it is clear, from all the testimony in the case, that it was understood that the vendor would keep the property insured, while the contract of sale was running.

The contract with Budd was to sell "all that piece or parcel of land, together with the buildings and improvements thereon," &c. Before the maturity of the contract, the buildings were destroyed by fire, so that without rebuilding the vendors could not perform their contract, and could not compel the vendee to take and pay for the property. The fact that at the same time that the deed was executed, the vendee required and obtained the execution of the agreement, to collect and apply the insurance money for his benefit, shews that he would not have carried out the contract of sale without such an agreement;  [**20]  and the arrangement thus made was just and equitable. King vs. State Ins. Co., 7 Cushing, 1; Suffolk Ins. Co. vs. Croyder, 9 Allen, 123; Smith vs. McConkey, 45 Barbour, 610; 2 Story's Eq. Jur., secs. 750, 769.

The second prayer of the appellants was properly refused. It would, if granted, have worked great injustice to the appellee. The value of the buildings insured was admitted to be at least $ 100,000. The whole amount of insurance was $ 61,500. After deducting the cash payment of $ 10,000, the insurable interest remaining was at least $ 90,000, of which about one-third was lost, not being covered by insurance. If, as the prayer asked, the assumption of mortgages to the amount of $ 350,000 is to be treated as the payment of so much cash, and the insurance is to be regarded as an insurance on the unpaid purchase-money only; still, as there was, at the time of the fire, $ 102,000 of purchase-money, there is no reason why the $ 61,500 should not go towards its payment.  

JUDGES:
The cause was argued before STEWART, MAULSBY, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
STEWART 

OPINION:

 [*434]  STEWART, J., delivered the opinion of the Court.
The insurance companies in these cases, which have been [**21]  brought up in the same record and argued together, insist that they are not responsible for the loss occasioned by the fire, because, as they allege, certain stipulations and conditions of the respective policies have not been observed on the part of the insured, although they concede that all other provisions have been complied with to entitle the insured to recover.
Under these circumstances, the determination of the questions involved, depends upon the construction of the clause in the policy of the Washington Fire Insurance Company, and the conditions of the policy, and the conditions in the policy of the Atlantic Fire and Marine Insurance Company. The clause is to the following effect:
"If the property shall be sold or conveyed, or if this policy shall be assigned, without the consent of the company obtained in writing thereon, then this policy shall be null and void."
The conditions of the same policy are of the following character.
"If the interest in property to be insured be a 'leasehold' interest, or other interest not absolute, it must be so represented to the company, and expressed in the policy in writing, otherwise the insurance shall be void."
"Policies [**22]  of insurance subscribed by the company shall not be assignable without the consent of the company, expressed by endorsement made thereon; in case of assignment without such consent, whether of the whole policy or of any interest 

 [*435]  in it, the liability of the company, in virtue of such policy, shall thereafter cease."
The Atlantic Fire and Marine Insurance Company has this condition, to wit:
"Every policy of insurance made by this company shall be sealed with its seal, signed by the President, and attested by the Secretary; and the person for whose interest the insurance is made must be declared and named therein; nor can any policy or interest therein be assigned but by the consent of the company, expressed by an endorsement made thereon."
The policy of insurance in this case, with all of its provisions and conditions, is the written contract between the insurer and the insured, and, as much of the argument of the case was directed to a discussion of the rule to be applied in the interpretation of such a contract, we may premise that the same principles of construction, govern the contract of insurance, as other written contracts.
In its interpretation, as in all other [**23]  contracts, the intention of the contracting parties is to be regarded, and where that can be ascertained it must govern and control their rights under it, if not in conflict with the law. Maryland Ins. Co. vs. Bossiere, 9 G. & J. 121.
The provision in the policy of the Washington Fire Insurance Company against the sale or conveyance of the property insured, and against the assignment of the policy without the consent of the insurers, as it imposes a restriction upon the right of disposing of property, should be construed, as any other contract with like provision, with strictness; and nothing less than the absolute sale or conveyance of the property, with all the usual legal ingredients to constitute the transaction as such, or similar complete assignment of the policy, can be considered as sufficient to avoid the policy on that account. Lazarus vs. Commonwealth Ins. Co., 22 Mass. 76, 5 Pick. 76 to 82.
There is no doubt that an insurance against fire without an interest in the subject-matter insured is a wagering contract, which the law does not sanction; and it is, therefore, necessary 

 [*436]  that the insured should have an [**24]  interest in the property insured, not only at the time of the insurance, but when the loss by fire occurs. If the insured sell the property, and transfer all his interest therein, or assign all interest in the policy, before the loss happens, he cannot recover by the principle of the common law. This provision in the policy is but the incorporation of this legal principle therein.
The insurance of buildings against loss by fire is a contract with the owner (or any person having an interest in their preservation,) to indemnify against any loss sustained by him by fire; and if the insured has sold, conveyed or assigned all his interest in the same before the fire, he can, in fact, sustain no damage, and the insurers are under no obligation to pay any one. Angell on Insurance, 230, 231.
According to the tenor and effect of the language in this proviso, it is not any change or modification in the title to the property that will avoid the policy, or any reduction of the interest from an absolute to a qualified interest, because the reduced interest is insurable.
The proviso is restrictive of the sale or conveyance of the property insured, and where the sale or conveyance is relied [**25]  upon by the insurers, to prevent the recovery for any loss by fire, the sale or conveyance must be made out full and complete. To constitute a sale, within the meaning and terms of the proviso, the right to the property sold and to the possession thereof, must pass from the vendor to the vendee. The mere contract for the sale or conveyance, not divesting the title of the vendor and vesting the same in the vendee, is not a breach of the proviso.
A contract to convey the buildings insured at a future day, on payment of the purchase money, and between the time of contract and its consummation, they are destroyed by fire, the vendor being in possession, it is not such an alienation as vacates the policy. Angell on Insurance, sec. 206.
The contract of the 11th of February, 1868, between Beekman and Reeder and Charles W. Budd, was an executory contract, 

 [*437]  to sell and convey the property insured and the lots upon which the buildings stood, and certainly was not such sale or conveyance as forfeited, the rights of the insured under the provisions of the policy. There is no doubt, that the insured as the vendors of the property, before the actual conveyance thereof, held an insurable [**26]  interest therein. 3 Kent's Com., 489, n. 1.
Besides the clause in this policy against its assignment, it is one of the conditions annexed to the same, that it shall not be assignable nor any interest in it. Fire policies have never been regarded as transferable, without the consent of the company. Angell on Insurance, sec. 11. But where there is no restriction, the policy was assignable in equity, like any other chose in action; though to render the assignment of any value to the assignee, an interest in the subject-matter of the insurance must be assigned also, for the assignment only covers such interest as the insured had at the time of the assignment. This restriction applies only to transfers before a loss happens. 3 Kent's Comm., 496.
The assignment after the loss, stands on the same footing as the assignment of a debt or right to receive a sum of money actually due. Angell on Insurance, sec. 222.
The agreement as to an assignment of the policies, conceding there was such an agreement between the parties, as understood by Mr. Clark, and that such agreement by parol could operate where there was a written contract between the parties, can occupy [**27]  no higher ground than the agreement for the sale of the property. It did not amount to an assignment of the policy, or the assignment of any interest therein, and was simply a contract to assign; but the insured, in fact, held the policy and made no assignment thereof. They held the possession of the property as well as the policy of insurance, notwithstanding the contract to sell and convey the same.
The condition in the policy of the Atlantic Fire and Marine Insurance Company, restrictive of any assignment of that policy or any interest therein, is of like purport and to the 

 [*438]  same effect as the clause and condition in the policy of the Washington Fire Insurance Company, and the same construction is therefore applicable to that policy. In the condition, requiring the interest in property to be insured, if a leasehold or other interest not absolute, to be so represented to the company and expressed in the policy, the term leasehold ex vi termini imports a qualified interest, the other interest, not absolute, although not so particularly described by the general term used, must be understood as referring to some similarly qualified interest, as the "leasehold. [**28]  "
The language employed in the condition recognizes the distinction between leasehold or other qualified interests, as contradistinguished from those that are absolute or unlimited. The "leasehold" is carved out of the fee-simple, which remains vested in another, who holds the absolute estate, and so of any other inferior interest less than the absolute. The term "not absolute" cannot mean a fee-simple interest in the property.
The appellants whilst they concede that the title of the insured, was, in all other respects, perfect, yet insist that the interest of the insured in the property, was not absolute as contemplated by the terms of the condition, because of the existence of the mortgages thereon. The "leasehold" from its well known signification and its immediate connection with the other interest not absolute, necessarily is used as descriptive of the meaning and extent of the other. It is an interest less than the fee-simple, so is an estate for life, for a term of years or at will.
By a lease one grants an interest less than his own, and the lease is properly a conveyance of lands, tenements or hereditaments, made for life, for years or at will, but always for [**29]  a less estate than the lessor has in the premises. When the owner in fee, grants a lease, he still retains his absolute interest. 2 Blackstone's Comm., 287.
To inferior and limited interests, the general language of the condition is applicable, and the mortgages upon the property 

 [*439]  must have the effect to reduce the estate of the mortgagor to some such qualified interest, to bring it within the operation of the condition.
The estate in lands, tenements and hereditaments, is the interest the tenant has in them, and to ascertain precisely the character of that interest, the estate must be considered with regard to the quantity of interest--the time at which that quantity of interest is to be enjoyed and the number of the tenants; the quantity of the interest is to be measured by its duration and extent; thus, either his right of possession is to subsist for an uncertain period, during his own life or that of another person, to determine at his own decease, or to remain to his descendants after him; or it is circumscribed within a certain number of years, months or days; or it is infinite and unlimited, being vested in him and his representatives forever.
The owner in [**30]  fee-simple holds the lands, &c., to him and his heirs forever, generally and absolutely, and he has absolutum et directum dominium, and therefore is said to be seized thereof in dominico suo, in his own demesne.
Estates or interests may be held as a security for the payment of a debt by mortgage or dead pledge, mortuum vadium, 2 Black. Com., ch. 7, 104, 107, 157, and the mortgage upon it does not affect either the quantity or character of the estate, but simply holds it to secure the debt. Mortgages are now universally regarded, in Courts of Equity, as mere securities for the payment of money, chattel interests or choses in action; the debt being considered the principal, and the mortgage as accessory and appertenant thereto, and before foreclosure belongs to the executor, and though the technical fee may descend to the heir, he takes it in trust for the personal representative.
The mortgagor is the substantial owner of the property, though the legal estate is in the mortgagee, and he can transfer or vest his interest at his own pleasure, so long as the right of redemption exists, and the interest of the mortgagor is also liable to attachment and [**31]  execution.

 [*440]  The mortgagee has an interest in the subject-matter of the mortgage not absolute, but commensurate with the object contemplated to be attained by it, as a security for the payment of the debt due from the mortgagor to the mortgagee, and his claim does not vest in him the estate in the lands mortgaged, but follows the nature of the debt, and as a chattel interest belongs to his representatives in case of his death.
The equity of redemption in the mortgagor is not only a subsisting estate and interest in the land in the hands of the heirs, devisees, assignees and representatives of the mortgagor, but of any other persons who have acquired any interest in the lands, by operation of law or otherwise, in privity of title.
Courts of Equity, though a mortgage be forfeited, and the estate absolutely vested in the mortgagee, at common law, yet they will allow the mortgagor, at any reasonable time, to redeem his estate. So long as the estate can be shewn to have been treated as a pledge, there is a recognition of the mortgagor's title. Nor will they permit a conveyance made to secure a debt, to operate for any other purpose than to secure the debt; the conveyance [**32]  will be considered as merely holding the property as pledged, and no agreement in a mortgage will be suffered to make the property irredeemable. Ford vs. Philpot, 5 H. & J. 312; Evans vs. Merriken, 8 G. & J. 39; Chase vs. Lockerman, 11 G. & J. 185; G. C. Coal Co. vs. Detmold, 1 Md. 225; Allen vs. Mutual Ins. Co., 2 Md. 111; Timms and Wife vs. Shannon, 19 Md. 296; Code, Art. 64, sec. 20; Story's Eq. Juris., secs. 1015 to 1023; 4 Kent's Com., 156 to 166; 2 Black. Comm., 159, and n. 8.
Notwithstanding the mortgages upon the property, the mortgagors held the equity of redemption, the real and beneficial estate, equivalent to the fee simple at law, descendible by inheritance, devisable by will, and alienable by deed, as any other absolute estate of inheritance. To all intents and purposes they held the absolute interest in the property insured; the mortgages were but temporary and 

 [*441]  incidental incumbrances, and could not operate to render their interest a limited one.
Upon no sound principle of construction, relating to the [**33]  nature and qualities of estates, can the interests of the mortgagors, as holders of the equitable fee-simple, be divested, or reduced to a qualified or inferior estate.
They were not within the terms of the condition, and were not required to communicate to the insurers the fact that the property was subject to the mortgages. If the insurers designed to require a disclosure of all incumbrances upon property insured, they have not used apt and sufficient language to accomplish that object.
To give to the terms of the condition the force claimed by the insurers, would be to substitute another and different contract for the parties, and such construction can find no warrant or authority in the terms of the condition as they stand in the policy. According to these views, it follows that there was no error below in granting the appellee's prayers, and refusing the first, fifth, sixth and seventh prayers of the appellants.
The agreement of the 11th of February, 1868, between Beekman and Reeder and Budd, was an executory contract between the parties; and under that contract, the insured were not divested of their interest in the property, and were entitled to be indemnified by the insurers, [**34]  according to the contracts of insurance, for the loss they sustained by the fire.
To constitute an insurable interest, it is not necessary that the insured shall, in all cases, have the absolute and unqualified interest in the property insured--a trustee, mortgagee, a reversioner, a factor, an agent, with the custody of goods to be sold on commission, may insure. 2 Marshall on Ins., 64, ch. 2, p. 789.
The mortgagor and mortgagee may each insure his own interest--the first insures the property, which he may do for its full value as the owner thereof; the latter, to the extent of his debt, and no farther. The first, notwithstanding the 

 [*442]  incumbrance on his property, is entitled to recover the full amount of his loss, within the limits of the insurance; the latter, if the premises are destroyed by fire before the extinguishment of the mortgage, has the right to be paid his debt by the insurers, if not more than the insurance; and the underwriters, in such case, become entitled to the debt, and can recover the same from the mortgagor, and are subrogated to the rights of the mortgagee. 2 Marshall on Ins., 64, ch. 2, p. 789.
The payment of the insurance [**35]  does not discharge the mortgagor from the debt, but the insurers become his creditors, and have the right to an assignment of the debt from the mortgagee. There is no privity in law or fact between the mortgagor and the mortgagee in the contract of insurance, and the mortgagor can take no advantage of the policy of the mortgagee for his debt, for he has no interest whatever therein, but is bound to pay the debt to the insurers where they become his substituted creditors. Angell on Ins., 59.
In King vs. State Ins. Co., 7 Cushing 1, referred to in 3 Kent's Com., 489, n. 6, it was held, (SHAW, C. J., giving the opinion,) that the insurers could not insist upon an assignment of the mortgagee's interest as a preliminary condition to the payment of a loss, and that it was not inequitable to allow the mortgagee to recover, both from the underwriters and the mortgagor.
But the contract of insurance is strictly a contract of indemnity, and the mortgagee is not entitled to recover from the insurers the value of the property lost, and his whole debt besides, from the mortgagor. When his debt is paid, and he is indemnified, it seems more in consonance with the [**36]  just principle of indemnity, that the insurers should have the right to be substituted in his place and allowed to collect the debt from the mortgagor.
The policy of insurance, from its legal effect, according to judicial decision, must receive such reasonable construction as imports with its true character as a contract of indemnity. 

 [*443]  Angell on Insurance, 103, note 1, referring to an opinion of GIBSON, C. J.
The effect of the destruction of the buildings by fire, upon the contract between Beekman and Reeder and Budd, could not operate to change the contract between the insurers and the insured. The fact of the insured having contracted to sell the property, and received a part of the purchase money, ought not to deprive them of their indemnity, unless it had been so stipulated by appropriate terms. If the insured had made an absolute sale of part of the property insured, that would have avoided the policy pro tanto--Angell on Ins., 196--but as that was only a contract to sell the property, the insured are entitled to full indemnity, otherwise, the contract of insurance is not gratified. We think the second prayer of the appellants was properly refused. The [**37]  third and fourth prayers of the appellants were properly refused.
The insured is entitled to be indemnified for the loss of the buildings by fire, to the extent of his insurance, and there is no reason to reduce the amount because a contract had been made for their sale.
The rule of subrogation is thus stated in 2 Phillips on Ins., 282: "Where the insurable interest consists of a debt due to the assured, the assured is bound to assign to the underwriters the debt or his insurable interest, whatever it may be, in case of his being paid a total loss." This equitable principle cannot be applied here, where no debt has been insured, paid by the insurers, and to be assigned, and the insured have not been paid to the full limit of their loss.
The whole of the insurance, according to the admitted facts, amounted to some $ 60,000, and the buildings destroyed were worth $ 100,000. The fact that the buildings, with the lots upon which they stood, were under contract to be sold at the time of the fire, does not deprive the insurers of any of their rights, or increase their responsibility, nor does it confer upon the insured any additional advantage growing out of their contract with the [**38]  insurers.

 [*444]  The insurers cannot be benefitted by a subrogation to the rights of the insured without affecting the claim of the insured to be fully indemnified for their loss. The equitable principle of subrogation cannot be applied where it conflicts with that indemnity to which the insured is entitled under the contract of insurance.
The destruction of the buildings by the fire is an absolute loss, which the insurers are obliged to meet, according to the terms of the policies of insurance, applied to the admitted facts, and there is no just ground upon which they can be relieved by any subrogation to the rights of the insured under the circumstances of this case.
Judgment affirmed in both cases. 

CONCURBY:
MILLER; MAULSBY; BRENT 

CONCUR:

MILLER, J., delivered the following opinion:
The policy on which this action was brought was issued by the Washington Fire Insurance Company, of Baltimore, to Beekman and Reeder, insuring them for one year from the 14th of May, 1867, against loss by fire to the amount of $ 2,500, "on the three-story granite and brick building," situated in the city of New York, known as and occupied by "Barnum's Museum." The building was destroyed by fire [**39]  on the 2d of March, 1868. The loss was total, and it is admitted the insurers are liable for the full amount of the insurance unless the legal defences relied on are sustained. These have been argued with great ability by counsel on both sides, and present questions of much interest, some of which, if not of entire novelty elsewhere, have not been settled by any express adjudication in this State. It has become the duty of this Court now to decide them; and, with the permission of my brothers who heard the case with me, I will express my views in a separate opinion, and shall consider the several controverted points in the order in which they were discussed at bar.

 [*445]  1st. Beekman and Reeder were owners of the ground, as well as of the insured buildings, subject to incumbrances by way of mortgage, and the appellant insists that, as the assured held only an equity of redemption, and made no representation that such was the character of their interest, and as no such statement was expressed in it, the policy never attached, under the second condition of insurance annexed to and made part of the contract. In that condition there is, among others, a provision that "if the  [**40]  interest in property to be insured be a leasehold interest, or other interest not absolute, it must be so represented to the company, and expressed in the policy in writing, or otherwise the insurance shall be void."
I do not recognize, as sound, that principle or rule of interpretation, to which it is to be regretted some decisions have given countenance, that a clause like this is to be practically ignored, or construed most strongly against the underwriter, because found in the printed conditions annexed to the policy. The introduction into such instruments of numerous conditions and qualifications, often difficult of comprehension and fruitful of litigation, may be a practice to be deprecated; yet they are nevertheless parts of a contract binding upon both parties, and policies containing them must be construed by the same rules as other contracts. 7 G. & J., 293; 9 G. & J., 121. The evil, if such it be, must find its correction in the refusal of parties to accept policies clogged with these conditions. Courts of Justice, whose duty it is to construe, cannot ignore their existence or refuse to give to the terms they contain their [**41]  natural and fair import, because of any hardship that may thereby be visited upon one of the parties. The law requires the Court to assume that parties understand the contract they make, and that every intelligible condition, clause and word used in it was inserted by design, has some meaning, and was intended to accomplish some purpose. To the clause now before the Court, must be applied the familiar rules of construction, all of which are subordinate to the leading principle that the intention of the parties must prevail, 

 [*446]  unless inconsistent with some rule of law. The Court must give to the language used its just sense, and search for the precise meaning and one requisite to give due and fair effect to the contract, without adopting either the rule of a rigid or of an indulgent construction. 17 Md. 497.
Claims requiring a statement of the interest of the assured, have long been used in insurance policies. They were doubtless originally directed against wagering policies, and were intended to protect underwriters from paying losses to those who, in fact, had not sustained them, who really had nothing at hazard, and whose interest, therefore, was that [**42]  the event insured against should happen. Apart from any statutory enactment, as in England, it has long been held in this country, that the assured must have some insurable interest in the property, and that the contract of insurance is strictly a contract of indemnity based upon the utmost good faith and fair dealing. And apart from any clause of this description, it has been decided by the Supreme Court of the United States in several cases, that if, in a proposal for insurance, there be any misrepresentation or concealment of his interest by the assured, material to the risk, and which, if disclosed, would have enhanced the premium, it avoids the policy for the reasons so forcibly stated by Chief Justice MARSHALL, in 2 Peters 49; "The contract for insurance is one in which the underwriters generally act on the representation of the assured; and that representation ought consequently to be fair, and to omit nothing which it is material for the underwriters to know. It may not be necessary that the person requiring insurance should state every incumbrance on his property which it might be required of him to state, if it was offered for sale; but fair dealing requires [**43]  that he should state every thing which might influence the mind of the underwriter in forming or declining the contract. A building held under a lease for years, about to expire, might be generally spoken of as the building of the tenant, but no underwriter would be willing to insure it as if it was his, and an offer for insurance, 

 [*447]  stating it to belong to him, would be a gross imposition. Generally speaking, insurances against fire are made in the confidence that the insured will use all the precautions to avoid the calamity insured against, which would be suggested by his interest. The extent of this interest must always influence the underwriter in taking or rejecting the risk, and estimating the premium. So far as it may influence him in these respects, it ought to be communicated to him. Underwriters do not rely so much upon the principles as on the interest of the assured; and it would seem, therefore, always to be material that they should know how far this interest is engaged in guarding the property from loss."
The Courts of most of the States have, however, held that the nature of the interest of the assured, in cases of ordinary contracts of insurance, not mutual,  [**44]  but made by a company insuring on its own account, is immaterial to the risk, and an omission to state the nature and extent of his interest where no inquiry has been made on the subject, and it is not exacted by conditions, will not avoid the policy, unless the failure so to state would operate as an actual fraud, (2 American Lead. Cases 638 to 642,) and this must be now regarded as the settled law of this State. 14 Md. 285, 298; 18 Md. 26, 48; 20 Md. 36. In the present case there were no written proposals and no specific inquiry as to title or interest, and the general purpose and intent of inserting a clause like that under consideration very probably was to embody the law announced by the Supreme Court, by making it an express condition in the contract that his interest should be stated, where the assured held an interest of a special or limited nature; as, for instance, under a precarious title, dependent for its continuance upon events which might happen against his will, or over which he had no control. With this view of the law, and the origin and purpose of these clauses, the question is, does the particular language [**45]  of the clause now before the Court embrace a case where there is a mortgage on the insured property, of which the assured is otherwise the entire owner, and where his interest 

 [*448]  far exceeds all insurance thereon, as, by the admitted facts of this case clearly appears?
Counsel for the appellant have argued that the words, "or other interest not absolute," exclude the idea of an interest encumbered by mortgage where the legal title is in the mortgagee; that the term "absolute," when applied to the ownership of an interest in property, in its ordinary and common acceptation, means nothing less than an unincumbered feesimple estate--the whole, clean, sound thing; that he who has property covered by mortgage, can, in no fair and just sense of the terms, be said to have an absolute interest therein. There is certainly much force in this argument, and it is no easy matter to give it a satisfactory answer. But, looking to the purpose of the clause, considering the whole provision, the connection in which the term "absolute" is used, and giving to the arguments on both sides, the best consideration of which I am capable, I have reached the conclusion that an interest [**46]  such as the insured had, was not intended by the framers of it to be covered by this clause. It is due to counsel and to the cause, to state more at length, and in addition to what has been said, the reasons that have led me to this result.
In the first place it is to be observed that it is not title but interest that is spoken of, and that "leasehold interest" is used in immediate connection with the terms "or other interest not absolute." For every purpose of insurance, and fully within the reasoning of Chief Justice MARSHALL, a mortgagor, in possession and before foreclosure, has all that interest upon which underwriters usually rely for protection of the property. There is no reason why disclosure of the existence of the mortgage should have enhanced the premium, for the entire loss in case of fire must fall on the mortgagor, and his interest is pledged to every precaution to avoid the calamity insured against. The whole loss is his, and he still remains liable to the mortgagee for the full amount of the mortgage debt. The fire does not extinguish this debt and all the powerful persuasions 

 [*449]  of interest are just as much on the side of the insurer as if [**47]  no mortgage existed. Mortgages are now universally regarded, in Courts of Equity, as mere securities for the payment of money. The mortgagor is still the substantial owner of the property. He can sell, convey, devise or further encumber it, at pleasure, so long as the right of redemption exists. It may be taken for his debts under executions, and conveyances of it must be recorded under our registry laws. By the decisions of this Court the respective interests of mortgagor and mortgagee have been frequently and clearly defined. In Ford vs. Philpot, 5 H. & J. 312, "the mortgagor," say the Court, "is considered the substantial owner of the property mortgaged; the debt due is all the mortgagee, or those claiming under him, can demand; and although the legal estate is in the mortgagee, it is merely to secure the payment of the debt, and that effected the mortgagor must be restored to his original condition, the unfettered owner. The property mortgaged is substantially his, liable to the incumbrance of the debt; subject to that responsibility he can sell it to meet any other claims or demands, to whom he pleases." And in Evans vs. Merrikin, 8 G. & J. 74, [**48]  it is said, "the mortgagee must be considered as having an estate or interest in the subject-matter of the mortgage, not absolute it is true, because such an estate is not imported by the terms of the mortgaged deed, but an interest commensurate with the legal object contemplated to be attained by it, as a security for the payment of the debt due from the mortgagor to the mortgagee." If such then be the nature and extent of ownership by the mortgagor, if he be the party upon whom the whole loss must fall if the property be destroyed, it may well be said he has not an interest less than absolute within the true intent and meaning of this condition of insurance. And here it may reasonably be asked why, if the underwriters deemed disclosure of incumbrances important, they did not, as is the almost universal practice in mutual policies where premium notes are made liens on the property insured, and the state of title is hence material, call attention of 

 [*450]  the assured thereto, by appropriate inquiries directed to that specific object, or by placing the word "incumbrance" in this condition of their policy? Why use language to which doubt could attach, if they [**49]  intended the non-statement of a mere incumbrance should vitiate the contract?
But again, the term "absolute" has no fixed, unvarying meaning. When used in connection with an interest in property it is not always synonymous with "unqualified." Used in connection with "estate" it means an estate in lands not subject to, or defeasible upon any condition. 1 Burrill's Law Dic., 14. It may be quite as often and as pertinently used in contradistinction to "contingent" or "conditional," as to "qualified" or "encumbered." That such is the sense in which it is here used is, I think, apparent from the tenor of the whole condition, and especially from the specification of a leasehold interest as one of those required to be stated. The immediately following words, "or other interest not absolute," are thus pointed to some other interest of like character with a leasehold, that is, some estate less than a fee or carved out of the fee simple, or determinable upon some condition, event or contingency, as an estate for life, or pur autre vie, which, as well as a leasehold, come within the reasoning of the Supreme Court, as the loss may not fall upon their owners but upon [**50]  the landlord, or remainder man or reversioner; and hence the importance to the insurers of having them stated.
But how stands the question upon authority? Few cases have been cited or found in which this, or a substantially similar clause, has been subjected to judicial construction, but these deserve attention. In Hough vs. City Fire Ins. Co., 29 Conn. 10, the policy contained this identical clause. The assured was in possession and had made improvements, under a parol contract of purchase, on which he had paid but part of the purchase money, and had received no conveyance of the legal title. There was, therefore, a vendor's lien on the property with the legal title in the vendor. The claim of the assured was sustained, and in determining this question the 

 [*451]  Court say: "That is an absolute interest in property which is so completely vested in the individual that he can, by no contingency, be deprived of it without his own consent. So too he is the owner of such absolute interest, who must necessarily sustain the loss if the property is destroyed. The subject of insurance was an interest, not a title. It is an interest and not a title [**51]  of which the conditions of insurance speak. The terms 'interest' and 'title' are not synonymous. A mortgagor in possession, and a purchaser holding under a deed defectively executed, have, both of them, absolute as well as insurable interests in the property, though neither of them has the legal title. It seems to have been the leading object of the framers of this condition to protect the company against the payment of losses to individuals who had not in fact sustained them. Thus the first clause," (and the one I am considering is the same,) "provides that property held in trust or on commission, must be insured as such, because in the one case the cestui que trust and not the trustee, and in the other the consignor and not the factor, would be the real or principal loser by the destruction of the property. So in regard to the holder of property under a lease, or whose interest in the property is contingent, if the property is destroyed, the entire loss may fall on the landlord in the one case, and in the other, instead of falling upon the individual insured, may, by the happening of the contingency, be cast entirely upon another. The condition in question speaks only of the [**52]  character of the interest to be insured, not of its quantity. Absolute is here synonymous with vested, and is used in contradistinction to contingent or conditional. The plaintiff had a vested interest in the property of which he could not be deprived against his will--an interest dependent upon no contingency for its existence--an absolute interest." This is a direct, deliberate and well reasoned adjudication of the very question before this Court. In Gaylord vs. Lamar Fire Ins. Co., 40 Mo. 13, the assured was a purchaser under a decree of foreclosure, which allowed fifteen months for redemption before the deed conveying the 

 [*452]  legal estate was to be executed, and the insurance was effected after the purchase and before the deed. The clause was substantially the same, being, "that if the interest in the property to be insured be a leasehold, trustee, mortgagee, or reversionary interest, or other interest not absolute, it must," &c. The decision was rested upon a different point, but in expressing their opinion upon this clause, the Court adopt the Connecticut case, and say they are inclined to think the title before them did not come within the [**53]  special intent of the clause, which rather related to lesser estates or interests of the class particularly enumerated, that is, other estates less than a freehold, or carved out of the fee simple.
The case of Reynolds vs. State Mutual Ins. Co., 2 Grant's Cases, 326, was that of a mutual policy, which contained, however, the clause we are now considering, and also required disclosure of incumbrances. The assured had made a contract for the purchase of the property, and had paid but a small sum upon it, much less than the amount insured. The Judge below, in his charge to the jury, said, in reference to this clause: "We also consider the insured had not an estate absolute. It is obvious that, in speaking of 'a leasehold interest, or other interest not absolute,' the company had in view the necessity of its officers knowing the character of the insured's interest in the property. A fee-simple is an estate absolute. Here, Mr. Reynolds had no absolute estate of the kind, but a mere equity, to be changed to a fee-simple estate on paying the purchase-money. The absolute estate remained in the vendors." But when the case went up, the Supreme Court are careful to limit their [**54]  decision. "What we decide now," they say, "is this simple point: that one who occupies property for which he has no deed, but which he has agreed to purchase, cannot conceal the facts and have it insured on his own account for a larger sum than the amount of the purchase money he has actually paid at the time of the insurance. With this rule standing directly in his way, the plaintiff could not possibly recover, and the other questions raised in the argument 

 [*453]  are, therefore, of no importance." This cannot, therefore, be regarded as a decision in conflict with the Connecticut case, and I have been able to discover none that is.
Reference has been made to David vs. Hartford Fire Ins. Co., and Tonghurst vs. Conway Fire Ins. Co., cited in the Digest of Decisions on Fire Insurance, 584, 587; also to Swift vs. Vermont Mutual Ins. Co., 18 Vt. 305; Buffum vs. Bowditch Mutual Fire Ins. Co., 10 Cush. 543; Hope Mutual Ins. Co. vs. Brolaskey, 35 Pa. 282; Wilson vs. Conway Fire Ins. Co., 4 R.I. 141, and 1 Bos. 507, on the part of the appellee, and to Edmunds vs. Mutual Safety Fire Ins. Co., 1 Allen 311, [**55]  and Packard vs. Agawan Mutual Fire Ins. Co., 2 Gray 334, on the part of the appellant, all of which I have examined, but find they present entirely different facts, are decided on other grounds, and furnish but little if any aid to the solution of the question now under consideration. It was also suggested by counsel for the appellant that this Court, in 14 Md. 285, 298, had used the terms "limited or partial interest in the property insured," as the appropriate opposites to an absolute interest; but I think it was the purpose of the Court there simply to point out the conflict of authority between the decisions of the Supreme Court and those of the several States, as to the necessity of disclosing such interests in the first instance, and in the absence of any inquiry on the subject, and not to define what constituted such interests, and if they did, the case goes no further than to decide that a mechanics' lien, the interest which the insured there held, was an interest of that description. I do not consider that as a case controlling the decision of the present question.
I am, therefore, both upon reason and authority, fully [**56]  convinced the assured mortgagors had no such qualified or limited interest in the insured property as to bring them within the terms of this second condition of insurance.
2d. On the 11th of February, 1868, Beekman and Reeder entered into a written agreement with Budd, by which they 

 [*454]  "agree to sell" to the latter the grounds, "with the buildings and improvements thereon erected," for $ 462,000, which Budd agrees to pay--$ 10,000 in cash, $ 52,000 on delivery of the deed, to assume payment of the mortgage debts, amounting to $ 350,000, and to execute a mortgage on the premises to secure the balance of $ 50,000, the deed and necessary papers to be delivered on or before the 1st of April, 1868. On the same day, Budd assigned this contract to the appellee, and directed the conveyance to be made to him. The $ 10,000 was paid, but possession was not given, nor was anything else done under the contract before the fire. On the 5th of March, three days after the fire, the deed was executed and delivered to the appellee, and the grantors on the same day, agreed in writing, to collect the amounts due on the insurance policies and apply the same for the benefit of the [**57]  appellee. A formal written assignment of the policies, and of the claims arising thereon, was subsequently, on the 1st of June following, executed to the appellee. On this state of facts, one of the positions of the appellant, presented by its fifth prayer is, that the contract of the 11th of February was a sale or conveyance of the property before loss, within the meaning and purpose of the provision in the body of the policy, making it void if the insured property "shall be sold or conveyed" without the assent of the company. Without any such provision against alienation, a sale of the property insured, by a fire policy, by which the assured parts with his whole interest therein, and is, therefore, deprived of all interest in its preservation, will prevent a recovery for a subsequent loss. The law requires he should have an insurable interest at the time of loss. Most policies, however, guard against this contingency by an express stipulation instead of relying solely upon the rule of law. Hence, clauses against alienation, couched in different phraseology, are constantly to be met with, sometimes in different parts of the policy, and sometimes in the same provision, and [**58]  in immediate connection with that relating to the assignment of the policy itself. 

 [*455]  The latter fact does not seem to have been regarded as of importance, or as warranting any different construction than if it stood as a separate clause. The provision in this policy is in the simplest and least stringent form prohibiting a sale or conveyance, terms of equivalent import with, and certainly not more comprehensive than "alienation by sale or otherwise." The decided weight of authority upon the construction of clauses thus expressed is, that to call them into action or preclude the right to enforce the insurance, there must be an actual and complete alienation, and hence a contract of sale will not fall within its terms so long as the vendor retains the legal title and continues to have an interest in the preservation of the premises, as security for the payment of the purchase money, or, at all events, until the terms of sale are so far fulfilled as to invest the vendee with the full equitable ownership, and entitle him to the immediate possession of the property sold. 2 Amer. Lead. Cases (notes by Hare & Wallace,) 626, and cases there cited; also, Hitchcock's Case, 26 N.Y. 68, [**59]  and Smith's Case, 50 Me. 96. I rest my opinion on this point, entirely upon the weight of authority within which the present case clearly falls. The contract was executory, nothing having been done under it at the time of loss save payment of the $ 10,000; possession had not been delivered, and, by its terms, could not have been demanded until the deed was executed. Placing my opinion upon this ground, it becomes unnecessary to inquire what rights the parties to this contract might have had in a Court of Equity, or in what light that Court would have regarded the transaction, or how it would have deemed the title to the property as affected thereby.
3d. In immediate connection with the prohibition against a sale or conveyance, there is a provision that if the policy shall be assigned without the assent of the company obtained in writing thereon, it shall be void, and one of the conditions also provides that policies of insurance subscribed by the company, shall not be assignable without the consent of the company, 

 [*456]  expressed by endorsement made thereon, and in case of assignment without such consent, whether of the whole policy or any interest  [**60]   in it, the liability of the company, in virtue of such policy, shall thenceforth cease. The witness, Clark, testified that Beekman told him it was agreed with the vendee, at the time of the agreement of purchase of the 11th of February, that the policies of insurance held by Beekman and Reeder should stand for the benefit of the purchaser in the event of loss. Upon this, in connection with the other proof, is based the appellant's sixth prayer, which asserts that if the jury believe that, at the time of the contract of the 11th of February, it was agreed by and between the parties thereto, that the policies held by Beekman and Reeder should be retained and held by them for the benefit of the vendee under that contract, and his assigns, and they did so hold and retain them, without the consent of the insurers, and that the papers of the 5th of March and the 1st of June were executed in pursuance and fulfilment of such previous understanding or agreement, then, in view of all the admitted facts in the case, and of the terms and conditions of the policy, the plaintiff cannot recover.
I shall assume the proof affords a sufficient basis for this prayer. The substantial legal [**61]  proposition, it asserts, is that a verbal agreement or understanding that the assured should hold the policy for the benefit of the party with whom they made the contract for a sale of the property, and their so holding and continuing to hold it at the time of the loss was an assignment of the policy or of some interest therein, within this prohibition; for after the loss had happened and the risk had terminated, they had under all the authorities the undoubted right to assign it, or rather their claim upon the underwriters thereunder, without consent of the company, and it can make no difference whether that assignment was in pursuance of any previous understanding or not. An assignment of the policy usually accompanies or follows the sale or transfer of the property insured. The purpose of 

 [*457]  these restrictions as to assignments of both, is obvious and has been well stated by our predecessors, in New York Life Insurance Company vs. Flack, 3 Md. 341. "A fire policy may be underwritten for one person, when it would not be for another. In all such cases the character for integrity and caution of the party constitute important considerations.  [**62]  Whilst the character of one person would be a complete guarantee that he would not fire his own house or goods, the character of his assignee might furnish no such assurance, and therefore it is that in fire policies the assent of the underwriters is made indispensable to the validity of the assignment." In reason these restrictions ought to be made to refer solely to the transfer of the interest in the insured property, for an assignment of the policy viewed as a contract, simply operates as an equitable assignment of the proceeds in case anything shall become due, and a doubt has been very forcibly suggested, whether a clause which attempts to restrict an assignment in this sense, is not contrary to legal policy and void, as much as a similar restriction upon the transfer of a debt or bond, or a right of action would be. 2 American Leading Cases, 623. The weight of judicial authority, however, is the other way and such clauses relating to the assignment of the policy alone are upheld as valid. But a case to come within the restriction must also come clearly within the objects and known motives of the underwriters in imposing it. I have said the contract referred to, was not a [**63]  sale or conveyance of the property within the restriction on that subject. The assured retained and held an insurable interest at the time of the loss and also retained the policy. They did not part with it by any conveyance or written transfer, and the verbal arrangement and holding of it as stated in this prayer, do not in my opinion, amount to an assignment of the policy or of any interest in it, within the terms of this restriction. No new parties were introduced into the contract with the insurers and no change made of the legal relations between them and the assured. A pledge and deposit of the policy 

 [*458]  with a creditor as security, original or collateral for a debt, an agreement by a mortgagor to keep the property insured for the benefit of the mortgagee, are not assignments of the policy within this clause, but operate only in equity as an appropriation of the proceeds of the policy if loss occurs, to the debt or mortgage for the benefit of the creditor or mortgagee. Here the assured agree verbally with a party with whom they had made a contract of sale, not then, but, by its terms shortly to be consummated by payment of the purchase money, assumption of the mortgages [**64]  and conveyance of the legal title, to hold the policy for his benefit in case a fire should occur before the contract was thus completed. In my judgment that is not an assignment prohibited either by the language or purpose of this restriction. In support of this conclusion, I refer to 1 Phillips on Ins., 107, 108; Lazarus vs. Commonwealth Ins. Co., 22 Mass. 76, 5 Pick. 76, and same case in 36 Mass. 81, 19 Pick. 81; Cromwell vs. Brooklyn Fire Ins. Co., 39 Barbour 227; Ellis vs. Kreutzinger, 27 Mo. 311.
4th. The next position is that, on payment of the loss under the policy, the appellant was entitled to be subrogated pro tanto to the rights of the assured, against the vendee or his assigns, under the contract of the 11th of February, and that the refusal of the assured so to subrogate the appellant to their rights is a bar to the recovery on the policy. Assuming, without intimating an opinion to that effect, the latter branch of this proposition is correct, if the right of subrogation contended for exists, I am thoroughly satisfied, after an examination of all the authorities referred to in argument [**65]  on the subject, this is not a case in which the insurers have any such right of subrogation. The assured were not mortgagees, nor was the insurance upon any debt or lien on the premises, but on the property itself. The loss was total, and the assured, at the time of the fire, had an interest exceeding in value all insurance on the property. After the contract referred to, the purchaser may also have had an insurable interest, but no insurance was effected in his name. As between the parties 

 [*459]  to this contract, rights may have existed and agreements may have been entered into as to the application of the proceeds of the policy, in the event of loss before the contract was finally consummated, which, after the loss, were carried out by an assignment of the policy, or by force of the contract itself, the vendee may have been entitled, as against the vendors, to the amount which became due to them by the insurers under the policy, but none of these rights or agreements can in any way affect the obligation of the underwriters, who took the risk upon the property. They have no possible interest or concern with, and no equitable right to intermeddle between vendors and [**66]  vendee under this contract, or demand cession of any claim of the former upon the latter. Insurance Company vs. Updegraff, 21 Pa. 513; Reed vs. Lukens, 44 Pa. 200.
5th. What has been said upon the other points disposes of the proposition contained in the appellant's second prayer. It is not a case to which the theory of that prayer is applicable The insurance was upon the buildings, the admitted value of which was at least $ 100,000, whilst the whole amount of insurance on them was but $ 61,500. Being entirely destroyed, there was a large loss not covered by insurance. Under this state of facts, and under this policy, the underwriters have no right to measure the extent in amount of their responsibility, by the proportion which the whole amount underwritten may bear to the amount of purchase-money due the assured at the time of loss, under a contract for a sale of the lots, as well as of the buildings, after deducting the $ 10,000, and the mortgage debts, which were liens on the whole premises, and for the assumption of which that contract provided. But even if the assumption of the mortgages to the amount of $ 350,000 is to [**67]  be treated as so much cash paid, and the insurance is to be regarded as an insurance on the unpaid purchase-money only, still there was, at the time of the fire, $ 102,000 purchase-money to be paid under the contract, and I can perceive no reason why the $ 61,500 of insurance should not be recovered and applied to its payment.

 [*460]  For these reasons, I am of opinion the judgment should be affirmed.
MAULSBY and BRENT, J.
We concur in the conclusions of our brothers, STEWART and MILLER, upon the several questions presented by the record in this case, and think the judgments of the Court below should be affirmed.  

DISSENTBY:
ALVEY 

DISSENT:

ALVEY, J., delivered the following dissenting opinion:
As to the proper construction of the provision in the policy against sale or conveyance of the property insured, without the assent of the company, I dissent from the conclusion to which my brother Judges have arrived, and think the judgment below should be reversed. But, as to the other questions involved in the case and decided, I concur in the opinion of Judge MILLER.  

116 of 142 DOCUMENTS 

JOHN WONDER vs. THE BALTIMORE AND OHIO RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 411; 1870 Md. LEXIS 48 

May 12, 1870, Decided 

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

This was an action on the case brought by the appellant, a brakeman, to recover damages for an injury sustained by him while in the employ of the appellee. The defendant pleaded not guilty, and thereon issue was joined.

Exception: The plaintiff asked the following instruction:

If the jury shall find, from the evidence, that the defendant was the owner of a railroad track, and of certain cars which were drawn on said track by horses, and that the plaintiff was employed by the defendant to work in its service as brakeman on said cars, and that, while engaged in doing his duty on one of said cars as brakeman, the brake thereof gave way, and the giving away of the brake caused the plaintiff to sustain serious, severe and permanent bodily injury, and that the giving way of the brake was caused by a defect or insufficiency therein, arising from an injudicious and unsafe construction, which might have been discovered by the exercise of ordinary care on the part of the defendant, and which rendered the car unsafe for the purposes for which it was used, and which was unknown to the plaintiff; and if the jury shall further find that the defendant [**2]  did not use reasonable and ordinary care to provide a brake of safe construction for said car, and that the plaintiff could not have avoided the accident which injured him by the exercise of ordinary care, and that he was, on that occasion, using ordinary care, then the plaintiff is entitled to recover.

And the defendant prayed the Court to instruct the jury as follows:

1. If the jury believe, from the evidence, that the plaintiff, at the time and place when and where he suffered the injury complained of, was a brakeman in the employ of the defendant, and acting as such, and that the said injury was caused by the brake on the car on which he was so acting as brakeman being defective and out of order, and that such defective condition was owing to the negligence of other servants of the defendant, whose duty it was to see that none but brakes in good condition should be put in service or used; yet the plaintiff cannot recover unless he shall satisfy the jury that in selecting the employes or servants, through whose negligence the accident occurred, the defendant did not use reasonable care in procuring for its operations faithful and competent employes; and further, that in [**3]  this case the plaintiff has offered no evidence from which the jury may find that the defendant did not use such care in the selection of their said employes.

2. If the jury shall believe from the evidence that the happening of the accident, whereby the plaintiff was injured, was caused by the brake on the car in question being defective and out of order, and that such defective condition of the brake was owing to the carelessness or negligence of the agents or employes of the defendant, whose duty it was to see that the brake in question was in good order before being put in use by the defendant; yet the plaintiff cannot recover, unless he shall satisfy the jury, from the evidence, that the defendant did not use reasonable care in procuring, for its operations, faithful and competent employes and sound machinery; and further, that in this case the plaintiff has offered no evidence to show that such reasonable care was not used by the defendant, and, therefore, their verdict must be for the defendant.

3. That to enable the plaintiff to recover in this action, he must satisfy the jury that the brake spoken of by the witnesses, attached to the car on which he was acting as [**4]  brakeman at the time of the accident, was insufficient and defective, and that such insufficiency and defectiveness was well known to the defendant, or that the defendant did not exercise reasonable care to procure sound machinery and faithful and competent employes.

4. If the jury shall believe from the evidence that the brake of the car on which the plaintiff was acting as brakeman at the time of the accident, was in good order and competent to its purpose, and that his neglect in not using it in a proper manner, was the cause of the injury complained of, then he is not entitled to recover.

5. If the jury shall believe from the evidence, that if the plaintiff, by noticing the action of the brake, could have seen the way to use it, so as make the brake effective, and failed to do so, whereby the accident happened, then he is not entitled to recover.

The Court refused to give the instruction asked by the plaintiff, and gave the instructions asked by the defendant. To this ruling the plaintiff excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Master and Servant -- Who are Fellow-Servants -- Liability of a Railroad Company to its Employes, for Injuries sustained in its Service.

A master is not liable to his servant for an injury occasioned by a defect of machinery furnished to the latter to operate, unless there was negligence in providing such machinery, or, knowing of the defect, the master omitted to warn the servant of its existence. And where the defect producing the injury complained of, was the consequence of the incompetency or neglect of a fellow-servant, or where the origin of the defect did not appear, the master is not liable to his servant, it not appearing that he had been guilty of negligence either in selecting the fellow-servant or in providing the machinery in which the defect occurred.

All who serve the same master, work under the same control, deriving authority and compensation from the same source, and are engaged in the same general business, though in different grades and departments of it, are fellow-servants, each taking the risk of the other's negligence.

A brakeman on a train of cars is in the same common employment with the mechanics in the shops to repair and keep in order the machinery, with the inspector of the machinery and rolling stock of the road, and with the superintendent of the movement of trains.

A brakeman cannot maintain an action against a railroad company by which he was employed, for an injury sustained by him, and which resulted from a defect in the brake on the train he was operating, if the defect existed by reason of the neglect or want of care of his fellow-servants, unless the railroad company was negligent in the selection of those servants; and the onus of proof of such negligence is on the plaintiff.

A master is not bound to change his machinery in order to apply every new invention or supposed improvement in appliance, and he may even have in use a machine or an appliance for its operation, shown to be less safe than another in general use, without being liable to his servants for the consequences of the use of it. If the servant think proper to operate such machine, it is at his own risk; and all that he can require is, that he shall not be deceived as to the degree of danger that he incurs.  

COUNSEL:
Wm. Shepard Bryan, for the appellant.

It has been decided that the defendant [**5]  was bound to use all reasonable care in procuring sound machinery--(27 Maryland, 603.) Machinery which was unsafe by reason of the mode of its construction would not fulfil the obligations of the defendant, even if it were in good repair. The evidence of the plaintiff tends to show that the hook's construction was unsafe, and that an eye-bolt ought to have been used. Even if the point of the hook in question had originally been turned in the right direction, (of which there is no evidence,) its liability to get out of order was a sufficient objection to the use of it.

If the jury were satisfied that the mode of constructing the brake rendered the car unsafe, and that this might have been discovered by ordinary care on the part of the defendant, it was the duty of the defendant to discover it. This is the doctrine of the plaintiff's prayer.

The jury could determine from the evidence whether the construction was bad or not; and also whether the objections were obvious on examination.

It is certain, from all the testimony in the cause, that if an eye-bolt had been used instead of a hook, the accident would not have happened. Hard vs. Vert. and Canada R. R., 32 Vermont,  [**6]  479, 480; O'Connell vs. Balt. and Ohio R. R. Co., 20 Md., 213; Bartonshill Co. vs. Reid, 3 McQueen, 266, (H. of Lords;) Bryden vs. Stewart, 2 McQueen, 30; Marshall vs. Stewart, 33 Eng. L. & Eq., 1.

Assuming that the plaintiff's evidence was true, the defendant had failed to use suitable arrangements to make the brake safe; such arrangements as were used by another railroad, and such as the judgment and experience of the witnesses approved.

The fact that the defendant did not use suitable machinery, is sufficient evidence that it did not use reasonable care to provide it, and this evidence could be countervailed only by showing that it had made an effort to procure it, and had been unable to do so; and furthermore, if any such exculpatory evidence had been offered, it would have been the province of the jury to determine the sufficiency of the excuse. Balt. & Susq. R. R. Co. vs. Woodruff, 4 Md., 257.

The negligence of fellow-servants is not a question in this case. The breach of duty alleged against the defendant consists in not taking all reasonable care to provide proper machinery. And this want of care is proved, as a cause is inferred from its effects.

F. C.  [**7]  Latrobe and James A. Buchanan, for the appellee.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*416]  ALVEY, J., delivered the opinion of the Court.
This is an action by an employe against his employer, to recover for an injury received while engaged in the work for which he was employed, by reason of defective machinery that he was required to operate.
The plaintiff was a brakeman in the employ of the defendant, on one of its burden trains, and, while engaged in his work, he received the injury complained of, which was occasioned by an alleged defect in the brake to one of the cars that he was using in the regular course of his duty. The supposed defect consisted in the use of a hook instead of an eye-bolt on the brake, and in having the point of the hook turned the wrong way. In attempting to use the brake, in consequence of the defect, the plaintiff was suddenly thrown from the car to the track, and was caught between the brake-shaft and the trucks of the car and dragged a considerable distance, and seriously injured. He alleges that there was negligence on the part of the defendant in regard to the use of this defective brake, [**8]  and that he is entitled to recover from the company the damages sustained by him as the consequence of such negligence.
It is now settled that there is no contract obligation imposed upon the master, from the mere relation that he bears to the servant, to provide machinery of any particular character or description, to be operated by the latter, nor is there any implied undertaking on the part of the former, resulting from the mere relation as employer, that the machinery shall be kept free from defects, such as may expose the servant to danger. The servant is a free agent to select the employment into which he enters, and in contracting for the wages that he is to receive, must be supposed to take into account the risks to which the employment may expose him; and among those risks are the defects and accidents of the machinery, and the negligence and want of caution of fellow servants in the common 

 [*417]  employment. To hold the master liable to the servant for all the injuries resulting to the latter from defects in machinery or materials upon which he may be employed, or from the negligence of fellow-servants, engaged in the common employment, would go far to impede, if not [**9]  to make it impossible to carry on, many of the great works of the country. All that can be required of the master, and for the neglect of which he is responsible to the servant, is, that he shall use due and reasonable diligence in providing safe and sound machinery, and in the selection of fellow-servants of competent skill and prudence, so as to make it reasonably probable that injury will not occur in the exercise of the employment. He is required, also, as far as he can by reasonable care, to avoid exposing his servant to extraordinary risks, which could not have been reasonably anticipated at the time of the contract of service, though, as to such extraordinary risks, it would seem the master does not guarantee against them. Riley vs. Baxendale, 6 Hurl. & N. 446.
From these general principles it follows that the master is not liable to his servant for any injury occasioned by a defect of machinery furnished to the latter to operate, unless he was negligent in providing such machinery, or, if he knew of the defect, in omitting to warn the servant of its existence. And, where the defect producing the injury complained of, was the consequence of the incompetency [**10]  or neglect of a fellow-servant, or where the origin of the defect did not appear, it has been held that the master was not liable to his servant, it not appearing that he had been guilty of negligence, either in selecting the fellow-servant or in providing the machinery in which the defect occurred. Tarrant vs. Webb, 18 C. B., 797; Ormond vs. Holland, El. B. & El., 102; Wigmore vs. Jay, 5 Exch. 354; Brown vs. Accrington Cotton Company, 3 Hurl. & C. 511.
Who is a fellow-servant, within the meaning of the rule, has been a question of some diversity of decision, though the decided weight of authority is to the effect that all who serve 

 [*418]  the same master, work under the same control, deriving authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellow-servants, each taking the risk of the other's negligence. Or, to state the rule more generally, in the language of a decision that has been approved by this Court, "all who are engaged in accomplishing the ultimate purpose in view--that is, the running of the [**11]  road--must be regarded as engaged in the same general business, within the meaning of the rule." Hard vs. Vermont and Canada R. Co., 32 Vt. 473; O'Connell vs. Balt. & Ohio R. Co., 20 Md. 212. It follows, therefore, that the brakeman on the train is in the same common employment with the mechanics in the shops to repair and keep in order the machinery, and with the inspector of the machinery and rolling stock of the road, and the superintendent of the movement of trains. Farwell vs. Boston and Worcester R. Co., 4 Metc. 49; Hayes vs. Western R. Co., 3 Cush. 270; Sherman vs. Rochester and Syracuse R. Co., 17 N.Y. 153; Ryan vs. Cumberland Valley R. Co., 23 Pa. 384; Feltham vs. England, Law Rep., 2 Q.B. 33; Searle vs. Lindsay, 11 C. B., (N. S.,) 429. If, therefore, the defect in the brake that caused the injury in the present instance existed by reason of the neglect or want of care on the part of such employes of the defendant, the latter cannot be held liable, unless there has been negligence in the selection of those servants, [**12]  and the onus of proof of such negligence is on the plaintiff. 20 Md., 212; 25 Md., 462; 27 Md., 589.
The case of Searle vs. Lindsay, before referred to, well illustrates this. There the plaintiff was employed by the defendants as their third engineer on board their steam vessel. While turning a winch, one of the handles came off, in consequence of the want of a nut or pin to secure it, and the plaintiff was thereby seriously injured. He was, with others at work at the winch by the orders of the chief engineer, who knew that the instrument was out of order, but was, nevertheless, a competent 

 [*419]  person for the position he occupied. There was no evidence of personal negligence on the part of the defendants, and it was held that the chief engineer and the plaintiff were fellow-servants, and that, as the defect existed by reason of the negligence of the chief engineer, whose duty it was to see that the machinery was kept in proper condition, the plaintiff could not recover. And, in the concurring opinion of Mr. Justice WILLIAMS in that case, the law is briefly but clearly stated that governs cases like the present. He [**13]  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 employers 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 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 such was the view of all the Judges.
In the case before us, the question, depending upon a diversity of opinion, as to whether the eye-bolt or the hook is the better mode of fastening the brake, is immaterial, as [**14]  both seem to be approved appliances, tested by trial and experience; and if it were conceded that the eye-bolt has superior merits, it by no means follows that the defendant was bound to discard the hook that had been used for a long time, and on so many of its cars, without accident. A master is not bound to change his machinery, in order to apply every new invention or supposed improvement in appliances, 

 [*420]  and he may even have in use a machine, or an appliance for its operation, shewn to be less safe than another in general use, without being liable to his servants for the consequences of the use of it. If the servant thinks proper to operate such machine it is at his own risk; and all that he can require is, that he shall not be deceived as to the degree of danger that he incurs. Dynen vs. Leach, 26 L. J. Exch. 221; 1 Redfield on Railways, 521, note.
As to the defective attachment of the hook, it was shewn to have been the duty of the employes, Fairbanks, Buckingham and Day, to see that the cars and their appliances were kept in proper and safe repair. Whatever negligence, therefore, may have existed in regard to the arrangement of the brake, [**15]  and of the defective attachment of the hook thereto, was the negligence of those employes, the fellow-servants of the plaintiff; and there is an entire absence of evidence to show that there was the least negligence on the part of the defendant in the selection and employment of those servants; but, on the contrary, there is the most abundant evidence that such servants were of sufficient competency and skill; nor is there the slightest evidence in the case, that any superintendent or other agent, having control and general direction of the employes, and for whose negligent conduct the defendant would be responsible to the plaintiff, ever had knowledge of the defective condition of the brake before the occurrence of the injury. The proof wholly failing in these important particulars, the Court below could not have done otherwise than instruct against the plaintiff. The essential proof of the gravaman of the action was wanting, and of course the plaintiff could not recover. The several prayers of the defendant were unobjectionable, and the Court was therefore right in granting them. And as by the granting of the defendants' prayers the case was taken from the jury, the plaintiff's prayer, [**16]  which was rejected, became unimportant.
For these reasons the judgment will be affirmed.
Judgment affirmed. 

117 of 142 DOCUMENTS 

THE KNICKERBOCKER LIFE INSURANCE COMPANY OF NEW YORK vs. THERESA HOESKE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 317; 1870 Md. LEXIS 37 

March 10, 1870, Decided 

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

This action was brought by the appellee against the appellant to recover the sum of $ 2,000, claimed to be due to the former upon a policy of insurance, which had been issued to her by the latter, upon the life of her deceased husband, Henry Hoeske. The defendant pleaded, "never was indebted as alleged," "did not undertake and covenant as alleged," and non-performance of conditions, &c., by the plaintiff's intestate. To these pleas was appended the following affidavit:

"On this 7th day of January, A. D., 1869, before me, the subscriber, a Justice of the Peace of the State of Maryland, in and for the City of Baltimore, personally appeared the above named defendant, and made oath in due form of law, that it is verily believed that sufficient evidence will be furnished at the trial of the said cause to support the same.

"GEORGE F. THOMPSON, J. P."

Other facts in the case, needful to an understanding of the principles decided, will be found in the opinion of the Court.  

DISPOSITION:
Judgment by default affirmed and extended judgment reversed.  

HEADNOTES:

Practice under the Act of 1864, ch. 6 -- Defective Affidavit to Pleas by a Corporation -- Assessment of Damages by the Jury -- Pleas of a Corporation, how Verified.

The amount claimed in an action on a policy of insurance, is a liquidated sum, within the provisions of the Act of 1864, ch. 6, and may be verified by affidavit.

With the declaration in an action on a policy of insurance, there was filed an account of the defendant's indebtedness, verified by an affidavit in accordance with the eighth section of the Act of 1864, ch. 6, and the policy was filed therewith as a voucher, and referred to in the account; a summons was issued on the 9th of December, 1868, and made returnable on the second Monday of the same month, being the first return day thereafter, and was duly served. The defendant appeared by attorney on the return day, and was put under rule plea by the second Monday, being the 11th day of January, 1869, and the first day of the ensuing term of the Court. On the 7th of January, 1869, the defendant filed its pleas to the merits, with what purported to be its affidavit appended thereto; a rule replication was laid on the plaintiff, and a joinder of issue upon the pleas was entered by the clerk. On the second Monday of January, 1869, the plaintiff's attorney gave an order to the clerk to strike out the joinder of issue, which was done, and he filed a motion in writing, asking the Court to enter judgment against the defendant, notwithstanding the pleas, for the reason that the affidavit thereto was insufficient under the seventh section of the Act of 1864, ch. 6 The defendant afterwards asked leave to file an additional or supplemental plea and affidavit. Judgment by default was entered against the defendant, for want of a sufficient affidavit to its pleas. The plaintiff then moved the Court to assess the damages and extend the judgment, whereupon the defendant moved for a trial by jury of the question of the amount of damages to be assessed. The defendant's motion being overruled, the Court assessed the damages, and extended the judgment for the amount claimed with interest, &c. The defendant excepted -- first, to the refusal of the Court to allow amended pleas and affidavit to be filed; secondly, to the entering of the judgment by default, and thirdly, to the extension of the judgment by the Court, and its refusal to refer the question of damages to a jury. On appeal, HELD:

1st. That leave to the defendant to file additional pleas and affidavit, was properly refused.

2d. That the affidavit filed with the pleas, being altogether defective and insufficient, there was no error in entering the judgment by default.

3d. That the application of the defendant for a trial by jury of the amount of damages to be assessed to the plaintiff, should have been granted.

When a corporation is sued under the Act of 1864, ch. 6, its pleas must be verified by the oath of some natural person, capable of making an affidavit.  

COUNSEL:
Sylvester L. Stockbridge and Henry Stockbridge, for the appellant.

The claim sued on in this [**2]  case is not one designed to be embraced in the provisions of the 6th section of the Act of 1864. chapter 6. Though the language there used is broad, yet the whole tenor of the Act shows that it was not designed to include claims for damages for breach of contract, nor claims arising out of contracts with conditions precedent, the performance of which by the plaintiff, was an essential prerequisite to his right to recover.

It was meant to cover only clear obligations to pay money, the amount of which was definitely ascertained by the terms of the contract, and not dependent upon the performance of conditions by the plaintiff. Act of 1864, ch. 175; Act of 1864, ch. 6, sec. 6.

The Act of 1864, ch. 6, in so far as it is in derogation of natural and common law rights, must be construed strictly in favor of those against whom it is to operate, in other words, the plaintiff is not entitled to ask a judgment by default, for want of affidavit to the defendant's pleas, unless he has complied strictly with the requirements of the Statute, nor then, if there has been a substantial compliance on the part of the defendant. The purpose of the Act was merely to give prompt justice in case [**3]  of undisputed claims; it was not designed to deprive defendants of their rights on the most shadowy technicalities. It required defendants to file a plea containing a good defence, and to present a prima facie case by an affidavit that the plea was true, and would be sustained by sufficient evidence to support it. All this the defendant did. Act of 1864, ch. 6, sec. 7; Mailhouse vs. Inloes, et al., 18 Md., 328; Act of 1858, ch. 323.

The Court erred in refusing to grant the prayer of the defendant for leave to amend its pleas and affidavit, for it was apparent to the Court that the appearance of the defendant had been duly entered in the cause, that pleas containing a good defence had been duly filed therein, with an affidavit annexed to them, that at least there had been an attempt on the part of the defendant to comply with the terms of the law, and that the said form of affidavit was a part and parcel of the "proceedings in the cause," which the defendant had the full and clear right under the law to amend. Code of Public General Laws, Art. 75, sec. 23; Baltimore Fire Ins. Co. vs. McGowan, 16 Md., 53; Garrett vs. Dickerson, 19 Md., 418; Evans' Practice, 150 and 79.

The [**4]  Court erred in refusing the prayer of the defendant for a trial by jury of the question of the amount of damages to be assessed to the plaintiff against the defendant, for there was no default by the defendant for want of appearance, or for the not filing its pleas in due time, but on the contrary the defendant was present in Court, and was ready and able to defend its rights in the premises whenever the Court should empanel a jury of inquisition to determine the amount of damages. Constitution of Md., Art. 15, sec. 6.

Albert Ritchie, for the appellee.

The plaintiff was entitled to a judgment, because the defendant's pleas were not properly verified. There was no affidavit thereto, made either by the defendant or any one in its behalf. The magistrate certified to a simple impossibility. Though he himself cannot impeach his own certificate, yet its statements may be shown to be false by other testimony. Mathews & Zollickoffer vs. Dare & McClure, 20 Md., 271; Central Bank of Frederick vs. Copeland, 18 Md., 318.

Of the falsity of this certificate there can be no better evidence than appears upon its examination, it being simply impossible for a corporation to put in a personal [**5]  appearance and make an affidavit.

It being impossible that the defendant could have made the affidavit, the certificate must be taken as false. And it no where appearing that anybody undertook to make it on behalf of the defendant, there is no affidavit that the pleas are true, and they must be regarded as filed without an affidavit. It is impossible for a corporation to personally appear and make affidavit. Angel and Ames on Corporations, sections 276, 369, 665; Planters' and Marine Bank vs. Andrews, 8 Porter, 423; Trenton Bank vs. Haverstick, 6 Halsted, 171.

The Act of 1864, ch. 6, strikes at all defences not bona fide. It requires an oath that the defence is true; and not only that it shall be true, but that it shall not be an idly made defence. It must be both true and made in good faith, with a reasonable probability of its being established. Therefore, the defendant must pledge his belief on oath, that he will be able to produce sufficient evidence to sustain his defence at the trial. If the affidavit fail in giving this assurance, it is defective.

In order thoroughly to discountenance evasive and procrastinating defences, the Act requires some assurance, first,  [**6]  that the pleas are true; second, that there is evidence to sustain them; and third, that it is within the defendant's ability to produce such evidence. If the affidavit fail in any one of these points, the plaintiff is entitled to judgment.

Where the terms of an affidavit are prescribed by Statute, they must be strictly followed, and, therefore, the affidavit in this case is insufficient. Thompson vs. Towson, 1 H. & McH., 504; Dyson vs. West, 1 H. & J., 567; Didier vs. Kerr, 12 G. & J., 499; Denton vs. Griffith, 17 Md., 301; Dean vs. Oppenheimer, 25 Md., 377.

The defendant could not amend its affidavit, as it prayed leave to do on January 30th, after the second return day (January 11th) had passed, and after the plaintiff had moved for judgment.

If the defendant could avoid the judgment after that return day, by amending an insufficient affidavit, he could equally cure the default of having put in no affidavit at all.

The Court had authority to assess the damages and extend the judgment. Mailhouse vs. Inloes, 18 Md., 328; Greff, et al. vs. Fickey, et al., 30 Md., 75.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, GRASON, MILLER ALVEY and ROBINSON,  [**7]  J.  

OPINIONBY:
BARTOL 

OPINION:

 [*322]  BARTOL, C. J., delivered the opinion of the Court.
The amount claimed in this suit by the appellee, is a liquidated sum, fixed by the contract, upon which the action was brought. The case, therefore, is clearly within the provisions of the Act of 1864, ch. 6. Upon a claim of this nature, there can be no difficulty in stating the account and verifying the same by affidavit. It is not like the case of Smithson & Owens vs. The Telegraph Co., 29 Md. 162, in which it was held the claim was, in its nature, one for unliquidated damages not fixed by the contract, nor did the contract furnish any certain standard by which the amount of the plaintiff's claim could be certainly ascertained. In this case, if the plaintiff has a right of action, the sum she is entitled to recover is fixed or may be ascertained by the terms of the contract.
The contingencies upon which her right of action depends, have no relation to the question of the nature and amount of indebtedness, if any exists; that is fixed and definite, and is, in no sense, in the nature of unliquidated damages.

 [*323]  At the time the suit was brought, there was filed with the [**8]  declaration an account of the defendant's indebtedness, verified by affidavit, in accordance with the eighth section of the Act of 1864, and the policy of insurance was filed therewith as a voucher, and referred to in the account. The policy, as copied in the record, does not appear to be signed by the president and secretary of the company, as required by the second condition therein; but this defect or omission has been cured by the agreement of counsel, filed in this Court, whereby it is admitted that both the original policy and the receipt for premium on its renewal were signed by the president and secretary. It was, therefore, a sufficient voucher of the contract under the Act of 1864.
It appears by the record that the summons was issued on the 9th day of December, 1868, and made returnable on the second Monday of the same month, being the first return day thereafter, and was duly served. The defendant appeared by attorney on the return day, and was put under rule plea by the second Monday, being the 11th day of January, 1869, that being the first day of the ensuing term of the Court.
On the 7th day of January, 1869, the defendant filed three pleas to the merits, with what [**9]  purported to be an affidavit of the defendant appended thereto, a copy of which was served on the plaintiff's attorney the same day, and a rule replication within fifteen days thereafter, was laid on the plaintiff. Whereupon a joinder of issue upon the pleas was entered by the clerk.
On the second Monday of January, 1869, the plaintiff's attorney gave an order to the clerk to strike out the joinder of issue, which was done, and filed a motion in writing asking the Court to enter judgment against the defendant, notwithstanding the pleas; for the reason that there was no sufficient affidavit to the pleas under the 7th section of the Act of 1864. The defendant then filed a petition asking leave to "file an additional or supplemental plea with an additional or supplemental affidavit."

 [*324]  The cause was heard on the motion of the plaintiff, and on the 27th day of February, 1869, judgment by default was entered against the defendant for want of sufficient affidavit to its pleas.
The Court then proceeded, on the motion of the plaintiff, to extend the judgment, and on the same day entered the judgment "for the sum of $ 2,000, damages assessed by the Court, with interest from date [**10]  till paid, and costs of suit."
The defendant's motion for a trial by jury to assess the damages having been overruled, the defendant excepted:
1st. To the refusal of the Court to allow amended pleas and affidavit to be filed.
2d. To the entering of the judgment by default.
3d. To the extension of the judgment by the Court, and its refusal to refer the question of damages to a jury.
1st. As to the motion to file an additional or supplemental plea and affidavit. In our judgment this application is not to be considered as an ordinary motion to amend, and therefore the question whether any appeal lies from the action of the inferior Court, upon a mere motion to amend, does not necessarily arise in this case, was not noticed in the argument, and no opinion is expressed thereon. The application made by the defendant was substantially a petition for leave to plead to the action, as if no pleas had previously been filed. For having put in pleas without any sufficient affidavit, they were in contemplation of the Act of 1864, not any valid or effectual pleas for the purpose of preventing a judgment by default, for the want of plea; and, therefore, the question presented is, whether there [**11]  was error in refusing to grant leave to the defendant to file a plea with affidavit, at the time when the motion was made? The solution of this question depends upon the construction of the Act of 1864.
By the 7th section it is provided that "the plaintiff shall be entitled to judgment on the first day of the term of the Court in which said action is pending, or at the return day next succeeding the appearance of the defendant, which ever 

 [*325]  shall first happen or occur, although the defendant may have pleaded; unless such plea contains a good defence, and unless the defendant, or some one in his behalf, shall make oath or affirmation that the said plea is true, and that he verily believes that he will be able at the trial of the cause to produce sufficient evidence to support the said plea."
Under this section the plaintiff was clearly entitled to claim judgment on the second Monday of January, 1869; the time allowed by law to the defendant to plead had expired before that day; and unless a sufficient plea, verified by affidavit, as required by the Act, had been filed, the judgment would be entered as matter of right, if claimed by the plaintiff. It was then too late for [**12]  the defendant to plead; or if pleas had been filed, without affidavit, or with a defective or insufficient affidavit, no right existed to file supplemental pleas and affidavit. The proceeding is one not under the general provisions of law regulating suits, but a special proceeding under the Act of 1864, in which a right to plead cannot be claimed after the time limited by the Act for pleading has expired, and the plaintiff has become entitled to a judgment. To allow the defendant to file pleas after that time, would defeat the whole purpose and design of the Act of 1864. Upon this question a majority of the Court are of opinion that the action of the Court of Common Pleas, in refusing leave to file an additional plea and affidavit, ought to be affirmed.
2d. There was no error in entering the judgment by default, upon the case as it stood on the second Monday of January, 1869; the affidavit filed with the pleas being altogether defective and insufficient, it was properly treated as null and void, and the defendant was in the position of having plead without any affidavit. It scarcely requires an argument to prove that what purported to be an affidavit was wholly insufficient.
The [**13]  affidavit purports to have been made by the defendant, which is a corporation incapable of making an oath; where a corporation is sued under the Act of 1864, its pleas must be 

 [*326]  verified by the oath of some natural person capable of making an affidavit. The affidavit, as it appears by the amended record, if it had been made by a competent person, is defective in not containing the necessary averments as required by the Act. For these reasons the judgment by default entered on the 27th day of February, 1869, must be affirmed.
3d. We think the Court below erred in refusing the application of the defendant for "a trial by jury of the question of the amount of damages to be assessed to the plaintiff."
The 9th section of the Act of 1864, provides that "when any judgment by default shall be entered under the preceding sections, the Court may assess the damages on proof thereof without empaneling a jury." This section must be construed in subordination to the constitutional provision. Article 15, section 6, which declares that "the right of 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 [**14]  the sum of five dollars, shall be inviolably preserved."
In the face of this provision, the 9th section of the Act of 1864, cannot be construed so as to deprive the defendant in this case, of the right of having the damages ascertained by a jury. In a proceeding under this Act, where a defendant has not appeared in Court and is in default; or having appeared, waives or fails to ask to have this question referred to a jury, the Court is empowered to assess the damages.
But the defendant in this case not having waived his constitutional rights, was entitled to have the question of the amount of damages passed upon and decided by a jury. We therefore reverse the judgment of the Court below, whereby the judgment by default was extended and the amount of damages was ascertained. The judgment by default is left undisturbed, and the plaintiff will be entitled to proceed by writ of inquiry to have her damages assessed by a jury.
Judgment by default affirmed and extended judgment reversed. 

118 of 142 DOCUMENTS 

CHARLES T. HAILE, JAMES N. HENDERSON and JOSEPH G. DANCE vs. WILLIAM F. PEIRCE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 327; 1870 Md. LEXIS 38 

March 10, 1870, Decided 

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

The facts of the case are sufficently detailed in the opinion of the Court.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Parol evidence admissible to Show whether a party Signs a note as Principal or Agent.

A promissory note was given in the following terms: "Four months after date the President and Directors of the Dulaney's Valley and Sweet Air Turnpike Company, of Baltimore county, promise to pay William F. Peirce, or order, one thousand dollars, with interest, for value received." The note was signed by C. T. H, President, J. N. H and J. G. D, Directors, and E. R. S, Secretary. On a suit by the payee to charge the drawers of the note, HELD:

That the terms of the note, upon its face, being ambiguous and uncertain as to the fact whether the parties signing the note did so in their individual or official capacity, it is competent for either party to show by relevant extraneous proof on what account the note was given.

When individuals subscribe their proper names to a promissory note, prima facie, they are personally liable, though they add a description of the character in which the note is given; but such presumption of liability may be rebutted, as between the original parties, by proof that the note was, in fact, given by the makers as agents, with the payee's knowledge.  

COUNSEL:
Lewis H. Wheeler and R. R. Boarman, for the appellants.

The appellants had a right at the trial below to plead and to give in evidence to the jury that the promissory note in question was not their note, but that it was the promissory note of a corporate body, (to wit: the Dulaney's Valley and Sweet Air Turnpike Company,) of which the appellants were the officers, and that in signing said note the appellants acted solely in a ministerial capacity, under due and formal authority from the said corporation, and these facts were known to the appellee at the time he loaned the money which formed the consideration of the said note. Wyman vs. Gray, 7 H. & J., 409; Johnson vs. Smith, 21 Conn., 627; White vs. Skinner, 13 Johns. Rep., 307; Hovey vs. Magill, 2 Conn., 680; Hodgson vs. Dexter, 1 Cranch, 105; Collins vs. Johnson, 16 Georgia, 458; Babcock vs. Beman, 1 Kernan, 200; Byles on Bills, (4 Am. Ed.,) 27, (1;) Brockway vs. Allen, et al., 17 Wendell, 40; Story on Agency, (6th Ed.,) 154, a.

A corporation [**2]  can act only through its officers, and in no case would they be safe in the discharge of their duties if they were not allowed to give evidence of their ministerial and official acts in suits brought for the purpose of rendering them personally liable for their official contracts. Hodgson vs. Dexter, 1 Cranch, 105

Arthur W. Machen, for the appellee.

The note in question is, upon its face, the promissory note of the defendants. Sparks, possibly, was also liable; but this is unimportant, as he had not been made a party defendant, and as his non-joinder was not pleaded in abatement. But the defendants are certainly bound, personally. Although they are described in the body of the instrument as the President and Directors of a corporation named the Dulaney's Valley and Sweet Air Turnpike Company, and add the words "President" and "Director" to two of their names in the signature, there are no words, either in the body or signature, declarative of a promise made for said corporation. The words "we" also indicate a promise of the signers, and not of the corporation. Sumwalt vs. Ridgely, 20 Md., 107; Wyman vs. Gray, 7 H. & J., 409; Lennard vs. Robinson, 5 El. & Black., 125; Hills [**3]  vs. Bannister, 8 Cowen, 31; Byles on Bills, 55.

The note could not be held to be the note of the corporation. Its charter contains no express authority to issue negotiable paper, and a turnpike company possesses no such power by implication. Grant on Corp., 276, (80 Law Library, 287;) Byles on Bills, 33; Pennsylvania Steam Navig. Co. vs. Dandridge, 8 G. & J., 218; Abbott vs. Balto. & Rapp. S. P. Co., 1 Md. Ch. Dec., 542; Maryland Hospital vs. Foreman, 29 Md., 524.

The rule is, that an ambiguously-worded instrument is to be construed ut res magis valeat quam pereat, and, as the company could not be bound, the parties who signed must, of necessity, be bound; the words used being sufficient to charge them. All the cases recognize this principle. Mare vs. Charles, 5 El. & Black., 978, (85 E. C. L.)

The case falls within the rule that an agent, assuming to represent a principal, but having no authority to bind the principal, is himself liable upon the contract, provided it be in such form that, rejecting the words relating exclusively to the principal, it contains apt words to charge the pretended agent. Woodes vs. Dennett, 9 New Hamp., 55.

The case of Rew, Ex'r of Newton,  [**4]  vs. Pettet and others, 1 Ad. & El., 196, in its circumstances, strongly resembles the present case.

The parol evidence offered for the purpose of showing that the defendants were acting as agents for the turnpike company, and was so known and recognized by the plaintiff, was properly excluded. Parol evidence is never admissible for the purpose of discharging an agent from a liability imposed upon him by the terms of a written contract into which he has entered. Higgins vs. Senior, 8 M. & W., 844; Nash vs. Towne, 5 Wallace, 689.

Whether or not the defendants were understood to be acting as agents for the turnpike company was immaterial. They bound themselves, personally, by the terms of the note, and they had no power to bind the Company.  

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

OPINIONBY:
STEWART 

OPINION:

 [*330]  STEWART, J., delivered the opinion of the Court.
The action in this case was brought to recover on the promissory note of the following description, to wit:

$ 1,000.   BALTIMORE COUNTY, August 8th, 1865.
Four months after date, we, the President and Directors of the Dulaney's Valley and Sweet Air Turnpike [**5]  Company of Baltimore County, promise to pay to William F. Peirce or order, one thousand dollars, with interest, for value received.
CHARLES T. HAILE, President.
J. N. HENDERSON, Director.
JOSEPH G. DANCE.
EDWARD R. SPARKS, Sec'y.
The first and second counts of the narr. were for money lent and paid; the third, for the overdue and unpaid promissory note; the fourth, like the third, with the addition that the appellants promised as President and Directors of the Company.
The appellants filed seven pleas--first, that they were never indebted; second, that they did not promise as alleged; third, fourth, fifth and sixth were special pleas, and demurred to, but not material, to be particularly described here; the seventh, that the promissory note sued on is not the note of the appellants.
The appellants admit their signatures to the note and its due execution, but insist that they signed the same as agents for the company, and not in their individual capacity, for a debt due by the company; that the appellee accepted it as such, with full knowledge that such was its character and purpose. They therefore maintain, that it is not their individual note, and that they [**6]  are not bound, individually, for its payment.
The material issue between the parties is, as to the liability of the appellants to pay the note in question. Owing to the obscure manner in which instruments have been drawn, and 

 [*331]  the uncertainty of the terms of description where contracts have been made or promissory notes given by agents, there has been difficulty in determining whether the principal or the agent, or both, are liable, not because of any difference in the principles of construction governing in such cases, but from their application to particular cases; and no uniform and consistent rule can be extracted from the authorities upon the subject.
In the Court of Appeals of our own State, in the case of Sumwalt vs. Ridgely, 20 Md. 107, 114, the Court, referring to cases to be determined alone from the terms of the instrument, state--"the established rule seems to be, that an agent, in making a promise for a principal, is liable on the promise, unless it be expressed in terms which show that it was made for and on behalf of the principal; and where an agent makes a promissory note to a third person, in terms sufficient to bind himself as principal,  [**7]  the mere addition of the word agent, or other description of his office or capacity, to his signature, does not change or vary the legal effect of the promise itself;" and reference is made to Story on Prom. Notes, secs. 67, 68 and 69, and Byles on Bills, 27, n. 1.
If it can be collected upon the whole instrument, that the "true object and intent of it were to bind the principal and not to bind the agent, Courts of Justice will adopt that construction of it, however informally it may be expressed." Story on Prom. Notes, sec. 69.
But sometimes the agent may attach to his signature the character in which he signs the instrument, without any correspondent, or other description, in the body of the note--or he may, in the body of the instrument, disclose the name of his principal and sign his own individual name, without any additional description whatever--or he may sign his own name, without apt terms to charge himself, and in the body of the note, use doubtful expressions to describe the principal, leaving the precise meaning of the instrument to be gathered from the terms on its face, so ambiguous or obscure 

 [*332]  as to render its interpretation per se, too [**8]  difficult and uncertain for just and sound construction.
When the note is of this last description, that is, where its language or its terms are so unintelligible as to admit of no rational interpretation of the meaning, or are not sufficiently decisive of the intention of the parties, but on the contrary, are equivocal and uncertain; extraneous proof, as between the original parties, may be admitted to show the true character of the instrument, and what party,--the principal, or the agent, or both, is liable.
Where individuals subscribe their proper names to a promissory note, prima facie, they are personally liable, though they add a description of the character in which the note is given, but such presumption of liability may be rebutted, as between the original parties, by proof, that the note was in fact given by the makers, as agents, with the payee's knowledge. Byles on Bills, 27, n. 1.
The terms of the note, now under consideration, upon its face being ambiguous and uncertain, as to the fact, whether the appellants did sign it, in their individual or official capacity, and relevant extraneous proof, might aid in the solution of the question; it was competent,  [**9]  for either party, to show by any pertinent extraneous evidence, on what account the note was given, and whether on the credit of the company or upon the individual responsibility of the appellants, as the joint makers thereof, for the purpose of proving or tending to prove the true character and purport of the note. This could not vary or contradict the instrument, but might be explanatory of its meaning, where otherwise it would be unintelligible. Whilst the appellants, on the one side, might prove that the note was signed by them, as agents of and for the company, by the extraneous evidence; on the other, the appellee might show that although the appellants were acting in behalf of the company, he refused to give credit to the company, and the appellants did in fact substitute their own individual responsibility for that of the company.

 [*333]  Evidence on both sides, relevant and proper, in reference to the true and precise character and purport of the note, was admissible; and the Court below was in error in excluding the testimony proposed by the appellants, appropriate to this enquiry.
The ruling of the Court below, permitting the note to be given in evidence to the Jury,  [**10]  (4th exception,) is affirmed; but in excluding the offered testimony on the part of the appellants, in 5th, 6th, 7th, 8th, 9th, 10th and 11th exceptions, is reversed.
Under this disposition of the case, the other exceptions (1st and 2d) in regard to the demurrer, and 3d exception to the manner of drawing the Jury, and 12th and 13th exceptions granting the appellees prayer and rejecting those of the appellants, become immaterial and unnecessary to be specially determined in this appeal.
Judgment reversed and new trial awarded. 

119 of 142 DOCUMENTS 

THE BALTIMORE AND OHIO RAILROAD COMPANY vs. JOHN C. BRADY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 333; 1870 Md. LEXIS 39 

March 10, 1870, Decided 

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

On the 15th of January, 1866, the appellant received at Brady's Mills, to be transported over its road to Baltimore, certain cattle, the property of the appellee. A number of the cattle were killed on the route, and others were injured. This suit was brought by the appellee to recover damages for the loss and injury. The appellant offered in evidence a printed tariff of special rates, under which it assumed no responsibility for loss, damage or delay to stock. This tariff contained the condition that the rates therein specified were to be charged only when the owner of the stock, or the party in charge of them, executed to the company a release of all liability for risks or damage to his stock or person. When no such release was executed, the charge would be made at local first class rates of the general tariff. The appellee was charged for the transportation of his cattle under the tariff of special rates, but executed no release.

Exception: The plaintiff offered three prayers--the Court rejected the third, and granted the first and second, which are as follows:

1st. If the jury find from the evidence that the defendant [**2]  received the plaintiff's cattle, to be carried from Brady's Mills to Baltimore, over its road, and that some of the cattle were killed on the route, and others injured by an accident occurring to the train on which the cattle were being conveyed, then the plaintiff is entitled to recover, notwithstanding they shall also believe that the defendant had notice, similar to that offered in evidence, in the station at Brady's Mills, and the plaintiff knew of said notice, and assisted, as owner of the cattle, in putting them on the defendant's cars; provided, they find the plaintiff did not assent to the conditions of said notice, nor execute a release thereunder.

2d. If they find the facts stated in the first prayer, the measure of damages is for the cattle killed, the market value at the place of destination at the time when they should be reasonably delivered, and for those injured, the difference between their market value at same time and place if uninjured by the accident, and what the cattle, in their damaged condition, were worth, and such additional expenses as were necessarily imposed on the plaintiff by the injuries caused by the accident.

The defendant offered eight [**3]  prayers--the seventh and eighth were rejected; the fourth was granted, and the others were granted with modifications. The first and second, as modified by the Court, and the fourth, which alone it is deemed proper to set out, were as follows:

1st. If the jury shall believe, from the evidence in the cause, that the plaintiff, on or about the 15th of January, 1866, in the absence of his father, who was the local agent of the defendant at that point, shipped thirty-two head of cattle from a station on the road of the defendant, called Brady's Mills, by the road of the defendant for Baltimore, and if the jury shall find, from the evidence, that the plaintiff is the son of the agent of the defendant at that point, and that the plaintiff shipped the said cattle as his own, and being his own, if the jury shall so find, in the absence of his father, and if the jury shall further find that the plaintiff shipped or carried his cattle under the tariff of special rates offered in evidence by the defendant, and that the said tariff of special rates was posted in the depot of the said defendant, and were known to the plaintiff, and if the jury shall further find that the said "special rates"  [**4]  contained the provision that "the above rates to be charged only when the owner of the stock or the party in charge of them, executes to the company a release of all liability for risks or damages to his stock or person; when no such release is executed, the charge will be made at local first-class rates of the general tariff;" and if the jury shall further find that the plaintiff did not pay a higher rate than the special rates in the said tariff of special rates; then, that the plaintiff is just as much bound by said special rates as though he had, at the time of shipping or carrying said stock, signed the said release, and is not entitled to recover in this case, unless the jury shall further find that the injury to said cattle arose from the gross negligence or default of the agents or officers of said company, acting in discharge of their several official duties, or from defects in the rolling machinery of said road, or in its track, which, by the use of the ordinary care, diligence and circumspection usual on railroads, the defendant might have guarded against; and provided that the jury shall further find, from the evidence, that the said cattle were shipped as hereinbefore [**5]  set forth, and that the plaintiff assented to the conditions set out in said special rates.

2d. If the jury shall find, from the evidence in the cause, the facts stated in the first prayer of the defendant, which are made part of this, and shall further find that the defendant had two tariffs of rates for cattle and freight transported over its road, one called "local first-class rates of the general tariff," the other called "local live-stock tariff, special rates;" that both of the tariffs and their rates were known to the plaintiff at the time he shipped or carred his said cattle, and if the jury shall further find that, at the time said cattle were shipped or carred by said plaintiff, that Samuel D. Brady, the father of said plaintiff, was the agent of the defendant at that point, and that, at the time of shipping or carrying the said cattle, the plaintiff was present when the cattle were shipped, in the absence of his father; and if the jury shall find that the plaintiff shipped his said cattle under the tariff of "local live stock tariff of special rates," but failed to execute a release such as described in said tariff of special rates, and did not notify the said company [**6]  that he had failed to execute the release before the injury to said cattle, then the plaintiff is not entitled to recover in this action for the matters claimed in the declaration, unless the jury shall further find that the damage and injury to said cattle arose from the gross negligence or default of the agents or officers of the said company, acting in the discharge of their several official duties, or from defects in the rolling machinery of said road or in its track, which, by the use of the ordinary care, diligence and circumspection usual on said roads, the defendant might have guarded against, and provided the jury shall further find from the evidence that the said cattle were shipped as hereinbefore set forth, and that the plaintiff assented to the conditions set out in said special rates.

4th. That if the jury shall find from the evidence the facts stated in the first and second prayers of the defendant to be true, and shall further find from the evidence that the cars or vehicles of the defendant used in transporting the cattle of the plaintiff, were in good and safe condition of repair, and that the road of the defendant, from the station at Brady's Mill to Baltimore,  [**7]  was in a good and ordinary condition of repair at the time the cattle were so transported, and the place where the accident happened and injury to the cattle occurred, and that the plaintiff assumed to act, and did act, and assisted in shipping the cattle of the plaintiff at Brady's Mills station or depot, and shall further find that the plaintiff, as owner, was informed and knew of the existence of the said general and special rates of tariff of prices for transporting cattle on the defendant's road, and that the plaintiff did ship said cattle at the said station, at said special or lower rates of prices of transportation, and only paid such lower or special rates to the defendant in consideration of carrying or engaging to carry or transport the cattle of the plaintiff to Baltimore, then the plaintiff shall be regarded as having assumed upon himself the risk or damage of carrying or transporting said cattle to Baltimore, and cannot recover in this action damages for any injury that did occur to the said cattle, in their transportation to Baltimore, unless the jury shall further find from the evidence that the cars or vehicles of the defendant were insufficient and unsafe, and its [**8]  road was not in safe condition of repair at the place where, and at the time when the alleged injury to said cattle occurred, or that the alleged injury to said cattle was caused by the gross negligence of the defendant or its servants.

To the ruling of the Court in granting the first and second prayers of the plaintiff, and rejecting its seventh and eighth, and to the modifications of its first, second, third, fifth and sixth prayers, the defendant excepted, and the verdict and judgment being for the plaintiff, it appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Common Carriers -- Burden of Proof -- Question of Fact.

A common carrier, by express contract with his employer, may limit his ordinary responsibility; and where indemnity from loss is claimed by virtue of such contract, the burden of proof to establish it is upon the carrier.

Certain cattle were delivered at Brady's Mills, to the Baltimore and Ohio Railroad Company, to be transported thence to Baltimore. The charge for transportation was paid in accordance with a tariff of special rates, under which, by the printed table, the company assumed no responsibility for loss, damage or delay to stock. A portion of the cattle were killed on the route, and others were injured. An action was brought against the railroad company, by the owner of the cattle, to recover damages for their loss and injury. The railroad company claimed exemption from responsibility for the loss, upon the ground that the transportation charges were paid under the tariff of special rates. HELD:

1st. That this alone was not sufficient -- it was necessary to show that the owner of the cattle had notice or actual knowledge of these terms at the time, or before the delivery of the stock by him to the railroad company for transportation, and that they were assented to by him.

2d. And that whether he had such notice or knowledge, and assented thereto, was a question of fact properly submitted to the jury.  

COUNSEL:
Thomas J. McKaig, for the appellant.

William Walsh, for the appellee.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
BRENT 

OPINION:

 [*338]  BRENT, J., delivered the opinion of the Court.
There is no doubt that a common carrier, by an express contract with his employer, may limit his ordinary responsibilities. Where indemnity from loss is claimed by virtue of such a contract, the burden of proof to establish it is upon the carrier.
In this case, a special contract was attempted to be set up by showing, that the appellee paid for the transportation of his stock at a tariff of charges [**9]  under which, by the printed table, the company assumed no responsibility for loss, damage or delay of stock. This alone was not sufficient. It was necessary to show that the owner of the cattle had notice or actual knowledge of these terms at the time or before the 

 [*339]  delivery of the stock by him to the company, to be transported, and that they were assented to on his part. 2 Redfield on R. W., 80. This was the only question in the case. It was one of fact for the jury upon all the evidence, and was properly submitted to them.
There was no written contract offered which the Court was called upon to construe, and although the appellee may have paid the special rates, it does not follow, as a conclusion of law, that he had notice of the terms upon which they were charged, or that he assented to the same. The weight of testimony is against any such conclusion. The evidence offered by the company shows that really no contract was entered into by the appellee to limit their responsibility as a common carrier. Where the special rates were accepted, releases were to be given. In this case, no release was given by the owner of the cattle, and according to the company's own terms,  [**10]  a contract was never consummated between the parties. Their own evidence also rebuts the presumption of any contract growing out of the charge of the special rates. The cattle were placed on the cars at Brady's Mills, and the charges made for their transportation were fixed at the company's office in Baltimore city, after the accident and loss occurred, upon which this action is founded.
In looking at the whole case, the appellant has nothing to complain of in the instructions and prayers which were granted by the Court below. The prayers of the appellee, which were granted, properly state the law of the case. And in the fourth prayer of the appellant, the case is most favorably submitted to the jury upon the law, and the whole question of the existence of any special contract left to be passed upon by them on the whole evidence in the case.
Seeing no error in the rulings of the Court below, the judgment will be affirmed.
Judgment affirmed. 

120 of 142 DOCUMENTS 

HENRY EVESSON, JR., Agent, vs. JOHN S. SELBY and WM. S. POLK, Garnishees of THE JAMES RIVER INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 340; 1870 Md. LEXIS 40 

March 10, 1870, Decided 

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

The facts are sufficiently given in the opinion of the Court.  

DISPOSITION:
Order and judgment affirmed.  

HEADNOTES:

Attachment on Warrant -- Form of Certificate -- When the Affidavit for an Attachment is made before a Judge of another State.

An affidavit for an attachment on warrant was made before a Judge of the Supreme Court of New York. Annexed thereto was this certificate: "State of New York, New York City and County, to wit: I, William C. Conner, Clerk of the Supreme Court of the State of New York, aforesaid, do hereby certify that W. T. Clerke, whose name is subscribed to the above certificate or affidavit, was on the day of the date thereof, a Judge of the said Supreme Court, duly commissioned and sworn, and had authority to administer the oath therein mentioned." This certificate was duly signed and attested by the seal of the Court. HELD:

That this was not a substantial compliance with the form of certificate required by Art. 10, sec. 6, of the Code of Public General Laws, inasmuch as it does not appear from the certificate that the Judge before whom the affidavit was made, was a Judge of a Court of Record.

The proceedings in attachment being wholly statutory and in derogation of the common law, must strictly follow the provision of the statute under which they are authorized

There need not be a literal compliance with the statute, a substantial compliance being all that is necessary

A motion to quash an attachment for a substantial defect in the proceedings, goes to the question of jurisdiction and will be entertained at any stage of the trial.  

COUNSEL:
Robert J. Brent, for the appellant.

The attachment Act of 1795, ch. 56, was in more stringent terms than the provisions of the Code. What are the adjudications of our highest Courts on the imperative language in that Act?

In Smith vs. Greenleaf, 4 H. & McH., 293, objection was taken because the certificate of the Governor did not state, as required by the Act, "that the Judge had authority to administer an oath." But the Court overruled it, and held that, notwithstanding the omission in the certificate to certify expressly to the authority of the Judge, as required by the letter of the statute, it was, nevertheless, sufficient, because the authority to administer an oath was to be implied from the statement in the certificate that "full faith and credit is to be given to his (the Judge's) attestation." A still stronger case is found in Washington vs. Hodgskin, 12 G. & J., 353. In that case the Governor had merely certified that the attestation "of the Judge was in due form of law, and made by the proper officer, and that full [**2]  faith and credit are due to all his official acts."

This Court decided that "a literal compliance with the law is not necessary, if the certificate is substantially sufficient, and that the inference was not only fair, but irresistible, that if he was the proper officer to make such a certificate, he must have authority to administer the oath" certified by him.

The case of Prentiss & Carter vs. Gray, in 4 H. & J., 193, commented on by the Court in 12 G. & J., 357, was, in fact, directly in conflict with the earlier case, reported in 4 H. & McH., 294, and it was, moreover, decided without any reference by counsel or Court to the case in 4 H. & McH., 294. The counsel, (Mr. Williams,) in page 195 of 4 H. & J., admitting that the expression in the Clerk's certificate furnish grounds for implying authority to administer the oath, said, yet the Court are not at liberty to make the inference under the provision of the above section, while he and the Court seem to have overlooked strangely the contrary decision in 4 H. & McH., 294, in reference to a precisely similar certificate. The case, however, in 12 G. & J., 356-7, re-affirms the elder case in 4 H. & McH., 294, and virtually [**3]  overrules the case in 4 H. & J., 193. The case of Shivers vs. Wilson, 5 H. & J., 133, had long ago also decided in an attachment case that it was enough if "the course of proceeding directed by law was substantially complied with." Matthews & Zollikoffer, Garnishees, vs. Dare & McClure, 20 Md., 265.

The liberality of the Court in rejecting a literal adherence to the requirements of the attachment laws, where substantial compliance is shown, will be illustrated further by McCoy vs. Boyle, 10 Md., 391.

It has been expressly held that a record of a Superior Court of a sister State, which has a Judge, clerk and seal, proves itself, and also its jurisdiction, because it is to be presumed that it was a Court of Record, and therefore entitled to be authenticated under the act of Congress. Ransom vs. Wheeler, 12 Abbott's Prac. R., 139.

There are various provisions of the Code establishing the official character of Judges in sister States by force alone of a certificate under seal of the Court. Code of Public General Laws, Art. 24, secs. 4, 7, 8; Art. 37, sec. 38.

The seal of a foreign Court must be proved, but when proved the Court presumes that what is certified is a full [**4]  record, even though the clerk merely appends his name to the exemplification, or sentence. De Sobry vs. De Laistre, 2 H. & J., 215, 216, 218, 219.

But public Courts of sister States are not foreign Courts, and therefore the Court judicially notices their seals without any proof. Dunlap vs. Waldo, 6 N. H., 452.

If, then, the seal of the Supreme Court of New York proves itself because the Court must judicially notice it, and if the certified copy of its judgment (omitting the fact that it is a Court of Record) would be sufficient to sustain an action of debt or assumpsit on a plea of nul tiel record, when authenticated under Act of Congress, why will not the Court presume on the facts now certified under, and evidenced by a seal, that it is a Court of Record?

And if this be the fair inference at common law, then it is presumed that the common law prevails in New York. Harper vs. Hampton, 1 Har. & Johns., 687; Haney vs. Marshall, 9 Md., 195; Abell vs. Douglas, 4 Denio, 305.

The presumption being that the common law prevails in New York, the Supreme Court is a Court of Record according to the common law definition. 5 Dane's Abr., 56, 57.

The presumption being that [**5]  the common law prevails in New York, then the presumption is that this is a Common Law Court administering the common law, and if so, it is, prima facie, a Court of Record.

It is at least equal to the seal of a foreign Court of Admiralty. Thompson vs. Stewart, 3 Conn., 181.

The United States Courts are clearly bound to notice the laws constituting State Courts. Courts of general jurisdiction are to be noticed judicially. 1 Stark. Ev., 505, 544, note.

And so must our Courts notice the seal of Courts of general jurisdiction of other States, and that is because they are to be noticed as public Courts of Record.

The effect is the same under our Code, which dispenses with formal proof of the laws of New York, and which the Courts therefore are to notice, when read from any printed book. Art. 37, sec. 47, of the Code of Pub. Gen'l Laws.

That it was a Court of Record, see 3 Rev. Stat. N. Y., 280, sec. 11.

That the Code looks alone to the clerk's certificate as the judicial evidence of what is a Court of Record, is not denied, but nevertheless it may inferentially appear from the clerk's certificate, and need not be expressly stated. The official character of [**6]  a person taking depositions and his authority is presumed. Warner vs. Hardy, 6 Md., 537; Deery vs. Cray, 5 Wallace, 807.

Wm. A. Fisher and I. Nevett Steele, for the appellees.

The statute requires that when the affidavit is made before the Judge of a Court of Record of another State, the clerk shall certify, under the seal of the Court, that the person before whom the affidavit was taken was Judge of the Court at the time, "and that the same is a Court of Record." Code, Art. 10, sec. 6.

The attachment proceeding, being in derogation of the common law, the whole proceeding is coram non judice, unless the requirements of the statute be strictly complied with. Shivers vs. Wilson, 5 H. & J., 132.

For defects in the proceedings leading to the attachment, the Court is bound to quash the writ at any stage of the case. Bruce and Fisher vs. Cook, 6 G. & J., 348; Stone vs. Magruder & Brocke, 10 G. & J., 383.  

JUDGES:
The cause was argued before STEWART, BRENT, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
BRENT 

OPINION:

 [*344]  BRENT, J., delivered the opinion of the Court.
The appeal in this case is from an order of the Superior Court of Baltimore city, sustaining a motion made on the [**7]  part of the garnishees, to quash an attachment on warrant, which had been issued by the appellant against the James River Insurance Company, a foreign corporation, and which had been laid in the hands of the appellees. The affidavit for attachment is made before a Judge of the Supreme Court of New York. Annexed thereto is this certificate: "State of New York, New York city and county, to wit: I, William C. Conner, Clerk of the Supreme Court of the State of New York aforesaid, do hereby certify, that W. T. Clerke, whose name is subscribed to the above certificate or affidavit, was, on the day of the date thereof, a Judge of said Supreme Court, duly commissioned and sworn, and had authority to administer the oath therein mentioned." This certificate is duly signed and attested by the seal of the Court.
The substantial defect in this case is alleged to be in the above certificate, because it does not appear by it that the Court therein mentioned is a Court of Record. This objection is founded upon the provision of the attachment law requiring, "if the affidavit be made out of the State, and before a Judge of a Court of Record, there shall be a certificate 

 [*345]  from the Clerk of [**8]  said Court, under the seal thereof, that at the time the same was made, he was a Judge of said Court, and that the same is a Court of Record." Art. 10, sec. 6, Code of Pub. Gen'l Laws.
The doctrine is familiar, that the proceedings in attachment being wholly statutory, and in contravention to the common law, they must strictly follow the provisions of the statute under which they are authorized. The plaintiff, to succeed, must follow its directions, and if any of them are omitted, he cannot avail himself of the remedy which it confers. It is only when the conditions, required as precedent to the issuing of an attachment, are fulfilled, that any jurisdiction is given to the Courts to hear and determine the case upon its merits. The wisdom and policy of these conditions, as found in the law, are questions for the law-making powers. They have the right to say what facts are essential to give jurisdiction to the Court, and to direct what shall be the character and form of the evidence to establish them. The Courts are to construe the law as it is found upon the statute-book, and determine whether its obligations imposed have been complied with. In looking at the attachment [**9]  law, we find it is expressly provided, that no attachment shall issue without affidavit, and if the affidavit is made out of the State, before a Judge of a Court of Record, it shall be certified by the clerk of that Court, under seal thereof, that the Court, of which he is Judge, is a Court of Record. Both the fact to be established, where the affidavit is made out of the State, and the manner in which it is to be proved, are here distinctly pointed out. The Court must be a Court of Record, and it must be proved to be so by the clerk's certifying, under his official seal, that it is a Court of Record. This is one of the conditions precedent to the issuing of an attachment, and must be fulfilled. If it is omitted, the proof cannot be supplied aliunde, and the defect is fatal upon a motion to quash.
It is true, as argued on the part of the appellants, that there need not be a literal compliance with the statute, but a 

 [*346]  substantial compliance is all that is necessary. Shivers vs. Wilson, 5 H. & J. 130. The Act of 1795, ch. 56, required, in terms as stringent as any in the present attachment law, that where an attaching creditor made the affidavit required in any [**10]  other of the United States, the certificate annexed should state, "that the said Judge hath authority to administer an oath." Under this law it was decided, in Smith vs. Greenleaf, 4 H. & McH. 291, that the certificate of the Governor of Massachusetts was a sufficient compliance with its requirement--he having certified "to the affidavit made before the Justice of the Court of Common Pleas, 'that full faith and credit is to be given to his attestation.'" And so it was also held in the case of Washington vs. Hodgskin, 12 G. & J. 353, where the Governor of Mississippi certified that the attestation of Isaac R. Nicholson, Judge of the Circuit Court, &c., "to the annexed certificate is in due form of law, and made by the proper officer, and that full faith and credit are due to all his official acts." The Court, in these cases, acting upon the ground that a substantial compliance with the statute was sufficient, decided that, upon the face of the affidavit and certificate, taken together, it did appear that the Judge "had authority to administer an oath." The soundness of these decisions we do not question. They, in fact, only affirm the doctrine [**11]  that a substantial compliance with the statute is sufficient, and determine from what papers in the case it may be made to appear. Their distinction from this case, however, is very marked. While in them, the Court was enabled to gather from the certificate and affidavit the fact, that the person before whom the affidavit was made, had authority to administer an oath, it can no where be gathered or inferred from the face of the certificate and affidavit in this case, that the Court in question was a Court of Record. In this respect, the cases are wholly unlike, and the authority and weight claimed for them by the appellant's counsel, in settling the question now before us, cannot be conceded.

 [*347]  The very learned argument, based upon the authentication by a seal as in itself proof of a Court of Record, would have its influence, were it not for the language of the statute, under which this attachment issued. In giving a meaning to its language, we cannot infer that in proceedings under it, a seal alone imports a Court of Record. It requires in express terms, that the clerk of the Court, under the seal thereof, shall certify "that the same is a Court of Record." To give [**12]  to the seal alone the effect claimed for it, we should have to expunge from the law what it particularly directs should be contained in the certificate, and that authenticated by the seal of the Court. This we cannot do, but must hold upon every rule of construction, that the fact, required to be certified to, must appear affirmatively in the certificate of the clerk, attested by his official seal.
The objection, that the motion to quash came too late, because made after issues joined and testimony taken, is disposed of by the decisions referred to on the part of the appellees. As the motion, for a substantial defect in the proceedings, goes to the question of jurisdiction, it will be entertained at any stage of the trial, and if the Court discovers its want of jurisdiction, it is proper to arrest the further progress of the cause by quashing the attachment. Bruce vs. Cook, 6 G. & J. 345; Stone vs. Magruder, 10 G. & J. 383.
As there is no error in the action of the Court below, the order quashing the attachment will be affirmed.
Order and judgment affirmed. 

121 of 142 DOCUMENTS 

WILLIAM HAMILTON vs. THE STATE OF MARYLAND, use of RICHARD S. HARDESTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 348; 1870 Md. LEXIS 41 

March 10, 1870, Decided 

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

This was an action on an injunction bond, brought by the appellee against the appellant and George H. Wetter and John Sauerhoff. The narr. alleged the issuing of the injunction at the instance of Wetter, to restrain all proceedings for the foreclosure of a mortgage from Wetter to one William Ward, and by him assigned to the appellee, Hardesty, and for the collecting of certain ground rents--the dissolution of the injunction by the Court, and an affirmance of the dissolution by the Court of Appeals. The appellant and Wetter were summoned--the former pleaded to the jurisdiction of the Court, that he was not a resident of Baltimore city, but was a resident of Baltimore county, and that no summons had been issued by the plaintiff against him in said county. On motion of the plaintiff the Court rejected the plea, and the defendant appealed. Wetter pleaded his discharge under the insolvent laws, and judgment was rendered for him. The appellant further pleaded that the determination of the Court of Appeals in regard to the injunction was not final, and on this plea issue was joined.

First Exception: At the trial, the plaintiff gave [**2]  in evidence the bill of complaint of Wetter against the appellee, Hardesty, asking for the injunction--the order for the injunction and the leases under which the rents were reserved, and then offered to read the injunction bond which was filed in said case; to the reading of this bond, the defendant objected, on the ground that the order granting the injunction did not require such a bond. The Court overruled the objection and the defendant excepted.

Second Exception: The plaintiff then offered in evidence the mortgage from Wetter to Ward, and the auditor's account in the case of Ward vs. Wetter, to foreclose said mortgage. The defendant objected. The Court overruled the objection, and the defendant excepted.

Third Exception: The plaintiff then offered to read to the jury the injunction bond given in the case of Wetter vs. Hardesty, being the bond on which this suit was instituted. The defendant objected to its admissibility. The Court overruled the objection and the defendant excepted.

Fourth Exception: The plaintiff then read to the jury the injunction bond, the order of the Superior Court dissolving the injunction, and the order of the Court of Appeals affirming [**3]  such dissolution; he then produced the record in the case of Ward vs. Wetter, from which it appeared that the claim of Hardesty was not paid in full; and proceeded to show the rental value of the mortgaged property during the time when the injunction had suspended its sale; but the defendant, insisting that an approved appeal bond had been given on the dissolution of the injunction, objected to any evidence being given of any damage that occurred after the approval of the appeal bond. The Court overruled the objection and the defendant excepted.

Fifth Exception: The plaintiff then gave in evidence the papers in the distraint, which the injunction had restrained, and proved that at the time the injunction issued there was sufficient distrainable property on the premises to satisfy the rent thereon, and that afterwards it had been removed to evade the distraint, after the injunction had been dissolved. The defendant then gave in evidence the inventories of the property and the valuation thereof when taken by the sheriff; the plaintiff then was asked by his counsel, what amount of the proceeds of the property distrained, he received from the sheriff? but the defendant objected to [**4]  the question. The Court decided that the question might be asked, and the defendant excepted.

Sixth Exception: The plaintiff offered the following prayer:

If the jury shall find from the evidence, that Hardesty was obliged to pay, and did pay, the prior landlord a sum due on said premises for one year's rent in arrear, greater than the value of the goods by him, said Hardesty, distrained, less the expenses legally attending the sale thereof, then said defendant is, in that case, not entitled to any credit for the amount of property so taken, without deducting therefrom the one year's rent due said prior landlord at the time of his, said Hardesty's, distraint, if they find that said prior landlord gave the notice of each back rent, duly verified by affidavit, as given in evidence, and also the legal expenses incidental to such distraint.

And the defendant prayed the Court to instruct the jury as follows:

1st. That in the calculation, whatever verdict the jury may find, should it be for the plaintiff, they are to allow credit for the value of the property taken in distraint, as shown by the inventories offered in evidence, subject to a proper deduction for all legal [**5]  costs.

2d. That the jury are to infer that all the property on the premises, spoken of in the evidence, which was liable to distress, had been taken by the sheriff, under the two writs of distress offered in evidence, at the time the writs of distress were levied.

3d. That the jury are to assess no damages against the defendant for losses alleged to have occurred by reason of the plaintiff's having been restrained from collecting the rents, unless they find that some property, subject to distress, was upon the premises subsequent to the 16th of July, 1860, and that they are not permitted to find that there was any such property, except from affirmative evidence, and then only to the value of the property that might have been so found upon the premises.

The Court granted the prayer of the plaintiff, and the third prayer of the defendant; it also granted the first prayer of the defendant, with the qualification in the plaintiff's prayer. The second prayer of the defendant was admitted. To the granting of the plaintiff's prayer, and to the refusal to grant the defendant's first prayer without the qualification, and to the qualification itself, the defendant excepted; and [**6]  the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Plea of Non-residence -- Estoppel -- Order directing an Injunction -- Liability of an Injunction Bond -- Practice.

A person sued out of the county in which he resides, may plead his non-residence formally, by way of a plea in abatement.

A surety in an injunction bond, which recited that the injunction was ordered to be issued "on the complainant's filing with the clerk of the Court, a bond executed by himself and a surety or sureties, to be approved by the Court," &c., cannot, in an action against himself on the bond, object to its admissibility in evidence, on the ground that it does not appear that the order granting the injunction required a bond to be given. Having signed and sealed the bond, he is estopped from denying it.

An order directing an injunction to issue is not to be treated as a nullity, because it did not specifically define the matter upon which the writ was to operate. The order must be construed with reference to the prayer and object of the bill upon which it was granted.

An injunction having been ordered, the bond was filed and approved on the 16th of November, 1858, and the injunction was dissolved on the 16th of May, 1869. An appeal was taken from the order of dissolution, and an appeal bond executed on the 19th of May, 1859, and approved on the 24th of the same month. The order of dissolution was affirmed in the Court of Appeals on the 30th of May, 1860. HELD:

That the injunction bond was liable for the damages that accrued to the defendants in the proceedings, by reason of the delay and obstruction of his rights during the pendency of the appeal; and that the appeal bond was only cumulative security to the injunction bond, except as to the costs on the appeal, for which the appeal bond alone was answerable.

Where there is no evidence to sustain the hypothesis of a prayer, it is properly rejected.  

COUNSEL:
Patrick M'Laughlin, for the appellant.

George H. Williams, for the appellee.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*352]  ALVEY, J., delivered the opinion of the Court.
The Code, Art. 75, sec. 87, provides that "no person shall be sued out of the county in which he resides, until the sheriff or coroner of the county in which he resides, shall have returned a non est on a summons issued in such county;" and in this case, the defendant, having tendered his plea, in the nature of a plea of abatement, at the appearance term, and before defence taken, with a proper affidavit as to its truth, alleging his non-residence in the city of Baltimore, and his residence in Baltimore county, and that no summons had been issued against him and returned in the county of his residence, we are at a loss to understand upon what ground such plea was rejected. If upon the ground that the privilege should have been availed of by motion, and not by plea, we think the Court was clearly in error. For while, by our practice,  [**7]  such privilege is generally allowed on motion, supported by affidavit, it does not follow that it may not be the subject-matter of a formal plea. And that such privilege is matter of plea, will abundantly appear from Chitty on Plead., 444, 458. We think, therefore, that the Court below was in error in rejecting the appellant's plea of non-residence.
The appellant's exception to the reading of the injunction-bond, on which the suit was brought, because it did not appear that the order granting the injunction required a bond to be given, cannot be sustained. For, without other proof of the terms of the order itself, the bond recites that the injunction was ordered to be issued "on the complainant's filing with the clerk of the said Court a bond, executed by himself, and a surety or sureties, to be approved by the Court," &c., and, having thus solemnly admitted the fact, under his hand and seal, he is precluded from denying it. He is estopped upon the question. Lloyd vs. Burgess, 4 Gill 187. And as to the idea that the order, directing the injunction to issue, is to be treated as a nullity, because it does not specifically define the 

 [*353]  matter upon which [**8]  the writ was to operate, we think that equally untenable. The order, of course, was to be construed with reference to the prayer and object of the bill upon which it was granted.
The object of the second, third and fourth exceptions would seem to be to raise the question as to the extent of the liability of the injunction-bond, sued on in this case.
The bond was filed and approved on the 16th of November, 1858, and the injunction was dissolved on the 16th of May, 1859. An appeal was taken from the order of dissolution, and an appeal bond executed on the 19th of May, 1859, and approved on the 24th of the same month. The order of dissolution was affirmed in the Court of Appeals on the 30th of May, 1860. Now, which of these bonds is properly liable for the damages that accrued to the defendant in the injunction proceedings, by reason of the delay and obstruction of his rights during the pendency of the appeal? It is contended by the appellant that the appeal-bond is exclusively liable, and that the liability of the injunction-bond is limited to the time of the order of dissolution appealed from. But that is not our conclusion.
Taking the appeal, and giving the appeal-bond, as required [**9]  by law, had the effect of staying and suspending the operation of the order of dissolution, and of leaving the order granting the injunction in full force, as if no order dissolving the injunction had passed. The defendant, in those proceedings, was not at liberty to proceed with the foreclosure of his mortgage, or the collection of his rents, during the pendency of the appeal, nor could he have sued the injunction-bond after the order of dissolution and before its affirmance by the Court of Appeals; for, after filing the appeal-bond, and, by that means, staying and suspending the effect of the order of dissolution, the injunction was as operative as ever. It was not until the order of dissolution was affirmed by the Court of Appeals, that the liability of the injunction-bond became fixed; and, though the appeal-bond was conditioned to prosecute the appeal 

 [*354]  with effect, and by breach of which the appellee became entitled to recover for damages sustained by reason of the appeal, it is but cumulative security to the injunction-bond, except as to the costs on the appeal, to which the appeal-bond alone is chargeable. The rulings of the Court in these exceptions are, therefore,  [**10]  affirmed.
As to the fifth exception, we can perceive no reason why the question asked the plaintiff, while being examined as a witness, was not proper. It was in reference to a fact very proper to be proved, and, if the answer to it were at all calculated to mislead the jury, as contended by the appellant, it could only have that effect because of a defective cross-examination.
The sixth exception taken to the granting of the appellee's prayer we have to sustain, because there is no evidence whatever in the record to sustain its hypothesis. Whether there was any evidence given on the trial, tending to prove that the appellee ever paid the prior landlord a sum due on the premises, for a year's rent in arrear, at the time of levying the distress, or to prove that notice was ever given, or demand made by such prior landlord of rent due, the record before us is wholly silent. And this is a defect not obviated by the Act of 1862, ch. 154. Mayor and C. C. of Baltimore vs. Poultney & Trimble, 25 Md. 18.
It follows that the judgment appealed from must be reversed, and a new trial awarded.
Judgment reversed and new trial awarded. 

122 of 142 DOCUMENTS 

JOSIAH LEE JOHNSTON and HENRY E. JOHNSTON vs. R. STOCKETT MATHEWS, Trustee and Garnishee of LOUIS HARRISON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 363; 1870 Md. LEXIS 43 

March 10, 1870, Decided 

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

The proceedings in this cause were commenced by a writ of summons against Louis Harrison and Samuel K. Davidson, as co-partners, and a writ of attachment against Harrison alone, as an absconding debtor; and a narr. was filed at the time of the issuing of the writs, declaring against Harrison and Davidson. The writ of attachment was laid in the hands of R. Stockett Mathews, to whom the defendants, Harrison and Davidson, had executed a deed of trust for the benefit of their creditors. Mathews appeared and pleaded non assumpsit for the defendant, and "nulla bona" on his own behalf. On these pleas issues were joined.

At the trial of the cause the plaintiffs proved that Harrison and Davidson were co-partners in the hat and cap business, and were indebted to the plaintiffs to the amount stated in the affidavit for the attachment; that before the institution of the proceedings in attachment, Henry E. Johnston, one of the plaintiffs, had endeavored to find the defendant Harrison, and had sent to his place of business several times, and to his house, but could not find him, and was told that he had gone away. Other evidence was introduced,  [**2]  which it is deemed unnecessary to state. The plaintiffs offered the following prayers:

1. If the jury find, from the evidence, that before the institution of this suit, the defendants borrowed the money mentioned in the evidence from the plaintiffs, then their verdict will be for the plaintiffs on the first issue joined.

2. If the jury shall believe, from the evidence, that at the time the affidavit on which the attachment in this case was issued, the defendant, Harrison, had absconded, or removed from his place of abode with intent to evade the payment of his just debts, then the attachment was properly issued against him.

3. If the jury shall find that the defendants, at the time of contracting the debt sued on, were co-partners, and so continued to the time of the execution of the deed of trust, and that they were insolvent at the time of executing said deed of trust, and that, at the time of executing said deed of trust, they had in their possession, secretly and without the knowledge of their creditors or of the trustee, a part of the partnership property or money for their own benefit, and that, in executing said deed, they designed that the money or property so [**3]  retained should not be distributed among or paid to their creditors, or any of them, and that they did so retain such money or other property, and that they intended that their creditors should only receive such part of their property as they surrendered to said trustee, under that deed, then said deed is not bona fide, but fraudulent and void; and if the jury find that there came into the hands of the trustee, before the attachment was laid in his hands, money or other property belonging to the said firm of L. Harrison, Davidson & Co., which is still in his hands, then the plaintiffs are entitled to recover on their second issue to the extent of their claim, which the jury must find, but not exceeding the amount of partnership assets so found in the hands of the garnishee.

4. That after the jury have, by the evidence, thrown a cloud upon the bona fides of the transaction of the deed of trust to Mr. Mathews, offered in evidence, then the plaintiffs are entitled to a verdict, unless the defendants, by testimony on their part, shall establish the bona fides of the deed, to the extent they may find due of the debt claimed in this action, from the defendants by the plaintiffs, if [**4]  any, should they believe that said Harrison absconded or fled from justice or secretly removed from his place of abode with intent to evade the payment of his debts, before the making of the affidavit on which the attachment issued.

5. That the jury may believe from the evidence in the case that at the time the defendants, Davidson & Harrison, made the deed of trust of the 18th of February, 1861, to the garnishee, Mr. Mathews, which is in evidence in the case, that the said Davidson & Harrison intentionally retained from the trustee any cash or property, or other valuable effects, other than they would be allowed to retain under the insolvent laws of the State of Maryland, and that if they intended to do so at the time of the making of said deed, and actually did so, then the said deed is void, and they will find a verdict for the plaintiffs for the amount they may find due from the defendants to the plaintiffs, as claimed in this action, at the time the affidavit for the attachment was made, provided they also believe that said Harrison had absconded or fled from justice, or secretly removed from his place of abode with intent to evade the payments of his debts, before the issue [**5]  of the attachment in this case.

The garnishee prayed the Court to instruct the jury as follows:

That there is no evidence from which the jury can infer any fraudulent intent on the part of the defendants in the execution of the deed to the garnishee, offered in evidence, if they find the execution thereof.

The Court granted the plaintiffs' first and second prayers, but rejected their third, fourth and fifth, and granted the prayer of the garnishee.

To the refusal of the Court to grant their third, fourth and fifth prayers, and to the granting of the prayer of the garnishee, the plaintiffs excepted, and the judgment being for the garnishee on the second issue, they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Attachment.

In an attachment against an absconding partner, for the recovery of a partnership debt, the other member of the firm having been returned "summoned," the assets of the firm cannot be attached and condemned. 

COUNSEL:
Patrick M'Laughlin and Charles Marshall, for the appellants.

The debt on which the suit was brought was a partnership debt. Although the attachment issued only against one partner, yet, being for a partnership debt, it could be levid on all joint property.

The absconding partner, for the purpose of paying debts, was the owner of all the property. Hinkley on Attachments, sec. 53 (new Ed.,) 74 (old Ed.;) Inburch vs. Farrell, 1 Black, 566; Parsons on Partnership,  [**6]  350, 351 and 352; Tappan vs. Blaisdell, 5 N. H., 193.

The reason of the rule that forbids the attachment of joint property for a separate debt of one partner, has no application in this case. Drake on Attachments, sec. 560.

The reasoning of the Court, in Berry vs. Harris, 22 Md., 30, supports this view. The effect of the attachment and condemnation will be to subject partnership property to a partnership debt, and for that purpose a partner has a full interest in the partnership property.

The surviving partner has such a legal estate in the joint assets, that they may be taken for his separate debt. This is because the law casts the whole legal estate on him, notwithstanding the equities under which he holds it. His estate in the assets cannot be more complete than the estate of either partner therein for payment of joint debts.

John Henry Keene, Jr., and William A. Fisher, for the appellees.

The rejected prayers of the plaintiffs were fatally defective in many particulars. The attachment was prosecuted against Harrison alone; and the rights of the attaching creditors, as between him and Davidson, were precisely the same as though the plaintiffs had been the [**7]  creditors of Harrison alone; but the prayers assume the right of the plaintiffs to condemn the funds of the partnership, in a procedure against Harrison only, to the full amount of the debt, although it was proven that the co-partnership was insolvent. The prayers can only be supported upon the theory, that whenever one member of a firm absconds, a firm creditor may summon the partners remaining, and issue his attachment against the absconding creditor, and withdraw the partnership property from the hands of the remaining partners.

Assuming the deed to be void, Mathews would be the debtor to the firm of L. Harrison, Davidson & Co., for the fund in his hands, and no condemnation could be had under an attachment against one member of the firm. Berry vs. Harris, 22 Md., 30.  

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

OPINIONBY:
GRASON 

OPINION:

 [*367]  GRASON, J., delivered the opinion of the Court.
Upon this appeal two questions are presented for our consideration; first, whether, in an attachment against one partner for the recovery of a partnership debt, the assets of the firm can be attached and condemned; and, second, whether there was error [**8]  in the withdrawal, by the Court below, of the question of fraud from the jury.

 [*368]  1st. A suit was commenced by the appellants against the firm of L. Harrison, Davidson & Co., and Davidson was returned summoned. Harrison had absconded, and an attachment, as auxiliary to the suit, was issued against Louis Harrison alone, and was laid upon the partnership assets only, as appears by the sheriff's return and the schedule thereto annexed. It was earnestly and ingeniously contended, in the argument of the case in this Court, that, as the debt was due by the firm, and as the partnership assets must be first applied to the payment of the partnership debts, the attachment against Harrison was properly laid upon the partnership assets, and that they were liable to condemnation. We cannot concur in this view of the case. One of the partners having been summoned in the suit, which was instituted against all the partners, there was a party in Court, a judgment against whom would have been effective against the whole of the effects and assets of the firm. 1 Black S.C. 569. This being the case, no attachment would lie against the absconding partner, except for the purpose of attaching [**9]  and condemning his individual property or credits. There was, therefore, no error in rejecting the third, fourth and fifth prayers of the appellants.
As this view of the case will prevent a recovery of their claim against the partnership, by attachment against the absent partners, it is unnecessary for us to enquire whether the deed of trust, executed by Harrrison & Davidson to the appellee, is fraudulent or not.
Judgment affirmed. 

123 of 142 DOCUMENTS 

C. R. BREWSTER and L. W. SPRATT vs. JOHN J. FRAZIER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 302; 1870 Md. LEXIS 35 

March 9, 1870, Decided 

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

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

Exception: The plaintiffs prayed the Court to instruct the jury as follows:

1st. That if the jury believe that the defendant, on the 3d of December, 1866, executed and delivered his promissory note to the plaintiffs, payable on the 25th of December, 1866, and at the same time delivered to the plaintiffs, as his attorneys, a certain bond and mortgage of J. Guerard Heyward, which they agreed to collect, and out of the proceeds, first, to reimburse themselves, for money advanced the defendant; and that from the nature of the case, the plaintiffs could not collect the amounts due on the said bond and mortgage before the maturity of the note, that then the plaintiffs are entitled to recover the amount of the note, with interest at seven per cent. per annum from maturity thereof.

2d. That if the jury believe from the evidence that the defendant executed and delivered to the plaintiffs the promissory note in suit, and at the same time, delivered to them, as his attorneys, a certain bond and mortgage of J. Guerard Heyward, for collection, as securities, for money [**2]  advanced on the said note, and that the plaintiffs have not realized on the said bond and mortgage; that then the plaintiffs are entitled to recover (without first exhausting the securities) the amount of the note, and interest thereon from its maturity, at seven per cent. per annum.

The Court, (SCOTT, J.,) rejected these prayers, and instructed the jury "that there was an entire contract between the defendant and the plaintiffs, and as it did not appear that the latter had made an effort to realize on the bond and mortgage, there was no evidence on which they could recover."

To the refusal of their prayers, and the instruction given by the Court, the plaintiffs excepted, and the verdict and judgment being against them, they appealed.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Separable Contracts -- Right of Action on a Promissory Note -- Diligence.

K, F and H, on the 3d of February, 1866, entered into an agreement for planting certain land on their joint account K was to furnish the land and medical attendance; H was to superintend the working of the plantation, and F was to furnish a certain sum of money during the first month, and as much more thereafter as he could procure, sufficient for carrying on the business. F advanced the stipulated sum, and H gave him a bond and mortgage as security for the same, and for such other sums as he might advance. On the 3d of December, 1866, F placed the bond, mortgage and contract in the hands of attorneys for collection, they to retain thereout, when collected, the sum of $ 300, advanced by them to F on the security of said bond and mortgage, the balance to be remitted to F. At the same time F gave them his promissory note for the sum so advanced, payable on the 25th of the same month, and executed a power of attorney, authorizing them to collect the several amounts due on the bond, mortgage and contract, The attorneys, not being able to realize anything on account of these claims, brought suit against F on the promissory note. HELD:

1st. That the promissory note, in itself, constituted a distinct and independent cause of action, and the possession of the bond, mortgage and contract, as collateral security therefor, in no way impaired the right of the plaintiffs to enforce its payment.

2d. That the right of the plaintiffs to recover did not depend upon the diligence exercised by them, as attorneys, in the collection of the several sums claimed to be due on the bond, mortgage and contract. If they failed to discharge their duty, and the defendant sustained damage therefrom, his remedy would be by an action at law.  

COUNSEL:
J. D. Ferguson and John A. Inglis, for the appellants.

The promissory note, the cause of action in this case, is a distinct and independent contract, complete within itself, pledging the personal responsibility of the defendant for the payment of the money named therein; and is not merely one part of an entire contract, of which the power of attorney and receipt of the same date constitute [**3]  the residue, and the instruction given by the Court was erroneous in this respect. Chitty on Contracts, 94; Mann vs. Witbeck, 17 Barb., 388; 2 Parsons on Contracts, 503.

The bond and mortgage, and contract mentioned in the receipt, were lodged by the defendant with the plaintiffs, as his attorneys, for collection, and the authority conferred in the power of attorney, and reserved in the receipt, to apply the first moneys realized from such collection in payment of the sum then lent and advanced by the plaintiffs, only gave them a lien on this specific property of the defendant in their hands, as an independent security, additional and collateral to the pledge of personal responsibility made by the promissory note, and did not impair or affect the right of the plaintiffs to pursue and enforce that personal responsibility, so long as it did not appear in evidence that they had, in fact, been paid from the specific security, and the plaintiffs' first prayer should, therefore, have been granted. So. Sea Co. vs. Duncomb, 2 Strange, 919; Lawton vs. Newland, 2 Starkie, 72; Emes vs. Widdowson, 4 C. & P., 151; Elder vs. Rouse, 15 Wendell, 218; Granite Bank vs. Richardson, 7 Metc., 407;  [**4]  Bank of England vs. Glover, 2 L. Raymond, 753; Lingan vs. Henderson, 1 Bland, 282; Andrews vs. Scotton, 2 Bland, 665; Wilhelm vs. Lee, 2 Md. Ch. Dec., 322; Brown vs. Stewart, 1 Md. Ch. Dec. 92.

The deposit of the bond and mortgage and contract, with power of collection and application, even if made for the particular purpose of giving the plaintiffs the specific security of this property for the re-payment of the money advanced, only constitute a lien, as an independent security additional and collateral to the personal responsibility pledged in the promissory note, and did not limit, impair or affect the right of the plaintiffs to pursue and enforce that responsibility, so long as payment had not, in fact, been obtained from the specific security, and the plaintiffs' second prayer should have been granted. 3 Parsons on Contracts, 372; Chitty on Contracts, 658; Story on Bailments, sec. 315.

If the promissory note sued on, the power of attorney and the receipt, constituted together one entire contract, and the sum advanced by the plaintiffs was an anticipated payment of the proceeds of collections to be made, the circumstances as appearing in evidence relieved the plaintiffs [**5]  of any obligation to make "an effort to realize on the bond and mortgage" by legal proceedings, before resorting to the defendant's personal responsibility, inasmuch as they evince that any such legal proceedings would have been unavailing, and there was evidence to go to the jury of the diligence of the plaintiffs, otherwise than by legal proceedings, and the instruction of the Court in this respect was erroneous. Beckwith vs. Sibley, 11 Pick., 482; Upham vs. Lefavour, 11 Metc., 174; Frothingham vs. Everton, 12 N. H., 239.

John S. Tyson, for the appellee.

There was an entire contract between the defendant and the plaintiffs; and the Court below, if in error at all in its instructions to the jury, erred in basing those instructions on the absence of proof of an effort on the part of the plaintiffs to realize on the bond and mortgage. For, the payment of the $ 300.00 was not dependent on an effort to collect the mortgage claim, but on success in collecting it, at least to the amount of $ 300.00. In other words, if there was an entire contract, and the mode of payment prescribed in the contract has failed, then there is no other method of obtaining payment. For, the defendant [**6]  had a right to require, as he did require of the plaintiffs, an advance of $ 300.00, as a security to him for the faithful discharge of the duties assumed by them, presuming that, as they could not be repaid until they had collected at least $ 300.00 of his claim, they would use due diligence in collecting it.

There are several objections to the plaintiffs' prayers. Both prayers ask for interest at seven per cent., when no evidence was offered of any law of South Carolina fixing legal interest at that rate. Code of Public General Laws, Art. 37, sec. 47.

The first prayer omits the statement "that the plaintiffs have not realized," which is considered necessary in the second prayer, and is a material fact. It does not state a conclusion of law, but only an argument on the facts, and on this ground (being argumentative) it was rightly rejected. Also, it leaves to the jury to find the effect of the written agreement, which is for the Court to decide.

The second prayer omits the statement "that the plaintiffs agreed to collect, and out of the proceeds to reimburse themselves," which is considered necessary in the first prayer, and is a material fact, and it leaves to the [**7]  jury to decide "that the plaintiffs have not realized," of which there is no evidence whatever.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*306]  ROBINSON, J., delivered the opinion of the Court.
On the 3d of February, 1866, the appellee entered into an agreement with J. Guerard Heyward and Dr. J. W. Kirk, of South Carolina, to plant on their joint account, "Rose Hill Plantation," for the season of 1866. Dr. Kirk was to furnish the land and medical attendance. Heyward to superintend the planting interest, and the appellee to furnish fifteen hundred dollars during the first month and as much more afterwards to carry on the business as he could procure. To secure the appellee against loss by such advances, Heyward agreed to give him a bond and mortgage on real estate situate in said State. The appellee advanced fifteen hundred dollars, and Heyward executed his bond and mortgage in pursuance of the agreement.
On the 3d of December, of the same year, the appellee placed the bond, mortgage and contract in the hands of the appellants, plaintiffs below, for collection, and took from them the following receipt:  [**8]  

 [*307]  "CHARLESTON, 3d Dec., 1866.
"Rec'd from John J. Frazier, Esq., for collection, a bond and mortgage of J. Guerard Heyward to him, dated 12th of Feb'y, 1866, for sixteen hundred dollars, and also a claim arising under a contract between him and J. G. Heyward and Dr. J. W. Kirk, dated Feb'y 3, 1866, and out of the collections we are to retain the sum of three hundred dollars, which we have advanced to him on the security of said bond and mortgage, left with us, and to remit the balance to said J. J. Frazier.
"BREWSTER & SPRATT."
At the same time the appellee executed the following promissory note:

"$ 300.   CHARLESTON, 3d Dec., 1866.
"On the twenty-fifth day of December, 1866, I promise to pay to the order of Messrs. Brewster & Spratt, three hundred dollars, for value received.
"JNO. J. FRAZIER."
He also executed a power of attorney authorizing them to collect the several amounts, due on the bond, mortgage and planting contract, and out of the proceeds thus collected, first to pay the note of $ 300, and the balance to be remitted to the appellee. Not being able to realize anything on account of these claims, suit was brought by the appellants on the promissory [**9]  note of $ 300.
It is insisted by the appellee, that the receipt, power of attorney and note, constitute an entire contract, by which the appellants agreed to look exclusively to the collections to be made on the bond, mortgage and planting contract, for the payment of the three hundred dollars thus advanced, and that they have no right therefore to maintain this action upon the promissory note.

 [*308]  The question, whether a contract is entire or separable, is sometimes one of difficulty, and no precise rule can be laid down to embrace every case. "Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract." 2 Parsons on Contracts, 677.
Apart from all other evidence, it will be admitted in this case, that the promissory note pledged the personal responsibility of the appellee, and, in itself, constituted a distinct and independent cause of action. If so, can the receipt and power of attorney be construed as a waiver, by the appellants, of this personal responsibility, and an agreement to look only to the collections [**10]  for the payment of the money advanced? We think not. The result of the planting enterprise had not been ascertained at the date of these transactions, and, as was justly remarked by counsel for the appellants, all parties doubtless expected to realize, from the appellee's interest in the crop, a sum sufficient to re-pay the money advanced. But it must be borne in mind, that the note was payable twenty-two days after date, and it could hardly be expected that, within the time thus specified, they could enforce the payment of the bond by judgment and execution on the mortgage by a decree and sale. Nor is there anything in the correspondence between the parties, subsequent to the date of these transactions, from which it can even be inferred that the understanding was, that the appellants were to look exclusively to the collections. In their letter of January 11th, 1868, they explicitly demand the payment of this note, and it is nowhere claimed by the appellee in his reply, that the money was advanced on any such agreement. We think, therefore, it is clear, not only from the face of the papers, but from the other testimony in the cause, that the lien on the collections arising from [**11]  the bond, mortgage and contract, was given, and received by the appellants as collateral security for the money advanced. If so, in the absence of an agreement to the contrary, the possession 

 [*309]  of the additional or collateral security could not impair or affect the appellant's right to pursue and enforce the payment of the promissory note so long as it did not appear in evidence that they had been paid from the specific lien, and if paid, the burthen of proof was upon the appellee.
The plaintiffs' right to recover in no manner depended upon the question of diligence exercised by them as attorneys in the collection of the several sums claimed to be due on the bond, mortgage and contract. If they failed to discharge their duty, and the appellee sustained any damage therefrom, his remedy would be by an action at law.
The prayers, however, of the appellants were properly refused, because they submitted to the jury the legal effect and operation of the note, receipt and power of attorney. This was a question of law, to be determined by the Court. They should have left to the finding of the jury the execution of these papers,--the legal liability of the appellee necessarily resulted [**12]  therefrom. Moreover, there was no proof offered in regard to the rate of interest in South Carolina.
It must follow, from what we have said, that the Court erred in instructing the jury that the note, receipt and power of attorney, constituted an entire contract, and that the plaintiff was not entitled to recover, because it did not appear from the evidence that any effort was made to realize the money thereon. The judgment must be reversed and a new trial awarded.
Judgment reversed and new trial awarded. 

124 of 142 DOCUMENTS 

THE WESTERN MARYLAND RAILROAD COMPANY vs. GEORGE W. MANRO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 280; 1870 Md. LEXIS 32 

March 8, 1870, Decided 

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

This was an action instituted by the appellant to recover from the appellee on a subscription to its capital stock.

Exception: The plaintiff offered in evidence the Acts of Assembly of 1852, ch. 304, 1853, chs. 37 and 363, 1856, ch. 289, and all subsequent Acts by way of amendment or supplement to the Act of 1852; and a book of subscriptions, containing the subscription of the defendant. The plaintiff then proved by J. Henry Hoppe, a competent witness, that he was the first acting treasurer for the commissioners named in the Act of 1852, and prior to the organization of the plaintiff, which took place on the 14th of February, 1853; that the subscription book to the capital stock of the plaintiff offered in evidence was in the hands of the late Jacob Mathias, who was one of the commissioners, and took the subscription of the defendant; that said book was returned to the subscribers at a meeting called by the commissioners, February 14th, 1853, when the books were returned to the subscribers. The plaintiff then offered to prove by the same witness, that shortly after the date of the subscription offered in evidence, Mathias handed [**2]  to the witness the sum of five dollars, and that Mathias then said to witness that the defendant had paid to him the said sum of five dollars for and on account of the subscription of stock, at the time of making it. The defendant objected to the admissibility of the declarations of Mathias made to the witness. The Court sustained the objection, and the plaintiff excepted. The judgment being for the defendant, the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Declarations of a Deceased Person as Evidence.

An action was brought by a railroad company to recover on a subscription to its capital stock. It being necessary to prove the payment by the defendant of one dollar upon each share of stock at the time of his subscription, the plaintiff offered in evidence the declarations of a person then deceased, who was one of the commissioners authorized to receive subscriptions to its stock, and who did take the subscription of the defendant for five shares. The offer was made to prove by a witness, who was the first acting treasurer for the commissioners, that shortly after the date of said subscription, the deceased commissioner handed to him five dollars, and said that the defendant "had paid him (the commissioner) the said sum of five dollars for and on account of the said subscription of stock at the time of making the subscription." HELD:

That this evidence was not admissible either as the declarations of a party, since deceased, made against his pecuniary interest, or made in the ordinary course of duty. 

COUNSEL:
William A. Fisher, for the appellant.

The evidence was improperly excluded, for two reasons:

1st. The declaration of Mathias was one against his pecuniary interest; and was, after his decease, admissible for that reason. Higham vs. Ridgway, 1 East., 109 and English notes to Higham vs. Ridgway, in 2 Smith's Lead. Cases, 330, (margin;) Middleton vs. Melton, (per BARON PARKE,) 10 Barn. & Cress., 317; 1 Greenleaf on Evidence, secs. 147, 148 and 150; Peaceable vs. Watson, 4 Taunt., 16; Ivatt vs. Finch, 1 Taunt., 141; Stapylton vs. Clough, 2 Ellis & Blackburn, 936, 937 and 938; Union Canal Company vs. Lloyd, 4 Watts & Serg., 394.

2d. Mathias was one of the commissioners to take subscriptions named in the Act of Assembly [**3]  incorporating the company, and his declaration, made in the course of his official duty, in paying over money received in the act of taking subscriptions, was admissible. Stapylton vs. Clough, 2 Ellis & Blackburn, 936-8.

For the appellee, the cause was submitted on the brief of the Hon. WM. P. MAULSBY, filed previous to his appointment as Judge.  

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

OPINIONBY:
BRENT 

OPINION:

 [*282]  BRENT, J., delivered the opinion of the Court.
We have carefully examined the authorities cited in the argument of this case, and do not think that they furnish any support for the admissibility of the evidence which was offered and rejected by the Court below. To enable the appellant to recover the amount of stock subscribed by the appellee, it was necessary under the decision in Taggart vs. The Western Maryland Railroad Co., 24 Md. 563, to prove the payment by the appellee of one dollar upon each share of stock at the time of his subscription. To prove this payment the declarations of Jacob Mathias, then deceased, were offered in evidence. He was one of the commissioners authorized to receive subscriptions [**4]  to the stock of the Baltimore, Carroll and Frederick Railroad Company, afterwards changed by the Act of 1853, ch. 37, to the name of the appellant, and did take the subscription of the appellee for five shares. The offer was made to prove by a witness, who was the first acting treasurer for the commissioners, that shortly after the date of the above subscription, Mathias handed to him five dollars, and then said to him that the appellee "had paid him (Mathias) the said sum of five dollars for and on account of the said subscription of stock at the time of making the subscription."
It is contended that this evidence was admissible upon the ground that it was the declaration of a party, since deceased, made against his pecuniary interest. We have been referred to a number of authorities upon this point, and especially to the case of Higham vs. Ridgway, 1 East., 109. While its conclusion has been acquiesced in, a great deal of learning has been exhausted in subsequent cases in discussing the reason and application of its doctrine. It is unnecessary to review in this opinion these decisions, and examine the soundness of the distinctions established by some of them, to enable us [**5]  to reach a correct conclusion upon the question of the admissibility of the evidence offered in the present case. The general rule in regard to the declarations of a person, since deceased, was conceded; and it is this, to render them 

 [*283]  admissible against third persons, "it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest." 1 Greenleaf Ev., sec. 147. The first and second requirements are fully established in this case, but was the declaration against or at variance with the interest of the declarant? All the authorities concur that this interest must be a pecuniary one, and it is equally certain that such an interest must be made to appear affirmatively. How the declaration offered was against the interest of Mathias we have been unable to discover. It did not create a debt or establish any liability on his part to pay a sum of money to any person or body corporate. It did not furnish any ground, or pretext even, upon which he might have been sued or proceeded against either in law or equity. He paid the money, spoken of, to [**6]  the treasurer for the commissioners, who was the proper party to receive it, and thereby cancelled any claim which had or could have existed against him for its payment; and not until then did he make the declaration that he had received it from the appellee. It is true that the very fact of the payment over of the money in itself may corroborate the declaration as to the person from whom he received it, and may create the strongest presumption of the "extreme improbability of the declaration being untrue," yet it is not sufficient to gratify the stringent requirement of the rule. The declaration must be against the interest of the party making it, otherwise it is wholly incompetent and inadmissible where the rights of third parties are to be affected.
Another ground, upon which it is claimed the declaration offered was admissible is, that it was made in the ordinary course of duty. The case of Stapylton vs. Clough, 2 Ellis & Blackburn 933, is relied upon in support of this position. It would be straining that case very far to admit this testimony upon its authority. While it recognizes the doctrine that declarations, whether by word of mouth or by writing, of a 

 [*284]   [**7]  person deceased, are admissible, if made in the ordinary course of duty, the oral declaration there offered was held to be inadmissible because it did not appear to fulfil the condition required. COLERIDGE, J., says, page 938, "the admissibility is an exception from the general law of evidence, allowed upon the ground that credit may be given to what is done in the ordinary discharge of a duty. Unless an act be done in the ordinary course of business, it is not done in the ordinary discharge of the duty. You must, therefore, lay the foundation for the admission of the evidence by showing that the act was done in the ordinary course of business." No evidence has been offered to show that the declaration in this case was made in the ordinary course of business, and we presume none such could have been offered. It has never been held, and is not yet the law, that any declaration is admissible because it was made while in the discharge of a duty, but it must be such as enters into and forms a part of the ordinary course and routine of the particular business as it is usually conducted and carried on. Had there been an entry by Mathias of the payment by the appellee, in his stock subscription-book,  [**8]  it might then have been claimed that such an entry was admissible, because, in the usual and ordinary course of duty. But, it cannot be presumed that it was in the ordinary course of his duty to make oral declarations of such payment. Equally as reasonable would be the presumption that it was his duty to declare orally who had taken shares of stock.
We do not think the testimony offered was competent, upon either of the grounds claimed, for its admissibility. The declaration was neither against the interest of the declarant nor made in the ordinary course of duty. It was, therefore, properly rejected, and the judgment of the Court below will be affirmed.
Judgment affirmed.
BARTOL, C. J., and ROBINSON, J., dissented.  

125 of 142 DOCUMENTS 

GEORGE W. DAVIS vs. THE WEST SARATOGA BUILDING UNION, NO. 3.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 285; 1870 Md. LEXIS 33 

March 8, 1870, Decided 

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

The appellant purchased from Henry Brocker, a broker, a promissory note, dated 21st of December, 1868, for $ 600, drawn by the appellee, payable, three months after date, to the order of William Heck, and by him endorsed. The note was signed by the officers of the appellee, who had before signed and issued notes which had been paid by the appellee, and it had been the habit for notes to be given in the same manner and paid at maturity. Heck had previously executed to the appellee a mortgage, and instead of receiving the money had taken its promissory note for $ 1,200; when this note was about to become due, the note upon which this suit was brought, together with another note of the same amount were drawn, payable to the order of Heck, and by him endorsed, and delivered to Brocker, with the intention of having them discounted for the purpose of raising the money to pay the note given to Heck, as aforesaid. Brocker received the money from the appellant, but never paid it over. This note was protested for non-payment at maturity, and suit was instituted thereon by the appellant.

Exception. The plaintiff offered the following prayer, which [**2]  was rejected by the Court:

"If the jury believe from the evidence that the note sued upon in this case was signed by Leonard Myers, August Conradas and William Heck, that they were at the time of said signing the president, treasurer and secretary of Saratoga Building Union, No. 3, and that said note was issued for the purpose of raising money to pay the obligations of said Union, which had been given to a member who borrowed money from it, for the return of which he had executed a mortgage to said Union, and that the said note was endorsed by William Heck, the payee, and then sold by a broker or agent of defendant to whom it had been delivered by the said officers to the plaintiff, and that the plaintiff is the holder thereof in good faith, for value paid by him therefor, then the plaintiff is entitled to recover."

The defendant offered four prayers--three were rejected and the following, the first, was granted:

That the paper writing, bearing date the 21st of December, 1868, and signed by Leonard Myers, President, August Conradas, Treasurer, and Wm. Heck, Secretary, filed in the proceedings as the plaintiff's cause of action, is not in law the promissory note of the [**3]  defendant, and the plaintiff cannot recover upon it.

The Court also verbally instructed the jury "that there was no evidence in support of the plaintiff's claim, and they must therefore find for the defendant." To the rejection of his prayer, and the granting of the defendant's first prayer, as also to the verbal instruction given by the Court, the plaintiff excepted; and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed, and new trial awarded.  

HEADNOTES:

Right of a Building Association to issue its Promissory Note -- A bona fide holder of a Note for value, without Notice.

The West Saratoga Building Association, became incorporated under the general Corporation Law, "for the accumulation of a fund by the savings of the members thereof, sufficient to enable them to purchase for themselves respectively, real or leasehold property, and generally for the purpose of a building association, and subject in all particulars to the limitations relating to corporations, which are contained in the general laws of the State." A member of the association obtained from it a loan, secured by a mortgage; but instead of receiving the money, took its promissory note for the amount. When this note was about to become due, the association drew two notes, signed by its officers, with the intention of having them discounted, for the purpose of raising money to pay the first note. One of these notes was discounted, through the agency of a broker, and not having been paid at maturity, was protested and suit was instituted thereon by the holder. HELD:

1st. That the Building Association was authorized under its charter, to issue the promissory note sued on.

2d. That if the note were transferred before its maturity, for a valuable consideration to the holder, who received it bona fide, without knowledge of any restrictions imposed upon its disposition by the makers, he was entitled to recover thereon, notwithstanding they may have been deceived and defrauded by the broker through whose agency it was discounted. 

COUNSEL:
Samuel Snowden, for the appellant.

A building association, incorporated under the law of 1868, ch. 471, can make and issue a promissory note for some purposes. Corporations must act within the powers conferred upon them by the organic law under which they are incorporated. These powers are divided into principal or express powers, which are such as are expressly conferred upon it by its charter, and are therefore easily ascertained by examination of that instrument; and accessory or incidental powers, which are such as are usual and necessary to carry into effect the purposes for which it was established, and to attain the object of its creation. Wellesburg & N. P. R. Co. vs. Young, 12 Md., 477; Mayor,  [**4]  &c., of Balto. vs. Balto. & Ohio R. R., 21 Md., 91.

The Act of 1868, ch. 471, sec. 48, enlarges the common law rule, and enacts "that the corporations formed thereunder may do every act or thing not inconsistent with law which may be necessary or proper to promote the objects, designs and purposes for which they may be formed." And if the means employed are reasonably adapted to ends for which the corporation was created, and tend directly to their accomplishment not amounting to the transaction of a separate, unauthorized business, they come within its implied powers. Wilwarth vs. Crawford, 10 Wend., 342; Madison & Plank R. Co. vs. Watertown & Plank R. Co., 5 Wis., 173; Clarke vs. Farrington, 11 Wis., 306; Angell & Ames on Corporations, ch. 8, sec. 12. And these implied powers must be performed by its agents. Smith vs. Eureka Flour Mills, 6 Cal., 1; Strauss vs. Eagle Ins. Co., 5 Ohio (N. S.) 59. And unless restrained by their charters, corporations have the right to contract debts, make notes and accept drafts, as incident to the particular business in which they are authorized to engage. Ketchum vs. Buffalo, 14 N. Y., 356; Rockwell vs. Elkham Bank, 13 Wis., 653. The making of [**5]  a promissory note is incident to every corporation. Lucas vs. Pitney, 3 Dutch., 228.

It has been decided that a company formed for the manufacture of glass--Mott vs. Hicks, 1 Cowen, 513; an Insurance Company, Barker vs. Mechanics' Ins. Co., 3 Wend., 96; a Mining Company, Mass. vs. Oakley, 2 Hill, (N. Y.,) 265; a Commission Company, Munn vs. Commission Co., 15 Johns., 44--may make and issue promissory notes. In all these cases, the power to issue the note was implied.

It is not contended that the right to issue a promissory note is within the express terms of the act of incorporation, but, "that it is a power not inconsistent with law, and necessary and proper to promote the objects, designs and purposes" for which it was formed, and is therefore implied. The appellee was formed, as is declared in its certificate, for the purpose of the accumulation of a fund, by the savings of its members, sufficient to enable them to purchase for themselves, real or leasehold property, and generally, for the purpose of a building association. By sec. 87 of the law, a corporation formed for a building asociation, "may, at any time, in advance of the period of time at which such corporation [**6]  may cease to exist, according to the plan contained in the original articles of association, advance to any member thereof, for such premium as may be agreed upon, the sum which he would be entitled to receive upon the dissolution of the corporation, or may purchase his shares," &c.

Where a corporation can lawfully contract a debt, it may make and issue its promissory note for the payment thereof--Abbott's Digest of Cor., page 116, secs. 1 and 4, and authorities there cited. The issuing of a promissory note is a means reasonably adapted to the ends for which the association was formed, and tends directly to their accomplishment, and there is nothing in the law under which it is incorporated, or in its constitution, which prohibits the exercise of this power.

The promissory note sued upon in this case, being signed by the officers of the appellee, to whom are entrusted, by its constitution, the management of its fiscal concerns, is prima facie the note of the Union. Frye vs. Tucker, 24 Ill., 180; Elwell vs. Dodge, 33 Barb., 336; Downing vs. Mt. Wash. Co., 40 N. H., 230. No seal is required in order to bind the corporation. Angell & Ames on Corp., 174; Abbott on Corp., 723,  [**7]  sec. 15; Union Bank vs. Ridgely, 1 H. & G., 326.

If it be, and the appellant thinks that it is, within the implied powers of the appellee to borrow money for the express purpose of accommodating its borrowers--to issue promissory notes to its members instead of money, upon receiving from them mortgages upon real or leasehold property--to contract a debt for the paymont for shares purchased by it from its members, or to pay for withdrawals--then it may lawfully make its promissory note for any of these purposes, and the note sued upon being made and issued for the purpose of raising money to pay a debt already incurred for an advance to one of its members, is the valid and binding contract of the Union, and the written and verbal instruction of the Court below is therefore erroneous.

If, then, the appellee has the power to issue a note for any purpose, the bona fide holder of its notes before maturity is not bound to ascertain whether they were issued for a lawful purpose. For where a corporation has power under any circumstances to issue negotiable securities, the bona fide holder thereof has a right to presume that they were issued under the circumstances which give the [**8]  requisite authority, and they are no more liable to be impeached for any infirmity in the hands of such a holder than any other commercial paper. The Royal British Bank vs. Turquand, 88 English Com. Law Rep., 326; Gelpeke, et al. vs. City of Dubuque, 1 Wall., 175, [203]; Commissioners of Knox County vs. Aspinwall, 21 Howard, 539; Farmers' Loan and Trust Company vs. Curtis, 3 Selden, 466.

The appellant being a bona fide holder, comes within the rules of law in reference to such, which are so well settled. Story on Prom. Notes, (Ed. 1868,) secs. 195 and 196 and notes; 1 Parsons on Bills and Notes, secs. 254, 255.

Edw. W. Salmon, for the appellee.

The prayer offered by the plaintiff below is defective in two respects particularly:

1st. In assuming that Myers, Conradas and Heck, the signers of the paper writing sued on were the agents of the defendant, and authorized to sign on its behalf.

2d. In assuming that the said paper writing was sold by a broker or agent of the defendant.

There is no proof in the cause that the signers of the note were authorized to do so, nor is there any proof that it was sold by a broker, or by an agent of defendant. On the contrary,  [**9]  the proof is distinct and clear that Brocker, to whom the note was delivered, was authorized, not by the appellee, but by Myers, Conradas and Heck, to ascertain and find out some person who would discount said note, and report the name of such person, who would be willing to discount it to them (the signers of said note,) or to either of them, and that such only was the authority conferred by them on said Brocker. Without authority, therefore, he sold the note to the appellant at the ruinous rate of fourteen and a half per cent.

It is clear, from the testimony, that Brocker exceeded the authority conferred upon him by the signers of the note. And "whoever deals with a special agent is bound to acquaint himself with the limitation and extent of the authority conerred upon him, and acts at his own peril." Story on Contracts, sec. 384; Mayor, &c., of Baltimore vs. Reynolds, 20 Md., 1.

The appellant had ample time, between the 19th (the day on which the note was first brought to him) and the 21st, the day on which he bought it, to acquaint himself, by proper inquiry, as to the limitation and extent of Brocker's authority. There is not the slightest evidence that he made any inquiry [**10]  or used any means so as to acquaint himself. He purchased the note without the least caution on his part, and with every facility within his power for acquainting himself with the real state of the case.

As to the right of Davis to maintain an action on the note, reference may be had to Byles on Bills of Exchange, 16 Law Library, 92, 93.

Was the Court below right in granting the first prayer of the defendant?

The position which the appellee seeks to maintain under its first prayer, and which was granted by the Court below, presents for consideration the question whether the West Saratoga Building Union, No. 3, is legally bound by the promissory note sued upon in this case.

The note sued upon is not under the seal of the corporation, and the power to issue notes not having been given by Statute, the appellee is not bound thereby. 1 Leigh's N. P., 7.

The appellee was incorporated under the Act of 1868, ch. 471, and possessed the powers specially conferred by its charter, under that Act, and subject to the restrictions also imposed by the Act.

The corporation was formed for the "accumulation of a fund by the savings of the members thereof, sufficient to enable [**11]  them to purchase for themselves, respectively, real or leasehold property, and generally for the purpose of a Building Association." This is the object, purpose and condition under which only they have, by section 40, become a corporate body. It constitutes the compact made by the corporation with the members. By it they are assured that the "savings of the members" was to constitute the only source for the accumulation of the fund for the purchase for themselves of real or leasehold property. Not one word is therein used which, even by implication, can be construed so as to justify the issuing of notes, and having them discounted, whereby to obtain the accumulation of a fund.

The Legislature has effectually guarded against the exercise of any such power as that claimed, by providing (section 51 of the Act of 1868) that "no corporation shall possess or exercise any corporate power, excepting such as is conferred by law, and such as shall be necessary to the exercise of the powers so acquired." And it cannot be seriously contended that the issuing of notes to be discounted, at a most ruinous rate of interest, could be necessary for the object of the charter, to wit: the accumulation [**12]  of a fund from the savings of the members.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MAULSBY, MILLER and ROBINSON, J.  

OPINIONBY:
STEWART 

OPINION:

 [*292]  STEWART, J., delivered the opinion of the Court.
The note, upon which the appellee in this case was sued, purports to be a negotiable instrument, signed by certain persons, professing to be the officers of the West Saratoga Building Union, No. 3, and payable to Heck, who endorsed the same, and it is alleged was passed to the appellant, the plaintiff below, for a valuable consideration before maturity. There was proof tending to show that the parties who signed the instrument, were the president, treasurer and secretary of the corporation, and that they had before issued notes of the same sort, one of which the appellant had received, and which was paid.
The note in question, it appears, was drawn with a view of raising money to meet an antecedent obligation, which the company had incurred for one of its members, to whom it had loaned money and taken a mortgage to secure the re-payment.
It is maintained by the appellee, that as a corporation it was not authorized by its charter to issue the promissory note in question,  [**13]  and that the officers of the company, who issued the note, transcended their powers in doing so; and secondly, that the note was entrusted to Brocker, with the date left blank, to prevent its negotiability, merely for the purpose of 

 [*293]  ascertaining if the money could be obtained upon the note, and to make report to the officers to that effect, but that he was not authorized to transfer the note to the appellant or other party.
If these officers of the company had the power to issue the note, and did do so, and placed it in the hands of Brocker, with special instructions as to the use to be made of it, and the note was transferred by Brocker to the appellant, before its maturity, for a valuable consideration, who received it bona fide, without knowledge upon his part of the restrictions imposed upon the party by the makers of the note, he is entitled to recover thereon, as an innocent holder who had purchased the note for value, although the officers of the company may have been deceived and defrauded by the party to whom they had confided the note.
"A bona fide holder for value, without notice, is entitled to recover on any negotiable instrument, which he has received [**14]  before it became due, notwithstanding any defect or infirmity in the title of the person from whom he derived it, as for example, even though such person may have acquired it by fraud, or even by theft, or by robbery. Story on Prom. Notes, secs. 191, 192.
The corporation in question, according to its certificate, bearing date 15th of May, 1868, required by the 37th sec. of ch. 471 of the Act of 1868, became incorporated, under the general law for that purpose, under the name of West Saratoga Building Union, No. 3, "for the accumulation of a fund by the savings of the members thereof, sufficient to enable them to purchase for themselves, respectively, real or leasehold property, and generally for the purpose of a building association, and subject in all particulars to the limitations relating to corporations, which are contained in the general laws of the State."
Under sec. 18 of ch. 471, of this general Act for incorporations, we take it, this particular corporation, would be embraced with class 5, for the formation of homestead or 

 [*294]  building associations. The 2d section of this law, restricts all incorporations thereunder, except for banking purposes, from issuing [**15]  any note or other evidence of a debt, to be used as currency.
The purport of this provision, was to prohibit all corporations, except the banks, from issuing paper for circulation as currency, and not to restrict them from giving promissory notes, as evidence of debt, where they were otherwise authorized.
The sections from 44 to 50, inclusive, define the general powers of the corporations, created under this law, and prescribe the general regulations thereof, except in the cases, where there may be special provisions, applicable to particular corporations. Amongst the powers conferred, the 48th section, authorizes the corporations to acquire by purchase, or in any other manner, and to hold, use and dispose of, any property, real, personal or mixed, in or out of the State, which may be necessary and proper to enable them to fulfil the purposes of their incorporation, and generally to do every other act or thing, not inconsistent with law, which may be necessary or proper to promote the objects and purposes of the corporation. The 51st section, prohibits corporations, from exercising any corporate powers, except such as are conferred by law and such as are necessary to the exercise [**16]  of the given powers. The 59th section, makes the stockholders of any corporation individually liable to the creditors of the corporation, to the amount of new stock, for all debts and contracts made by the corporation, until the whole amount of the capital stock, shall have been paid in and certificate thereof made and filed. Section 77, subjects all corporations, formed thereunder, to all such provisions of future legislation as may be made applicable to such corporations. Section 87, made applicable to corporations formed for the purpose of loaning money on real or personal property, may, at any time, in advance of the period of time, at which the corporation may cease to exist, advance to any member thereof, for such premium as may be 

 [*295]  agreed upon, the sum which he would be entitled to receive upon the dissolution of the corporation or may purchase his share.
The authority vested in this corporation, by the law of its charter, according to the nature of its business, is unquestionably sufficient, to enable it to borrow money, and to make loans to its members with a view to accomplish the purpose of its formation; and, endowed with this right, there is nothing in the [**17]  character of the organization, or inconsistent with the public law or policy, to prevent it from employing the usual legal methods of effecting this purpose, subject to the sole restriction, that it shall not issue a paper currency. The powers of the corporation comprehend, not only the express grants, but extend to all the means necessary for the exercise of the powers conferred--sec. 51. This incidental power, without that section, the corporation would have possessed, by implication, for the purpose of effecting the objects designed by its charter, according to the nature of its business, and not in conflict with the public law. Wellersburg & W. N. P. R. Co. vs. Young, 12 Md. 476. If it had occasion, in the course of its dealings and transactions, to effect the loan proposed in this instance, the company had the right, according to their discretion, through its officers, to give this promissory note for that purpose, or, if the company owed any antecedent debt, if their creditor preferred such evidence, it might issue a promissory note for the payment of the same.
"All persons are competent to bind themselves as makers of a promissory note, who are not [**18]  incapitated by some special provision or disability created by law. So are corporations, acting within the scope of the particular business of the corporation." Story on Prom. Notes, sec. 61. "Express authority is not indispensable to confer such a right--it may be implied as a usual and appropriate means to accomplish the objects and purposes of the charter." Story on Prom. Notes, sec. 74. If the charter of this company prohibited the issue of such a note, in terms, or had prescribed any particular 

 [*296]  mode in which to acknowledge its indebtedness, or if the nature of the corporation itself forbid the creation of any debt of this sort, parties dealing with it, or its officers, would do so at their peril, and subject to such limitations.  Mayor and C. C. of Baltimore vs. Baltimore and Ohio R. R. Co., 21 Md. 50.
It would be an unwarrantable construction, when this company is empowered to borrow money, without specification, that would restrict it to any special method; and there is no sound reason why it should not be allowed to use the most convenient measure for that purpose not inconsistent with the public law. Wellersburg Plank Road vs. Young, 12 Md. 476, 484. [**19]  The general law does not restrict this company from issuing the promissory note in question, and it has not been shown that by any of its by-laws, or other proceedings, that the officers of the company were prohibited from issuing the note, and we do not see, therefore, why the appellant may not be permitted to recover, if there has been no fraud on his part or knowledge of any fraud on the part of others connected with the transaction, before he became the holder of the note.
If the evidence shows that the appellee, through its officers, issued the note, and the appellant, in good faith, received it for value, the appellee is bound to pay it, although their agent may have transcended his instructions and defrauded the company in giving currency to the note, yet, if the appellant was not aware of such facts, he is not to be precluded thereby from his right of recovery as a bona fide holder.
We think the appellee's prayers ought to have been refused, and the prayer of the appellant granted.
Judgment reversed, and new trial awarded. 

126 of 142 DOCUMENTS 

JOSEPH STARR vs. JOHN J. HECKART and WILLIAM YOUNG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 267; 1870 Md. LEXIS 30 

March 7, 1870, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Harford County, in Equity.

The bill of complaint in this case was filed on the 29th of July, 1868, by the appellant, praying for an injunction to restrain the appellees from proceeding with an execution issued against him and levied upon his property. An injunction was issued as prayed. The appellees answered the bill and moved for a dissolution of the injunction. The Court, by its order of the 11th of May, 1869, dissolved the injunction and dismissed the bill. From this order, the present appeal was taken.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Validity of the Plea of Final Discharge under the Insolvent Laws, to the Writ of Scire Facias -- Injunction to Restrain Proceedings under an Execution.

A judgment was recovered in 1858, in the Circuit Court for Anne Arundel county. Subsequently, the judgment debtor removed to Baltimore, and in 1859, obtained his final discharge under the insolvent laws. In 1866, a writ of scire facias was sued out by the judgment creditor, on the judgment of 1858, and, after two returns of nihil a fiat was entered, and in 1868, an execution was issued to the sheriff of Harford county, and levied upon property acquired by the judgment debtor by his own industry, after his discharge under the insolvent laws. The debtor never assumed or promised to pay the judgment after his final discharge, and had no notice of the scire facias, and proceedings thereunder, until his property was seized under the execution; he then filed his bill in the Circuit Court for Harford county, praying for an injunction to restrain the judgment creditor and the sheriff from proceeding with the execution. HELD:

That the final discharge under the insolvent laws was a good and valid defence to the scire facias, by the insolvent debtor, and without fault or laches on his part, no opportunity having been allowed him to plead the same, and being without a full and adequate remedy at law, he was entitled to an injunction. 

COUNSEL:
Thomas Rowland and E. G. Kilbourn, for the appellant.

Upon motion, upon the law side of the Circuit Court for Anne Arundel county, the appellant was entitled to have the fiat judgment struck out, and to be permitted to plead to the scire facias his discharge under the insolvent laws. Fitz-Herbert's Natura Brevium, 237, [104,] J. Title, Audita Querela; 2 Williams' Saunders, 72, S, and 72, U, and cases cited; Foster's Scire Facias, 355, 357, (73 Law Lib., 306, 308;) 2 Tidd's Practice, (3d Am. Edition,) 1130; 2 Archbold's Practice, 99; Sheridan's Practice, 352; 2 Paine & Duer's Practice, 437; 3 Blackstone's [**2]  Com's., 405, and note; Porter vs. Vaughn, 24 Vermont, 211; Paddleford vs. Bancroft, 22 Vermont, 529; Dunlap vs. Clements, 18 Alabama, 778; Job vs. Walker, 3 Md., 129; Huston vs. Walker, 20 Md., 305; Munnikuyson vs. Dorsett, 2 H. & G., 374; Bridendolph vs. Zeller's Ex'rs., 3 Md., 325; Same, 5 Md., 58.

There is concurrent jurisdiction in equity to restrain by injunction the execution of such a judgment. Williams vs. Roberts, 8 Hare, 315; 1 Story's Eq. Jur., sec. 64, i, and 80; Hilliard on Injunctions, 208; Munnikuyson vs. Dorsett, 2 H. & G., 374; Peatross vs. M'Laughlin, 6 Grattan, 64; Carrington vs. Holabird, 17 Conn., 531; Marine Ins. Co. vs. Hodgson, 7 Cranch, 336; Hamphreys vs. Leggett, 9 Howard, 313; Jones vs. Com. Bank, 5 How., (Miss.) 43; Walker vs. Gilbert, 1 Freeman, (Miss.) 85; Stubbs vs. Leavitt, 30 Alabama, 352; Bell vs. Williams, 1 Head, (Tenn.) 229; Lucas vs. Waller, 1 Morris, (Iowa,) 303; Barnes vs. Dodge, 7 Gill, 109.

In this particular case, the appellant's only adequate remedy was by bill in equity in the Circuit Court for Harford county. A motion upon the law side of that Court to strike out the judgment could not have been entertained, because the record [**3]  was not there. Such a motion in the Circuit Court for Anne Arundel county would have been entertained, but the writ of fieri facias which had been levied upon the appellant's property had passed beyond the jurisdiction of the Court. To stay the execution of this writ there was no remedy but that which the appellant adopted. Hamilton vs. Whitridge, 11 Md., 128.

Upon the hearing of the motion to dissolve the injunction, it was error to dismiss the bill; the appellant should have been allowed an opportunity to sustain by proof the allegation of fraud contained in his bill. Dorsey, et al. vs. Hagerstown Bank, et al., 17 Md., 408; Huston, et al. vs. Huston, et al., 20 Md., 332; Barroll's Chan. Pr., 300.

Henry W. Archer, for the appellees.

The only ground upon which the appellant claimed relief in equity, was that the judgment was rendered upon two returns of nihil, and that he had no notice, in fact, of the scire facias. He claimed the interposition of a Court of Equity, simply and solely upon the ground that he had been discharged under the insolvent laws, and might have availed himself of the plea, if the writ of scire facias had been served upon him. The appellant had [**4]  constructive notice, all the notice he was legally entitled to, of the scire facias, and it would be a novel and dangerous doctrine to hold that where the notice prescribed by law has been given, the want of actual notice in fact, will vitiate the judgment.

Two returns of nihil to writs of scire facias are legal notice to the defendant, and equivalent in law to the service of the writ; and fully authorize the entry of the judgment of fiat. Hayward vs. Ribbans, 4 East., 312; Style's Rep., 281; Dyer's Rep., 168, 172; Evans' Prac., (1st Ed.,) 104.

A judgment in scire facias is a new judgment. And although it is subject to all the provisions, conditions and memoranda attached to the original judgment, it will be observed that the original judgment in this case was absolute upon its face, as is also the fiat. Moore vs. Garrettson, 6 Md., 444; Huston, et al. vs. Huston et al., 20 Md., 305; Norton vs. Beavar et al., 5 Ohio, 180; Scriva, &c., vs. Deanes et al., 1 Brockenbrough, 167.

The appellant's discharge under the insolvent laws, is a defence of which, if he desired to do so, he should have availed himself by plea. The scire facias gives him the opportunity of pleading any [**5]  defence since the date of the original judgment; and if he failed to do so, he cannot make it the ground of relief in equity. Gott vs. Carr, 6 G. & J., 331; Huston, et al. vs. Huston et al., 20 Md., 331; McCullough, et al. vs. Franklin Coal Co., 21 Md., 262.

A discharge under the insolvent laws is not a meritorious defence; and although a party may avail himself of it, the moral obligation to pay the debt still remains, which is sufficient to sustain a new promise, or to prevent a Court of Equity from opening a judgment to let in such a plea.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*270]  ROBINSON, J., delivered the opinion of the Court.
This is an appeal from an order of the Court below, dissolving an injunction and dismissing the bill of the complainant.
The bill alleges that Heckart, in 1858, recovered a judgment against the appellant in the Circuit Court for Anne Arundel county, and that in 1859, then being a resident of Baltimore city, the appellant filed his petition in the Court of Common Pleas for the benefit of the insolvent laws, and in the same year received his final discharge.
That, in [**6]  1866, Heckart sued out of the Circuit Court for Anne Arundel county, a writ of scire facias on said judgment, and after two returns of nihil, a fiat was entered and execution issued to the appellee, Young, sheriff of Harford county, which was levied upon property acquired by the appellant, by his own industry, subsequently to his discharge under the insolvent laws.
The complainant further avers that he has never assumed or promised to pay said judgment since his final discharge, 

 [*271]  and that he had no notice of the scire facias and subsequent proceedings thereunder, until his property was seized under the execution.
These averments are substantially admitted by the answer, and the question presented is, whether the complainant is entitled to the relief prayed.
A final discharge of an insolvent debtor releases him from all liabilities existing prior to his application. All the law requires is an honest dedication of his property to the payment of his debts, and this being done, it releases him from future liability on account thereof, in order that, thus unembarrassed, he may be encouraged to renewed efforts to gain a livelihood for himself and family. As [**7]  the law stood prior to the adoption of the Code, the property acquired by an insolvent debtor "by descent, gift, devise, bequest, or in a course of distribution," after his discharge, vested in his trustee, for the benefit of his creditors, and it was to the trustee and the trust fund alone that they were obliged to look for payment. It is clear, therefore, that his plea of final discharge would have constituted a bar to any further proceedings under the scire facias.
But it is contended that the two returns of nihil, operate as constructive notice to the insolvent, and that he is as much concluded by the fiat judgment, as if being summoned, he had waived his plea of discharge. To this we cannot agree. The object of the law in requiring a judgment to be revived by a scire facias, is to give the debtor an opportunity to plead his release or discharge, which is presumed by the lapse of three years. If he has been summoned, and a fiat is entered, he may be concluded, but if he has not been summoned, and no opportunity afforded him to plead his discharge, it would be manifestly unjust to deprive him of a defence which he was not allowed to make. In 2 Tidd's  [**8]   Practice, 1185, it is expressly laid down, that when a "party has a release or other matter which he might have pleaded to the scire facias in his discharge, and for want of pleading it, execution is awarded 

 [*272]  upon a scire feci returned, he is estopped forever, and cannot, by any means, take advantage of that matter. But when execution is awarded on two nihils returned, he may relieve himself by audita querela." Sty. Rep., 281, 283; 1 Salkeld 262; 4 Mod. 314; 1 Strange 197; 1 Maule & Selwyn 199; 2 Williams' Saunders, 148, a (note.) An audita querela, was an equitable action invented for the purpose of relieving a defendant against a judgment or execution, where he had a good defence, but no opportunity of making it. 2 William's Saunders, 148; 3 Black. Com., 405; Job vs. Walker, 3 Md. 129. The question then resolves itself into this: had the appellant a good defence to the scire facias, and if so, had he an opportunity to make it?
It will be admitted that his discharge under the insolvent laws released him from all liability, on account of the judgment, and it is not [**9]  pretended that he ever promised or assumed to pay the same since his discharge. It is clear then that he had a valid legal defence to the scire facias. If so, had he the means of taking advantage of or pleading the same? The scire facias was issued after the removal of the appellant to another county, and it is expressly averred in the bill that he had no knowledge of the proceedings thereunder, until the execution was levied upon his property by the sheriff of Harford county. How was it possible then for him to make his defence? The doctrine contended for by the appellee would defeat the whole policy of the insolvent laws, and put it in the power of the vigilant creditor to subject the insolvent debtor to the payment of a claim from which he had been released by law, and this too without allowing him an opportunity of pleading his defence. To a judgment of fiat rendered under such circumstances, a party would undoubtedly be entitled to relief, by an audita querela at common law, or by summary motion according to the practice in this State. Job vs. Walker, 3 Md. 129. But whilst a party might in some cases obtain relief by a summary motion [**10]  to strike out the judgment or to quash the execution if one should be issued, it is clear, as a 

 [*273]  general rule, that such a proceeding would not afford a full and adequate remedy.
If the execution should be issued in vacation, the sheriff might execute the writ before the motion could be made and heard. It is no answer to say, that the debtor could move to quash the sheriff's return, because in the meantime the property has been sold and may be beyond the process of the Court. If then the party is entitled to relief, and has not a full and adequate remedy at law, he has the right to invoke the equitable jurisdiction of the Court. This was expressly decided in Munnikuyson vs. Dorsett, 2 H. & G. 374. There a scire facias was issued on a judgment against the intestate, to which a voluntary appearance was entered for the administratrix, and against her a judgment of fiat by default was rendered. A motion was made by the administratrix to strike out the fiat judgment, on the ground that she had removed from the county before the scire facias was issued, that the appearance of the attorney was entered without her authority, and that she [**11]  had no knowledge of the scire facias or subsequent proceedings thereunder, until they were made the foundation of a suit against her sureties on the administration bond. The motion was overruled because it appeared from the record that the appearance of the attorney was regularly entered, and also because the administratrix had applied to the Prince George's County Court, sitting in Equity, for an injunction to restrain further proceedings on the fiat judgment. The Court said, "the grievance complained of, is one against which the County Court, on its equity bench, is competent, not to say peculiarly fitted to relieve. The party has elected the tribunal from which she seeks redress; and there she should be left to obtain it."
Being satisfied that the appellant has a good and valid defence to the scire facias, which without any fault or laches on his part he has had no opportunity to make, and being without a full and adequate remedy at law, we think he was entitled to an injunction.

 [*274]  The order of the Court below dissolving the same and dismissing the bill of the appellant will therefore be reversed.
Order reversed and cause remanded. 

127 of 142 DOCUMENTS 

JOHN ZIMMERMAN vs. SOLOMON HELSER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 274; 1870 Md. LEXIS 31 

March 7, 1870, Decided 

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

This action was brought by the appellee against the appellant, who resided in Franklin county, Pennsylvania, to recover the value of a certain lot of rye. In May, 1862, an execution was issued to the sheriff of Franklin county, Pennsylvania, out of the Court of Common Pleas of said county, at the suit of Thomas P. Weller against Jacob Myers and the appellant, and levied upon a lot of rye then in a mill in said county. The rye was so levied upon as the property of Myers, at the instance of the appellant, who gave a bond of indemnity to the sheriff. The rye was sold by the sheriff and purchased by the appellant. The appellee was present at the sale on the 12th of June, 1862, claimed the rye as his, and gave notice that whoever bought it, would purchase a law suit.

The narr. contained two counts--one in trover, and the other in trespass de bonis asportatis. The defendant pleaded the general issue.

First Exception: The plaintiff, after introducing evidence to show his title to the rye, offered in evidence a certified copy of the record of a judgment of the Court of Common Pleas in Franklin county, Pennsylvania, entitled [**2]  John Zimmerman vs. Jacob Myers, on which was an entry of satisfaction, signed by the plaintiff; and in connection with it, offered to prove by William Adams, a member of the bar of Pennsylvania, the provisions of the Statute law of that State, respecting the manner in which judgments could be confessed before, or taken by, justices of the peace, and for what amounts and in what form. The defendant objected to the record as evidence because it was not duly certified to according to law, and because the same was irrelevant; to the parol proof as inadmissible, because the provisions or contents of any Statute of that State could only be proved by the production of a certified copy of such Statute, or from a printed volume purporting to contain the laws or Statutes of the State; and further, because said proof was irrelevant. The Court overruled the objection and allowed the proof as offered to go in; the defendant excepted.

Second Exception.--The witness, Adams, having proved that, in Pennsylvania, judgments can be entered or confessed before justices of the peace for any amount, and without any pleadings, and certified copies thereof sent to the Court of Common Pleas of the counties,  [**3]  and there recorded, the plaintiff offered in evidence the certified copy of the judgment in question; the defendants objected to the introduction of said paper as irrelevant and inadmissible for any purpose under the issue in this case, but the Court overruled the objection and allowed said paper to be given in evidence upon an assurance by his counsel that the plaintiff would follow it up, by proof, that the note of $ 200, mentioned therein as given as security to Thomas P. Weller was the foundation of another and subsequent judgment in said Court against Jacob Myers; but the defendant still objected. The Court overruled the objection, and the defendant excepted.

Third Exception: The plaintiff having rested, the defendant proceeded with his proof, and, after the rebutting testimony was in, the defendant's counsel moved the Court to withdraw from the jury the record that had gone in by permission of the Court, and excepted to in his second exception, on the ground that the plaintiff had not followed it up with the proof, of which his counsel had given assurance to the Court, but this the Court refused, on the ground of the agreement of F. M. Kimmell, thereon written, he having [**4]  been counsel in the case on the former trial, that the same, if admissible in evidence in the suit, might be read as though it had been legally certified. The defendant excepted.

Fourth Exception: The defendant then, to rebut any inference which might be drawn by the jury from said record, gave in evidence a certified record of the judgment in the Court of Common Pleas in Franklin county, and the fieri facias thereon, under which the rye in controversy was seized and sold by the sheriff; and also offered, in connection with said record, a letter from Jacob Myers, one of the defendants in said judgment, to the appellant, the other defendant, dated 20th of December, 1860, to show that the consideration or cause of action for which said judgment was given was fair and correct, and so acknowledged by Myers, and to repel any unfavorable inference which the jury might draw from the entry of satisfaction on the judgment in evidence by the plaintiff, and what was stated by his witness, Mr. Adams, in relation thereto. Proof of the handwriting of Myers, and of the genuineness of the letter was also offered. The plaintiff objected, and the Court refused to allow said letter and proof of [**5]  the handwriting to go to the jury without the production of the letter of the appellant, to which it purported to be a reply, or having laid a proper foundation for its non-production. The defendant excepted. The verdict and judgment being for the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Trespass de bonis asportatis -- How the Statute Law of a State may be Proved.

In an action of trespass, a party may give in evidence, for the purpose of increasing the damages, the circumstances which accompanied and gave character to the wrong. The motives from which the unlawful act springs, are always to be considered by the jury, who may give exemplary damages, if the claim of title under which the property was taken, instead of being bona fide, was a mere pretense for perpetrating a wrong.

The Statute law of another State can only be proved in the Courts of this State by an authenticated copy of the law, or from a printed volume purporting to contain the laws of such State.  

COUNSEL:
Daniel Weisel, for the appellant.

A. K. Syester, for the appellee.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*277]  ROBINSON, J., delivered the opinion of the Court.
This suit was brought by the appellee to recover the value of a certain quantity of rye claimed by him and sold by the appellant under an execution against Jacob Myers.
The declaration contains two counts, one for trover, the other for trespass "de bonis asportatis."
After proof tending to show title in the rye, the appellee offered in evidence a certified copy of a judgment of the Court of Common Pleas of Franklin county, Pennsylvania, entitled, John Zimmerman vs. Jacob Myers, and upon which was the following entry:
"Rec'd satisfaction in full of debt, interest and costs.
"JOHN ZIMMERMAN."
This record was offered for the purpose and [**6]  with the promise on the part of the appellee to follow it up by other proofs tending to show that this judgment, thus entered satisfied in 1861, included the judgment and debt under which the rye was sold by the appellant in 1862. With that view it was clearly admissible under the second count. In an action of trespass a party may give in evidence for the purpose of increasing the damages, the circumstances which accompanied and gave character to the wrong. In such an action the motives from which the unlawful act springs are always to be 

 [*278]  considered by the jury. If property be taken under a bona fide claim of title, the value of the property, as a general rule, is the true measure of the damage, but if, on the contrary, the claim is but a mere pretence for the purpose of perpetrating a wrong, the jury may give exemplary damages. Schindel vs. Schindel, 12 Md. 108, 122; Snively & Keys vs. Fahnestock, 18 Md. 391; Ridgely vs. Bond, 17 Md. 14.
The appellee then offered to prove by William Adams, a member of the bar of Pennsylvania, the Statute law of that State, in regard to the jurisdiction of the justices [**7]  of the peace. This evidence was inadmissible, for although the common or unwritten law of another State may be proved as a fact by witnesses acquainted with the law, yet the Statute law can only be proved by an authenticated copy of the law, or from a printed volume purporting to contain the laws of such State. Code of Public General Laws, Art. 37, sec. 47; Gardner vs. Lewis, 7 Gill 377; 1 Greenleaf on Evi., 480-487, 488.
This error, however, furnishes no sufficient ground for the reversal of the judgment. In the absence of evidence impeaching the jurisdiction of the Court where the judgment was entered, the authenticated copy of the record imported, and in deference to the comity and respect due from one State to another, it was to be presumed that the Court had jurisdiction. In The Bank of the United States vs. The Merchants Bank of Baltimore, 7 Gill 415, it was held that an authenticated copy of a judgment of a Court of Record of another State was in itself prima facie evidence of jurisdiction. In this case, in the absence of any evidence on the part of the appellant, impeaching the judgment, the parol proof [**8]  in support of it was altogether unnecessary.
The third exception was taken to the ruling of the Court, on the motion of the appellant's counsel to withdraw, from the consideration of the jury, the record copy of the judgment, because the appellee had failed to connect it by other proof, with the judgment under which the rye was sold. Assuming the Court erred in this respect, we think the record was made 

 [*279]  pertinent and admissible, by the evidence subsequently offered on the part of the appellant, of the record copy of the judgment, rendered in the Court of Common Pleas of Franklin county, Pennsylvania, on the 6th of December, 1860, and entitled Thomas P. Weller, for the use of Christian Weller vs. Jacob Myers and John Zimmerman. This judgment was rendered on a single bill of $ 200, executed by Jacob Myers and John Zimmerman, and payable to Thomas P. Weller, and it was under an execution issued in 1862, on this judgment, that the rye in controversy was sold. Now the judgment entitled John Zimmerman vs. Jacob Myers, and which, according to the testimony, was entered satisfied by Zimmerman in 1861, included a note of Myers to Thomas P. Weller for $ 200, and upon which [**9]  Zimmerman was the surety. We think, therefore, there was evidence legally sufficient to go to the jury, tending to show that the debt and judgment, under which the rye was sold in 1862, had been discharged by the payment in 1861, of the judgment of Zimmerman vs. Myers.
The letter from Myers to Zimmerman, of December 20th, 1860, was clearly inadmissible. It was but the declaration of a third party, not under oath and not made in the presence of the appellee. Myers was a competent witness, and we know of no principle under which his declarations thus made, could be offered in evidence against the appellee. For these reasons the judgment below will be affirmed.
Judgment affirmed. 

128 of 142 DOCUMENTS 

AMASA C. HALL vs. WILLIAM JACK, Surviving Partner of JOHNSTON, JACK & CO. GEORGE A. COX vs. WILLIAM JACK, Surviving Partner of JOHNSTON, JACK & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 253; 1870 Md. LEXIS 29 

March 5, 1870, Decided 

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

The bill of complaint in this cause was a creditor's bill filed on the 19th of January, 1867, by Robert B. Johnston and William Jack, trading under the firm name of Johnston, Jack & Co., in the town of Hollidaysburg, in the State of Pennsylvania. After the cause had been argued and submitted for a final decree, Robert B. Johnston died. Other facts in the cause necessary to an understanding of the questions decided, will be found sufficiently stated in the opinion of the Court.  

DISPOSITION:
Decree and order affirmed.  

HEADNOTES:

Who may Appeal under the Act of 1864, ch. 156 -- Lis Pendens -- Effect of an Appeal -- Stakeholder.

The Act of 1864, ch. 156, allowing an appeal from a final decree or order in the nature of a final decree, passed by a Court of Equity, by a party to the suit, with or without the assent or joinder of co-plaintiffs or co-defendants in such appeal, was designed to extend and not to limit the right of appeal, and cannot be construed as restricting that right in all cases to such persons only as are technical parties to the suit.

A person claiming to be entitled to a fund in controversy, who files his petition, asking to be permitted to intervene for the protection of his rights, is a party within the meaning of the Act of 1864, ch. 156, and entitled to appeal from the decree dismissing his petition, and directing the fund to be brought into Court for distribution among other claimants.

To entitle a party to intervene in a suit, or claim title to the property in controversy, it ought to appear affirmatively that his title, or that of the person under whom he claims, was acquired before the pendency of the suit. If acquired after suit brought, he is affected by the lis pendens.

After an appeal is taken, and an appeal bond executed and approved, no step in the cause can be taken in the inferior Court, which, by any possible contingency, may prejudice the appellant.

A party who is a mere stakeholder, liable for the payment of the money which he is ordered to bring into Court for distribution, cannot be heard on appeal, to object to the passage of the order, which, although passed unnecessarily or irregularly, in no manner affected his rights.  

COUNSEL:
Henry Stockbridge, for the appellant, Hall.

It is impossible to do justice and equity in the cause before the Court, unless Hall is permitted to come in as a party defendant to protect and defend his interest as involved in the cause. It is his right to avail himself of the rule which is well settled and uniform, that all persons having an interest in the objects of a suit, have a right to be, and ought to be made parties. Calvert on parties in Equity, 11, &c.; Hunter on Suits in Equity, 14; Story's Equity Pl., sec. 72, &c.; Cooper's Eq., 33.

If the mortgage, the payment of which is restrained by the injunction in [**2]  this case, had been formally assigned to John F. McKenzie before the institution of this suit, he (or his assignee, if he had assigned,) would have been a necessary party, and no decree would have bound him, or deprived him of the right to collect the mortgage debt, unless he had been made a party. If the assignment were unknown to the complainants when they filed the bill, it would have been necessary for them to have taken such steps as would have made him a party as soon as that interest in him was ascertained. Story's Eq. Pl., sec. 189, &c.; 1 Dan'ls Ch. Pr., 253, &c.

The notes being negotiable, when they were endorsed and passed over to McKenzie, the mortgage passed with them without any formal assignment. Langdon vs. Keith, 9 Verm., 299; Johnson vs. Hart, 3 John. Ch., 322; Lawrence vs. Knapp, 1 Root, 248; Terry vs. Woods, 6 S. & M., 139; Blair vs. Bess, 4 Blackf., 539; Green vs. Hart, 1 John. R., 580; Clark vs. Levering, 1 Md. Ch. Dec., 178; Ohio L. I. & T. Co. vs. Winn & Ross, 2 Md. Ch. Dec., 25.

Whether the complainants knew of the assignment by the mortgagees before the filing of the answer of A. M. and M. L. White or not, they were then advised that, prior to the [**3]  filing of the bill, the mortgagees, by the transfer of the mortgage debt, had assigned the mortgage itself, and at the time of filing of the bill had no interest in it whatever. It was essential then to the validity of the proceedings at the time of the filing of the bill, that John F. McKenzie should be made a party.

Not having been made a party, the transactions between him and Hall, both strangers to the suit, cannot be affected by its pendency, and Hall has all the rights which McKenzie had at the time the suit was instituted. All the authorities cited to show that litigants may, and courts will, disregard alienations made pendente lite, refer to cases where the alienor was in fact a party to the suit. Then it is reason, and of course law, that the vendee is bound by a decree against his vendor. But it is otherwise, if the alienation is before suit brought.

William Daniel, for the appellant, Cox.

The appellant, Cox, in his answer, first raised the question of jurisdiction, by asserting that, an appeal having been taken in the cause, and an approved bond given, the Court could not proceed further in the premises until a final adjudication by this Court; and, secondly,  [**4]  that the allegations of the petition were not sufficient to entitle the complainants to relief, (even if the Court were competent to give it,) because it was not stated or attempted to be shown that the mortgaged property was not sufficient to pay off both mortgages, with interest, but, on the contrary, the defendant (this appellant) alleged, and subsequently proved, that the property was more than ample for both purposes; that the money in question could not be more safely or profitably invested, and that, in addition to the security on the property, this debt was amply secured by the bond given in the appeal from said decree; he insisted, therefore, that it would be inequitable and unjust to him to force a sale of his property under these circumstances, or require him suddenly to raise so much money, and thereby subject him to great inconvenience. Thirdly. He tendered himself ready and willing to pay as soon as it should be legally determined to whom he should pay.

The Court, however, passed an order on the 10th of May, 1869, requiring the defendant to bring into Court, within thirty days, the money then due upon said mortgage, amounting to about $ 6,270; from that order this [**5]  appeal was taken, and notice given of an intention to dispute the former decree, or orders passed in the case.

Upon taking an appeal and giving an approved appeal bond, the operation of all orders or decrees in chancery, are stayed. Code of Pub. Gen'l Laws, Art. 5, secs. 23, 33 and 35; Act of 1864, ch. 322.

A Court having parted with the record cannot proceed to execute it. Gelston vs. Hoyt, 3 Wheat., 304.

After an appeal is taken, and an appeal bond executed and approved, no step can be taken in the cause which by any possible contingency can prejudice the appellant. Ohio Life Ins. and Trust Co. vs. Winn and Ross, 4 Md. Ch. Dec., 254, 266, 267 and 270.

But conceding the Court below had jurisdiction in the premises, there was not such a case made by the petition as to justify its action. Courts will not order a sale by decree, or otherwise interfere, unless it will subserve some useful purpose or be of some advantage. There was no allegation that the property was not sufficient to pay all incumbrances, but, on the contrary, proved amply so to be, and that the money was well and productively invested, &c. Bruce, et al. vs. Levering, 23 Md., 288, 294 and 295; Williams [**6]  vs. Savage Manuf. Co., 1 Md. Ch. Dec., 327.

The appeal in this cause was properly taken from the order of the 10th of May, 1869; and the previous decree of the 24th of June, 1868, may also be reviewed thereunder. This last order is essentially different from that of the 24th of June. The one was to bring in money to be distributed in accordance with said decree; the latter to bring the money into Court to await the issue of this suit, &c. Code of Pub. Gen'l Laws, Art. 5, sec. 22; Dugan, et al. vs. Gittings, et al., 3 Gill, 138; Ware, et al. vs. Richardson, 3 Md., 505.

Wm. Reynolds, Jr., and Thos. Donaldson, for the appellee.

The Court below refused to grant the prayer of the appellant, Hall, to be made a party, and by its decree declared the gift of personal property from White to his wife to be void as against the complainant and other creditors who were such when said gift was made, and directed the defendant, Cox, to bring into Court the money which then was or thereafter might become due upon the notes, mentioned in the proceedings, as they should respectively mature, to be applied under the Court's direction, &c. From this decree the appeal of Hall was taken.

The [**7]  appeal should be dismissed, because Hall, not being a party to the cause, had no right to take an appeal from the decree passed therein.

The right of appeal depends entirely upon the statutory provisions in relation thereto, which, so far as regards appeals from final decrees passed by Courts of Equity, are found in section 20 of Article 16 of the Code of Public General Laws, which section, as amended by the Act of 1864, ch. 156, provides that "an appeal shall be allowed, &c., by any one or more of the persons, parties to the suit, &c." Therefore, no person not a party to the suit has a right to appeal. Hall never was a party to the proceeding in which was passed the decree sought to be appealed from by him. He applied to be made a party, but the Court refused his application.

But even if Hall had a right to appeal from the order over-ruling his petition to be made a party, or from the decree, upon the ground that such an order, whereby his rights were prejudiced, had been previously passed, the Court below was right in over-ruling his application to be made a party to the cause.

1st. Because even if all the allegations in his petition were true, they did not disclose [**8]  sufficient grounds for making him a party. Any person purchasing property pendente lite, though for a valuable consideration, and without notice of the suit, is affected in the same manner as if he had actual notice, will be bound by the decree or judgment, and need not be made a party to the suit. Hall, in his petition, did not allege that he purchased prior to the institution of these proceedings. He admitted that he did not pay over the money and securities given for the notes, until the mortgage was actually assigned to him, and he was very careful not to let the date of this assignment of the mortgage appear. 1 Story's Eq. Jur., sec. 406; Inloes' Lessee vs. Harvey, 11 Md., 524; Bishop of Winchester vs. Paine, 11 Vesey, 197; Gaskill vs. Durdin, 2 Ball & Beatty, 169.

2d. Because even if the facts alleged in the petition of Hall were sufficient to entitle him to be made a party, if true, there is no evidence in the cause to prove them, and Hall has never taken any steps to produce such evidence, although, from the circumstance of the payment of the interest note which fell due June 25th, 1867, being stopped by injunction, he must have had actual notice of these proceedings from [**9]  that time, nearly eleven months before his petition was filed in the cause. Cook vs. Mancius, 5 Johns. Ch. Rep., 89.

On the Appeal of George A. Cox:

Cox had no right to appeal from the order of the 10th of May, 1869, directing him to bring into Court, the balance due on the mortgage notes, within thirty days.

1st. Because the decree passed June 24th, 1868, more than ten months before the date of the order sought to be appealed from, directed the said Cox "to bring into Court the money which was, is or hereafter may become due upon the notes mentioned in the proceedings, as the same shall respectively arrive at maturity; that said money may be applied under the Court's direction, &c.," so that the order to pay into Court the balance due upon said mortgage notes was in reality nothing more than the reiteration of a decree, the time for an appeal from which had expired.

2d. Because the obligation of Cox to pay into Court the amount of the mortgage notes having been already determined by the decree, the only effect of the order was to fix the exact balance due upon those notes at the time said order was passed; and the amount fixed by said order was, calculating the [**10]  interest, the same sum claimed in the petition of the appellee, and which Cox, in his answer did not dispute, and therefore admitted to be due upon the notes.

But even if Cox could appeal from the order of May 10th, 1869, the passing of such order by the Court below was not erroneous.

1st. Because the appeal bond filed by Hall only suspended the jurisdiction of the Court in so far as its action would prejudice any rights which he might acquire by the reversal of the order or decree appealed from by him. The appeal was from the refusal of the Court to make him a party. If Hall had been made a party, he could have acquired no other rights than that of receiving all or some portion of the mortgage debt. The decision of the appeal, one way or the other, could not affect Cox's obligation to pay the full amount of the mortgage debt then overdue; it could only decide to whom the money should be paid. The order only directed the money to be paid into Court, not to the complainants.

2d. Because the payment into Court and investment of the money would be greatly for the advantage and security both of the appellee and Hall, as it was doubtful whether the mortgaged property would [**11]  be good security for the mortgage debt by the time the appeal was decided.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*259]  BARTOL, C. J., delivered the opinion of the Court.
These two appeals have been brought up in one record and were argued together, and for the sake of brevity and convenience, 

 [*260]  will be disposed of in one opinion. In order to understand the several questions involved, it is necessary to state, with some degree of particularity, the facts and circumstances of the case as disclosed by the record.
The bill was filed on the 19th day of January, 1867, by the appellee and William B. Johnston, suing as well for themselves as for all other creditors of Alexander M. White, for the purpose of annulling or setting aside a voluntary gift of property made by White to his wife, alleged to be in fraud of his creditors, and to subject the same to the payment of his debts.
The property consisted as alleged in the bill and shown by the proof:
First, of a house and lot on Lombard street, in the city of Baltimore; and secondly, of certain promissory notes of Geo. A. Cox, secured by a mortgage executed by Cox,  [**12]  in favor of Mrs. White, for and in consideration of furniture alleged to have been purchased by Cox from Alexander M. White.
It appeared in the progress of the cause, that the house and lot had been sold and conveyed by White and wife, before the filing of the bill, to a bona fide purchaser, and all claim thereto was therefore abandoned by the complainants, who continued the further prosecution of the suit, for the purpose of subjecting to the payment of their claim, and those due to the other creditors of Alexander M. White, the money due by Cox upon his promissory notes.
White and wife and Cox were made defendants, and an injunction was issued prohibiting White and wife from selling or disposing of the promissory notes, and enjoining Cox from paying the same to White and wife, or to any other person for them.
The defendants answered, and testimony was taken, and on the 11th day of May, 1868, the cause was set down for hearing on the 2d day of June, 1868.
On the 13th day of May, 1868, the appellant, Amasa C. Hall, filed a petition claiming to be the bona fide assignee and 

 [*261]  owner of the promissory notes and mortgage of Cox, and praying to be made a party to the [**13]  cause, for the protection of his rights.
On the 24th day of June, 1868, a decree was passed by the Circuit Court dismissing Hall's petition, declaring the gift of the personal property made by White to his wife, to be null and void as against the complainants, and other creditors of White, who were such at the time of the gift, and further ordering that the defendant Cox bring into Court the money due, and as, and when the same might thereafter fall due upon his promissory notes, to be applied under the Court's direction, all equities as to the distribution of the fund being reserved for hearing upon the report of the auditor, to whom the cause was referred by the decree. The auditor reported the amount due and to become due by Cox, and the account was finally ratified on the 16th day of November, 1868. Afterwards, upon the petition of the complainants setting forth that no other creditors of White had appeared to claim the fund, the Court, on the 17th day of November, 1868, passed an order directing the same to be paid to them in satisfaction pro tanto of their claim.
On the 24th day of December, 1868, Amasa C. Hall entered his appeal "from the decree of the Court in the cause,  [**14]  " and gave his appeal bond on the 8th day of March, 1869.
On the 3d day of March, 1869, the appellee filed a petition alleging that Cox had failed to pay into Court the amount due on his mortgage notes, as directed by the decree before passed, and praying that the property mortgaged might be sold to pay the same. To this petition an answer was filed by Cox, alleging for cause against granting the same; that the Court had no jurisdiction to proceed in the cause, by reason of the appeal having been taken by Hall; and alleging further that the property mortgaged was full and ample security for the money due by him.
In support of this last averment testimony was taken, and on the 10th day of May, 1869, an order was passed requiring 

 [*262]  Cox to bring into Court, within thirty days after the date of the order, the balance of principal and interest due on his mortgage debt. From this order the appeal of Cox was taken on the 10th day of May, 1869.
Before we proceed to consider the real questions in controversy presented by these appeals, it may be well to premise that no valid objection has been urged, and, in view of the evidence contained in the record, we think none could be successfully [**15]  urged to the decree of the Circuit Court, in so far as it annuls the gift made by White to his wife, and declares the same to be void as against White's creditors. White and wife, the only parties affected by that part of the decree, have not appealed.
Nor is there any valid objection to the correctness of the complainants' claim against Alexander M. White, as stated in the bill of complaint; this is abundantly established by the vouchers and proof in the cause. The debt of White originated in December, 1858, and January, 1859. It has been argued that it was extinguished by the agreement of February 4th, 1865. It is unnecessary to decide what may have been he effect of that agreement, because, on the 10th day of May, 1866, another agreement was made by White with the complainants, whereby his debt was renewed and his promissory notes given therefor, bearing date the 26th day of February, 1866. The gift by White to his wife, which is sought to be set aside, was made on the 22d day of December, 1866, as appears by the mortgage from Cox to Mrs. White, exhibited with the bill. There can be no question, therefore, that the complainants were subsisting creditors of White at the time of [**16]  this gift, which they impeach as fraudulent.
The first question to be disposed of upon Hall's appeal is raised by the motion to dismiss the appeal, for the reason, as alleged, "that the appellant was not a party to the cause in which the decree was passed, the Court having refused his application to be made a party."

 [*263]  In support of the motion the appellee relies upon Article 5, section 20, of the Code, as amended by the Act of 1864, chapter 156.
That Act provides, that "an appeal shall be allowed from any final decree, or order in the nature of a final decree, passed by a Court of Equity, by any one or more of the persons parties to the suit, with or without the assent or joinder of co-plaintiffs or co-defendants in such appeal." The evident intention of the Act was to change the pre-existing law, as it had been construed in Lovejoy vs. Irelan, 17 Md. 525, and to enable one or more of the parties to a suit in equity to prosecute an appeal without joining the co-plaintiffs or co-defendants, and without the necessity for summons and severance, which was before required. The Act was designed to extend, and not to limit the right of appeal, and cannot [**17]  be construed as restricting that right in all cases to such persons only as are technical parties to the suit. Ordinarily, none but parties to the cause can appeal, because, ordinarily, no others are bound or affected by the decree.
In the present case it is obvious that the decree dismissing the petition of Hall, and directing the fund to be brought into Court for distribution among the creditors of White, for such we construe to be its effect, and the subsequent order of the 17th of November, 1868, which directed the fund to be paid to the complainants, operated to conclude the rights of Hall in respect to the fund. And, being directly interested in the subject-matter of the decree, and having filed his petition in the cause, praying to be permitted to intervene for the protection of his rights, he must be considered as a party within the meaning of the Act of 1864, entitled to appeal. The motion to dismiss must, therefore, be overruled.
But we are of opinion there was no error in the decree dismissing his petition. In order to be entitled to intervene in the suit or claim title to the property, it ought to appear affirmatively that his title as assignee, or that of McKenzie, under [**18]  whom he claims, was acquired before the pendency of 

 [*264]  the suit. If acquired after suit brought, he is affected by the lis pendens. It was not denied in the argument that the doctrine of lis pendens would apply to this case in the same manner as if the property in dispute was of a different kind or description.
It is well settled, that "the Court is not bound to take notice of any interest acquired by purchase in the subject-matter of a suit pending the suit." 5 Johns. Ch. 96; 1 Story's Equity Jur., secs. 405, 406; Inloes' vs. Harvey, 11 Md. 519.
In this case, the bill was filed on the 19th day of January, 1867. Notice to White and wife, who were non-residents, was given by publication in the newspapers for four successive weeks, beginning on the 22d day of January, 1867. The injunction was served on A. M. White on the 1st of February, 1867, and on Mrs. White on the 11th of the same month.
When did the appellant, Hall, purchase the notes and mortgage? For the answer to this question, we can refer only to the statement found in his petition; and that does not furnish the required information. It is alleged that he began his [**19]  negotiation for the purchase of the notes in January, 1867, but declined to buy until an assignment of the mortgage was made, which he alleges was done shortly thereafter, but at what time is not stated; nor is the assignment produced which would show the date of the transaction. It is not alleged in the petition that it took place before the institution of the suit; he must be regarded, therefore, as a purchaser or assignee pendente lite.
It was argued, on the part of the appellant, that the endorsement or transfer of the notes to McKenzie carried with it the title to the mortgage, as a security or incident thereto without a formal assignment of the mortgage, and that if the transfer to McKenzie was made before the institution of the suit, his subsequent transfer to Hall would confer a good title, unaffected by the lis pendens, although it may have been made 

 [*265]  after the institution of the suit. Conceding these propositions to be correct, they do not affect the decision of the case, because it does not appear that the notes were transferred to McKenzie as a bona fide purchaser; nor is it alleged in the petition, that the notes were transferred to him before the [**20]  institution of the suit. In the absence of any averment to the contrary, it must be intended that the title, both of the appellant, Hall, and of McKenzie, (if McKenzie ever was the owner, which is not distinctly averred,) was acquired pendente lite, and for that reason we think the appellant's petition was properly dismissed.
It is conceded in the petition, that he had actual notice of the pendency of this suit as early as the 25th day of June, 1867, when the first note matured, and yet he took no steps to assert his claim, or to offer proof in its support, until the 13th day of May, 1868, after the cause had been set down for hearing. After such delay, his application does not address itself to the favorable consideration of the Court. But, independently of the question of laches, we are of opinion for the reasons stated, that the averments of the petition are insufficient to entitle him to be admitted as a party to the cause, and will, therefore, sign a decree affirming the decree of the Circuit Court, passed on the 24th day of June, 1868.
Having decided Hall's appeal, the appeal of George A. Cox may be briefly disposed of. Without stopping to argue the questions presented [**21]  by the motion to dismiss, and assuming that the motion ought to be overruled and the appeal entertained, we discover no sufficient ground for reversing the order of the 10th of May, 1869, from which the appeal was taken.
It is no doubt well settled, that "after an appeal is taken, and an appeal bond executed and approved, no step in the cause can be taken in the inferior Court which, by any possible contingency, can prejudice the appellant." 3 Bland 407, 413; 6 H. & J., 333; 4 Md. Ch. Dec., 254.

 [*266]  In this case we think the effect of Hall's appeal, an appeal bond having been given, was to suspend the operation of all and every part of the decree of the 24th of June, 1868, and that the Circuit Court had no jurisdiction or power to enforce the same, while the appeal was pending and undecided.
But the effect of the order of the 10th of May, 1869, could not by any possibility prejudice the rights or interests of the appellant Hall. On the contrary, if he should succeed in his appeal and establish his right to the fund in question, his interests would not be prejudiced by the payment of the same into Court. But, however that may be, it is [**22]  clear that Cox, who is a mere stakeholder liable for the payment of the money, cannot be heard to object to the passage of the order. He does not deny his obligation to pay, nor is there any question as to the correctness of the amount stated in the order.
Having in the previous part of this opinion upon Hall's appeal, decided that the decree of the 24th of June, 1868, ought to be affirmed, there is no real or substantial reason for reversing the order of the 10th of May, 1869, which merely reiterates what had been directed by the previous decree. The case is one in which it was eminently proper to require the money due by the mortgagor to be paid into Court, and he cannot be heard to complain of the order of the 10th of May; which though it may have been passed unnecessarily or irregularly in no manner affected his rights.
Decree and order affirmed. 

129 of 142 DOCUMENTS 

THOMAS STOCKHAM, Garnishee of GEORGE STOCKHAM, vs. ELIZABETH STOCKHAM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 196; 1870 Md. LEXIS 24 

March 4, 1870, Decided 

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

George Stockham, on the 11th of January, 1864, purchased of Elizabeth Stockham a farm, called "Mile Square," for the sum of $ 11,000. At the time of the purchase, he held a mortgage on the farm for $ 6,500, and an undisputed open account and draft against Elizabeth Stockham. By the terms of the sale, these claims were to be deducted from the purchase money; $ 1,000 was to be paid on taking possession, and the balance the ensuing January, (1865.) The contract of sale was contained in a correspondence between the parties, and the question in dispute arose out of the construction of that contract. George Stockham claimed that under the contract he was entitled to interest on his claim up to the time of the purchase, (January 11th, 1864.) Mrs. Stockham disputed this construction of the contract, alleging that by it all interest on the claim had been released. Accordingly, on the 18th September, 1865, she sued out a writ of attachment against George Stockham, as a non-resident, for the unpaid balance of the purchase money, and had it laid in the hands of Thomas Stockham, garnishee.

The terms of the contract and the correspondence [**2]  are sufficiently detailed in the opinion of the Court.

At the trial, several exceptions were taken to the rulings of the Court.

First Exception: The plaintiff offered to show, by several witnesses, that at the time of the purchase, the value of the farm was greater than $ 11,000, the price paid for it. To this parol testimony, the defendant objected, but the Court overruled the objection and permitted the testimony to go to the jury, to this ruling of the Court the defendant excepted.

Second Exception: The defendant, having produced a letter from Elizabeth Stockham to George Stockham, dated February 14, 1864, offered to prove, by parol testimony, that the date of said letter, as written, was a mistake; that the letter was really written on the 14th of January, and was received and replied to by George Stockham on the 20th of January, 1864. To this parol evidence, the plaintiff objected, and the Court sustained the objection, whereupon the defendant excepted.

Third Exception: The defendant offered in evidence an account, and having given due notice to the plaintiff to produce the same, offered to prove, by parol testimony, that, in compliance with a request contained [**3]  in a letter from the plaintiff to George Stockham, the account offered had been made out, stating the claim of George Stockham, with interest thereon, down to January 31st, 1864, and had on that day been transmitted by letter to Mrs. Stockham. The plaintiff objected to the admission of the account and parol testimony in relation thereto. The Court ruled the objection good, and the defendant excepted.

Fourth Exception: The defendant prayed the Court to instruct the jury as follows:

That on the whole evidence in this case, in ascertaining the amount of the claim of George Stockham against the plaintiff at the time of the purchase of the Mile Square farm from the plaintiff by him, (if the jury shall find such purchase, and that at the time thereof, the said George held a mortgage against the said plaintiff for the payment of $ 6,500, with interest from the 22d day of February, 1861,) the jury shall compute and allow interest on such mortgage debt from the 22d day of February, 1861, subject to such items of credit in the account in bar or set-off of said George Stockham as are properly applicable thereto. This instruction the Court refused to give, and in lieu thereof, gave the [**4]  following:

1st. The jury in considering the terms of the contract between the plaintiff and defendant for the purchase of the farm in question, shall confine themselves to the offer contained in the defendant's letter of the 11th of January, 1864, and the plaintiff's acceptance thereof in the letter to Henry W. Archer of March 26th, 1864.

2d. Should the jury believe from the evidence that the offer of the defendant contained, besides the $ 11,000 purchase money, the interest due on the defendant's claim mentioned in the letter containing said offer, then they shall find for the plaintiff.

The Court further granted a prayer of the plaintiff, "that the alleged offer to purchase the farm, if proven to the satisfaction of the jury, is to be construed most strongly against the party making the offer."

To the rejection of his prayer, to the granting of the prayer of the plaintiff, and to the instructions given by the Court, the defendant excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment reversed, and new trial awarded.  

HEADNOTES:

Parol testimony to aid the Construction of Written Contracts.

In 1864, G. S entered into a contract with E. S, by letter, for the purchase of a farm. The terms of sale, as expressed in a letter of G. S to E. S, dated Jan'y 11th, 1864, were: "I now offer $ 11,000 for said farm as it is, including the wheat in the ground **** the farm to be paid for as follows: when the premises are cleared and the deed made and recorded, with searches of docket, and handed over to me free of cost, I will pay over $ 1000, and will give my due bill or surety for balance, after deducting my claim to be paid in all, January, 1865; neither party to charge or claim any interest." Several letters had passed between the parties in relation to the purchase and the claim of G. S against E S, prior to the one containing the definite offer of terms. An offer was made at the trial to introduce the prior correspondence to explain the terms of the contract. HELD:

1st. That no rule of evidence is infringed by resorting, in the construction of this contract, to all the written correspondence, as well that which preceded the offer as that which preceded its acceptance. The terms, limitations and conditions of the contract must be found in the letter of the 11th of January; one of the essential conditions, however, there found is, that the vendee's claim shall be deducted from the purchase money, but as to what that claim is in amount, and of what items it consists, the letter itself is silent, and this must of necessity be determined de hors.

2d. That the case falls within the general rule that as to the parties or subject-matter of a contract, extrinsic evidence may and must be received and used to make them certain, if necessary for that purpose; the contract must be applied to its subject-matter by evidence from without. Such evidence, however, is not to be used to contradict or vary the written instrument, but to aid, uphold and enforce it as it stands.

3d. That parol proof to show that the farm was worth $ 15,000 or $ 16,000, at the date of the purchase is inadmissible. The price to be paid for the land is definitely fixed by the contract at $ 11,000, and if this parol testimony does not contradict the agreement in this respect, it is for every other purpose irrelevant.

A mistake in the date of a letter may be established and corrected by parol proof.

Where an offer is made by letter, an acceptance by written communication takes effect from the time when the letter containing the acceptance is mailed, and not from the time when it is received by the other party.

The acts done by one party after the completion of the contract, in furtherance of his understanding of it, cannot bind the other party, nor is it admissible in aid of the construction of the contract.

The rule that an offer is to be construed most strongly against the party making it, is one of strictness and rigor to be resorted to only when all other rules of exposition fail.  

COUNSEL:
Stevenson Archer and H. D. Farnandis, for the appellant.

As to the first exception: The parol testimony was irrelevant.  [**5]  If in any way pertinent, as the contract proved and relied upon was in writing, and definitely fixed the value of the land, it did not explain, and could not modify or control the written contract, and, for both reasons, should have been excluded.

The second exception: It was competent to prove and correct the mistake in the date of the letter by parol. The date was not an essential part of the instrument, and, if, omitted, could be supplied, or, if wrong, could be corrected by parol testimony. Deakins vs. Hollis' Adm'r, 7 G. & J., 311; Hall vs. Cazenove, 4 East., 477; 2 Parsons on Contracts, 554.

This letter was one of the series making up the contract; was part of the contract; was the answer to one, and answered by another letter, put in evidence by the plaintiff.

As to the third exception: The rejected account was admissible, as made at the request of the plaintiff, and as the reply to her letter already in evidence. At the time of its transmission there was no obligatory contract--and no objection to it was made until George Stockham had, according to his understanding of the contract, paid the whole purchase money. Its delivery to the plaintiff is implied. Bell [**6]  vs. Hagerstown Bank, 7 Gill, 216.

The first instruction granted by the Court was erroneous: 1st. In confining the contract to two letters of the series in evidence, one being described as dated 26th March, 1864, none such being in evidence, but if intended for the letter of 26th January, 1864, then: 2d. Because it submitted to the jury the construction of a written contract.

The second instruction erred in submitting to the jury the interpretation of the contract, which is a question of law. Emery vs. Gault, 6 Gill, 199; Martin vs. Wirgman, 4 H. & J., 578; Ferris vs. Walsh, 5 H. & J., 306; Garrell vs. Hanna, 5 H. & J., 412; Hall vs. Hall, 6 G. & J., 408.

The prayer of the plaintiff, granted by the Court was bad, because:

1st. It directly submitted to the jury the interpretation of a written instrument. Baltimore and Ohio Rallroad vs. Resley, 7 Md., 297.

2d. The rule of interpretation given is not universal, and only to be resorted to when other rules of exposition fail. Varnum & Aspinwall vs. Thruston, 17 Md., 470.

Herman Stump and George Y. Maynadier, for the appellee.

The intention of the parties, gathered from the language of the letters containing [**7]  his offer and her acceptance, shall prevail. Varnum & Aspinwall vs. Thruston, 17 Md., 470; 2 Parsons on Contracts, 13.

Another rule is, that, in construing a written contract, the Court should give meaning and operation to every clause and word thereof, consistently with the intention of the parties, and to that end may look to the motives and objects to be attained. Waters vs. Griffith, 2 Md., 326; Allegre vs. Insurance Co., 6 H. & J., 411; Jones vs. Plater, 2 Gill, 125.

Another rule is, that, if doubts remain after the application of the recognized principles of interpretation, the contract will be construed most strongly against the party making the offer, or using the doubtful expression. And there would be no injustice in applying this rule here, in the first instance, as George Stockham seems so anxious to appear to promote the welfare of his old step-mother. Carroll's Lessee vs. Granite Manuf. Co., 11 Md., 400.

If the Court shall be of the opinion that, upon a proper construction of the contract in this case, the appellee is entitled to recover, they will sustain the judgment therein, if the appellant has received no injury from the rulings of the Court below,  [**8]  even though such rulings be erroneous; nor will a procedendo be granted where it is clear that the appellant must fail in reversing said judgment. Hanson vs. Campbell's Lessee, 20 Md., 223; Benson & Trundy vs. Atwood, 13 Md., 20; Dakin vs. Pomeroy & Crafts, 9 Gill, 1; Glenn vs. Rogers, 3 Md., 312.

The construction placed upon a contract by one of the parties to it, or acts done in furtherance of his understanding of it, are not binding upon him or either of them. Ringgold vs. Ringgold, 1 H. & G., 74; Hutchins vs. Dixon, Ex'r, 11 Md., 30; Varnum & Aspinwall vs. Thruston, 17 Md., 470; Key's Ex'r vs. Parnham, 6 H. & J., 418.

A contract by letter is consummated when the letter of acceptance is mailed. Story on Con., sec. 383; Chitty on Con., 11, n.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MAULSBY, ALVEY and ROBINSON, J.  

OPINIONBY:
MILLER 

OPINION:

 [*201]  MILLER, J., delivered the opinion of the Court.
There are errors in the rulings of the Court below requiring a reversal of this judgment, and as the case is to be sent 

 [*202]  back for another trial, it is essential to settle the true construction of the contract for the sale of the farm, the only matter [**9]  of dispute between the parties. This contract being in writing, effected by means of letters, its construction is to be declared by the Court, and should not be submitted to the finding of the jury.
The offer contained in the letter of January 11th, 1864, from the vendee to the vendor, is in these words: "I now offer $ 11,000 for said farm as it is, including the wheat in the ground *** the farm to be paid for as follows: when the premises are cleared and the deed made and recorded, with searches of docket, and handed over to me free of cost, I will pay over $ 1000, and will give my due bill or surety for balance, after deducting my claim, to be paid in all, January, 1865; neither party to charge or claim any interest," as expressed in one part of that letter, and in another, "that there may be no misunderstanding, I repeat the terms of payment, $ 11,000 purchase money, to be paid when deed is made and searches handed over free of costs and possession given, $ 1000 cash, the balance, after deducting my claim, to be paid during January, 1865, this to include wheat in the ground, neither party claiming or requiring interest." The purchaser held a mortgage on the farm [**10]  executed in April, 1861, for $ 6,500, bearing interest from the 22d of February, 1861, and the vendor was also indebted to him upon a draft for $ 124.64, and upon open account the items of which are undisputed. The appellee contends that all interest on the mortgage debt, the draft and the open account is relinquished, whilst the vendee insists he is entitled to interest on the whole, down to the date of the consummation of the contract, by acceptance of this offer. Neither view is correct, as will be presently shown by an examination of the whole negotiation and correspondence preceding the offer and its acceptance. The former overlooks the true meaning of the terms "after deducting my claim," whilst the latter does violence to the stipulation that "neither party" shall "charge or claim any 

 [*203]  interest." The previous letters show that the vendor, who was the step-mother of the purchaser, had been for some time anxious to sell her farm and relieve herself from debt; that as early as the spring of 1863, negotiations had been going on, and offers had then been made for it by the present vendee. On the 11th of August of that year, she wrote requesting him to let her know [**11]  how much she owed him, or how much interest she must pay him, and how much he would take for his mortgage, so that she might know just what price she could afford to take for the farm, as she had heard of a party who might purchase; and also asks him to write the best he could do, as he seemed to decline doing what he had offered to do last spring. To this he replied by letter of the 24th of August, enclosing his account, in which he charges interest on the mortgage debt from the 22d of February, 1861, to the 1st of August, 1863, and interest on the draft to the same date. These are the only charges of interest, which amount to $ 972.50, and the whole amount of the account thus stated is $ 7,579.74. In the letter enclosing this account he says: "I can't enclose you your whole account, every thing as if you were a stranger, and if you could make a good sale we might ask you for the most of it; if you have a moderate offer we will try to be as moderate, or even more so;" expresses his disinclination to buy, but states he has not refused or declined to make good any offer of last spring, which is about the best he could do. The next letter is that of the 11th of January, 1864, containing [**12]  the offer, the terms of which have already been stated. In this he states that he revokes all former offers, and now makes this his last and best, only because of the relation in which he stood to her, as he knows he was paying some $ 3,000 more than he believed the farm to be worth; that he would not give more than $ 8,000 or 9,000 to a stranger, even if he wanted to buy, and that he bought now to help her condition and not his own. After receipt of this, and before accepting the offer it contained, she again wrote by letter of 

 [*204]  the 14th of January, (misdated, according to the proffered testimony, the 14th of February,) in which she says she does not understand what he meant in his letter of the 11th, "by saying neither of us shall claim any interest: when I give possession and a deed are you not then paid? You are making the interest on the farm for the money that will be due me; you surely will not be so hard with me, unless you will throw off some of the interest due you;" that she had been reproved for not trying to sell sooner, and that many persons had said he intended to put her off "until the interest eats up the farm," &c., but "she had waited patiently as [**13]  possible and trusted on, encouraged by his kind words; that one of his letters had stated he 'would throw off a good deal of interest;' please make the sum $ 7,000, then when my debts are paid I will not have $ 1,000 left; indeed it will be little more than poorhouse allowance," &c. In reply to this he writes by letter of the 20th of January, in which, after acknowledging receipt of her's of the 14th inst., he says she does not say by it whether she will or will not accept his offer; "if you do accept it I will try to comply with my promise; if you do not accept it, and will sell to others, and I hope at better rates, I will deduct $ 500 from my claim on the payment of the money, which is some evidence I do not want the interest to eat up the farm;" he then expresses his indignation at those who may have charged him with sinister motives in the matter, and tells her to sell the farm to them; that he thinks he has offered from $ 2,000 to $ 3,000 more than it is worth to him, for the sake of her and her's only, and that much more than he would give to strangers, even if he wanted to buy, and therefore he "could make no better offer." After this she wrote another letter, which he [**14]  received on the 25th, in which she states that though she had not accepted, she had not refused his proposal, and says: "I only want to beg a little better bargain; the $ 1,000 I must pay away to my children, and pay them interest for the balance, and you know it is hard to pay interest on what I owe and not get any on what 

 [*205]  is coming to me, nor will I have one dollar to live on for one year, whatever may befall me; you did not bind me to any set time, I consider you have made the offer in the way that allows a reasonable time to make up my mind; please allow me a week or a little more, and I will send it in; my case is desperate and my doom is sealed, and only waits for you to sign my death warrant; for God's sake answer this as soon as possible and say just what your claim shall be if I accept your terms. I appeal to your mercy, you that have given away so much money, and to many that were less deserving than I. I hope this may be the last time I shall ever ask mercy from any but God. I repeat, please answer this immediately and do not keep me in suspense, for it has almost broke my heart." Before receiving any reply to this she directed Mr. Archer to write the letter [**15]  of the 26th of January, substantially accepting the offer, and on the 28th of January, also wrote herself fully accepting that offer, in case he had not received the letter of Mr. Archer to the same effect. On the same day, the 28th, he wrote to Mr. Archer acknowledging receipt of his of the 26th, admitting it to be an acceptance of the offer.
This correspondence removes all obscurity and uncertainty that may have hung over the controverted clauses in the letter of the 11th of January, 1864. In our opinion, it is perfectly clear the "claim" to be deducted is the claim of $ 7,579.74, sent to the vendor in August, 1863, and in her possession when the offer in question was made, and the clause, "neither party to charge or claim any interest," means that no interest should be charged on that claim, and that the vendor was to have none on the deferred installment of the purchase money. By this construction, effect is given to every clause and word of the offer, and a fair and reasonable interpretation given to the contract. The vendee relinquishes interest on his mortgage debt and on the draft beyond the 1st of August, 1863, and agrees to charge none on the other items of his account,  [**16]  and the vendor consents to claim none on the balance due her to be paid in January, 

 [*206]  1865. The whole tenor of the correspondence clearly discloses this to have been the intention of the parties at the time the contract was made. That the vendee never supposed he had waived all interest on his mortgage debt, is too plain to admit of question, and however much our feelings and sympathies may be enlisted in behalf of the vendor by her distressed condition and pathetic appeals to him from whom she thought herself entitled to ask and receive more favorable terms, we cannot convince our judgments that she, at any time before the offer was accepted, ever interpreted it as going to the extent she now insists upon. These very appeals themselves constrain us to this conclusion, for if she had understood the offer as abandoning all claim to any interest on this large mortgage debt, they show she would have accepted it without hesitation, because that gave her more than the utmost she afterwards vainly implored from the mercy of her creditor.
No rule of evidence is infringed by resorting, as we have done in our construction of this contract, to all the written correspondence, as well [**17]  that which preceded the offer as that which preceded its acceptance. The terms, limitations and conditions of the contract must, it is true, be found in the letter of the 11th of January, and these are perfectly intelligible, as stated on the face of that letter. One of the essential conditions, however, there found is, that the vendee's claim shall be deducted from the purchase money, but as to what that claim is in amount, and of what items it consists, the latter itself is silent; and this must, of necessity, be ascertained by evidence de hors. The case, therefore, on this point, falls within the general rule that, as to the parties or subject-matter of a contract, extrinsic evidence may and must be received and used to make them certain, if necessary for that purpose. The contract must be applied to its subject-matter by evidence from without. Looking to this evidence, (which, in this case, is in writing,) we clearly discover that claim to be in amount and items that which had been 

 [*207]  sent to the vendor in August, 1863, and this being settled, the meaning of the clause relating to interest is at once removed from every shadow of uncertainty; the whole contract [**18]  becomes entirely plain in force and application, and substantial effect is given to every clause and word. The rule that parol or extrinsic evidence will never be permitted to contradict or vary the terms of a written contract, is certainly a cardinal one, resting upon the fundamental principle that the law will not allow a contract to be made for parties different from that which they have made for themselves, but it is equally a certain and indisputable rule that such evidence is admissible to ascertain and make certain the parties and subject-matter of an agreement, to apply the contract to its subject, to prove any collateral, independent fact about which the written agreement is silent, to remove what are termed (and often inaccurately termed) latent ambiguities, and as this Court has said in McCreary vs. McCreary, 5 G. & J. 147, quoting from Phillips on Evidence, "though an ambiguity, apparent on the face of a written instrument, cannot be explained by extrinsic evidence, yet, when a question arises as to the general intention of the parties concerning which the instrument is not decisive, it has been held that proof of independent facts, collateral [**19]  to the instrument, may be properly admitted." In all cases of this kind, such evidence is used, not to contradict or vary the written instrument, but to aid, uphold and enforce it as it stands. Authorities, of which a multitude exists, need not be cited to sustain propositions so well settled and familiar as these. We cannot, however, forbear a reference to 2 Parson's on Cont., 548, where an illustration, peculiarly apposite to the case before us, of the application of these rules, is thus put: "If a negotiation be conducted in writing, and even if there be a distinct proposition in a letter and a distinct assent making a contract, and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, 

 [*208]  although they may be sometimes of use in explaining its terms."
We now proceed briefly to dispose of the questions presented by the several rulings to which exceptions were taken:
1st. The parol proof in the first exception, to the effect that the farm was worth $ 15,000 or $ 16,000 at the date of the purchase, is clearly inadmissible.  [**20]  The price to be paid for the land is definitely fixed by the contract at $ 11,000, and if this testimony does not directly contradict the agreement in this respect, it is for every other purpose entirely irrelevant. It furnishes no aid in explaining or interpreting any part of the contract, even if it should for a moment be conceded to be admissible for that purpose. It should have been rejected.
2d. The letter from the vendor, excluded in the second exception, ought to have been admitted in evidence upon proof that it was written on the 14th of January, was received by the vendee on the 20th of that month, and by mistake was dated the 14th of February. It is one of the series of letters written, as is apparent on its face, and from the letter of the purchaser in reply thereto before acceptance of the offer, and, as we have already decided, is to be considered in the construction of the contract. There is no difficulty in allowing the mistake as to its date to be established and corrected by parol proof. Deakins vs. Hollis, 7 G. & J. 311; 2 Parson's on Cont., 554.
3d. The ruling in the third exception is correct. Where an offer is made by letter, an acceptance [**21]  by written communication takes effect from the time when the letter containing the acceptance is mailed, and not from the time when it is received by the other party. Such is now the settled doctrine of both the English and American authorities, and was so decided by this Court in the case of Wheat vs. Cross, 31 Md. 99, 103. See, also, Adams vs. Lindsell, 1 Barn. & Ald. 681; Dunlop vs. Higgins, 1 House of Lords Cases, 381; 1 Parsons on Cont., 406, note (k.) This contract was, therefore, closed as early, at least, as the 28th of January, and the 

 [*209]  excluded account, charging interest on the claim for $ 7,579.74 from the 1st of August, 1863, down to the 31st of January, 1864, was not rendered and sent to the vendor until the last-named day, and, consequently, after the contract was completed. It is well settled that a Court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor is a party bound by any construction which he may have put on the instrument, (Ringgold vs. Ringgold, 1 H. & G. 11, 74; Hutchins vs. Dixon, 11 Md. 29; [**22]  and, a fortiori, the acts done by one party after the completion of the contract in furtherance of his understanding of it, cannot bind the other party, or be admissible in aid of its construction.
4th. The defendant's prayer was properly rejected, if for no other reason, because it failed to instruct the jury down to what period they should allow interest on the mortgage debt. As we have shown, interest is to be allowed on this debt only to the 1st of August, 1863, as stated in the account sent to the vendor in that month.
The two instructions given by the Court, as well as that granted at the instance of the plaintiff, were open to the objection that they left to the jury the construction of the contract, which was a question of law to be decided by the Court; but it does not appear from the record that any such objection was taken at the trial, and in such case this Court cannot, since the Act of 1862, ch. 154, consider the instructions defective for that reason. But, whether construed by Court or jury, the contract must be interpreted upon the same evidence and by the same rules, and, as we have before said, it was error to tell the jury that, in considering its terms, they [**23]  must confine themselves to the letter of the 11th of January, and its acceptance by the letter of Mr. Archer, and to allow them to find that the offer contained a waiver of all interest on the debt due the defendant, as was done by the instructions which the Court gave. The rule that the offer is to be construed most strongly against the party making it is one of strictness and 

 [*210]  rigor, to be resorted to only when all other rules of exposition fail. We have shown there is no necessity in this case for its application, and the plaintiff's prayer, which adopts it as applicable to this contract is, for that reason, erroneous, and should have been rejected.
Judgment reversed, and new trial awarded. 

130 of 142 DOCUMENTS 

In the matter of the Insolvent Estate of CONRAD LEIMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 225; 1870 Md. LEXIS 27 

March 4, 1870, Decided 

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

On the 30th of September, 1852, Conrad Leiman conveyed certain leasehold premises to Harman Schaferman. On the 22d of May, 1854, Leiman applied for the benefit of the insolvent laws, and on the 2d of September following, obtained his final discharge; William Seip was appointed his trustee. On the 6th of January, 1857, Schaferman re-conveyed the premises to Leiman; this deed was recorded on the 9th of June, 1860.

On the 4th of December, 1857, William O'Brien, a creditor of Leiman, filed a bill in the Circuit Court of Baltimore city, to set aside the deed from Leiman to Schaferman, as being in fraud of creditors; and such proceedings were had, that by a decree of the Court of the 20th of September, 1862, the deed was declared void; and on an appeal from this decree, it was affirmed. ( Vide 28 Md., 565.) Pending these proceedings, on the 29th of March, 1860, Harman Schaferman conveyed to Wm. H. Weaver and George Voyce, as tenants in common, a portion of the property which had been conveyed to him by Leiman; subsequently Weaver became entitled to the interest of Voyce. On the 25th of May, 1861, for the consideration of one dime, Conrad Leiman [**2]  conveyed all his interest and estate in the property, which had been re-conveyed to him by Schaferman, to his son George W. Leiman.

Seip, the trustee in insolvency of Leiman, having died, William H. Dawson was, on the 29th of April, 1868, appointed trustee in his stead; he sold the property in question, and the sale was finally ratified on the 2d of September, 1868.

The trustee gave notice by publication to the creditors of Conrad Leiman, who were such prior to his application for the benefit of the insolvent laws, to file their claims, with the vouchers, on or before the 21st of August, 1868.

The claims of the appellants were as follows:

William H. Weaver, who claimed under the deed from Schaferman, to be entitled to the surplus arising from the sale of the property of the insolvent, after the payment of his creditors; he claimed also as assignee, in 1868, of a judgment from Schneider and Von Eiff for $ 200, with interest from March 25th, 1853. This claim was filed 16th of May, 1868.

Washington Page, $ 140.93, on promissory notes and open account, dated in 1851 and 1852--filed August 19th, 1868.

J. H. Lange, who claimed as assignee of a magistrate's judgment [**3]  of one Eichelberger, against one Strohmeyer, obtained in 1852, for $ 59.05, in superseding which, it was alleged, that Leiman joined as security. Filed July 27th, 1868.

Samuel Harman, $ 157.64, on open account, with nearly sixteen years' interest--filed September 8th, 1868.

Harman Classen, on judgment for $ 152.00, with interest from June 2d, 1852--filed August 1st, 1868.

Henry Chinn, on three open accounts, the first dated August, 1850, for $ 116.48, the others dated 1852, for $ 10.70 and $ 150, with interest on each from its date--all filed in August, 1868.

Wm. O'Brien, who claimed as assignee of a judgment from Pendleton, dated June 9th, 1853, for $ 275.00, with interest, and who also claimed $ 84.24 costs in the Circuit Court, and $ 93.75 costs in the Court of Appeals--filed May 11th, 1868. (O'Brien's claim having been allowed below, he did not appeal.)

Frederick Eversman, who claimed first as assignee of a judgment from Solomon Brenner, dated January 13th, 1853, for $ 375, with interest; and secondly, for $ 75.00, paid by him July 14th, 1854, on a judgment against him by Schneider and Von Eiff, as security for Leiman--filed March 27th, 1869.

Patrick [**4]  M'Laughlin, Esq., who claimed $ 500 for professional services rendered as solicitor for Wm. O'Brien.

George W. Leiman, who claimed under the deed from his father, dated 25th of May, 1861, the surplus of the insolvent's estate, after the payment of such claims and expenses as the law required to be paid.

To the foregoing claims of Weaver, Page, Lange, Classen, Harman, Chinn and Eversman, the Statute of Limitations was pleaded by George W. Leiman, as also by Weaver, his own claim excepted. O'Brien's and four others were further excepted to, because not sufficiently authenticated; Mr. M'Laughlin's, because the same was not due by the insolvent estate, nor were the services rendered for the same at the instance of any one authorized so to do, and the claim itself was not sufficiently proven. George W. Leiman and William H. Weaver each claimed, under their respective deeds, the balance of the insolvent's estate, after such credits as the Court should allow.

The Court below ordered to be made, and ratified, an account allowing all costs and expenses, the claims in full of O'Brien and M'Laughlin, and the balance of $ 2,708.51 to George W. Leiman.

The rejected creditors [**5]  appealed from the disallowance of their claims. George W. Leiman and Weaver appealed from the allowance of the claims of M'Laughlin and O'Brien, and Weaver appealed from the allowance of the surplus to George W. Leiman.  

DISPOSITION:
Order in each of the appeals of Classen, Chinn, Lange, Page, Sam'l Harman and Eversman, reversed, and the orders, in so far as they allow the claims of O'Brien and M'Laughlin, affirmed, and the order overruling the exception of Weaver to the claim of G. W. Leiman, affirmed.  

HEADNOTES:

Insolvency -- Express Trust -- Statute of Limitations -- Allowance of Counsel's Fees -- Subsequent Purchaser with knowledge of a Prior Unrecorded conveyance.

Under the insolvent laws of this State, the property of the insolvent is vested in the trustee appointed by the Court. The trust thus created, is an express trust for the benefit of the creditors of the insolvent, who are such at the date of his application, and their claims, unless then barred by the Statute of Limitations, are not afterwards, during the execution of the trust, affected by lapse of time.

Where the trustee in insolvency, upon the application of the creditors, refuses to institute proceedings to set aside a conveyance from the insolvent, as being in fraud of creditors, and one of the creditors in behalf of himself and others, files a bill for that purpose, and employs counsel to prosecute the suit, and the conveyance is finally set aside, the fee charged by the counsel so employed, should be allowed out of the insolvent estate.

Knowledge in fact of a prior unrecorded conveyance, is equivalent to registration, and the purchaser of the property with such knowledge, is not a bona fide purchaser without notice. 

COUNSEL:
Albert Ritchie, for George W. Leiman.

The rejected claims are barred by limitations--this case is not within that class of trusts, from which the operation of the Statute is excluded. The only trusts to which the Statute does not apply, are such as are technical and continuing, which are not cognizable at law, and are exclusively within the jurisdiction of equity. Young and Wife vs. Mackall, 4 Md., 362; Oehler vs. Walker, 2 H. & G., 323; Berry vs. Pierson, 1 Gill, 234.

In the trusts referred to, the question always arises between the trustee and cestui que trust. Crook, et al. vs. Glenn, et al., 30 Md., 55. Between them the statute does not operate, because of the fiduciary relation [**6]  which exists. But here, and in every insolvent case, the question of the allowance of a claim comes up between the creditor on the one hand, and another creditor, or the debtor, or his heir, or his representative, or some one else having an interest in the estate, on the other. No fiduciary or confidential relations exist between them. How, then, can the principle apply?

Again, in insolvent estates who are the cestuis que trust? Not all who claim to be creditors, but only such as, in law and fact, are creditors. The fact of creditor or not is to be established by proof and filing of the claim, before the period has elapsed when the law presumes payment, and, from considerations of public repose, interposes the statute. The trustee is not a trustee for any creditor, however bona fide, who never files nor proves his claim, nor even for one who might file, but fail to prove it. When the claim is properly filed and proved, then the creditor becomes a cestui que trust, and, no matter what time might afterwards elapse before distribution, the claim could not be barred. But it is only at this point that the statute ceases to operate. Until a creditor complies with the law, and establishes [**7]  his right as such, by proving and filing his claim within time, he is nothing but a stranger to the fund and to the trustee.

On principle, therefore, it is clear that the Statute does apply. It is an established rule in equity that the Statute of Limitations runs against a claim, or debt down to the time when it is exhibited. Ohio Life Ins. Co. vs. Winn & Ross, 4 Md. Ch. Dec., 253; Strike vs. McDonald, 2 H. & G., 238; Hall's Adm'r vs. Cresswell, 12 G. & J., 36; Welch vs. Stewart, 2 Bl., 41.

So that, whether on the schedule or not, limitations run until the vouchers are filed. Were it otherwise, the mere application in insolvency (followed by a discharge) would work an indefinite suspension of the Statute, and a negligent creditor would actually receive a premium upon his laches.

The right of Leiman to plead the Statute of Limitations is settled, if authority were needed, by Strike vs. McDonald. The Court there say that "the debtor," "or his heir," has so manifest an interest in the estate that there seems never to have been any difference of opinion as to his right to plead the Statute. If the debtor can plead it, of course his grantee or assignee can do so. Any one [**8]  who establishes an interest in the fund has a standing to plead the Statute.

Was George W. Leiman entitled to the surplus? The property of an insolvent vests in the trustee for the benefit of his creditors, with, of course, a continuing equitable interest in him in respect to any surplus that might remain. After payment of all lawful expenses and rightful claims, should there be a balance, it goes to the insolvent. Whoever represents his title, then, has the same right to plead the Statute and receive the surplus.

The question is, does George W. Leiman or does Weaver now represent the title of Conrad Leiman to this surplus?

The pivot of that question is the re-conveyance from Schaferman to Conrad Leiman, in 1857, three years before the deed under which Weaver claims. Of the existence of that deed, though not recorded until 1860, the evidence shows Weaver to have had actual knowledge, and the effect of it, therefore, as to Weaver is precisely the same as if it had been recorded.

Actual knowledge of the existence of an unrecorded deed, or such notice as is sufficient to put a party upon inquiry, is equivalent to registration. Code of Pub. Gen. Laws, Article 24, section [**9]  19; Moncrieff vs. Goldsborough, 4 H. & McH., 281; Hardy and Talburtt vs. Summers, 10 G. & J., 324; Price & Bevan vs. McDonald, 1 Md., 403; Winchester, et al. vs. Balt. and Susq. R. R. Co., 4 Md., 238; Johns vs. Scott, 5 Md., 81; Cooke's Lessee vs. Kell, et al., 13 Md., 469.

The claim of O'Brien ought not to have been allowed, because it was not properly proved.

The Court below had no authority to allow the fee of $ 500 to Patrick M'Laughlin, Esq.; he was retained by O'Brien, and his services were rendered in pursuance of such retainer, not on behalf of the estate. His services in O'Brien's case may have incidentally been of advantage to the estate, and so, in that case, he may have procured the settlement of some question that was of incidental advantage to parties perfect strangers to the record; but he has no more claim upon the stranger in the one case than in the other.

Gearge H. Williams, for William H. Weaver.

George W. Leiman's proof is defective and he has not made out his title.

His pretended deed is voluntary, based on no consideration, and not duly attested as required by the Code of Pub. Gen'l Laws, Art. 24, sec. 10.

Weaver was a purchaser,  [**10]  bona fide, by deed duly recorded, and the attempt made to charge him with express notice, is by tainted witnesses, contradictory, and wholly fails. And even if he had express notice, it was of an instrument so fraudulent as to entitle the claimant under it to no consideration whatever. Stewart vs. Iglehart, 7 G. & J., 132; Cushwa, et al. vs. Cushwa's Lessee, 5 Md., 50, &c.; Freeman vs. Sedwick, 6 Gill, 29.

George W. Leiman, the son, as grantee under a deed of which he had no knowledge, for which he gave no consideration; made when he was a boy, and who does not even yet know why it was made, must occupy the position of his father, the grantor; who, on the authority of the above cases, could not be heard in a Court of Justice to attack Weaver's deed from Schaferman. And even if the family testimony of wife, daughter and son, could be credited, so as to put the property into their pockets, in their attempt to show Weaver had notice, (and it is submitted that, under the other proof in this cause, such credit cannot be given,) yet still "in pari delicto potior est conditio defendentis."

That all the claims to which limitations are pleaded, (O'Brien's excepted, as filed in time,  [**11]  ) are barred, is now the settled law of this State. McDowell vs. Goldsmith, 24 Md., 229, &c.; Strike's Case, 1 Bl., 94; Welch vs. Stewart, 2 Bl., 41; Hall vs. Cresswell, 12 G. & J., 48.

For the allowance of the claim of P. M'Laughlin, Esq., there is no precedent. He was counsel for O'Brien only, whose claim is admitted. O'Brien should therefore compensate him.

Louis Hennighausen and Patrick M'Laughlin, for Harman, Lange, Page, Chinn and O'Brien.

The decree in the creditor's suit of O'Brien vs. Schaferman, to which Harman, a creditor, was a party, established his claim, and the claims of all the creditors who were parties to it, to the full extent thereof, unless the decree expressly limited the amount of the claim established, or pointed out the complainants whose claims were to be allowed.

A general decree establishes the claims of all who have been made complainants previous to the date of the decree. Strike's Case, 1 Bland, 68; Hammond vs. Hammond, 2 Bland, 359; Crapster vs. Griffith, 2 Bland, 23, 24; 2 Danl. Ch. Practice, 1513; Griffith vs. Reigart, 6 Gill, 445.

The Statute of Limitations cannot be pleaded in bar of the claims of Lange, Page, Chinn and Harman.  [**12]  

The Statute had not barred any of their claims at the time Conrad Leiman applied for the benefit of the Insolvent Laws.

The application of Conrad Leiman for the benefit of the Insolvent Laws, was made on the 22d day of May, 1854, and the Insolvent Act of 1854, ch. 193, was passed on the 10th day of March of that year, and was made to take effect from the date of its passage; therefore the proceedings in this case, so far as insolvency is concerned, must have regard to and be governed entirely according to that law. The applicant for the benefit of the Insolvent Laws conveys his property to his trustee. Act of 1854, ch. 193, sec. 2. The title to property fraudulently conveyed, vests in the trustee as effectually as if the same had been specified in the schedule. Act of 1854, ch. 293, secs. 2, 7.

The property in this case, when it came into the hands of the trustee, had impressed upon it an express trust, and having been held upon that trust, the Statute of Limitations cannot be set up as a bar to the claims of the cestuis que trust, the possession of the trustee being the possession of the cestuis que trust. 1 Salkeld, 154, Anon; Jamison vs. Chesnut, 8 Md., 34, 39; Cushwa [**13]  vs. Brewer, 27 Md., 288, 294, 317, 319, 320; Coster vs. Murray, 5 John. Ch., 522, 531.

This doctrine is clearly exemplified in cases of persons claiming from an administrator the residue of the estate or from the executor a legacy. Lindsay vs. Lindsay, 1 Dessau., 150; Carr vs. Cobb, 7 Danna, 417; Blue vs. Patterson, 1 Dev. & Batt., 457, 458; Bird vs. Graham, 1 Iredell, 196; Nelson vs. Cosmoele, 11 Gratt., 724.

The creditors of Conrad Leiman have had no remedy at law as against him, since he applied for the benefit of the insolvent laws, and had they sued him on their claims since that date, they would have been non-suited. Act of 1854, ch. 293; Buckey vs. Culler, 18 Md., 418, 433. Nor could they have sued the trustee on the claims in any Court, until after the same had been audited and the account ratified, and until they had given notice to the trustee. Williams vs. Williams, 3 Md., 163, 167. As, until he has notice of the ratification, there is no breach of trust in not paying the creditors, and, until guilty of a breach of trust, he is not liable to be sued. Hill on Trustees, 518.

The creditors were not bound to have filed their claims in equity; as nothing could [**14]  come into that Court from the estate of the insolvent that could be applied to the payment of their debts. Alexander vs. Gheislin, 5 Gill, 138; Waters vs. Dashiell, 1 Md., 472; Manahan vs. Sammon, 3 Md., 463; Jamison vs. Chesnut, 8 Md., 34, 39; Zeigler vs. King, 9 Md., 330, 335.

Is there any obligation, under our laws, upon the creditors to file their claims in the Insolvent Court before notice to them? Their claims cannot have limitations attached to them when presented in the Court of Common Pleas, because the Act of Assembly has taken away their remedy at law, against their debtor. Buckey vs. Culler, 18 Md., 418, 433.

Therefore the Court cannot regard the pleas in obedience to the Statute. Neither can the plea be applied by analogy to the Statute, as the trustee does not hold by virtue of any trust created by implication or construction of law. Hill on Trustees, 265. This case is not like that of a creditor's bill in equity. There each party is represented by himself alone, and he has no representative in Court until he files his claim. In this case the trustee represents the creditors. Jamison vs. Chesnut, 8 Md., 34, 39.

Had the trustee alone filed the bill in equity,  [**15]  to set aside the deed from Leiman to Schaferman, as he could and should have done, instead of O'Brien, (Lewis vs. Gardner, 7 Gill, 397,) what would have been the result? He would certainly have represented all the creditors; and as he was acting for them and on behalf of their claims, they could not have been in default for not having acted themselves; and as it would be by virtue of their claims that he would have acted, and in that capacity he would have defeated the Statute of Limitations, it is not now allowable for the same parties to plead it against the creditors.

That the trustee did not perform his duty by filing the bill, was not the fault of the creditors, for he was requested so to do. And as he was made a party to the bill, and forced against his will to represent the creditors, the Court will hold him representing them when in Court as defendant, so far as limitations is concerned, to the same extent as if he had been sole complainant.

Spottswood Garland, for Eversman.

Louis Hennighausen, for M'Laughlin.

The services rendered by P. M'Laughlin, the solicitor in the cause of O'Brien vs. Henry Schaferman, et al., resulted to the benefit of the trust fund [**16]  in this cause. O'Brien, a creditor of the insolvent estate, had requested the trustee thereof to take the necessary legal steps for the recovery of the property, to which he, as trustee of the insolvent estate, became entitled. The law vested in him the title and right of possession to all the estate of the insolvent at the time of his being adjudicated an insolvent. Zeigler vs. King, 9 Md., 332; Act of 1854, ch. 193, secs. 1 and 2.

The trustee refused and neglected to take such steps. O'Brien, by Mr. M'Laughlin, his solicitor, then filed a bill in behalf of all the creditors of Conrad Leiman, the insolvent. Samuel Harman, another creditor of said Leiman, afterwards, by his application, became a party complainant to said bill. They were successful in exposing the fraud of the insolvent, and a decree was passed declaring a deed of assignment from Leiman to Schaferman null and void, as against all the creditors of Leiman. But no decree could have been passed for the sale of the property in equity, or for the application of the proceeds of a sale to the satisfaction of the creditors, who had filed their claim in that suit. The case differed from an ordinary creditor's bill, for the [**17]  reason that there could be no trustee. Zeigler vs. King, 6 Md., 335; Alexander vs. Ghiselin, et al., 5 Gill, 179.

The trustee of the insolvent estate took possession of the property, subject to the future adjudication of the Court of Insolvency. O'Brien and Samuel Harman did not, by that suit, acquire any greater interest or right in the trust fund of the insolvent estate than any of the other creditors had. The suit was and only could have been directly in the interest of the trust fund. Their interest was indirect, and subject to the future adjudication of the Court of Insolvency.

The trustee, by the long-established practice in equity and insolvent proceedings, would have been allowed a counsel's fee in a case like the present. Nelson vs. Pierson, 8 Md., 301; Hill on Trustees, 572, 573, (margin;) Macnamara vs. Jones, Dick., 587; Johnson vs. Telford, 3 Russ., 477.

In this case, it was the duty of the trustee to have done what O'Brien, by M'Laughlin, his solicitor, did for him. The services were for the benefit of the trust fund in his possession, and the benefit thereof accepted by him. And the fund should therefore be made to bear the expense of the fee charged by [**18]  Mr. M'Laughlin, through whose efforts the fund was secured for the creditors of the insolvent.

Oregon R. Benson and Thales A. Linthicum, for Classen.

The exceptions made to Harman Classen's claim, by Wm. H. Weaver and Geo. W. Leiman, are made upon the ground that the claim is barred by limitations. No person can raise or urge the Statute of Limitations, or interpose any objection against the claim of a creditor of an insolvent debtor against the estate, unless such person be a creditor or otherwise interested in or entitled to a portion or the entirety of the proceeds of such estate. Alexander's Chan., 143; McCormick vs. Gibson, 3 G. & J., 12. The claims of the parties upon the fund are several and distinct, and the issue as to the allowance of any particular claim must be determined only as between the parties objecting to it, and it is necessary for the validity of such objection, that the party making it shall first establish his own interest in the fund.

The claim of W. H. Weaver is based upon an assignment to himself and Geo. Voyce from Schaferman, dated March 29, 1860, and recorded the same day, which refers to the deed to Schaferman of September 30, 1852, and [**19]  was executed after the bill of O'Brien was filed, (December 4, 1857,) to set aside the deed of September 30, 1852, for fraud, and he and Voyce are chargeable with notice of the fraud alleged in said bill, and took the property subject to the decree passed thereon, and take only such interest under these assignments as Schaferman possessed in the property, and that Schaferman had no interest, is presumed to be settled by the case of O'Brien vs. Schaferman, 28 Md., 565. That deed being set aside and annulled, became inoperative to give title to Schaferman, and all the right and title of Leiman, at the time of the execution of the deed by virtue of the insolvent law, vested in the insolvent trustee for the benefit of his creditors. Code, Art. 48, sec. 7; (1854, ch. 193, sec. 7.) And this operation of the insolvent law relates back to the fraud contemplated, and avoids all conveyances made to defraud creditors, and confers upon the insolvent trustee, a prior and superior title to that of the grantee, and attaches to the property as being that of the insolvent, and not of the grantee, under which he may bring ejectment and recover without resorting to a Court of Equity to have the deed [**20]  set aside. Trumbo vs. Blizzard, 6 G. & J., 18.

Leiman and Schaferman were both guilty of the fraud in the making and execution of the deed, and the purchasers under Schaferman and Leiman stand affected with notice of that fraud, and in respect of the derivative deeds from them, stand in no better condition than they. The representative of the assignor stands in no superior position to that of the assignor, from whom he must deduce title, and it is clear that neither Leiman nor Schaferman, as a plaintiff, can successfully invoke the aid of a Court of Law or Equity to give effect to the deed of September 30th, 1852, nor, as defendants, resist the operation and consequences of their own act. The Courts will not interfere in behalf of either, unless such non-interference will have the effect of promoting the original design of fraud. Cushwa vs. Cushwa, 5 Md., 52.

The decision of this Court in O'Brien vs. Schaferman, 28 Md., 565, has determined the character of the deed of September 30th, 1852, and has pronounced it void for fraud.

If Leiman took any interest under the deed of re-conveyance to himself from Schaferman, dated January 6th, 1857, notwithstanding his disclaimer [**21]  in his answer, his rights were arrested by the insolvent law, and he could not assign in fraud of creditors. The deed of September 30th, 1852, is void for fraud in fact, and his subsequent creditors are to be provided for out of that property; and to that end, Leiman being dead, administration is necessary, so that such creditors may be allowed the opportunity to file their claims--Williams vs. Banks, 11 Md., 198--or notice should be given to such creditors to bring in their claims by the trustee in insolvency. And as to the creditors of the insolvent at the time of his application, their rights are expressly saved by Code, Art. 57, sec. 8, 1814, ch. 122, sec. 3, or under 1854, ch. 193, as against after acquired property.

And the deed from Conrad Leiman to Geo. W. Leiman is inoperative as a deed, being not properly executed, to pass title, and can only operate as an agreement to assign, which cannot be enforced as such agreement, because it is lacking the essential ingredients of bona fides, and adequate consideration. Smith vs. Crandall, 20 Md., 482.

Neither Geo. W. Leiman nor W. H. Weaver, the alleged assignees of Conrad Leiman, have any interest in this estate by reason [**22]  of the several assignments to them respectively, because the property intended thereby to be assigned, vested absolutely in the insolvent trustee, and the deeds whereby they respectively claim said property or the proceeds, are null and void to all intents and purposes. And the several deeds to Geo. W. Leiman and W. H. Weaver being absolutely null and void under the insolvent laws, neither of them took any interest thereunder, and are consequently strangers to the matter, and the plea of limitation interposed by them to the claim of Harman Classen cannot avail to defeat his claim.

Under the insolvent laws of this State, the estate of the insolvent vests in the trustee for the benefit of all creditors existing at the time of the application, and this trust is an express statutory trust, which continues until the creditors are satisfied, or the trust fund is exhausted; and the Statute of Limitations is no bar to the claim of any creditor being such at the time of application, against the funds in the hands of the trustee. Selby vs. Magruder, 6 H. & J., 459; Bank of U. S. vs. Beverly, 1 Howard, 134.

The Statute does not run against the creditors of a bankrupt. Ex parte Ross [**23]  in re Coles, 2 Glyn. & Jam. 46 and 330; nor against those of an insolvent. Minot vs. Thatcher, 7 Met., (Mass.,) 348; Willard vs. Clark, 7 Met., 435; Ortram vs. Curtis, 1 Cushing, 461; Barton vs. Tattersall, 1 R. & M., 237.

The trustee takes and disposes of the trust property discharged of all incumbrances and liens, and the fund realized is charged with the payment of such claims in place of the property, and this remedy being conferred by statute, cannot be barred by limitations. Carter vs. Dennison, 7 Gill, 176; Eschbach vs. Pitts, 6 Md., 71; Newcomer vs. Keedy, 2 Md., 19; French vs. O'Neale, 2 H. & McH., 407; Ward vs. Reeder, 2 H. & McH., 145; Planters' Bank vs. Bank of Alexandria, 10 G. & J., 354, 355.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, MILLER and ROBINSON, J.  

OPINIONBY:
ROBINSON 

OPINION:

 [*239]  ROBINSON, J., delivered the opinion of the Court.
The main question in these appeals is, whether the Statute of Limitations continues to run against the creditors of an insolvent debtor, after his application, and before an audit and order of the Court distributing the insolvent estate. Important as this question is, it comes now before this Court for the first [**24]  time for decision. In the absence, however, of direct authority to guide us, we think there can be but little difficulty in its determination upon principle.
It is unnecessary to cite authorities in support of the long-established doctrine that, as between the cestui que trust and the trustee, in the case of an express subsisting trust, length of time constitutes no bar to relief. Such is the privity existing between them the possession of the one is the possession of the other, and if the trustee fails to perform the trust, his possession is not adverse, but according to his title. Lewin on Trusts and Trustees, 612; Hovenden vs. Lord Annesley, 2 Sch. & Lef. 633.

 [*240]  In regard, however, to implied or constructive trusts, arising by operation of law, the rule is different, because it rarely happens that such trusts are admitted or recognized by the parties; and, moreover, the facts out of which they spring, necessarily, from their very nature, pre-suppose an adverse claim of right on the part of the trustee. Hill on Trustees, 264. The remedy, therefore, of the cestui que trust in such cases, is put upon the same [**25]  footing of other equitable rights, and although the Statute of Limitations in terms only embraces legal actions, yet, in all cases of concurrent jurisdiction, where a party has a legal and equitable remedy in regard to the same subject-matter, Courts of Equity obey the law, and give to the Statute the same effect and operation in the one Court as in the other.  Dugan vs. Gittings, 3 Gill 138; Hertle vs. Schwartze, 3 Md. 366; Kane vs. Bloodgood, 7 Johnson Ch. 90. The question, therefore, as to whether the Statute operates as a bar in these appeals, must depend upon the nature and character of the trust created by the operation of the insolvent laws of this State, for it is clear, by all the authorities, that if it be an express trust, the plea of the Statute cannot avail as against the cestuis que trust.
Now, by the insolvent laws of this State, the debtor, in consideration of his discharge from the payment of his debts, is required to convey and deliver to a trustee, appointed by the Court, all of his property, of every kind and description, in trust for the benefit of creditors, being such at the time of application in [**26]  insolvency, and, for the faithful performance of this trust, the trustee is obliged to give his bond, with approved security. The property thus being vested in the trustee, is no longer within the reach of process by the creditors, and the insolvent, being discharged from the payment of his debts, is no longer liable to suit, and the trustee, being answerable only for a breach of trust, no proceedings can be instituted against him until the ratification of the audit, because, until then, and notice thereof, he is not guilty of a breach of trust. Williams vs. Williams, 3 Md. 163; Buckey vs. Culler, 

 [*241]  18 Md. 418. It is clear, therefore, that the rights of creditors must be worked out through the medium of a trust, the property affected by which, the Code provides, shall be distributed according to the principles of equity, and the trustee thereof subject to the same control of the Court as trustees appointed by a decree in equity. Sections 10 and 12, Article 48 of the Code of Public General Laws.
Here, then, is an express subsisting trust, created by statutory enactment, the uses, terms and conditions of which are [**27]  declared, the property affected by the trust ascertained and defined, and the cestuis que trust, namely, the creditors of the insolvent at the time of his application, designated with as much certainty and precision as if they were severally named in the deed of trust. The acts of the trustee in converting the property into a fund for distribution, and in preparing the subject-matter of the trust for the action of the Court, are to be considered as the active assertion of the rights of the creditors, the cestuis que trust as against the property, and it cannot be that the delay incident to the execution of the trust, shall work to their prejudice or injury. And hence, in ex parte Ross & Hooper, in the matter of Coles, a bankrupt, 2 Glyn. & Jam. 46, the Vice-Chancellor said, "that after a commission issued, the Statute of Limitations did not run against a creditor; that the commission was a trust for the benefit of all the creditors, and it was a known principle that the Statute did not run against a trust." This decree was upon appeal, affirmed by the Lord Chancellor, who held that, "whatever may be the technical objection, the effect of the commission [**28]  is clearly to vest the property in the assignees for the benefit of the creditors; they are, therefore, in fact, trustees: and it is an admitted rule, that unless debts are already barred by the Statute of Limitations when the trust is created, they are not afterwards affected by lapse of time."
Also, in Minot vs. Thatcher, 7 Metcalf 348, it was held under the insolvent laws of Massachusetts, that the Statute did not run against the creditors of the insolvent after the 

 [*242]  publication of the messenger. Justice DEWEY, in delivering the opinion of the Court, said: "By force and effect of the appointment of a messenger, and the publication thereof conformably to the statute, the property of the insolvent debtor is sequestered for the benefit of all the then existing creditors. After such a publication, a suit by a creditor would be of no avail, as the property is all transferred to the assignee, and the body of the debtor is to be discharged from arrest on execution. The debts presented for allowance against the insolvent, are to be considered with reference to their validity at the date of the publication by the messenger, and unless barred at that time, they must be [**29]  allowed." Any other rule would be obviously unjust. Take the case of a creditor, whose debt will not be barred for at least a year; he knows that, under the Statute, he has until the last day of the year within which to bring suit; but, before that time, the debtor becomes insolvent, and his right of action is gone. Now, if the principle contended for by the appellee be correct, and more than a year should elapse before the insolvent estate is ready for an audit, the insolvent, or his assignee, could interpose the plea of the Statute, and thus defeat the claims of creditors. In this view we do not concur, but are of opinion that after the application in insolvency, and during the execution of the trust, the Statute does not operate against the then existing creditors.
This construction certainly accords with the plainest principles of justice in these appeals. Here was attempt on the part of the insolvent debtor to cheat and defraud his creditors. Having fraudulently conveyed his property for that purpose, he applies for the benefit of the insolvent laws, and declares, in the schedule annexed to his petition, he has no property liable for his debts. After his final discharge, Schaferman,  [**30]  the fraudulent grantee, re-conveys the property to Leiman, the insolvent debtor, and he in his turn, in consideration of one dime, conveys it to his son. The trustee in insolvency refuses, upon the application of the creditors, to file a 

 [*243]  bill in equity assailing the fraudulent conveyance, and the creditors are obliged themselves to institute proceedings. After a long and protracted litigation, extending from the Court below to the Court of last resort, the conveyance is condemned as being fraudulent, and the property directed to be sold; and, when the proceeds of sale are brought into Court for the purpose of being distributed among the creditors, the plea of limitations is interposed by the assignee of the insolvent debtor on the one hand, and by the assignee of the fraudulent grantee, Schaferman, on the other. If the plea of the Statute could avail under such circumstances--if the delay incident to the execution of the insolvent trust, and occasioned by the fraudulent acts of the very parties under which these assignees now claim, could operate to defeat the payment of honest creditors, it would indeed be a just reproach to the administration [**31]  of the law. Whilst it is true that a Court of Equity extends a reluctant hand of relief in case of stale demands, where a party has slept upon his rights, and where time and long acquiescence have obscured the true nature and character of the trust, it will never visit upon a party the consequences of a delay for which he is in no wise responsible, nor hold him guilty of laches in not prosecuting his demands when there was no process by which they could be enforced.
The case is widely different from a creditor's bill, because there the creditor has no one to represent him until his claim is filed. Moreover the death of the debtor does not suspend the right of action on the part of the creditor, he may still sue the administrator or executor, and if there should be an insufficiency of the personal estate, he may file his bill for the sale of the real estate.
In Strike's Case, 1 Bland 57, the proceeding was to set aside certain fraudulent conveyances, and for a sale of the property for the benefit of creditors, and although in the disposition of some of the questions which arose, the Chancellor likened it to a case of insolvency, the distinct question in 

 [*244]   [**32]  regard to the Statute of Limitations raised by these appeals, did not arise, and cannot be said to have been directly passed upon. No such question was decided by this Court in Strike vs. McDonald & Son, 2 H. & G. 191.
We are of opinion, therefore, that the Court erred in rejecting the claims of Herman Classen, Henry Chinn, John H. Lange, Washington A. Page, Samuel Harman and Frederick Eversman, and the order in each one of these appeals will be reversed. We have not considered the objections to the authentication of these claims, because from the opinion of the Court they do not appear to have been made at the hearing, and must be considered as having been waived. The claim of O'Brien, assignee, being allowed the order in that case will be affirmed.
We are also of opinion that the claim of Patrick M'Laughlin for professional services was properly allowed. If the trustee in insolvency had employed counsel to institute proceedings assailing the fraudulent deed of the insolvent, the costs, and all expenses incident thereto, would have been a proper charge against the trust fund, and because he refused to discharge his duty, thereby compelling the creditors to take [**33]  proceedings, is no reason why they should be held personally responsible. The order in that case will be affirmed.
The only remaining question is the title to the surplus, should there be any after the payment of creditors; and this must depend upon whether Weaver, assignee of Schaferman, had knowledge in fact of the prior unrecorded conveyance of Schaferman to Leiman, for if he had, then such knowledge is equivalent to registration. Price and Bevans vs. McDonald, et al., 1 Md. 403; Winchester, et al. vs. Balt. and Susq., R. R. Co., 4 Md. 231; Johns vs. Scott, 5 Md. 81. It is unnecessary to examine here in detail the evidence upon this point, and it will be sufficient to say that we are of opinion that Weaver, at the time of the assignment from Schaferman to him, had full knowledge of the prior assignment to Leiman. He is not, therefore, a bona fide purchaser without notice. 

 [*245]  We are of opinion, therefore, that George W. Leiman, assignee of Conrad Leiman, is entitled to the surplus, if any, after the payment of the claims of creditors.
The case will be remanded with directions to the auditor to state [**34]  an account, in conformity with the views herein expressed.
Order in each of the appeals of Classen, Chinn, Lange, Page, Sam'l Harman and Eversman, reversed, and the orders, in so far as they allow the claims of O'Brien and M'Laughlin, affirmed, and the order overruling the exception of Weaver to the claim of G. W. Leiman, affirmed. 

131 of 142 DOCUMENTS 

GERSON ROSENSTOCK vs. LEONARD J. TORMEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 169; 1870 Md. LEXIS 22 

February 25, 1870, Decided 

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

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

In the course of the trial, the following exceptions were taken to the evidence and order of evidence:

First Exception: After the plaintiff had proved the order to purchase the stock in question; its purchase in New York, according to the regular course of business; the items in the account filed with the declaration, with the credits thereon, &c., and the payment by the plaintiff of $ 12,850 to Dibble and Cambloss, as the purchase money of the stock, the defendants objected to the giving of said testimony, without producing some requisite to gratify the Statute of Frauds, and without proof of such purchase, by producing or proving that some transfer was made. The Court overruled the objection, and permitted the evidence to go to the jury. The defendants excepted.

Second Exception: This exception rests upon an objection to the order in which certain proof therein stated should be given. The Court overruled the objection, and the defendants excepted.

Third Exception: The plaintiff offered in evidence his letters to and from his correspondents in New [**2]  York, shewing the statement of the purchase and sale of the stocks in question, and on the strength of which the plaintiff had laid out and expended the purchase money of the said stocks. The defendants objected to the introduction of said letters as proof of the purchase and sale. The Court overruled the objection, and the defendants excepted.

Fourth Exception: The plaintiff having proved by himself, that Hoflin gave the order to purchase the stock in question in the joint names of the defendants, in the presence of Gerson Rosenstock, who stood immediately behind Hoflin, "near enough to have heard" the order;--by Hechtel, that he saw Rosenstock following Hoflin in on the occasion when the order was given;--by Hoflin, that he first gave the order to buy for J. Hoflin, but on going to the door and meeting Gerson and Louis, who each agreed to take a third, he immediately returned, and directed the stock to be ordered in their joint names;--by Hechtel, that the witness had asked Louis to settle the balance due on the purchase, and in reply, Louis had not denied the transaction or his interest in it, but said that "he had an interest in the purchase, but had no money, his brother [**3]  Gerson had the money, and would pay for it." The Court was asked to "exclude all the statements of Hoflin, professing to have been made on account of the defendants, upon the ground that no proof had been given, although the plaintiff had then closed his case, of the said Hoflin being their agent in regard to the alleged purchase." This the Court refused to do, and the defendants excepted.

Fifth Exception: The plaintiff offered the following prayer:

If the jury believe from the evidence that the plaintiff laid out and expended in the purchase of one hundred shares of Illinois Central, for the defendants, at the instance and request of the defendants, the sum of $ 12,825, and that the amount so expended has not been refunded to him, then the said plaintiff is entitled to recover against the defendants Gerson and Lewis Rosenstock, whatever sum of money may yet remain unpaid of said sum, so laid out and expended; provided the jury shall find that the said stock was purchased according to the usual course of dealing in the purchase and sale of stocks, and shall also find that the sale thereof as made by direction of the plaintiff, as offered in evidence, was also made according [**4]  to the usual course of dealing in the purchase and sale of stocks, and after due notice to the defendants.

The defendants asked the Court to instruct the jury as follows:

1. That before the plaintiff can recover, the jury must find that the one hundred shares of Illinois Central Stock were bought for the joint account of the three defendants, named in the declaration.

2. That there is no evidence in this cause sufficient to gratify the requirements of the Statute of Frauds.

3. That if the jury shall find that said stock was purchased as alleged by the plaintiff, that then the defendants were in no default, unless the stock was tendered to them or either of them, with a demand of payment therefor and a refusal to comply; and if they shall find such default and refusal, then said plaintiff had no right to re-sell said stock, save at public sale, or at a public stock board, and of which such sale there is no evidence.

4. That if the jury shall find from the evidence that the defendants, Gerson and Louis Rosenstock, agreed to buy of Nathan Hoflin, respectively, thirty-three shares of said stock, then there is no privity of contract between them and the plaintiff,  [**5]  and in that event the plaintiff cannot recover.

5. That there is no sufficient legal evidence that the said one hundred shares of Illinois Central Stock were ever purchased as pretended, and that before the plaintiff can recover, he must give such evidence that the same was so purchased.

6. That there is no evidence in this cause to show that the plaintiff ever paid, laid out or expended, the sum alleged, or any part thereof, or any sum whatever on behalf of the defendants, or either or any of them, as alleged in the declaration.

The Court granted the plaintiff's prayer, and the first and fourth prayers of the defendants, but rejected the others. To the granting of the plaintiff's prayer, and to the rejection of their second, third, fifth and sixth prayers, the defendants excepted, and the verdict and judgment being for the plaintiff, the present appeal was taken.  

DISPOSITION:
Judgment reversed and new trial awarded.  

HEADNOTES:

Purchase of Stock through a Broker -- Principles Governing the Relation of a Stock Broker and his Customer -- Evidence -- Practice -- Principal and Agent -- Admissibility of Evidence.

T, a stock broker, was ordered by H to buy one hundred shares of railroad stock, on the joint account of H, G. R and L. R. According to the custom of trade, T wrote to his correspondents, brokers in New York, directing them to purchase, and they accordingly bought, and were paid by T therefor. H and his confederates failed to pay T for the stock, he therefore after notice to them, and in accordance with the custom of the business, directed his correspondents to make sale in New York, which was accordingly done. T then sued for the difference between the amount paid in the purchase and that realized from the sale. HELD:

1st. The order for the purchase being general in its terms, not directing the purchase to be made in any particular place or mode, and not containing any restrictions as to price, T had the right to make the purchase in New York through correspondents, brokers or sub-agents residing and doing business in that city.

2d. He must show, however, that the stock was actually purchased under his directions by his New York agents, at its fair market price, on the day of purchase, and that he actually paid the purchase money therefor; that he notified his principals of the purchase, and requested them to receive the stock and pay him the price he had paid for it, with reasonable commissions; that at the time of this notice, he was in condition to deliver the stock by having the stock, or other proper indicia of title, actually in hand, or in the hands of his agents; that, on the failure of his principals to receive the stock, he, after a reasonable time and notice to that effect to the principals, directed it to be sold; and that it was sold by his agents, either at public sale in market overt, or at a sale publicly and fairly made at the stock exchange, or a stock board, or a board of brokers, where such stocks are usually sold, at a fair market value on the day of sale. Having shown this, he is entitled to recover the amount, if any, of the resulting loss.

3d. In a transaction so conducted, there is nothing illegal or contrary to public policy; it is but the proper execution of a legitimate business order for the purchase of a valuable commodity.

4th. The usage or custom of the particular business of buying and selling stocks on orders, may be introduced in evidence for the purpose of showing the manner in which an order received may be performed, but not to imply an authority to execute it in a mode which the law would regard as unreasonable.

5th. Stockbrokers cannot, by force of any such custom or usage, bind persons ordering the purchase of stock by a merely fictitious purchase or sale, such for instance as one not bona fide and actually made, but pretended to be effected by mere entries on books and accounts between the broker and his agent.

It is a settled rule of practice under which Courts permit evidence which is per se irrelevant to be given, on the assurance of counsel that it is to be followed up by proof of other facts and circumstances, material and competent, with which it may have an important connection, and if the assurance is not fulfilled, then, on application of the opposing counsel, to direct the jury, not to regard it. But this rule from its liability to abuse ought not to be enlarged, and should not be extended beyond express adjudications.

The declarations of an agent are not admissible to bind his principal under any circumstances until the agency is first clearly established.

R employed T, a stock broker, to purchase certain stock for him. T wrote to his correspondents in New York instructing them to make the purchase, and they, by letter, informed him that the stock was purchased. HELD:

That the letters of T's correspondents to him are inadmissible to prove the purchase in a suit by T against R for the purchase money. 

COUNSEL:
Wm. H. Dawson and George H. Williams, for the appellant.

Contracts for the sale of stocks are within the Statute of Frauds, and must be proved as required by statute. Colvin vs. Williams, 3 H. & J., 38; Baldwin vs. Williams, 3 Metcalf, 365.

Before the [**6]  actings and doings of an alleged agent can be given in evidence, some proof of his agency must be first given. Worthington vs. Savage Co., 1 Gill, 284; Marshall vs. Haney, 4 Md., 511; Atwell vs. Miller, 11 Md., 359.

The private letters of the plaintiff to Dibble & Cambloss, and their replies, and the recitals respectively contained therein, were not evidence as against the defendants for any purpose, and certainly not proof of sales or purchases of stock, nor even proof of its existence. Langhorn vs. Allnutt, 4 Taunton, 517.

The prayer of the plaintiff should not have been granted, because--

1st. There was no evidence on which the jury could find a joint request to purchase on joint account.

2d. No proof that any stock was ever bought or sold in fact. No proof that Dibble & Cambloss (as vendors, or as agents of vendors, if they were such) ever tendered the stock. No proof, in fact, that any such stock ever existed.

3d. No proof that any money was ever demanded of Tormey by anybody, and so the pretended payment, if ever made, for aught that appears, was purely voluntary.

4th. No proof of any usage or custom, that an agent can fulfil contracts of his principal [**7]  before somebody asks him so to do, or that an agent can notify his employer to fulfil some contract he has made for him, without demand being made by the other party to the contract, and without proof that the agent was responsible for its performance. Turner vs. Egerton, 1 Gill & J., 433; Mayor, &c., vs. Hughes, 1 Gill & J., 497.

5th. No proof here that any of the defendants solicited the plaintiff to withhold their names as purchasers, and so make himself responsible for their contract.

The rejected prayers of the defendants should have been granted, for the reasons assigned for not granting the plaintiff's prayer.

1st. Because there was no proof to satisfy the Statute of Frauds.

2d. Because that there was no refusal on any order, but even if there was default, a re-sale should not have been made, save at a public place, after notice.

3d. And that there was neither evidence of the purchase of said stock, nor that the plaintiff ever laid out or expended a dollar, as alleged.

Orville Horwitz, for the appellee.

The Court was right in admitting the testimony contained in the first bill of exceptions.

This action was not instituted to recover the [**8]  purchase money of one hundred shares of Illinois Central, by the vendor against the vendee. In a case of that character, it might possibly be necessary to show a sale within the Statute, and without such proof, the vendor might have no claim. In this State, in an old case, (Colvin vs. Williams, 3 H. & J., 38,) the Court of Appeals, it is true, have said that the sale of bank stock was within the Statute, but even in that case, it would seem to have been so said more for the purpose of showing that the purchase and sale-note of the broker was binding on the defendant, than for any other purpose. In England and in this country, in all the modern cases, the distinction is taken between bank shares and railway shares, and it is held that the sale of railway shares does not come within the Statute. 11 Ad. & Ellis, 205; 16 M. & W., 66; 12 Simons, 189; 3 C. B., 249.

But in this case, the action is brought to recover the balance of a sum of money expended at the instance and request of the defendants by the plaintiff, in the due course of business, and according to the custom of that business. The plaintiff was directed to order one hundred shares of a certain stock for the defendants.  [**9]  He immediately ordered it, and on being notified of its purchase, according to the course of trade, he sent forward his money to pay for it. From that moment, having followed the custom of the business, he was a creditor of the defendants to the amount advanced for them. He had the right to sue them for money paid by the plaintiff for the defendants at their request.

The ruling of the Court in the second bill of exceptions, is in accordance with a series of decisions in this Court, and the case of Atwell vs. Miller 11 Md., 359, relied on, does not interfere with this view of the law in Maryland. Davis vs. Calvert, 5 G. & J., 304; Haney vs. Marshall, 9 Md., 194; Marshall vs. Haney, 4 Md., 510; Crawford's Adm'r vs. Beall's Ex'r, 21 Md., 232.

The Court was also right in its ruling under the third bill of exceptions.

1st. It was unnecessary to prove an absolute purchase of sale.

2d. It was evidence of the only purchase and sale required by the nature of the transaction.

There was evidence not only tending to show the agency of Hoflin, but proving it beyond a reasonable doubt. Morrison vs. Whiteside, 17 Md., 459.

The Court was right in granting the plaintiff's [**10]  prayer, and in refusing the defendants' second, third, fifth and sixth prayers.

The second prayer of the defendants was granted by the Court as applicable to the count for goods sold and delivered, but as to the other counts, it was considered inapplicable, and rejected, as this action was not brought to enforce the sale. The same reasoning applies to the third prayer.

As to the fifth prayer, there is abundant evidence to show that so far as was required by the plaintiff for the purpose of justifying him in expending the money, there was a purchase according to the custom of the trade. As to the sixth prayer, the evidence was abundant.  

JUDGES:
The cause was argued before STEWART, MAULSBY, MILLER and ALVEY, J.  

OPINIONBY:
MILLER 

OPINION:

 [*177]  MILLER, J., delivered the opinion of the Court.
This action was brought by the appellee, against the appellant and Louis Rosenstock and Jacob Hoflin jointly. The latter was returned non est, and the case proceeded against the other two. The declaration contains the common counts in assumpsit, to which the general issue was pleaded. The cause of action, according to the testimony offered by the plaintiff, arose thus: The plaintiff was [**11]  a stock broker, doing business in the city of Baltimore, and on the 4th of October, 1866, Nathan Hoflin, who, for some time, had been dealing with him in a similar way, under the name of J. Hoflin, came to the plaintiff's office and ordered him to buy one hundred shares of Illinois Central railroad stock on the joint account of J. Hoflin and his two co-defendants. The plaintiff immediately, and, as he states, according to the course of trade and the regular custom of the business, wrote to his correspondents, Dibble & Cambloss, brokers in New York city, directing them to purchase, and they accordingly bought the stock at $ 128 per share, and he paid them the purchase money ($ 12,825) therefor. The defendants failed to pay him, and subsequently, on the 16th of April, 1867, after notice to the defendants, and according, also, to the due course of trade and the custom of the particular business, he directed Dibble & Camblos to sell the stock in New York, and it was there sold by them and brought but $ 11,400. The plaintiff now seeks to recover the difference between the amount thus paid in the purchase and that realized from the sale of the stock.
Before examining the questions raised [**12]  by the exceptions, we deem it proper to state generally the legal relations, duties and obligations of the parties growing out of this order, and what was necessary to be done in its execution, and the subsequent sale of the stock, to entitle the plaintiff to recover under the pleadings in this case. Assuming, for the present, that Hoflin was duly authorized to give the order for and on behalf of the defendants, the plaintiff thereby became and was constituted their agent to execute it, and if, by reason of 

 [*178]  its due execution, he expended money and incurred loss, he can recover it back from his principals under the count for money paid by him for them at their request. This is the sole count in the declaration relevant to the case as now presented, and only by sustaining that count can a recovery be had. The order is general in its terms not directing the purchase to be made in any particular place or mode, and not containing any restrictions as to price. We are, therefore, of opinion the plaintiff had the right to make the purchase, as he alleges he did, in New York, through correspondents, brokers or sub-agents, residing and doing business in that city. He must show, however,  [**13]  that the stock was actually purchased under his directions, by his New York agents, at its fair market price, on the day of purchase, and that he actually paid the purchase money therefor. Having thus made the purchase and expended his money, it was his duty to notify his principals of the fact, and request them to receive the stock and pay him the price he had paid for it, with usual and reasonable commissions for making the purchase. At the time of this notice, he must show he was in a condition to deliver or transfer the stock by having the certificates, or other proper indicia of title actually in hand, or in the hands of his New York agents, ready to be delivered or transferred to the defendants. Upon receiving this notice, it was the duty of the defendants to pay for and receive the stock, and on their failure to do so, the plaintiff had, in our judgment, the clear right after a reasonable time, and after giving notice to that effect to the defendants to direct it to be sold in New York, and upon showing, by legal and competent proof, that it was actually sold by his agents, either at public sale in market overt, or at a sale publicly and fairly made at the stock exchange [**14]  or stock board, or a brokers' board, where such stocks are usually sold, at its fair market value, on the day of sale, he is entitled to recover from the defendants the amount, if any, of the resulting loss. In a transaction so conducted and carried out, we discover nothing 

 [*179]  illegal or contrary to public policy; it is but the proper execution of a legitimate business order for the purchase of a valuable commodity, a common article of sale in the market, out of which legal rights and obligations arise which Courts of Justice will sanction and enforce.
Usage and custom of trade and business have been relied on by the plaintiff, who, in his testimony, says that in this transaction he had done all that was usual and customary in the purchase and sale of stocks, and had followed therein the due course of trade and the custom of the particular business of buying and selling stocks on orders. In a recent case decided by the Court of Exchequer, in 1869, (Maxted vs. Paine, 4 Law Reports, Court of Exch., 210,) some very forcible and pertinent observations on the subject of usages of the Stock Exchange were made by BARON CLEASLY. "I do not wish," says he, "to be understood [**15]  as expressing an opinion that the plaintiff would be bound by any usage which a Court of Law would consider unreasonable. I think, on the contrary, he would not, unless he had actual notice when he authorized the contract to be made, of the particular usage. A man may, of course, if he thinks proper make a contract with any stipulations in it which are not unlawful, as for instance, that he will not enforce it without the authority of some particular officer or committee; but such a usage would not; I think, bind a person having no connection with the Stock Exchange and no actual knowledge of its usages, simply because he employed a stock-broker, to contract for him even though it was within the authority of the broker to make the contract on the Stock Exchange. It is true the jobber contracts with the broker according to the usages of the Stock Exchange, but if he knew and he generally does know that the broker was contracting for an outside principal, then he could not say as against that outside principal the contract is an act which according to our usages cannot be enforced. It seems to me that in the proper view it is a question of principal and agent, and what is the agent's [**16]  authority. If the principal forbids 

 [*180]  the broker to bargain for him according to the peculiar usages of the Stock Exchange, and limits his authority to specified contracts, the broker could not bind him to a contract to be performed according to those usages. But if he does not limit his authority then there is an implied authority to deal according to the usages of the Stock Exchange. But this, like other implied authorities, would be limited to such usages as are not unreasonable. Being implied by law it is in that way limited by the law; the law does not imply a contract or authority with terms which it regards as unreasonable. The members of the Stock Exchange if they enter into ordinary contracts with strangers, cannot by their usages make the law inapplicable to them; rather the law as superior must apply to them and it recognizes the usages as modifying the authority but only so far as are reasonable. The contract having been made both parties are bound by it, not by the usage of the Stock Exchange, but by the power of the common law, and the usage of the Stock Exchange is properly introduced for the purpose of showing the manner in which the contract may be performed.  [**17]  " So, in the case before us, the usage or custom of the particular business of buying and selling stocks on orders, in which the plaintiff was engaged may be properly introduced for the purpose of showing the manner in which the order he received from the defendants may be performed, but not to imply an authority to execute it in a mode which the law would regard as unreasonable. The order is given to a stock-broker to purchase certain shares of a particular stock by parties not shown to have had actual knowledge of any peculiar usage or custom of his business, and whilst the law will allow custom and usage to regulate its execution in the reasonable mode we have indicated, it will not permit the defendants, by the force of any such custom or usage, to be bound by a merely fictitious purchase or sale, such for instance as one not bona fide and actually made, but pretended to be effected by mere entries upon books and accounts between the plaintiff and his New York agents. We now proceed to consider the questions raised by the exceptions.

 [*181]  1st. It is quite unnecessary to decide in this case whether contracts for the sale of railway shares are within the Statute of Frauds,  [**18]  and must be proved as required by that Statute, because the plaintiff's case does not rest upon the enforcement of any such contract, or upon the count for goods sold and delivered, but upon the fact that he, as their agent, had expended money upon the defendants' order and at their special instance and request. The Court was therefore right in permitting the evidence objected to in the first exception to go to the jury under the fifth count of the declaration and the defendants have no ground of complaint that their second prayer was confined to the count for goods sold and delivered.
2d. By the second exception a question, not vital to this case, but important as a matter of practice, is presented. The plaintiff proved that, when Hoflin gave the order, one of the defendants, the appellant, was standing immediately behind, near enough to hear when he instructed the stock to be charged to the three defendants. To the admission of this or any other statement of Hoflin to bind them, the defendants objected, upon the ground that proof, constituting him their agent, with authority to bind them, should be first given before such statements were admissible or receivable in evidence. But [**19]  the Court admitted the statement, upon the undertaking and offer of the plaintiff's counsel to follow it up with the requisite proof of such agency. It has been held, in a series of decisions by this Court, that evidence relevant and pertinent to the issue is to be admitted without reference to the order of its production; the particular order in which a party may choose to introduce his proof being a matter for his exclusive consideration. Whatever inconvenience this practice may sometimes occasion, it has become too firmly settled to be now disturbed. It is also a settled rule of practice, where evidence which, per se, may be irrelevant, but which may become material if followed up by proof of other circumstances and facts, material and competent, with which it may have an important connection, for the Court to accept 

 [*182]  the assurance of counsel that it will be so followed up, and permit it to go to the jury; and if the assurance is not fulfilled, then, on application of the opposing counsel, to direct the jury not to regard it. But this is a rule which, from its liability to abuse, ought not to be enlarged. Experience has convinced us that verdicts are not unfrequently [**20]  rendered under the influence of irrelevant testimony, admitted upon the unfulfilled assurances of counsel, honestly acting upon information or instructions of their clients that it will be made relevant and material by other testimony to be subsequently produced, notwithstanding the positive instructions of the Court, afterwards given, that it must not be regarded. Juries are not always composed of men who either can or will divert their thoughts from such proof, and prevent it from having any influence upon their minds. It would, in our judgment, have been a better and safer practice if the Courts had, in all cases, required proof of this character to be preceded by that in connection with which it would become important and material, and we are not disposed to extend the rule beyond what is demanded by express adjudications. We are not aware of any decision that has applied the rule to a case where declarations or acts of agents are offered for the purpose of binding their principals. On the contrary, it is plainly said, in Marshall vs. Haney, 4 Md. 498, that the declarations of an agent are not admissible to bind his principal under any circumstances until the [**21]  agency is first clearly established, and the language of the Court, in Atwell vs. Miller, 11 Md. 348, is to the same effect. It is conceded, of course, that, to entitle the plaintiff to recover in this action, there must be proof that Hoflin was duly authorized to give the order and direct the purchase on the joint account of the defendants. This authority or agency need not be proved by writing; it may be inferred from facts and circumstances, from the permission and acceptance of his services, and subsequent adoption and ratification of his acts, will suffice. But, before his admissions, declarations or acts were admitted to 

 [*183]  bind the defendants, we think the Court should have required the production of some proof tending to show the existence of such agency or authority. The failure, however, to do so, is not, in this instance, an error requiring a reversal of the judgment, because we are of opinion there was some evidence adduced tending to show the agency, and fully sustaining the refusal of the Court--which is the subject of the fourth exception--to exclude Hoflin's statement, on the ground that no such proof had been given, and the defendants [**22]  were not, therefore, in fact, prejudiced by the ruling in the second exception.
3d. The third exception was taken, as we understand it, exclusively to the admission of the letters of Dibble & Cambloss, the New York brokers and agents of the plaintiff, to prove the purchase and subsequent sale of the stock. In admitting these as evidence for that purpose, an error, material and fatal to the judgment, was committed. We have already said that, whilst it was competent for the plaintiff to execute the order and enforce his rights by a purchase and sale of the stock in New York, yet he must establish these facts by legal and competent proof. Without an express agreement to that effect, no usage or custom of trade can be allowed to override the plain rules of evidence, and give to the mere letters of a broker, stating his accounts of purchases and sales, the force and effect of records or judgments importing absolute verity, or impart to the unsworn statements they contain the same efficacy as if made under the sanction of the oaths of the writers, with opportunity of testing their truth and accuracy by a cross-examination. The plaintiff's own letter, written immediately upon receiving the [**23]  order directing the New York brokers to buy, was admissible to prove that he was prompt to take the necessary steps to execute the order, and gave proper directions to that end; but it would violate cardinal rules and principles of evidence to receive their letters to him to prove, as against the defendants, that the stock was actually purchased and sold in New York. 

 [*184]  These brokers should have been brought to the stand as witnesses, or their testimony taken under a commission. These letters ought, therefore, to have been excluded, and being excluded, the defendants' fifth prayer would have been correct, inasmuch as the plaintiff himself testified he had no knowledge of the purchase or sale of the stock, apart from these letters.
4th. If the purchase in the mode we have pointed out had been established by competent proof, the plaintiff was not bound to make an actual tender of the stock to the defendants. We have said it was sufficient if he notified them of the fact of the purchase, and had certificates of the stock, or other usual evidences of title thereto, in his own hands, or in those of his New York agents, ready to be delivered or transferred to the defendants upon [**24]  their tender of payment therefor. Nor was it necessary that the subsequent sale upon default should have been made at a public sale or at a public stock board, and at no other place. A sale, publicly and fairly made, at the stock exchange or a stock board or at a brokers' board, where such stocks are usually sold, would have been good. In Dalrymple's Case, 25 Md. 242, it was held that a sale at the brokers' board, publicly and fairly made by the pledgee of stock, under authority from the pledgor to sell upon default, without further notice, was legal and valid. There was, therefore, no error in the rejection of the defendants' third prayer. Their sixth prayer was also properly rejected, because there was in evidence to the jury the positive testimony of the plaintiff, that he had actually paid to his New York agents the $ 12,825 for the stock, which he had directed to be purchased under the defendants' order.
5th. It is not necessary to decide whether upon the evidence which the Court admitted, the instruction granted at the instance of the plaintiff was correct, because, as we have shown, there was a fatal error in admitting in evidence the letters objected to,  [**25]  which constituted the only proof of any 

 [*185]  purchase or sale of the stock. It is apparent this instruction must fall with the rejection of these letters. If, upon another trial which will be awarded, the plaintiff can establish by legal proof this purchase and sale in the mode before stated, in addition to the testimony now decided to have been legitimately admitted, there will be no difficulty in framing an instruction, which will properly present the law of his case, in accordance with the views expressed in this opinion.
Judgment reversed and new trial awarded. 

132 of 142 DOCUMENTS 

JOSEPH BAUGHER vs. KETURAH C. MERRYMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 185; 1870 Md. LEXIS 23 

February 25, 1870, Decided 

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

Under a commission to take testimony in this cause, Stephen J. Joice and Emily Joice, his wife, daughter of the appellee, testified on behalf of the appellee. The appellant excepted to the admissibility of their parol testimony to engraft a trust upon the deed of October 22d, 1862, unless upon the ground of fraud. The remaining facts will be found sufficiently detailed in the opinion of the Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Parol testimony admissible to show that a Deed absolute on its face, was intended only as a Mortgage -- Purchase of the Equity of redemption by the Mortgagee -- Conveyance to secure an existing debt, how treated in Equity.

In determining whether a deed, absolute on its face, is to be allowed to have force and effect according to its import, or is to be declared, as between the parties, to have the effect of a mortgage only for the security of a subsisting debt, it is necessary to determine the manner in which the deed was procured, and the objects and purposes contemplated by the parties at the time it was executed, as shown by all surrounding facts and circumstances. For this purpose parol testimony is admissible.

The mortgagee may become the purchaser of the equity of redemption, if he does not use his power over the estate to induce the mortgagor to part with it. It is nevertheless the policy of the law to prohibit the conversion of a real mortgage into a sale, and all the circumstances attending such transaction should be perfectly fair, and free from the least taint of advantage or imposition taken or practised by the mortgagee.

In equity, a conveyance in whatever form it may be made, will be treated as a mortgage, whenever it appears to have been taken as a security for an existing debt; and the inclination of the Court is in doubtful cases so to treat it, and to allow the grantor the benefit of redemption. 

COUNSEL:
Thos. W. Hall, Jr., and S. Teackle Wallis, for the appellant.

A deed absolute in terms and on its face will only be taken and considered as a mortgage when there is evidence of fraud in procuring it, or of fraud, accident or mistake in its preparation. But the Courts will not interfere where the instrument is such as the parties themselves designed it to be, and if they have voluntarily chosen to express themselves in the language of the deed, they must be bound by it. McElderry vs. Shipley, 2 Md., 35-37; Showman and Wife vs. Miller, 6 Md., 485; Wilson vs. Watts, 9 Md., 457; Abbott vs. Gatch, 13 Md., 331; Ellinger, et al. vs. Crowl and Wife, 17 Md., 373.

There is no evidence to show that the [**2]  deed of October 22d, 1862, from Keturah C. Merryman to Joseph Baugher, was procured by fraud, or that there was fraud, accident or mistake in its preparation, or that the parties intended it to be otherwise than an absolute deed.

The answer in this case having been called for under oath, being responsive to the allegations of the bill, and denying the same, must prevail, unless rebutted or refuted by the testimony of two witnesses, or one witness with pregnant circumstances.

The allegations of the answer in this case are not so rebutted or refuted.

E. Beatty Graff, for the appellee.

Whenever the relation of mortgagor and mortgagee is once shown to exist, the Court views with distrust and disfavor any arrangement between them by which it is proposed to transfer the equity of redemption to the mortgagee. The parties will be held to their original relation, unless the transaction shall appear perfectly fair, and no advantage taken by the mortgagee by reason of his incumbrance. Sheckell vs. Hopkins, 2 Md. Ch. Dec., 89; Dougherty vs. McColgan, 6 G. & J., 281.

No matter how absolute a conveyance may be on its face, if the intention is to take a security [**3]  for a subsisting debt, or for money lent, the transaction will be regarded as a mortgage, and will be treated as such. Parol evidence is admissible to show that an absolute conveyence was intended as a mortgage. Whyte vs. Bank of Westminster, 1 Md. Ch. Dec., 536; Artz vs. Grove, 21 Md., 456; Hinkley, Ex'r, vs. Wheelwright, Adm'r, 29 Md., 341.

A Court of Equity will, upon parol proof of fraud, mistake, or surprise, rectify and reform the written agreements of parties, and consider an absolute deed as a mortgage. Farrell vs. Bean, 10 Md., 217; Grove vs. Rentch, 26 Md., 367; Gibson vs. Seymour, 3 Vermont, 565; Waner vs. Daniels, 1 W. & M., 103; Holdridge vs. Gillespie, 2 Johns. Ch., 30; Henry vs. Davis, 7 Johns. Ch., 40.

Parol evidence may be admitted to show that an absolute deed, whatever may be its covenants, was intended as a mortgage, or mere security for the payment of a debt, and the grantor can have relief in equity. Purviance vs. Holt, 3 Gilman, 394, 405; Webb vs. Rorke, 2 Sch. & Lef., 673; McLanahan vs. McLanahan, 6 Humph., 99; Webb vs. Patterson, 7 Humph., 431; Edrington vs. Harper, 3 J. J. Mar., 355; Clark vs. Levering, 1 Md. Ch. Dec., 178.

There can be no doubt [**4]  that, upon proper averments, and upon sufficient proof, this Court may treat an absolute deed as a mortgage.

That fraud may be inferred from facts and circumstances, from the character of the contract, or from the condition and circumstances of the parties, is well established. Thompson vs. Banks, 2 Md. Ch. Dec., 430; Russell vs. Southan, 12 Howard, 145.

A mortgagee may purchase the equity of redemption, if he does not make use of his incumbrance to influence the mortgagor to part with the estate for less than its real value. Hicks vs. Hicks, 5 G. & J., 75.

Courts of Equity will not lend their aid to enforce a penalty or forfeiture. McKim vs. White Hall Co., 2 Md. Ch. Dec., 510.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*188]  ALVEY, J., delivered the opinion of the Court.
The object of this suit is to have a deed of assignment of certain leasehold property, absolute on its face, made by the appellee to the appellant, declared to have the effect only of a mortgage as between the parties thereto, and to obtain an account.
The leading facts of the case, as disclosed by the record, appear to be these:  [**5]  The appellee, being the mother-in-law of Stephen J. Joice, and the owner of certain leasehold property on Fayette street, in the city of Baltimore, in which she and the family of Joice resided, with a view of aiding her son-in-law to raise money to commence business, on the 28th of April, 1858, executed a mortgage of her property to the appellant, to secure and indemnify him for his credit loaned to Joice to an extent not to exceed $ 5,000.
The mortgage recites that the appellant had agreed to loan Joice his promissory note, drawn in favor of and endorsed by the firm of Deford & Sons, for $ 2,500, payable at nine months from the 28th of April, 1858, and also another promissory 

 [*189]  note to be drawn by the appellant in favor of Joice, for $ 2,400, at or before the time of maturity of the first note, for the purpose of renewing and withdrawing the first note when it became due, and so to enable him, from time to time, to renew the same for the period of three years from the date of the mortgage; but that the appellant should not become responsible at any time for more than $ 5,000.
The mortgage was subject to the conditions that Joice should comply with the terms of the agreement,  [**6]  and pay and take up each of the notes as it matured, and hold and keep the appellant harmless. The appellee assented to the passing of a decree, under the Act of 1833, ch. 181, for the sale of the mortgaged property, to take place on default made in any of the conditions; and until default she was to hold and enjoy the premises, and to receive the issues and profits thereof to her own use.
The notes were furnished to Joice by the appellant as contemplated by the mortgage, and the last of which, for $ 2,500, payable about the first of May, 1861, Joice failed to take up, and, consequently, the appellant was required to pay it, and thereby the mortgage became forfeited and subject to foreclosure.
The appellant did not take a decree of foreclosure, as he might have done, under the terms of the mortgage; but soon after forfeiture, he became anxious to close the matter, and being convinced, as he avers in his answer, that the property was not worth more than the amount of his claim, and wishing to avoid further increase of his liability, he called on the appellee and stated to her his fears, "and the necessity for his insisting upon a foreclosure, or to take a deed at once of the property,  [**7]  in liquidation of his claim, and thus at once close the whole business, and avoid the expense of foreclosure." But there seems to have been a disposition to delay on the part of the appellee, notwithstanding the urgency of the appellant; and on the 19th of March, 1862, we find Joice entering into an agreement with 

 [*190]  the appellant, that in consideration of the latter extending the time of payment until the first of July, 1862, the former would, on or before that date, pay the full amount of his indebtedness, or, failing to do so, would then transfer the mortgaged premises to the appellant. This was Joice's own act, the appellee not appearing to be connected with it; and why the appellant should have entered into such a contract with Joice, it is difficult to conjecture, unless it was to avail himself of Joice's influence with the appellee to induce her to make the absolute deed required, as Joice clearly had no right or power himself to transfer the property.
But, as might well have been anticipated, in view of Joice's circumstances, he failed to make payment according to his undertaking; and the appellant finding, as he avers in his answer, "that the mortgage debt and other [**8]  incumbrances upon the property, were increasing, he determined to insist upon foreclosing his mortgage, or upon an absolute deed of the mortgaged property, in payment of his claim at the election of the complainant; that from that time, up to the 22d day of October, 1862, he continued to urge upon the complainant and the said Joice the necessity of closing the business, and that he must insist upon a foreclosure, or have an absolute deed for the property, free of any condition or right of redemption."
This persistent demand resulted in the execution of the absolute deed of assignment by the appellee on the 22d of October, 1862. This instrument was prepared at the request and under the instruction of the appellant himself, and the consideration expressed in it is the sum of $ 2,621.67, paid, and also the satisfaction and discharge of the mortgage debt; but there was, in fact, no money paid, the only consideration being the mortgage debt.
The appellee remained in possession of the property up to the 22d of October, 1862, but after the making of the deed of that date, the property was rented to Joice until March, 1864, when he and the appellee left it, and it was afterwards rented  [**9]  

 [*191]  out by the appellant until March, 1866, when he sold it for $ 6,000.
The bill of complaint of the appellee charges that this absolute deed of the 22d of October, 1862, was intended only as a means of securing the appellant's debt, and that it was made on the distinct understanding that all the proceeds of sale over and above an amount sufficient to pay the mortgage debt and interest, and the necessary expenses, were to be accounted for to her; and that she was, upon the urgent request of the appellant, induced to execute the deed in consideration of that understanding, and her confidence in the appellant's pledges to observe it. She further charges that the appellant perpetrated a fraud upon her by inducing her to execute the absolute deed, under the circumstances of the case.
The appellant, by his answer, positively denies the understanding alleged, and avers that the deed was intended to operate as it appears on its face, as an absolute deed, and not as a mortgage; that it was neither given nor accepted to operate as a mortgage; and that it was voluntarily given, without fraud or imposition practised on his part, and that it was for a full and fair consideration at the [**10]  time.
On this statement of the case, the question is, whether the deed of the 22d of October, 1862, absolute in terms, is to be allowed to have force and effect according to its import, or be declared, as between the parties, to have the effect of a mortgage only, for the security of a subsisting debt? And the solution of this question depends on the manner in which the deed was procured, and the objects and purposes contemplated by the parties at the time it was executed, as shewn by all the surrounding facts and circumstances. Such being the nature of the inquiry, the exception to the parol evidence taken in support of the allegations of the bill, are clearly not sustainable, and must therefore be overruled.
The relation of mortgagor and mortgagee existing between these parties at the time of the execution of the absolute deed in question, causes the Court to view with distrust, and to 

 [*192]  scrutinize with closeness, the negotiation that led to the making of that deed, whereby it is now claimed that the right of redemption has been extinguished, and the previous mortgage converted into an absolute sale.
To sustain such a transaction as a sale, without the right of redemption, [**11]  it requires that all the circumstances attending it should be perfectly fair, and free from the least taint of advantage or imposition taken or practised by the mortgagee. For, while he may become the purchaser of the equity of redemption, if he does not use his power over the estate to induce the mortgagor to part with his interest in it, it is, nevertheless, the policy of the law, as declared by the Supreme Court of the United States, in Conway vs. Alexander, 7 Cr., 218, to prohibit the conversion of a real mortgage into a sale. For, as was said by that learned Court, lenders of money being less under the pressure of circumstances which control the perfect and free exercise of the judgment than borrowers, the effort is frequently made by that class of persons to avail themselves of the advantage of this superiority, in order to obtain inequitable bargains; and, "for this reason, the leaning of the Courts is against them, and doubtful cases have generally been decided to be mortgages." And in even more decisive terms is the same rule announced by a former Court of Appeals, in the case of Dougherty vs. McColgan, 6 Gill & John. 275.
In that case, after [**12]  giving full sanction to the principle just stated from 7 Cr., 218, it was said, that "where the relation of mortgagor and mortgagee is once fairly established, though the equity of redemption may be sold or disposed of to the mortgagee; yet, unless the transaction appears to be fair, and unmixed with any advantage taken by the mortgagee of the necessitous circumstances of the mortgagor, equity will hold the parties to their original relation of debtor and creditor." And the same principle, in very much the same terms, was announced by the late CHANCELLOR JOHNSON, in the case of Sheckell vs. Hopkins, 2 Md. Ch. 89, as the settled law of this State.

 [*193]  It is then by this rule, thus well established, that we are to determine this case.
It is not pretended that the appellee received any other consideration for the deed of the 22d October, 1862, than the discharge of the mortgage debt, amounting, at that time, to $ 2,621.67. Whether the property was worth more or less than that amount at the time, was mere matter of opinion; and as the debt was not the appellee's, and for which she was not personally bound, if the property was really worth more than the [**13]  mortgage debt at the time, the appellant paid nothing for the right of redemption. That the proposal to convert the mortgage into a sale, was made and urged by the appellant, is fully admitted in his answer; the alternative proposed being either an absolute deed of the property, or an immediate foreclosure and sale. That the appellee was distressed and perplexed with such an alternative, persistently pressed upon her, it is not difficult to conceive, and, as a fact, is fully shown by the proof in the cause. She had in fact no power of escape, having agreed to a decree of foreclosure, the only chance of avoiding being turned out of house and home summarily, was by yielding to the appellant's demand for an absolute deed. This was an improper use of the mortgagee's power over the estate to influence the mortgagor to part with the right of redemption, and such as a Court of Equity will not sanction.
But was there not an understanding as to the purposes of the deed, and of which, though the deed is absolute on its face, it was to be regarded only as a means of better securing the appellant's debt? From a careful reading of the record, we are convinced that there was such an understanding,  [**14]  and that the deed was made with reference to it.
The evidence of this understanding is furnished by the testimony of Stephen J. Joice and Mrs. Emily Joice, witnesses examined on the part of the appellee, and whose statements in regard to the transaction derive probability from several circumstances disclosed in the record. As proven by these 

 [*194]  witnesses, with such variation in statement as would likely occur, the effect of the understanding was, that the property should be conveyed by absolute deed as required by the appellant; and that he should hold it for a time until it could be sold to an advantage, and, in the meantime, to be rented for enough to defray interest and expenses; and, when sold, the proceeds to be applied to the payment of the mortgage debt, and the surplus, if any, to be accounted for to the appellee. There is no sufficient ground shewn for discrediting these witnesses, and, taking their evidence as true, the case of the appellee is fully made out, and brought within the principle of the cases to which we have referred.
The cases mostly relied on by the appellant in support of his defence are very distinguishable from the present, as may be easily perceived.  [**15]  
In the case of Hicks vs. Hicks, 5 Gill & John. 75, the transaction brought into question was sustained as a conditional sale; but it was done, as the Court expressly say, because it appeared that, after the mortgage debt became due, no steps to enforce payment were either taken or menaced, nor were any indirect means used by the mortgagee to influence the mortgagor to part with his equity of redemption, but that the whole transaction was entirely voluntary, and founded on what was supposed to be a full consideration.
The case of McElderry vs. Shipley, 2 Md. 25, was an attempt to set up a conventional trust on the foundation of a special parol agreement, contrary to the provisions of the Statute of Frauds, which, of course, could not be done. And, in the recent case of Hinkley vs. Wheelwright, 29 Md. 341, the question was, whether the transaction constituted a mortgage or a conditional sale, and, upon the nature and circumstances of that case, it was determined to be a conditional sale. But there it was matter of construction only, depending on the intention of the parties, as deduced from certain instruments and correspondence,  [**16]  unmixed with any conduct of undue advantage or interposition in obtaining the conveyance. And 

 [*195]  in that case it was announced as the settled law, that, in equity, a conveyance, in whatever form it may be made, will be treated as a mortgage whenever it appears to have been taken as a security for an existing debt; and that the inclination of the Courts is, in doubtful cases, so to treat it, and to allow the grantor the benefit of redemption.
Being convinced, as we are, that the deed of the 22d of October, 1862, was obtained from the appellee under circumstances not sanctioned by a Court of Equity, and that, in executing it, her design was simply to secure the subsisting debt due the appellant, in the manner proposed by him, and not to deprive herself of all benefit of the equity of redemption, the rules of equity require that the transaction be trcated as a mortgage, and that the appellant should account as prayed in the bill. By this course the rights of the appellee will be protected, and the appellant compelled to accept the principal and interest of his debt, with all incidental expenses properly incurred, which, as was said by the Court, in Dougherty vs. McColgan,  [**17]  are "all that he is, in justice, entitled to, or ought to seek to attain." But, in thus allowing the appellee the benefit of her equity of redemption, the property having been sold by the appellant, it is not intended that the rights of the purchaser should, in any way, be affected; and, therefore, on taking the account, the balance ascertained to be due the appellee must be decreed against the appellant in personam, and for which the property sold shall not be liable.
Thinking the decree appealed from a proper one, under all the circumstances of the case, it must be affirmed.
Decree affirmed. 

133 of 142 DOCUMENTS 

HENRY J. LEPPOC, and others, vs. THE NATIONAL UNION BANK OF MARYLAND, Garnishee of A. B. DAVIDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 136; 1870 Md. LEXIS 19 

February 23, 1870, Decided 

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

The appellants, the plaintiffs below, having obtained a judgment against A. B. Davidson, issued an attachment thereon, which was laid in the hands of the appellee; nulla bona was pleaded, and issue joined thereon.

At the trial of the cause the plaintiffs offered in evidence a deed, dated March 27, 1867, from Davidson and wife, which, in consideration of $ 50,000 to them paid by the bank, conveyed to the bank a tract of land in Baltimore county. They also proved by Davidson that the consideration money had never been paid to him. Upon cross-examination he proved that he was to have received about $ 2,500 from the bank, in case the arrangement between them had been carried out. That, by this arrangement, the bank was to pay about $ 18,000 of liens on the property, retain $ 9,000 to meet a judgment against him, and then to retain $ 20,000 in satisfaction of its own claim against him, for about $ 27,000, and pay over the balance to him.

It was in evidence that a committee of the bank had agreed with Davidson to make this arrangement, provided the Board of Directors would consent to it, and the counsel of the bank should approve [**2]  of it. It was also proved that if this arrangement had been carried out it would have released certain collaterals, worth at least $ 2,000, which the bank held as security for the debt due by Davidson.

Davidson, without waiting for the sanction of the Board on the approval of the bank's counsel, had the deed prepared by his counsel, executed it, and got from Mr. Mickle, the Cashier of the bank, $ 50 to pay for a United States stamp, and then gave the deed to his counsel, to have it recorded, who immediately put the deed upon record, and, on the same day, confessed judgment against Davidson to the amount of more than $ 20,000. It was also proved by Davidson that "the only objection the bank made to the deed was, that it had not been approved by their counsel," and Mr. Mickle testified that he interlined in the deed, before its execution, the words, "at Baltimore;" that he told Davidson to leave it for the inspection of Mr. Taylor, (the President of the bank,) and of the bank's counsel; that he handed the deed back to Davidson, after making the above correction, who told him he was going to take it or send it to Towsontown to be recorded. After the deed had been thus executed and [**3]  put on record by Davidson, the matter was submitted to the counsel of the bank, who was of opinion, and so advised the bank, that the proposed arrangement was in violation of the bankrupt law, and that the deed did not pass a valid title to the property it conveyed. Notice of this was given to Mr. Davidson, and the bank declined to carry out the arrangement, and afterwards, on the 25th of May, 1867, the property was re-conveyed to Davidson.

The plaintiffs offered the following prayers:

1. If the jury shall find, from the evidence, that the defendant, (Alexander B. Davidson,) and his wife, on the 27th of March, 1867, executed and acknowledged the deed of that date to the garnishee, which has been offered in evidence, and that said deed was prepared and executed, and placed upon record, with the privity of, and without disapproval by the garnishee, and that the garnishee furnished the money to pay for the revenue stamp thereon, and that the garnishee received into its possession the said original deed, after the same had been recorded; and shall further find that no part of the consideration money named in said deed has been paid by the garnishee, but that, by an agreement [**4]  between it and the said A. B. Davidson, the garnishee was to apply a portion thereof to the satisfaction of certain liens then outstanding on the land conveyed, and another portion thereof towards the payment of a claim of its own against the said Davidson, and was to pay over the residue to the said Davidson, and was also to release the collaterals deposited with it by said Davidson to secure the amount of his indebtedness to said garnishee, then the jury shall find for the plaintiff, for such sum (not exceeding the amount due upon the judgment attached for in this case) as they shall find was due under the agreement aforesaid by the garnishee to the said A. B. Davidson, at the time the said attachment was laid in its hands, together with the value of the securities deposited, as above, with the garnishee.

2. If the jury shall find from the evidence, that the defendant, (Alexander B. Davidson,) and his wife, on the 27th of March, 1867, executed and acknowledged the deed of that date to the garnishee, which has been offered in evidence, and that said deed was prepared and executed, and put upon record with the privity, and without the dissent of the President and Cashier of the [**5]  garnishee, and that on the following day the making and recording of the deed was communicated to the Board of Directors of the garnishee, who thereupon passed the resolution, given in evidence by the garnishee, and that the said deed was submitted to the inspection of the counsel of the garnishee on the Thursday week following its date, who thereupon disapproved of the same, and that the garnishee, on the 25th of May following, executed the deed to A. B. Davidson, which has been offered in evidence; and shall further find, that no part of the consideration money named in said deed has been paid by the garnishee, but that by an agreement between it and said A. B. Davidson, the garnishee was to apply a portion thereof to the satisfaction of certain liens then outstanding on the land conveyed, and another portion thereof towards the payment of a claim of its own against the said Davidson, and was to pay over the residue to said Davidson, and was also, on being thus satisfied for its own claim, to release from pledge certain securities of the said A. B. Davidson, deposited with it as collaterals, to secure said indebtedness from him to it; then the jury shall find for the plaintiffs for [**6]  such sum (not exceeding the amount due upon the judgment attached for) as they shall find was due under the agreement aforesaid, by the garnishee to the said A. B. Davidson, at the time the said attachment was laid in its hands, together with the value of the securities deposited as above with the garnishee, (the amount of their verdict, however, not to exceed the amount due upon the judgment attached for.)

3. And that all the evidence tending to show that the said deed was accepted by the garnishee, subject to the subsequent approval or disapproval thereof by the garnishee's counsel, is inadmissible, and is not to be considered by the jury.

And the garnishee offered the following prayer:

If the jury find from the evidence, that the arrangement between Davidson and the garnishee in reference to the payment of the consideration money mentioned in the deed of March 27th, 1867, offered in evidence, was conditional, and was not to become operative and obligatory until the taking of said deed upon the terms of said arrangement should be approved of by its Board of Directors, and said deed should be approved by I. N. Steele, its counsel, and that said Board referred the matter [**7]  to its said counsel, and he disapproved of said deed, and said disapproval was communicated to Mr. Davidson, and the property mentioned in said deed was conveyed back to him by the garnishee, by the deed of May 25th, 1867, offered in evidence, then the plaintiffs are not entitled to recover.

The Court rejected the prayers of the plaintiffs, and granted the prayer of the garnishee; and the verdict and judgment being for the garnishee the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Evidence -- Delivery of Deeds.

A committee of the Union Bank agreed with D to purchase from him a certain tract of land, provided the Board of Directors of the Bank would assent to it, and the counsel of the bank would approve it. Thereupon D had the deed prepared, procured a revenue stamp from the cashier of the bank, and notified him that he intended to have it recorded. It was then duly acknowledged and recorded. L, a judgment creditor of D, then laid an attachment in the hands of the bank. The purchase was afterwards disapproved by the bank's counsel, D notified of the disapproval, and the property re-conveyed by deed to D. HELD:

1st. That evidence was admissible to show the arrangement and understanding on which the deed was to have been made; the rule which excludes parol evidence to affect that which is written not being infringed by the admission of such evidence to show that the instrument was void, or that it never had any legal existence or binding force, for want of due delivery and acceptance.

2d. That the acceptance of the deed by the bank being dependent on events which never occurred, there was no such delivery of the deed as to make the bank responsible under the attachment process; nor can the making of the deed and placing it on record by the grantor, without sufficient legal sanction of the bank, charge the bank as grantee.

3d. That, while a deed, duly acknowledged and recorded, will be treated as having been delivered to and accepted by the grantee, in the absence of all proof to the contrary, those facts only give rise to a prima facie presumption, liable to be repelled.

4th. That, whatever was said or done by the president and cashier of the bank, or either of them, in reference to the purchase, not appearing to be authorized, would not bind the bank, because not within the scope of their ordinary duties.

5th. That, if the action of the president and cashier amounted to an acceptance of the deed, it was only a conditional acceptance, and the bank never assumed any liability under it.

6th. That the deed of re-conveyance could only operate as a disclaimer of record, and not as evidence, either by way of estoppel or otherwise, of the acceptance of the previous deed. 

COUNSEL:
John Henry Keene, Jr., for the appellants.

The deed has a settled legal construction, and the parol testimony of witnesses, was inadmissible to contradict it; the common, the Scotch and the civil law all agree in this, contra scriptum testimonium non scriptum testimonium non fertur. 1 Greenleaf on Evidence, (8 Ed.,) 275, 276, 277.

To have admitted the oral evidence of witnesses, as a substitute for instruments to which, by reason of their superior authority and permanent qualities, an exclusive authority is given by law, was to substitute the inferior, for the superior degree of evidence. Meres vs. Ansel, 3 Wilson, 275; Buckler vs. Millerd, 2 Vent., 107.

The deed operated as a legal [**8]  conveyance of the property, to the garnishee, notwithstanding the alleged parol "conditional arrangement," and when it was executed and put upon record, the deed was valid and effectual, without the approval of the grantees or its counsel, and the grantors' title became completely divested.

The assent of the party who takes is implied, because there is a strong intendment that it is for a person's benefit to take, and the rule is well established "stabit presumptio donec probetur in contrarium." Thompson vs. Leach, 2 Vent., 201; Doe, ex. dem. Garnons, vs. Knight, 5 Barn. & Cress., 671; Barlow vs. Heneage, Prec., Chan., 211; Clavering vs. Clavering, Prec. Chan., 235; Marbury vs. Brooks, 7 Wheaton, 556; Maynard vs. Maynard, 10 Mass., 462.

It is only a deed operating as an escrow, that can owe its vitality to a subsequent act of the grantee. The middle ground on which the garnishee sought to stand, could only have been attained by a delivery of the deed to a stranger, to hold subject to the performance of some condition, or to have waited on the approval of the bank and its counsel, so that either the deed was delivered by the grantor, and accepted by the grantee as a valid [**9]  instrument, or its validity waited upon the performance of some condition precedent thereto, in which latter case it operated undoubtedly as an escrow, and the authorities are overwhelming, without an exception, that such delivery of an escrow to the grantee is a valid delivery.

The cashier is the executive officer of the bank, and his acts, done in the course of the business transactions of the bank, are binding upon the corporation, because he is its regularly authorized agent for their transaction; the sphere of that agency embraces ex rei necessitate, operations looking to the security of its debts, and if there were any special restrictions which limited his powers in that department, the obligation of showing such restrictions, rested on and should have been shown by the corporation. State vs. Commercial Bank, 6 S. & M., 218; Robb vs. Ross County Bank, 41 Barb., 586; Crocket vs. Young, 1 S. & M., 241; Bridenbecker vs. Lowell, 32 Barb., 9; Bank of Penn. vs. Reed, 1 W. & S., 101.

I. Nevett Steele, for the appellee.

The appellants, by their attachment, stood in the shoes of Davidson, and could claim no other or greater rights against the bank than those which belonged [**10]  to him. He had no claim against the bank, because the agreement made with him, was expressly conditional, and was only to become obligatory and operative upon its approval by the bank's counsel.

The counsel of the bank having disapproved of it, on the ground that it was forbidden by law, there was an end of it, and the appellants had no more right than Davidson to compel the bank to pay its money and take a bad title. The attaching creditor, who seeks to condemn money alleged to be due to his debtor, under a contract with a third person, is bound by the terms and conditions of the contract as fully as the debtor himself. Balt. & Ohio R. R. vs. Wheeler, 18 Md., 378, 379; Poe vs. St. Mary's College, 4 Gill, 503; Drake on Attachment, secs. 223, 498, 523.  

JUDGES:
The cause was argued before STEWART, MAULSBY, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*143]  ALVEY, J., delivered the opinion of the Court.
The deed of Davidson and wife to the bank was made on the 27th of March, 1867, and the attachment was laid in the hands of the latter on the 3d of April following, and before the deed of re-conveyance from the bank to Davidson. The case was tried in December, 1868, on the plea of [**11]  nulla bona by the bank, and the question raised by the prayers embraced in the bill of exception taken by the appellants, is, whether the deed of the 27th of March, 1867, was duly delivered to and accepted by the bank, so as to conclude and bind it as against the grantor and his creditors.
It was objected in the Court below, and also in this Court, that evidence of the arrangement and understanding on which the deed was to have been made to and accepted by the bank, was inadmissible, as being in contravention of the solemn agreement of the parties, evidenced by the deed itself. But we think there is nothing in this objection, and that the Court below was right in admitting the evidence. Evidence of delivery and acceptance of a deed is always from the nature of things, extrinsic, being in no case furnished by the contents of the deed itself. Delivery may be inferred from 

 [*144]  circumstances, and, generally, the intention of the grantee to accept the deed will be presumed, if nothing to the contrary be shown, as the law intends that a party will accept what is for his benefit. But to constitute a good delivery and acceptance, the intention of both grantor and grantee is essential,  [**12]  and whether there was such intention and consent on the part of both parties in reference to the deed in question, was matter of fact to be found by the jury. And the rule which excludes parol or verbal evidence to affect that which is written, was not at all infringed by the admission of such evidence to show that the instrument was void, or that it never had any legal existence or binding force, for want of due delivery and acceptance. 1 Greenl. Ev., sec. 284.
In this case, the whole question of the liability of the bank depends upon the facts submitted to the jury by its prayer, which was granted, and according to which the verdict was found adverse to the appellants. The facts thus submitted to the finding of the jury were, that the arrangement between Davidson and the bank in reference to the payment of the consideration money mentioned in the deed of the 27th of March, 1867, was conditional, and that the deed was not to be accepted, or become operative and obligatory until the term of the proposed arrangements should be approved of by the board of directors and of its counsel. That the board referred the matter to its counsel, and he, disapproving of the deed, [**13]  and advising against it, the fact of such disapproval was communicated to Davidson, the grantor, and thereupon, on the 25th of May, 1867, the property was re-conveyed to him by the bank. These facts having been found by the jury, the question is, whether there was any obligation existing at the time of laying the attachment, on the part of the bank, to pay and apply the consideration mentioned in the deed of the 27th of March, 1867, according to the understanding upon which the deed was to be made? For if the obligation was then complete and binding on the bank, no subsequent re-conveyance by it to Davidson could affect the appellants' rights as attaching creditors.

 [*145]  But, had the deed been accepted by the bank at the time of laying the attachment? As matter of law, on the facts found by the jury, we are bound to say that it had not been accepted. The delivery of the deed was certainly essential to the transfer of the property; and, without such transfer, no obligation was imposed on the bank. The delivery, to be effectual, required acceptance of the deed by the bank, and, as we have seen, that was dependent on events that never occurred; and, although the deed was made [**14]  and placed on record, these were acts of the grantor, without sufficient legal sanction of the bank to charge it, as grantee. To constitute a good delivery, says the Supreme Court of the United States, in Younge vs. Guilbeau, 70 U.S. 636, 3 Wall. 636, 18 L. Ed. 262, "the grantor must part with the possession of the deed, or the right to retain it. Its registry by him is entitled to great consideration upon this point, and might, perhaps, justify, in the absence of opposing evidence, a presumption of delivery. But here, in (that case,) any such presumption is repelled by the attendant and subsequent circumstances. The registry, was, of course, made without the assent of the grantee, as he had no knowledge of the existence of the deed, and the property it purported to convey always remained in the possession and under the control of the grantor." And, in the cases of Hutchins vs. Dixon, Ex'r of Hooper, 11 Md. 29, and Phelps & Stewart's Lessee vs. Phelps, 17 Md. 120, it was decided by this Court, that, while a deed duly acknowledged and recorded, will be treated as having been delivered to and accepted by the grantee, [**15]  in the absence of all proof to the contrary, those facts only give rise to a prima facie presumption, liable, of course, to be repelled.
But, it is supposed that the bank, in this case, manifested its acceptance of the deed by the conduct of its officers; and the prayers of the appellants, which were rejected, were founded on the facts that the officers of the bank were made aware of the making and recording of the deed by Davidson, and did not dissent; that the Cashier furnished the revenue stamp 

 [*146]  for the deed; that the original deed, after being recorded, came into the possession of the Cashier; and that the property was subsequently re-conveyed by the bank to Davidson, as being legally sufficient to warrant the Court in declaring that the deed of the 27th of March, 1867, had been accepted.
In regard to the proposition involved in the appellants' prayers, it is sufficient to say that, in the first place, whatever was said or done by the President and Cashier of the bank, or either of them, in reference to the matter, not appearing to be authorized, would not bind the bank, because not within the scope of their ordinary duties. The City Bank of Baltimore vs. Bateman,  [**16]   7 Har. & John. 104; Bank of the United States vs. Dunn, 6 Pet. 51; Bank of Metropolis vs. Jones, 8 Pet. 12. And, in the second place, the whole proposed arrangement under and by which the deed was to be made and accepted, was only conditional, and was expressly made subject to the approval of the Board of Directors and of its counsel. The Board only approved of it provided the title to the property would be valid, and the agreement should be found feasible. It was advised, and became satisfied, that such would not be the case, and of that fact Davidson was notified, and the negotiation ended. This conditional arrangement, then, was never consummated, and the bank never assumed any liability under it. It was all mere matter of negotiation, without accomplishing the objects the parties had in view.
As to the deed of re-conveyance, given in evidence by the appellants, it must be taken with its recitals and according to which the deed of the 27th of March, 1867, was made with the understanding that it should be accepted, if approved by the counsel of the bank, but not otherwise; and that it was filed for record without such approval.  [**17]  Such being the case, as shewn by the appellants' own proof, the deed of reconveyance could only operate as a disclaimer of record, and not as evidence either by way of estoppel or otherwise, of the acceptance of the previous deed of the 27th of March, 1867.

 [*147]  The conditional arrangement between Davidson, the defendant in the attachment, and the bank having thus failed, it is very clear that the former had no claim against the latter in respect of such proposed arrangement; and as the appellants, who seek by their attachment to be substituted to the rights of their debtor, could occupy no better position than Davidson himself, and could only claim condemnation of what was really due to him from the bank, it follows that they could take nothing by their attachment.
Approving of the several rulings of the Court below, to which exception was taken, we affirm its judgment.
Judgment affirmed. 

134 of 142 DOCUMENTS 

MARY E. MORRILL vs. HUGH GELSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 116; 1870 Md. LEXIS 16 

February 17, 1870, Decided 

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

DISPOSITION:
Order reversed.  

HEADNOTES:

Writ of Habere Facias Possessionem.

Under the Chancery practice in this State, a writ of habere facias possessionem, is not the appropriate remedy to enable a purchaser to obtain possession of premises, sold under a decree passed in an ex parte proceeding to foreclose a mortgage, in pursuance of Article 4, sections 782, &c., of the Code of Public Local Laws, and which the party in possession refuses to surrender.  

COUNSEL:
J. Montgomery Peters, for the appellant.

John H. Ing and Attorney General Jones, for the appellee.

The decree, and all the proceedings in the Court below, were in accordance with the provisions of Article 4, sections 782-786, of the Code of Public Local Laws, which is a codification of the Act of 1833, ch. 181. The proceedings under that Act were contemplated to be ex parte, until after the decree and the sale under it; and 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 ratification should be passed. Eichelberger vs. Harrison, 3 Md. Ch. Dec., 89, concurred in by the Court of Appeals in Black vs. Carroll, 24 Md., 255; Hays vs. Dorsey, 5 Md., 99; Ing vs. Cromwell, 4 Md., 31-36; Kaufman vs. Walker, 9 Md., 229, 233, 241.

The terms of the assignment to the appellant of the leasehold interest show that she took it with full knowledge of the appellee's mortgage, and subject to it. The law, therefore, fixes her with full knowledge of all the legal [**2]  incidents of that mortgage, and, among them, the right of ex parte foreclosure and notice of order of ratification nisi.  

JUDGES:
The cause was argued before STEWART, MAULSBY, GRASON, MILLER and ALVEY, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*117]  MAULSBY, J., delivered the opinion of the Court.
This is an appeal from an order of the Superior Court of Baltimore city, directing a writ of habere facias possessionem, to compel the delivery by the appellant to the appellee of the premises in the proceedings mentioned. They had been sold, under a decree in an ex parte proceeding, to foreclose a mortgage given by William M. Willis to the appellee, under the provisions of Article 4, sections 782, &c., of Public Local Laws, Baltimore city.
A petition for a writ of habere facias was filed April 6th, 1861, alleging that the appellee had, through his agent, "demanded possession of the occupants, viz: either the defendants or tenants of said property, who were in pendente lite, such at the time of the sale, and that said occupants have refused to vacate and yield to him possession," and praying "that the parties in possession, known as Mrs. Morrill and Judge Peters," may be required to shew cause [**3]  why a writ of habere facias possessionem should not issue, &c.
On the same day an order was passed directing "a copy of the petition and order to be served on the occupants of the premises in the petition referred to, on or before Wednesday, 

 [*118]  10th of April next, requiring the said occupants to show cause on or before Saturday, 13th of April next," why the writ should not issue as prayed. Immediately under the order is endorsed: "See 39 Rule Eq." There is an affidavit of John P. P. Jones that, on the 3d of March, he demanded for the appellee possession of the premises, and received for answer that the matter should be investigated, and if the proceedings were regular they would vacate, and that, on the 22d or 23d of March, Mr. Peters told him they meant to contest the matter. On the 13th of April Mrs. Morrill and J. M. Peters answered, saving the benefit of all exceptions on all grounds to the petition, Mrs. Morrill denying that she is a tenant of Willis or Gelston, and alleging that she is in possession by conveyance to her, by title adverse to Gelston and to the decree under which he claims, and denying. that any decree under which Gelston claims has any validity [**4]  against her title and possession. Mr. Peters alleging that he is not in any way tenant, and is merely a boarder in the house, and disclaiming any interest.
Before the final hearing, the appellant filed a deed from Frederick R. Waesche to her for the premises in question, dated 27th of October, 1859, in which the consideration paid by her to Waesche was $ 1,100.00. This deed conveyed the property to her subject to the operation of two mortgages from William M. Willis, one to John S. Donnell and others for $ 1,000, and the other to Hugh Gelston for $ 400, and the appellee filed his title paper, a deed from the trustee, under the decree, bearing date 1st of March, 1861, the same day of the final ratification of the sale.
On June 22d, 1867, an order was passed making absolute the rule nisi of April 6th, 1861, which required the occupants of the premises to shew cause why a writ of habere facias possessionem should not issue, and from this order the appeal is taken.
The proceedings to obtain a writ of habere facias in this case were not under sec. 64, Art. 75, of the Code. An examination 

 [*119]  of that section will shew that its provisions apply to cases of process [**5]  of execution, and to the debtor in the execution or any other person holding under the debtor, by title subsequent to the judgment or decree. The foundation of those proceedings must be, if it exist, in the powers of a Court of Chancery to enforce its decree. The usual practice in this State for enforcing the right of purchasers to possession is announced by Mr. ALEXANDER, in page 153 of his book. He refers to 1 Bland 363, and CHANCELLOR BLAND refers, for the authority of a Court of Chancery to cause possession of land sold under a decree, to be delivered to the purchaser "under certain circumstances," to Stribley vs. Hawkie, 3 Atkyns 275, and to Dove and Dove, 1 Brown's Ch. Rep., 376, (marg.)
These cases shew that the rule in England, prior to the Statute of 1st and 2d Victoria, ch. 110, was to proceed by order, attachment, injunction and writ of assistance, to compel a tenant in possession to deliver possession to the purchaser. The note to the case of Dove and Dove, refers to DICKENS for a fuller report, and states the practice to be: 1st, service of the writ of execution of the decree, an affidavit [**6]  of it and of the parties' refusal; 2d, an attachment issued thereon, but not to be executed; 3d, an injunction granted on such attachment, as of course; 4th, a writ of assistance directed to the sheriff, to deliver possession.
It further states that the first exercise of the power to compel the delivery of land by a Court of Chancery was in the reign of James I, in a case in 1 Vesey 454, and a modern instance, agreeably to the above stated practice, in Huguenin vs. Baseley, 15 Vesey 180, is cited.
Until the orders of 10th of May, 1839, the process for enforcing obedience to decrees and orders by the Court of Equity, were, in all cases, founded on contempt. 2 Daniel's Ch. Pl. and Pr., 1054.
The practice in Maryland has been in conformity with the English practice, at least so far as to employ injunction as the 

 [*120]  means of enforcing an order of the Court for delivering of possession of land.
In McKomb vs. Kankey, and in Chapline vs. Chapline, reported in notes to 1 Bland Ch. 363, 364, CHANCELLOR KILTY treated that as the proper practice. In Tongue vs. Morton, 6 Har. & John. 22, and in Frazer vs. Palmer, 2 Har. & Gill 469, 471, [**7]  the same practice is found.
In Garretson vs. Cole, 1 Har. & John. 370, CHANCELLOR HANSON examined at some length "what is the proper process for giving the complainant the full benefit of the decree" for the delivery of the possession of land decreed to be delivered, and concluded that "the process or writ which will best serve the complainant is an injunction to deliver possession," and after service of the injunction and refusal to obey, he ordered a commission or writ to issue to put the party in possession, pursuant to the directions of the decree and injunction. The writ is set out at length, and the reporters style it a writ of habere facias possessionem, but it is not so called by the Chancellor, nor is it so in fact, as will be apparent from comparing the form of the particular writ ordered with that of the writ of habere facias possessionem in 2 Harris' Ent., 694.
The writ of habere facias possessionem is a judicial writ of a Court of Law, founded on the ejectione firmae, in which the party is to be restored to the possession of his term, of which he was ousted. 3 Bacon's Abr., 707. The form of the writ in 2 Harris' Entries corresponds [**8]  with this definition--to restore a party to the possession of his term of which he was ousted.
The habere facias seisinam lies in real actions, where the freehold is recovered. 3 Bacon's Abr., 707.
The form of this writ in 2 Harris Ent. corresponds with this definition. Where a seisin is to be delivered of land of which the party using the writ had not been in prior possession, the latter would seem to be the appropriate writ. The former to restore a possession of which the party has been ousted.

 [*121]  Technically, then, the writ of habere facias possessionem would not be an appropriate writ for the ordinary use of a Court of Chancery in compelling delivery of land sold under its decrees, or under executions on its decrees.
The Act of 1825, chap. 103, embodied in section 64, Art. 75, of the Code, introduced authority in the Court of Chancery to issue a writ in the nature of a writ of habere facias possessionem in the cases in the Act specified, that is, in cases of sales of land by any sheriff, &c., by virtue of any process of execution, and where the debtor named in the process, or any person holding under the debtor, by title subsequent to the date [**9]  of the judgment or decree, shall be in actual possession; and then the writ was authorized only within the first four days of the term next succeeding that to which the process of execution was returnable, in case of failure of the debtor or other person concerned to shew good cause to the contrary.
The Act of 1864, ch. 283, repeals sec. 64, Art. 75, of the Code, and enlarges the cases in which a writ in the nature of a writ of habere facias may be issued, but confines the power to issue it, where lands have been sold by any trustee, under the decree of any Court of this State, to the case in which the debtor named in the decree, or any other person holding under such debtor, by title subsequent to the date of the decree, shall be in actual possession, &c. And this Act requires an application for the process, verified by affidavit, and time for shewing cause, not less than fifteen nor more than thirty days from the filing of the application.
The proceeding in this cause was prior to the Act of 1864, and is not affected by it in the present state of the record, and that Act, as also the Act of 1825, is referred to for the purpose of illustrating the spirit of our legislation to [**10]  be the confinement of the remedy to specified cases, and in them to afford the party against whom it is sought ample opportunity to resist it.
This case rests on the Chancery practice in Maryland. The process prayed and ordered is a writ of habere facias possessionem. 

 [*122]  We are of opinion that such a proceeding is not sanctioned by the Chancery practice, and is not authorized by the powers of a Court of Chancery of this State, under the circumstances of this case.
Order reversed. 

135 of 142 DOCUMENTS 

WILLIAM L. BRADLEY vs. THE POTOMAC FIRE INSURANCE COMPANY OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 108; 1870 Md. LEXIS 15 

February 15, 1870, Decided 

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

This case, instituted in the Superior Court of Baltimore city, by the appellant against the appellee, upon a policy of insurance issued by the latter to the former, was, upon the application of the appellee, removed to Howard county. The facts of the case are sufficiently set forth in the opinion of the Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of a Policy of Insurance Against Fire.

By a policy of insurance dated the 11th of November, 1867, and executed by the company and delivered to the insured on that day, it was declared that the company, in consideration of $ 160, to be actually paid to it by the insured, within fifteen days from the date of the policy, did insure B against loss or damage by fire to the amount of $ 4,000 on his property therein described; and in the clause that followed the description of the property, it was set forth that the company promised and agreed to make good unto the insured, his executors, &c., all such immediate loss or damage, not exceeding, &c., as should happen by fire to the property described, during one year, to wit: from the 11th of November, 1867, (at 12 o'clock, at noon,) until the 11th day of November, 1868, (at 12 o'clock at noon,) the said loss or damage to be estimated, &c. By a condition in the policy it was provided that the company should not be held liable under the policy, or under any renewal thereof, until the premium in full therefor was actually paid; and by a further condition it was mutually agreed that if the premium on the policy was not paid within fifteen days from its date, the policy should be null and void; and it was further agreed that the policy was made and accepted in reference to the terms and conditions therein set forth. A portion of the property insured was totally destroyed by fire, and the balance damaged by fire and water, within fifteen days of the execution and delivery of the policy; proper preliminary proof of the loss was furnished to the company. After the fire, and within fifteen days from the date of the policy, the premium was tendered to the company by the insured, but not accepted. An action was brought to recover on the policy. HELD:

That the actual payment of the premium within fifteen days from the date of the policy was a condition precedent to the attaching of the risk, and as the property was destroyed before the tender of payment within the time limited, there was nothing upon which the risk could attach, and the company, therefore, was not liable for the loss.  

COUNSEL:
John H. Thomas and William M. Merrick, for the appellant.

By the express language of the policy a credit of fifteen days was given to the insured for the payment of the premium. His obligation to pay the money was as clear, his insurance as complete, as if he had given and the company had accepted his promissory note for the premium, payable within that time. The consideration was not for money recited to have been paid, and proven not to have been, but for money "to be actually paid to the company." He could not escape from the obligation to pay it, nor the company from its contract of insurance, made in consideration of this liability on his part. The propriety of this construction is strengthened by the period of time during which the policy was to cover the property insured--one year from [**2]  its date--from the 11th of November, 1867, to the 11th of November, 1868. The policy was not incomplete; not held for future delivery; not left with any one else as an escrow, to be delivered on a future contingency, but consummated by actual delivery of the company itself. It named, in precise language, when it should begin, and when it should cease to cover the property, in consideration of a sum to be thereafter paid, within a period equally precise. The construction contended for by the appellee would make the company insure, not for a year, as it agreed to do, but for a shorter time; not from the 11th of November, 1867, as its policy promised, but from some later period, if at all.

All of the provisions, however, requiring actual payment of the premium "to the company," are to be construed in connection with the fifteenth clause of the policy, and with reference to the well known course of insurance business. Insurance, in companies whose office is in a city different from that of the applicant, is generally procured through the agency of a broker. To prevent the applicant from contending that payment to him is payment to the company, the fifteenth clause provides that such [**3]  broker shall be deemed the agent of the assured, and the other clauses referred to, require "actual payment to the company" before the policy shall take effect. Companies are often obliged, from the necessities of their business, to entrust their own agents in remote cities with blank policies already executed, requiring only the insertion of the name of the assured, the description of the property, and the delivery of the policy to make the insurance complete. This company desired to take from its agents, not from itself, the right to give credit, and sought to require in such cases payment of the premium "to the company," before the policy should take effect. It did not intend to preclude itself from granting a credit, only long enough for the remittance of the money, to one with whose credit the company might itself be satisfied. Mayor of New York vs. Hamilton Fire Ins. Co., 10 Bosworth, N. Y., 537; Ames vs. New York Union Ins., 14 N. Y., 253; Hoffman vs. AEtna Ins. Co., 32 N. Y., 405; Merrick vs. Germania Ins. Co., 54 Penn., 277; Merchants' Ins. Co. vs. Edwards, 17 Grattan, 138; Boehen vs. Williamsburg Co., 35 N. Y., 131; Yeaton vs. Fry, 5 Cranch, 335, 341.

The contract of [**4]  a duly authorized agent, in writing or by parol, to give the assured credit or time for the payment of the premium, is a waiver of the most express provision in a policy that it shall not take effect until the premium is actually paid. If an authorized agent of the appellee had, by parol, agreed with the appellant that he might have fifteen days for the payment of the premium, and had delivered the policy under that agreement, it would have been a waiver of the proviso in the fourth clause of the policy, and the policy would have attached, notwithstanding. The agreement of the company to give the credit, to be found in the policy itself, is as explicit as that of any agent whose conduct has been held to amount to such a waiver. Baptist Church vs. Brooklyn Fire Ins. Co., 28 N. Y., 153; Tayloe vs. Merchants' Fire Ins. Co., 9 Howard, U.S., 390; New York Central Ins. Co. vs. National Protection Ins. Co., 20 Barb., 189, 468; Baptist Church vs. Brooklyn Fire Ins., 18 Barb., 69, and 19 N. Y., 305; Goit vs. National Protection Ins. Co., 25 Barb., 189; Hallack vs. Commercial Ins. Co., 2 Dutch., 268; Bouton vs. American Mutual Life Ins. Co., 25 Conn., 542; Sheldon vs. Connecticut Mutual Life [**5]  Ins Co., 25 Conn., 207; Bragdon vs. Appleton Mutual Ins. Co., 42 Maine, 259; Boehen vs. Williamsburg City Ins. Co., 35 N. Y., 131; Post vs. AEtna Ins. Co., 43 Barb., 351; Heaton vs. Manhattan Fire Ins. Co., 7 R. I., 502; Commercial Mutual Ins. Co. vs. Union Mutual Ins. Co., 19 Howard, 318; Trustees of the Baptist Church vs. Brooklyn Fire Ins. Co., 19 New York, 306-311; Sheldon vs. Atlantic Fire and Marine Insurance Company, 26 New York, 461-465, 466.

Delivery of the policy by the company, even without express language waiving the payment of the premium, would, of itself, be presumptive evidence of the intent to waive it. When that presumption is aided, as in this case, by language in the policy giving effect to it from its date, naming as a consideration therefor a short and precise period within which the premium shall be paid, the conclusion that every apparently inconsistent proviso was intended to be waived or nullified seems irresistible. Boehen vs. Williamsburg City Ins. Co., 35 New York, 131; Wood vs. Poughkeepsie Ins. Co., 32 New York, 619, 620.

William Shepard Bryan, for the appellee.

A contract was made between the parties by the delivery of the policy. But [**6]  one of the express stipulations of the contract was, that until the premium was paid, the defendant was not liable.

Before the premium was tendered, the property had been destroyed, and was not, therefore, the subject of insurance.

It cannot be supposed that the fourth condition was waived. To hold that it was waived by delivering the policy, would be equivalent to maintaining that it was not competent to insert the condition in a policy in such manner as to make it a part of the contract. There was no acknowledgment of payment of premium, and nothing was done from which the plaintiff could suppose that it was not intended to insist upon payment according to the terms of the contract.

The true meaning of the contract is, that the defendant's liability was entirely conditional, and the payment of the premium was a necessary condition precedent to the accruing of that liability. Mulrey vs. Shawmut Ins. Co., 4 Allen, 116; Strong vs. Taylor, 2 Hill, 326; Henning vs. Hoppock, 15 N. Y., 409; Tarleton vs. Staniforth, 5 Term Rep., 695, affirmed in 2 Bos. & Puller; De Wolff vs. Babbitt, 4 Mason, 294; Deshon vs. Bigelow, 8 Gray, 159; Haggerty vs. Palmer, 6 Johns. Ch. Rep. 437.

It [**7]  was in the power of the plaintiff to fix this liability at any time within fifteen days, by payment, provided, always, that the property was then in existence, but, after the fifteen days, it could not be fixed at all, because, by the fifth condition, the policy would then be void. The period of fifteen days was the limit of the conditional liability of the defendant; after the expiration of this time, the condition could not be performed by the plaintiff, and the contract, by reason of its non-performance, would be at an end.  

JUDGES:
The cause was argued before BARTOL, C. J., STEWART, BRENT, GRASON and ALVEY, J.  

OPINIONBY:
ALVEY 

OPINION:

 [*112]  ALVEY, J., delivered the opinion of the Court.
Whether the liability of the appellee under the policy sued on ever attached, is the single question in this case, and that 

 [*113]  depends upon the true construction of the policy and its conditions.
The policy is dated the 11th of November, 1867, and by it, it is declared that the appellee, "in consideration of one hundred and sixty dollars, to be actually paid to this company within fifteen days from this date, by the insured hereinafter named, do insure Wm. L. Bradley, against loss or damage by [**8]  fire, to the amount of four thousand dollars on his property," situate at Roxbury, Mass.; and in the clause that follows the description of the property, it is set forth that the company thereby "promises and agrees to make good unto the said insured, his, &c., all such immediate loss or damage, not exceeding, &c., as shall happen by fire to the property as above specified, during one year, to wit: from the eleventh day of November, one thousand eight hundred and sixty-seven, (at 12 o'clock at noon,) until the eleventh day of November, one thousand eight hundred and sixty-eight, (at 12 o'clock at noon,) the said loss or damage to be estimated," &c.
By the fourth condition of insurance it is provided that the company shall not be held liable under the policy, or under any renewal thereof, until the premium in full therefor is actually paid; and by the fifth condition it was mutually agreed that if the premium on the policy was not paid within fifteen days as therein provided, the policy should be null and void; and it was further agreed that the policy was made and accepted in reference to the terms and conditions therein set forth.
At the trial below it was admitted that [**9]  the policy sued on had been executed by the appellee and delivered to the appellant, on the day of its date, and that the proper preliminary proof had been furnished the company of the loss, and that $ 160, the premium mentioned in the policy had been tendered to the appellee by the appellant after the fire, and within fifteen days after the execution of the policy.
The Court below ruled against the right of the appellant to recover on the policy, and to that ruling he excepted.

 [*114]  On the part of the appellant it is contended that the liability of the appellee attached from the date of the policy, and that the fifteen days given within which to pay the premium, was simply a credit extended to him, not at all intended to affect the risk, provided the premium was paid or tendered within that time; while on the part of the appellee it is contended that the actual payment of the premium, within the fifteen days, was a condition precedent to the attaching of the risk, and that, as the property was destroyed before the tender of payment within the time limited, there was nothing upon which the risk could attach, and therefore there is no liability for the loss; and this latter [**10]  construction was the one adopted by the Court below.
The question would seem to be a plain one; and the only thing that affords the slightest ground for the construction contended for by the appellant, is the stipulation on the part of the company to insure the property against loss by fire, for the period of one year, reckoning that period from the date of the policy.
But though such be the stipulation, it was certainly competent to the parties to agree that it should be subject to the conditions that followed; and one of those conditions was that the company should not be held liable under the policy until the premium in full was actually paid. Until that was done, the policy, though issued and delivered to the appellant, was, in respect to the obligation under it, merely inchoate, depending for its binding effect upon a condition to be performed by the appellant. By the performance of that condition at any time within the fifteen days, and before loss occurred, the risk engaged to be assumed by the appellee would, eo instanti, have attached; but until such condition performed, the appellant held the policy at his own peril; and, upon loss occurring, no tender afterwards made,  [**11]  though within the time allowed for payment, can, upon any fair construction, be taken as a compliance with the condition. For it never could have been the intention of the appellee to assume the risk before the 

 [*115]  payment of the premium, and to give the appellant the option to pay or not within the fifteen days as events might determine him to elect. If he had paid within the fifteen days, and before loss occurred, the appellee would have been bound to receive the premium and assume the risk; but, on failure to pay within the time, it was agreed by the fifth condition, that the policy should thenceforth be null and void, and, of course, being null and void, would be no longer binding on the appellee even as a proposal to insure. The policy being thus, by mutual agreement, declared null and void, in the event of non-payment within the time limited, it is clear, there could be no legal responsibility on the part of the appellant for the amount of the premium; and that being so, there is no reason or justice in holding the appellee alone bound on the contract for the fifteen days, while the appellant was free to elect to be bound or not, as circumstances might dictate. In so [**12]  construing the policy as to bind the appellee from its date, without reference to the payment of the premium before loss, there would be no mutuality in the contract; and it is manifest that it was for the very purpose of preserving mutuality, and protecting the appellee from risk without consideration actually received, that the fourth and fifth conditions were inserted in the policy. Without such purpose in view they would be useless and unmeaning.
The cases cited and mainly relied on by the appellant have no application to this case. They were instances in which the insurers were held to have waived the right to receive the premium as a condition upon which the risk was to attach, upon the ground that the assured would have been otherwise misled and deceived. But such is not this case. Here the question is simply one of construction, depending on the terms of the contract between the parties; there being no pretense on the part of the appellant that he was deceived or misled by the conduct of the appellee. The only circumstance alluded to in argument, as at all justifying the notion of waiver, was the delivery of the policy to the appellant; but it 

 [*116]  must be recollected [**13]  that, by express stipulation, the policy was made and accepted in reference to the terms and conditions contained in it.
Agreeing as we do with the Court below in its construction of the policy, its judgment will be affirmed.
Judgment affirmed. 

136 of 142 DOCUMENTS 

JAMES BOYCE vs. THOMAS WILSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 122; 1870 Md. LEXIS 17 

February 15, 1870, Decided 

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

This action was instituted to recover from the appellee the sum of $ 9,072 paid him by mistake. The mistake was alleged to have occurred as follows: A person by the name of Kerr owned an interest of one-fourth in certain property in Allegany county, known as the Hamill Mines, and also two small pieces of property distinguished as the "Reese" and "Sigler" parcels; he owned, likewise, one thousand, five hundred and fifty shares of the stock of a corporation called the Franklin Mines Company, also in Allegany county. The appellant, the plaintiff below, bought of Kerr this property, for the sum of $ 54,000. The appellee owned one-fourth of the said Hamill Mines, and two thousand eight hundred shares of the Franklin Mines stock. The appellant desired to buy the appellee's interest in the Hamill and Franklin Mines, and after some negotiation, it was agreed that he would sell to the appellant on the same terms as Kerr had sold. As Kerr owned, in addition to the Hamill and Franklin stock, the two small properties, "Reese" and "Sigler," above named, it was agreed that $ 4,000 should be considered as the price paid Kerr for them. This deduction [**2]  reduced the one-fourth Hamill and one thousand five hundred and fifty shares of Franklin to $ 50,000; and then, as Wilson owned one-fourth Hamill, and two thousand eight hundred shares of Franklin, a calculation in rule of three was made by him as follows: 1550:2800::$ 50,000=$ 90,322. Boyce, thinking the calculation had been properly made, paid Wilson $ 90,322. The calculation proceeded on the idea that as Kerr and Wilson owned the same interest in the Hamill property, it was unnecessary to take any account of it, but simply to make the proportion in reference to the shares of stock in the Franklin Mines. This action was instituted to recover the amount overpaid.

The narr. contained the usual money counts, including the count for "money had and received by the defendant for the use of the plaintiff."

The defendant pleaded the general issue. At the trial the plaintiff read to the jury the agreement in writing between him and the defendant, and the receipts attached thereto, showing the consideration in the agreement, and the payment by Boyce thereunder, of $ 90,322 for the property, and $ 1,680 for dividends on stock.

The plaintiff then proved by himself that the consideration [**3]  named in the agreement and paid by him, was not the true consideration according to the actual contract between him and the defendant, and explained, as already stated, the mistake made and the mode in which it occurred.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Parol Testimony to vary the Consideration in a Written Contract -- Written Contracts Reformed only by a Court of Equity.

B entered into a written agreement with W for the purchase of certain property. The consideration expressed was $ 90,322.00. This sum was paid in pursuance of the contract. B afterwards discovered that by a mistake in an arithmetical calculation, the consideration had been placed at a sum greater by $ 9,072.00 than the one agreed upon An action at law to recover this sum was brought, the narr., containing the common money counts, including the count for "money had and received by the defendant for the use of the plaintiff." HELD:

1st. That parol evidence was not admissible to vary the written contract by striking therefrom the consideration expressed in it, and inserting in its stead another reduced consideration.

2d. B. has made no mistake which a Court of Law can correct, if he has paid only that sum which his contract obliged him to pay. He cannot recover at law a sum paid by mistake, unless that sum were over and above what he had contracted to pay.

3d. Whatever may have been the mistake, or how produced, it can find no recognition until the written contract shall have been reformed and made to conform to the intention of the parties, and this a Court of Law cannot effect. A Court of Equity alone can reform a written contract.

4th. The action for money had and received, is an equitable action, but, in it, a written contract cannot, by parol, be shown to be different from the import of its terms.  

COUNSEL:
Orville Horwitz, for the appellant.

There is abundant evidence to establish the appellant's claim. Wolfe vs. Hauver, 1 Gill, 89; Townsend vs. Croudy, 98 Eng. Com. Law, 487, 489.

As to its admissibility if properly before the Court, see Canal Bank vs. Bank of Albany, 1 How., (N. Y.,) 287; Wheedon vs. Olds, 20 Wendell, 174; Waite vs. Leggett, 8 Cowen, 195; Goodspeed vs. Fuller, 46 Maine, 141; Grimes vs. Blake, 16 Inda., 160; Wilkinson vs. Scott, 17 Miss., 250-256; 1 Domat, 501.

Charles Marshall and Wm. A. Fisher, for the appellee.

At law no evidence was admissible to contradict the sale or written agreement between the parties, and if there were any error in the written contract, it could only have been corrected by means of an appropriate application to a Court of Equity, supported by such evidence as Courts of Equity require in those cases; and the appellant ought, in fact, to have been stopped at an earlier stage of the [**4]  cause, under the objections to his testimony. Howes vs. Barker, 3 Johns., 506; Murphy vs. Barron, 1 H. & G., 258; 1 Selw. N. P., 82; Fitzhugh vs. Runyon, 8 Johns., 375; Bradley vs. Anderson, 5 Vermont, 152; Morton vs. Chandler, 7 Greenleaf, 44; Lincoln vs. Avery, 1 Fairf., 418; Coleman vs. Crumpler, 2 Devereux, (Law,) 508; Druiff vs. Lord Parker, 5 Law Rep., Equity Cases, 131; Newcomer vs. Kline, 11 G. & J., 470; Saunderson vs. Piper, 5 Bingh. N. C., 429; Brown vs. Curtis, 2 N. Y., 227; Brewster vs. Silence, 8 N. Y., 213; 2 Phillip's Ev., 677; Browne on Statute of Fraud, secs. 387, 409 and 409 a.

But even if the Court should think it was allowable in this case to offer evidence of every kind, the appellant did not produce such as would have been sufficient, even upon a bill to reform the contract, and no less measure could be adopted at law.

The proof shows, that however the calculation was made, the minds of the parties met for the first time when the sum had been fixed; and, however erroneous may have been the principles upon which the calculation was made, if a sum were arrived at which one party stated himself to be willing to accept, and the other to pay, and the contract [**5]  was drawn with reference to that sum as the consideration, and both parties were content with it, it would be a wrong to say that there was any mistake in the contract. We deny, therefore, that there has been any mistake shown, but even if there were the appellant has furnished no material by which any correction could be made. He must show precisely what the contract should be. Wood vs. Patterson, 4 Md. Ch., Dec., 335; Woolen vs. Hillen, 9 Md., 185; National Fire Ins. Co., vs. Crane, 16 Md., 260; Ellinger vs. Crowl, 17 Md., 361.  

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

OPINIONBY:
MAULSBY 

OPINION:

 [*125]  MAULSBY, J., delivered the opinion of the Court.
This action is to recover money paid by mistake under a count for money had and received. At the trial the plaintiff 

 [*126]  offered two prayers which were rejected, and the Court granted the following prayer of the defendant: "That there is no sufficient evidence to shew such a mistake in the contract of April 15th, 1864, and the deed of Wilson to Boyce and Rieman, as will entitle the plaintiff to recover in this action," and the plaintiff appealed.
In the view which we [**6]  take of the case, we do not deem it material to determine whether the defendant's prayer, in the terms used, was properly granted or not. The contract offered in evidence by the plaintiff is a written contract, in which the consideration expressed is ninety thousand, three hundred and twenty-two dollars, and that sum was paid by appellant to appellee. The ground of the appellant in this suit is that the consideration, which ought to have been expressed in the written contract was eighty-one thousand, two hundred and fifty dollars, and that he paid nine thousand and seventy-two dollars too much, by reason of the fact that the written contract did not contain the true contract between the parties to it.
He was permitted by the Court below to offer parol evidence, and to prove that the written contract was intended to embody a verbal agreement previously made. His counsel asked him, testifying as a witness, "what the agreement was which resulted in the written contract, and whether there was any mistake in the amount of consideration stated in the contract?" And again, whether the consideration stated in the written contract "was the true consideration for the property agreed to [**7]  be conveyed," or whether there was any mistake, and if so, what it was, and how it arose? The witness replied, in substance, that he and the appellee had agreed by parol that he was to purchase from the appellee certain real estate, and mining stocks, at certain valuations, and that, after negotiating for some time, they finally made a calculation of the amount which he was to pay for the same, and that the sum ascertained by the calculation was ninety thousand, three hundred and twenty-two dollars, that afterwards, the agreement was reduced to writing, and embodied that sum as the consideration, 

 [*127]  and that the contract offered in evidence was that writing, that when it was executed he was not aware that the said sum was not the correct consideration, but that sometime afterwards he discovered that the calculation had been made on an erroneous basis, and that the sum which ought to have been expressed in the written contract was eighty-one thousand, two hundred and fifty dollars, that before this discovery was made by him the real estate and stocks had been conveyed and transferred to him, and he had paid the full sum mentioned in the written contract. The alleged mistake [**8]  was in the calculation made before the written contract, and was carried into that contract.
Can the parol evidence vary the written contract, by striking therefrom the consideration expressed in it, and inserting in its stead another reduced consideration? The plaintiff has made no mistake which a Court of Law can correct, if he has paid only that sum which his contract obliged him to pay. He cannot recover at law a sum paid by mistake, unless that sum were over and above what he had contracted to pay.
The question inevitably recurs, what was the valid contract, the precedent parol agreement, or the subsequent written contract? There can be but one answer.
The case of Morton and Chandler, 7 Greenleaf 44, is directly to the point in this case. On page 46 the Court says: "Now, the plaintiff, in order to maintain the present action, attempts to prove, by parol evidence, that, by mistake, the sum secured by this instrument was too large. Can he do this? It is a well known rule of law that parol evidence is not admissible to vary the meaning of a deed, or to explain that which is apparent upon the face of it." And again, the Court says that the party "would not be permitted [**9]  to introduce parol evidence to shew a mistake, and thus vary the effect of the sealed instrument;" that he could not accomplish indirectly that which he could not do directly; that he could not, in an action for money had and received, shew what he would be estopped from shewing in an action on the deed. That he might prove 

 [*128]  fraud, and thereby avoid the legal effect of the instrument. And, in 5 Vt. 152: "Parol evidence is inadmissible to contradict, vary or explain a written contract, or to shew it different from what it purports to be on the face of it, for reasons assigned by LORD COKE," who says: "It would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by an averment of parties, to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purchasers and all others in such cases, if such crude averments against matter in writing should be admitted."
"Parol evidence is inadmissible for the purpose of altering the legal operation of an instrument, by evidence of an intention to that effect, which [**10]  is not expressed in the instrument." "No parol evidence can be received to explain an agreement in which there is no latent ambiguity." The case from which these quotations are made is, in principle, identical with this case. It was an action on a promissory note, payable in cattle or grain, and parol evidence was offered that the contract agreed on, when the note was given, was, that it was to be made payable in carpenters' work or cattle or grain, at different dates from that expressed in the note, and it was insisted that a mistake had been made in writing the note by the plaintiff, who was admitted to have written it, or fraud practiced on the defendant in writing it different from the alleged contract. The Court said, if it were merely a mistake it could not be shewn by parol. "It is not suggested that the plaintiff intentionally wrote the note differently from the contract; nor that the defendant did not read the note, and understood its contents before he signed it; therefore, if there was a difference between the note and contract, we are not to conclude that it was the effect of fraud, but of mistake, which could not be given in evidence to affect the plaintiff's right of [**11]  recovery."
To multiply authorities upon the established rule that parol evidence cannot be allowed to contradict, vary or explain a 

 [*129]  written contract would be scarcely excusable. The only question is its application to this case, and we cannot see how that can be avoided. The written contract may not have been in accordance with the intention of the parties. It may have expressed, by mistake, one consideration, when the real intention out of mind at the moment of its execution, was that it should have expressed another. But, whatever may have been the mistake, or how produced, it can find no recognition until the written contract shall have been reformed and made to conform to the intention of the parties, and this, a Court of Law, cannot effect. A Court of Equity alone can reform a written contract.
When the Court of Appeals, in Murphey vs. Barron, 1 Harris & Gill 258, said, "the action for money had and received is an equitable action, and equally as remedial in its effects as a bill in equity," it did not mean to be understood as obliterating any of the well defined lines of demarcation which separate the jurisdiction of Courts of Law and Equity.  [**12]  It did not mean that an action of assumpsit can be founded on anything else than contract, express or implied. It meant only, that contracts to repay money received, through fraud or mistake, would be implied, in a spirit of liberal and generous justice, when the rigid rules of law did not forbid. The illustrations put in the Court's opinion, explain it. As, "where money has been paid on a consideration which has failed."
"That the extending those actions depends on the notion of fraud." "If a man takes another's money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured either to affirm the agreement by bringing an action for the non-performance of it, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use."
But the Court did not intend to say that, in this action, settled rules of law could be abrogated; that a written contract could be shewn, by parol, to be different from the import of its terms, or that the rules regulating the force and effect of evidence could be interfered with or altered.

 [*130]  The result from these views being that the plaintiff [**13]  cannot recover in a Court of Law, it is not material to determine whether or not the prayer, as offered, was properly granted, because, even if it were erroneous, the appellant has sustained no injury. He could derive no benefit from a reversal, and to order a new trial would be nugatory, because he could not recover.
Under the views expressed, the plaintiff's prayers were properly rejected. Therefore, this Court will not reverse the judgment.
Judgment affirmed. 

137 of 142 DOCUMENTS 

IRA C. CANFIELD, WM. B. CANFIELD, THOMAS WELSH AND JAMES R. ARMIGER vs. SAMUEL O. MCILWAINE and CLAUDIUS L. GOODWIN, use of ALGERNON R. WOOD, Trustee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 94; 1870 Md. LEXIS 13 

February 11, 1870, Decided 

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

The facts of the case are sufficiently presented in the opinion of the Court. The nar., beside the common money counts, contained the following special count, being the seventh:

That the defendants, on the 23d day of May, 1866, by their promissory note or due bill, now overdue, promised to pay to one Samuel Turbutt $ 1000, on demand, but did not pay the same. That on or about December 6th, 1866, said Samuel Turbutt endorsed, assigned and transferred said due bill to said plaintiffs, or order, and delivered the same; and that on or about May 25th, 1867, said plaintiffs gave due notice to said defendants of said endorsement, transfer and delivery, and that they were the holders thereof, and demanded payment of the same, which was refused by the defendants.

The plaintiffs asked the following instruction:

If the jury find that the due-bill offered in evidence was signed by the defendants, and endorsed in blank by Samuel Turbutt, the person therein named, and that he delivered the same, so endorsed in blank, to the plaintiff, McIlwane, and that the words, "Pay McIlwane, Goodwin & Co., or order," were written by the plaintiff,  [**2]  McIlwane, over said blank endorsement, before the institution of this suit, and that before the institution of this suit the defendants were notified that the said due-bill had been assigned to the plaintiffs, then the plaintiffs are entitled to recover so much as the jury may find to have remained unpaid of said due-bill, at the time the defendants received notice of the assignment thereof to the plaintiffs, not exceeding the amount that the jury may find to have been due from the said Turbutt to the said plaintiffs.

The defendants offered the following prayers:

1. That there is no legal assignment of said due bill by Samuel Turbutt to the plaintiff as required by the Code, Art. 9, sec. 1, and therefore the plaintiffs cannot recover in this case.

2. And if the jury shall find the making and endorsement of the due-bill, and its delivery to said McIlwaine, then there is no evidence in this cause that the said due bill was assigned and transferred to the plaintiffs, as alleged in the seventh count of their declaration, and the plaintiffs cannot recover in this action.

3. If the jury find the making of the due bill in this case, and that the name of Turbutt was written [**3]  thereon by him, on the 6th of December, 1866, and then and there that said due bill was delivered to the plaintiff, S. O. McIlwaine, then it was not competent for the said plaintiff to write, over the said signature, the words that are so written, and the plaintiffs cannot recover.

4. If the jury find, from the evidence, that the plaintiff McIlwaine received the due bill offered in evidence, on December 6th, 1866, and the receipt given therefor, for the purposes therein stated, and that the assignment for the benefit of creditors, as shown in the evidence, was made and delivered, then the plaintiffs cannot recover in this case.

5. And further, if the jury find the facts contained in the first prayer, and shall further find that on the 20th day of November, 1867, the said plaintiffs made the assignment offered in evidence, and delivered all their assets to said trustee, the due bill in this case being included in such delivery, then the plaintiffs cannot recover in this case.

6. That, in order to a recovery in this case by the plaintiffs, under their seventh count in the declaration, it is necessary for them to prove the assignment from Turbutt to themselves, in manner [**4]  and form as therein stated, and that no such evidence has been offered.

7. And that the plaintiffs cannot recover, under their seventh count, because the same is defective in not averring that said assignment was made for a sufficient consideration, passing between the plaintiffs and Turbutt.

8. That there is no sufficient evidence in this cause that a sale was duly made of gold for Turbutt by the plaintiffs on the 8th of April, 1867, and that a loss resulted therefrom to the plaintiffs, for which they are entitled to hold Samuel Turbutt responsible, and hold the said due bill as a lien therefor.

The Court gave the instruction asked by the plaintiffs, but refused the prayers of the defendants, and the verdict and judgment being for the plaintiffs, the defendants appealed.  

DISPOSITION:
Judgment reversed, and a new trial awarded.  

HEADNOTES:

Prayers and Instructions -- Assignment of a Chose in Action -- Filling up a Blank Endorsement -- Practice.

A due bill was endorsed in blank by the payee, in December, 1866, and delivered to M, who in April, 1867, formed a partnership with G, when the due bill passed to the firm and became part of the partnership effects. In November, 1867, M & G, for the benefit of their creditors, made an assignment to W, and delivered to him as part of their assets the due bill, with the blank over the name of the payee filled up thus: "pay M, G & Co., or order," and endorsed by them. The makers of the due bill had notice of its assignment by the payee, and that M & G were the holders of it. It was in proof that the payee of the due bill assigned it to M as a margin on a contract for the purchase and sale of gold on account of the former, to be made by the latter as broker -- the agreement being that if the assignor failed to make good any default, M would have the right to rely on the due bill for indemnity -- and that no default was made. After the delivery of the due bill to W, suit was brought for his use, in the names of M & G, against the makers. At the instance of the plaintiffs, the jury were instructed that if they found that the due bill was signed by the defendants and endorsed in blank by the payee, and delivered so endorsed to M, and that the endorsement was filled up by him, and that the defendants were notified of the assignment, the plaintiffs were entitled to recover. HELD:

That the instruction was erroneous -- there being proof impeaching the assignment to M, G & Co., it should have been left to the jury to pass upon the bona fides of the transaction, and as the plaintiffs claimed under the assignment, they were not entitled to recover unless it was bona fide.

In an action on a due bill, brought in the name of the assignees against the makers, the allegation in the nar. that on or about December 6th, 1866, the payee of the due bill endorsed, assigned, transferred and delivered it to the plaintiffs, and that on or about May 25th, 1867, the plaintiffs gave due notice thereof to the defendants, need not be proved as laid -- it is only necessary to prove that the assignment was made before suit brought.  

COUNSEL:
B. C. Barroll, for the appellants.

William A. Fisher and Charles Marshall, for the appellees.  

JUDGES:
The cause was argued before STEWART, MAULSBY, BRENT, MILLER and ALVEY, J.  

OPINIONBY:
MAULSBY 

OPINION:

 [*97]  MAULSBY, J., delivered the opinion of the Court.
This suit is brought on a due bill, made by the appellants, (defendants below,) payable to Samuel [**5]  Turbutt, and by him assigned, in blank, in December, 1866, and delivered to S. O. McIlwaine, who, in April, 1867, formed a partnership with Claudius L. Goodwin, when the due bill passed to the firm, and became part of the partnership effects. In November, 1867, McIlwaine delivered the due bill to Algernon R. Wood, for whose use the suit is brought, with the blank over the name of Turbutt filled up, "pay McIlwaine, Goodwin & Co., or order." The defendants had notice of the assignments. After the delivery to the cestui que use, the suit was brought. The narr. contains the money counts and also a count stating that Turbutt assigned the due bill to the plaintiffs on or about December, 1866. The plaintiffs' proof is: that the partnership between the legal plaintiffs, was formed in April, 1867; that McIlwaine received the due bill from Turbutt, as margin on a contract for the purchase and sale of gold, to be made by McIlwaine, as broker, for account of Turbutt, which contract, in writing, is set out; that Turbutt was indebted to McIlwaine individually, but in what amount cannot be stated or approximated; that after the formation of the partnership, Turbutt 

 [*98]  had a transaction [**6]  with the firm and owed the firm a balance of $ 419.00. The written agreement is to the effect, that Turbutt was to deposit, with McIlwaine, ten per cent on the par value of the gold to be bought for him and to keep the deposit equal to ten per cent on the par value, as the same might fluctuate at the stock exchange, whenever called upon to do so, and the due bill was assigned on account of this deposit.
For defendants, Turbutt proved that at the time of the trial he was the owner of the due bill; that he assigned it to McIlwaine, to be a margin on any gold transactions he might have with him; that he had a transaction, which resulted in a profit to him, which McIlwaine paid him; that he had no recollection of ever having had any gold transactions with McIlwaine, Goodwin & Co.; that when they failed they owed him $ 85 or $ 90, for a draft collected by them; that when he assigned the due bill to McIlwaine, the agreement was, that if he failed to make good any default, he (McIlwaine) would have the right to rely on the due bill for indemnity; that he never authorized McIlwaine to assign the due bill, except in case of default and that he never became indebted or made default.
The plaintiffs [**7]  prayed the Court to instruct the jury, that if the jury found that the due bill was signed by defendants and endorsed in blank by Turbutt, and delivered so endorsed to McIlwaine, and that the endorsement was filled up by him, and that defendants were notified of the assignment, the plaintiffs were entitled to recover and the Court granted the prayer.
To entitle the plaintiffs to a verdict, they must show a title to the cause of action, and their title must be in accordance with the terms of the Code, which authorize them as assignees of the chose in action, to sue in their own name. Those terms are that they be bona fide entitled thereto, by assignment in writing, &c. They cannot maintain their suit at all, unless they be bona fide entitled. The instruction of the Court below is that they could recover without any reference to the bona fides of their title. It is, that if the jury find the facts enumerated, to wit: defendants' signatures, endorsement in blank 

 [*99]  by Turbutt, delivery by him to McIlwaine, filling up of endorsement by McIlwaine and notice of assignment to defendants, the plaintiffs can recover. If there had been no proof, attacking the bona  [**8]   fides of the assignment to McIlwaine, Goodwin & Co., the instruction would have been sustained, because in the absence of proof the presumptions are in favor of the bona fides--it will be presumed--and the requirements of the statute would be satisfied by the legal presumptions. And in that case, the same presumptions would have supplied the words, omitted in the expressed language of the instruction. But there is proof, which, if believed by the jury, would shew that the assignment to McIlwaine, Goodwin & Co., was mala fide. The assignment by Turbutt was to McIlwaine. But, the assignment in blank authorized McIlwaine to pass it to any other party, and authorized the holder, whoever he be, to fill up the assignment to himself. The Court says in Chesley vs. Taylor, 2 Gill 251, "Mr. CHITTY, in his treatise on Bills, says, a blank endorsement gives the holder, as well as any other person to whom it may be afterwards transferred, the power of instituting himself assignee of the beneficial interest in the bill, by filling it up payable to himself, which he may do at the time of trial." "This familiar and established doctrine is directly applicable to the case [**9]  before us. The rights of the holder of a bond or single bill, delivered and endorsed in blank are, in this respect, similar to those of the holder and endorser of a promissory note, for he possesses, by force of the endorsement and delivery, the unquestionable power, by writing over the name of the assignee, (misprint for assignor,) to make a complete assignment." The result is that intermediate transfers, between the first assignee and any subsequent holder, who may fill up the blank endorsement with a complete assignment to himself, may take place in fact, and their conformity to the requisites of the statute, that they shall be in writing signed by the parties, will be presumed. But whilst the holder is authorized to complete the assignment on which he founds his right to sue, that assignment, so completed by 

 [*100]  the holder, must be bona fide or he cannot maintain his action.
In this case the holders, who exercised their right of filling up the assignment to themselves, are McIlwaine, Goodwin & Co. McIlwaine, who, by defendants' proof, could not have, bona fide, made any other disposition of the chose in action than to return it to Turbutt, to whom,  [**10]  by that proof, it belonged, and who was the original assignee of Turbutt, is the same person who, as member of the firm of McIlwaine, Goodwin & Co., filled up the assignment to that firm. The bona fides of this transaction should, we think, have been put, by the instructions, to the jury.
We shall dispose, briefly, of the substance of the questions presented by the defendants' prayers.
The allegation of time in the seventh count of the narr., "on or about," is equivalent to laying it under a videlicet, and is not necessary to be proved as laid. All that was required to be proved was, that the assignment was made before suit brought, and we concur, therefore, with the Court below in overruling the defendants' sixth prayer.
We do not concur in the view presented by the defendants, in their seventh prayer, that the narr. should have alleged that the assignment was made for a sufficient consideration.
The consideration of the assignment was not, as such, a matter in issue between the assignee and the makers, but the bona fides of the title of the assignee.
It is not McIlwaine, the original assignee, who seeks to recover in this suit. The legal plaintiffs are the assignees [**11]  of McIlwaine. They filled up the assignment to themselves, and claim under that assignment, and they cannot recover unless that assignment were bona fide. It is the bona fides of that on which the right to maintain this suit depends, and which ought, in our opinion, to have been left, by the instructions, to the jury, on all the evidence.
Article 9, section 1, of the Code does not require, but authorizes, the assignee of a chose in action to sue in his own 

 [*101]  name. In this case it was transferred by McIlwaine, Goodwin & Co., by blank endorsement, to Wood. He could fill up the assignment to himself and sue in his own name, or sue, as in this case, in the name of his assignors, for his use. The contrary position, argued by appellants' counsel, is not maintainable.
Judgment reversed, and a new trial awarded. 

138 of 142 DOCUMENTS 

ISAIAH GARDNER, Guardian, and others, vs. SUSANNA MERRITT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 78; 1870 Md. LEXIS 10 

February 1, 1870, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Anne Arundel County, in Equity.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

What constitutes a Gift.

A grand-mother, from time to time, during a period of five years, deposited various sums of money in the Savings Bank of Baltimore, to the credit of five grand-children, the accounts in the bank being in the name of each, as a minor, and the deposits made subject to her order, or that of her daughter. She also kept an account in bank in her own name, the deposits being subject to the like order. About the time the grand-mother began to make these deposits to the credit of her grand-children, she declared that "she was going to put the money in bank for the children." Under the by-laws of the Savings Bank, guardians could deposit for the benefit of their wards, and parents for their children; and if desired at the time of deposit, subject the same to the control of such guardian or parent. The grand-mother died, and shortly after her death, the daughter, who was the executrix of her mother, obtained from bank all the money that had been deposited to the credit of the grand-children, and administered it as a part of the estate of her mother. Upon a bill filed in the name of the grand-children against the daughter, to obtain an account of the moneys so withdrawn by her, it was HELD:

That the moneys deposited by the grand-mother were perfected gifts, which she had no design to countermand; and the donees were entitled to the several amounts which stood to their credit in bank, when withdrawn by the defendant, with interest thereon from the date of the withdrawal 

COUNSEL:
B. C. Presstman and S. Teackle Wallis, for the appellants.

The Circuit Court erred in supposing the grand-mother had not given the money to the children because she reserved control over it, instead of considering whether that control was reserved for their benefit and not hers. Infants cannot check out money, and yet no prudent person would put money in bank for an infant without giving some one the power to check it out for the infant's protection in case of danger, or the offer of a better investment. Adams' Equity, 80; Cox vs. Sprigg, 6 Md., 274; 2 Redf. on Wills, 317, 318; Hills vs. Hills, 8 Mees. & Wels., 401; Edwards vs. Jones, 13 Cond. Eng. Ch., 377; Mory vs. Michael, 18 Md., 227; Kilpin vs. Kilpin, 1 Mylne & Keene, 520; Fortescue vs. Barnett, 8 Cond. Eng. Ch., 208.

The defendant's receipting, as for the infants, though it did not bind the mother's estate as an estoppel, was evidence nevertheless, and conclusive that the defendant knew and recognized the money as the children's, and that her right to check it out (and she was but the mother's agent) was given [**2]  by her mother for the children's benefit. Mangum vs. Webster, 7 Gill, 82; Dent vs. Dent, 3 Gill, 482; 1 Greenleaf on Ev., 179.

Thomas Rowland and E. G. Kilbourn, for the appellee.

It is admitted that Mrs. Merritt was the owner of the money when she made the deposit. The legal ownership clearly continued with her up to the time of her death, notwithstanding the deposit, because the money was held by the bank as bailee, subject to her order or that of her designated agent, and the bank could have lawfully paid it to no one else. At her death, then the legal ownership necessarily passed to her executrix. So much for the legal title.

Now, if the equitable title to this money ever vested in the grand-children of Mrs. Merritt, it must have been by some act of her's, consummated in her lifetime or by a testamentary disposition, taking effect at her death. The appellants do not claim under the will, and their title depends therefore upon the answer which may be given to a single question: Did Mrs. Merritt, by the deposits which she made, divest herself of the equitable title to this money, and constitute herself a trustee for her grand-children?

If she did not, she died [**3]  the legal and equitable owner of this money, the legal title to which is now vested in her executrix, and the equitable title in her residuary legatees.

The deposits made by Mrs. Merritt in the names of her grand-children, did not change the legal or equitable ownership of the fund in controversy. Pennington vs. Gittings, 2 G. & J., 208; Nickerson vs. Nickerson, 28 Md., 327; Hitch vs. Davis, 3 Md. Ch. Dec., 266; Thompson vs. Dorsey, 4 Md. Ch. Dec., 149; Cox vs. Sprigg, 6 Md., 274.  

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

OPINIONBY:
MAULSBY 

OPINION:

 [*80]  MAULSBY, J., delivered the opinion of the Court.
Susanna A. Merritt, the grand-mother of the appellants, (complainants below,) John G. Gardner, Mary V. Livingston, (formerly Gardner,) Frances C. Gardner, Helen M. Gardner and Emma S. Gardner, deposited during her life, sundry sums of money in the Savings Bank of Baltimore, to the credit of these complainants, having caused accounts to be opened in the Bank in the name of each of them, as a minor, and containing immediately after the name of the infant, the words, "subject to the order of Susanna A. Merritt or Susanna Merritt." To [**4]  these accounts she commenced on September 4th, 1860, to make deposits and continued during the years 1861, 1862, 1863, 1864 and 1865, to November 13th, depositing equal sums, within a small fraction, to each account, and altogether to the amount, with the interest accrued and credited, when due, to each, of thirteen hundred and three dollars and five cents.
In December, 1865, she died, and after her death all these moneys were withdrawn from the bank by the appellee, and 

 [*81]  subsequently were claimed by her as belonging to the estate of Susanna A. Merritt.
The question is, whether these moneys became, when deposited by the grandmother, perfected gifts to the grand-children, to whose account she had deposited them, or whether they remained, after the deposits, the property of the grand-mother--whether the gifts were perfected, or whether the facts manifest an intention to give in future--whether the acts of making the deposits, under all the proof in the cause, divested the grandmother of her title to the moneys, and vested the same in the infants.
The Vice Chancellor, in the case of Hughes vs. Stubbs, 1 Hare 479, says: "The result of the cases is, that the [**5]  Court looks into the nature of the transaction, and determines, from the nature of the transaction, what the effect of it shall be in divesting the owner of the property to which it relates." Before the moneys were deposited, they were the property of Mrs. Merritt. The proof is, that some time in or about the date at which she commenced to make these deposits, the date not definitely fixed by the witness, she declared that she "was going to put the money in bank for the children." She did put money in bank, and caused it, when she so put it, to be entered to the credits or accounts of the several children. The third section of the charter of the Savings Bank, and the first and seventh of the by-laws, contained in the record, serve to show the character and intent of the acts of deposit by Mrs. Merritt. The corporation was empowered to receive from any person or persons any deposits of money, and to invest the same in public stocks or other securities, and to allow interest, and to divide surplus profits. It was organized and incorporated for the purpose of receiving such small sums of money as are the profits of industry and economy, or legacies, or donations to widows, children,  [**6]   and others, &c.
Guardians may deposit for the benefit of their wards, and parents for the benefit of their children, and, if desired at the time of deposit, subject the same to the control of such guardian 

 [*82]  or parent. Mrs. Merritt must be presumed to have had knowledge of these provisions. She acted on them by depositing money for the benefit of her grand-children, and subjected the same to the order of herself, or of her daughter, the appellee. It is maintained by the appellee, that the moneys deposited did not become, thereby, the property of the several infants, in whose names, or to whose accounts they were deposited, because they remained, by force of the words, "subject to the order of Susanna A. Merritt or Susanna Merritt," the property of the donor; that these words explained and limited the acts of deposit to the effect of a declaration of an intention to give in future. In the absence of those words, it would be hardly contended that the declaration of an intention to give, followed by actual delivery of the subject matter of the intended gift, to a bailee, for the benefit of the donee, did not constitute a perfected gift. A gift is inoperative [**7]  without delivery. To be valid, it "can have no reference to the future, but must go into immediate and absolute effect. To the perfection of a parol gift of a chattel, delivery is essential, and without actual delivery no title passes." Nickerson vs. Nickerson, 28 Md. 327, 332. The delivery may be to the donee, or trustee, or guardian acting for the donee, or to any bailee of the donee. All these conditions were met in this case. The money was delivered by the donor to the bank, as bailee of the infants, by the direction of the donor, that it should be entered to their credit in accounts standing open in their names. The words which are supposed to explain and qualify these acts of the donor are not, in our opinion, justly liable to that interpretation, but are to be interpreted in reference to the language of the by-law referred to. Guardians and parents may deposit for the benefit of their wards and children, and subject the deposits to the control of the guardians or parents. The deposits, when made by Mrs. Merritt, were for the benefit of her grand-children. The delivery to the bank for the benefit of the grand-children, was a perfected gift to [**8]  them, and the 

 [*83]  control, by her or her daughter, retained, was such control as is contemplated by the by-law--a control for the benefit of those to whose use, or whose benefit, the money was delivered --such control as might be necessary to the protection of the interest of the donees, and of the same nature as a guardian might exercise for the benefit of his ward, and not such control as would pertain to a continuing legal power and dominion over it--which would leave the donor a locus penitentiae.
This construction of the effect of the words in question, is sustained by a review of all the facts in the case. It is in proof, that in 1858, Mrs. Merritt made a will; she devised all her property to her living children, the mother of the complainants being then dead, and excluded from all benefit of her estate these children of her dead daughter. The estate, which she so devised, had been given to her by all her children, including the then living mother of the complainants, by deed in 1846. In 1860, she commenced to deposit small sums, the products of the very property conveyed to her, in the Savings Bank, in the name, and to the account, of each of these [**9]  excluded grand-children. Prior to that time, she had been in the habit of giving to the mother, during her life, or to the father of these children, twenty-five dollars per month. She declared her intention to stop giving it to the father, and to put it in the bank for the children. There is proof that she had stopped giving it to the father, and had invested it in bank for the children--that she wished them, and not their father, to have it. It appears, from the accounts in evidence, that she deposited, to the account of each of the five children, five dollars per month, uniformly, in the earlier periods of the deposits, and generally at other times, though sometimes increasing and sometimes diminishing the monthly deposit.
There is in the record no evidence of any intent on the part of Mrs. Merritt to do any future act touching this money, after that of depositing it in the Savings Bank, for and in the names of her grand-children. That she did not 

 [*84]  intend the act of deposit as a delivery for the use of the infants, when done, but that she then intended a future perfection of the gift, is an inference sought to be drawn by the appellee's counsel from the words, "subject [**10]  to order," &c., only. During the same period, when she was making these deposits in the names of her grand-children, she was also making similar deposits in the same bank, in her own name: that is, she was depositing to separate accounts in the name of each of the grand-children, and at the same time to a separate account in her own name, which had been opened long before, in 1856, and was continued until her death. If she intended that all the moneys were her own, and deposited to her own credit, it is hard to conceive her purpose in requiring five accounts to be kept, one in the name of each of the infants, and a sixth in her own name. It is argued that her purpose was to indicate thereby an intent to make future gifts of the moneys to the children, but there is no proof on which the argument can rest. The effect of the deposits was either to make the money deposited the right of the infant in whose name it was deposited, or the effect of the words "subject to her order" was to retain to her the legal power and dominion over it, and to continue it her own, as absolutely as if she had not caused it to be deposited in the name of the infants, and the multiplicity of accounts was without [**11]  any meaning.
"If the donor has perfected his gift in the way which he intended, so that there is nothing left for him to do, and nothing which he has authority to countermand, the donee's right is enforcible as a trust." Adams' Equity, (marg.,) 79.
"In every case the general purpose and intention of the donor, and not the use of one particular term or another, will decide the question of whether a party does or does not take in a fiduciary character." Hill on Trustees, (marg.,) 66.
We think, in this case, that the donor had perfected her gifts, and had no design to countermand them, and that the right of the donees is enforcible, as a trust, against this defendant, who, in the words of the five distinct receipts signed by 

 [*85]  her, received from the Savings Bank the moneys for the complainants, naming each; who made some of the deposits at the request of her mother, who is shown by the proof to have been fully cognizant of all her mother's acts and intentions in this respect, and who signed the receipt for the money standing to the separate account of her mother, as executrix.
The cases in 2 Gill & John., 208; 3 Md. Ch. Dec., 266; [**12]  4 Md. Ch. Dec., 149, and 6 Md. 274, are all cases in which the gifts had not been perfected, and, in that respect, distinguishable from this.
The view which we take of this case is supported by those of LORD BROUGHAM in Kilpin vs. Kilpin and Kilpin vs. Lamb, 1 Mylne & Keene 520, (7 Cond Eng. Ch. R. 150.)
We have not adverted to some of the questions discussed by counsel, in their able arguments, particularly to the competency of the evidence of Mr. Baldwin, which was excepted to, because we have not found it to be necessary to the decision of the cause.
We are of opinion that the complainants are entitled to a decree for the several amounts of money which the appellee withdrew from the Savings Bank of Baltimore, and which stood to the credit of each at the time of such withdrawal, and to interest thereon from the 21st December, 1865, the date of the withdrawal.
The decree will, therefore, be reversed, and the cause remanded, that a decree may be passed in conformity with the opinion of this Court.
Decree reversed and cause remanded. 

139 of 142 DOCUMENTS 

THE ANNAPOLIS AND ELKRIDGE RAILROAD COMPANY vs. THE PRESIDENT AND DIRECTORS OF THE BALTIMORE FIRE INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 37; 1870 Md. LEXIS 5 

January 18, 1870, Decided 

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

The facts of the case are sufficiently stated in the opinion of the Court. The plaintiff offered two prayers in the Court below: the first asserted the proposition that the plaintiff was entitled to recover for the injury sustained, notwithstanding the jury might find that the engine and passenger car, at the time of the burning, were not contained in the car and engine house respectively mentioned in the policy, but were in the course of their usual and appropriate employment on the plaintiff's railroad, several miles from Annapolis; the second prayer assumed the proposition embodied in the first prayer, and asserted that the verdict (if found for the plaintiff) should be for the amount of the actual loss sustained by the plaintiff from the fire, not exceeding the sum insured upon the property by the policy, or the amount claimed in the bill of particulars filed in the cause, with interest upon this amount, from the time of demand. These prayers the Court rejected, and the plaintiff thereupon excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Construction of a Policy of Insurance against Fire.

A policy of insurance against loss by fire, taken out by a railroad company described a portion of the property insured as follows: "$ 2,250 on two Murphy & Allison passenger cars, say $ 1,125 on each, one of them being used as a baggage and passenger car, contained in the car house marked No. 1; and $ 3,000 on locomotive engine J. H. Nicholson, contained in the engine house marked No. 2." After the insurance one of the Murphy & Allison cars was entirely destroyed, and the engine greatly damaged by fire, while on the line of the railroad, making a regular trip. Upon an action brought by the railroad company against the insurance company for the injury thus done to the car and engine, it was HELD:

That the words "contained in" were not intended merely to describe the car and engine covered by the policy, but were designed to limit the risk of the insurance company to the time during which the car and engine were actually in the car and engine houses, and that having been injured when out of the car and engine houses, no recovery could be had on the policy.  

COUNSEL:
Alex. Randall and Thomas [**2]  Donaldson, for the appellant.

Such construction should be placed upon the words in the policy describing the car and engine, the former of which was destroyed and the latter injured by the fire, as would be consistent with the nature and use of the subject insured, and the evident intent of the parties, and it should be liberal in favor of the insured. And the application having been, in fact, prepared by the Insurance Company's own agent, its descriptions should not be construed rigidly as against the insured.

The words "contained in" are merely descriptive, for the purpose of identifying the articles insured, and cannot be construed as words of warranty in the application, or as words of condition in the policy. Davison & Symington vs. Washington Fire Ins. Co., 30 Md., 91; Fitchburg R. R. Co. vs. Charlestown Mutual Ins. Co., 7 Gray, 64; Allen vs. Charlestown Mutual Ins. Co., 5 Gray, 384; Gloucester Manufacturing Co. vs. Howard Fire Ins. Co., 5 Gray, 497; Crosby vs. Franklin Ins. Co., 5 Gray, 504; Maryland Ins. Co. vs. Bossiere, 9 G. & J., 121; Allegre vs. Maryland Fire Ins. Co., 6 H. & J., 408; Baltimore Eq. Soc. vs. Jolly, 1 H. & G., 295; Phoenix Ins. Co. vs. Cochran,  [**3]  57 Penn., 143; City Ins. Co. vs. McLaughlin, 53 Penn., 487; Merrick vs. Germania Co., 54 Penn., 282; Cumberland Valley Mutual Prot. Co. vs. Schell, 29 Penn. 31; Wall vs. Han. Ins. Co., 14 Barb. 383; Dole vs. Marine Ins. Co., 6 Allen, 385; Roth vs. City Ins. Co., 6 McLean, 324; Howard Ins. Co. vs. Brewer, 23 Penn. 50; Mobile M. Ins. Co. vs. McMillan, 27 Alabama, 77; Beebe vs. Hartford Ins. Co., 25 Conn., 51; Stokes vs. Cox, 38 E. L. & E. Rep., 437; Sales vs. Ins. Co., 2 Curtis C. C., 610; Frisbie vs. Fayette Ins. Co., 27 Penn. 325.

S. Teackle Wallis and William Schley for the appellee.

The policy covered the engine and passenger cars, in the engine house and in the car house, respectively. The word "contained," as used in the policy, is restrictive. Moadinger vs. Mechanics' Fire Ins. Co., 2 Hall, 490; Boynton vs. Clinton and Essex Ins. Co., 16 Barb., 254; Fitchburg R. R. Co. vs. Charlestown Mutual Ins. Co., 7 Gray 64; Lycoming Co. Ins. Co. vs. Updegraff, 40 Penn., 321; Ripley vs. AEtna Ins. Co., 30 N. Y., 136; Bull vs. Schuberth, 2 Md., 38; 1 Starkie's Ev., 404, 416; Parsons on Mercantile Law, 494; Duer on Insurance, 176, 182.  

JUDGES:
The cause was argued before BARTOL, C. J.  [**4]  , BRENT, GRASON, MILLER and ROBINSON, J.  

OPINIONBY:
GRASON 

OPINION:

 [*40]  GRASON, J., delivered the opinion of the Court.
On the 26th day of January, in the year 1864, the appellant procured its buildings and certain cars and engines to be insured by the appellee, and among the property, thus insured, were two Murphy & Allison passenger cars, "contained in car house marked No. 1," and engine, Joseph H. Nicholson, "contained in the engine house marked No. 2." After the insurance, one of the Murphy & Allison cars, thus insured, was entirely destroyed, and the engine, Joseph H. Nicholson, was greatly damaged by fire, while on the line of the railroad of the appellant, making one of its regular trips, between Annapolis and the Junction. For the damage sustained, the appellant sued the appellee, and the judgment being against it, this appeal was taken. The only question, presented by the record, which we consider material to the decision of the case, is, whether the car and engine in question, were covered by the policy of insurance when out of the car house and engine house described in the policy. It was urged by the counsel for the appellant, that the words, "contained in," were [**5]  used as, and intended to be, merely descriptive of the cars and engines covered by the policy, and were not intended to limit the risk of the appellee to the time, during which the cars and engines were actually in the car and engine houses. To support this argument, the fact, that the cars and engines, designed to be covered by the policy, were all brought together at the Annapolis depot, and were in the car and engine houses at the time of the survey, was relied upon. It will, however, be seen that the car house was not capable of holding all the cars at the same time, and that one of them was not, in fact, in the car house at that time. Nor were the words, "in the engine house No. 2," requisite to describe the engines, for the appellant had but the three, and they were designated by names, by which they could be accurately described and by which they were insured. We think that the terms, used in the policy, were intended for something more than a mere description of the property, and that 

 [*41]  they must be construed as a limitation upon the risk assumed. But it was asked, how the words, "contained in the car house marked No. 1," could be construed to limit [**6]  the risk to the time when the cars were actually in the car house, when it appeared that the car house could not contain all the cars which were covered by the policy? This question, we think, is easily answered. The intention of the railroad company was, evidently, to insure their buildings and their contents against fire, there being much greater danger of fire to their buildings, located in a city, and surrounded by other buildings, than to their trains upon the road and in charge of conductors and brakemen. While some of the cars, which were insured, were in use, others were not; but each car, in its turn, took its place in the car house, and, while actually contained therein, was covered by the policy; so that, by the terms of the contract, the appellee would have been liable for all damage by fire to any of the insured cars or engines, which might have occurred while they were actually in the car or engine house. In construing contracts of insurance, the Courts will give effect to the intention of the parties, to be gathered from the terms of the contract itself, if not inconsistent with the established rules of law.  Patapsco Insurance Company vs. Biscoe, 7 G. & J. 293; [**7]  Maryland Insurance Company vs. Bossiere, 9 G. & J. 121; National Fire Insurance Company of Baltimore vs. Crane, 16 Md. 260. And every fact and declaration in the contract must be considered as the result of the design or agreement of the parties.  16 Md. 260. By construing the words "contained in" as a limitation of the risk assumed, we give effect to all the terms of the contract and to the intention of the contracting parties, as far as it can be gathered from the contract itself, and we think this construction is fully warranted by the cases of Boynton vs. Clinton and Essex Insurance Company, 16 Barb. 258; Lewis and another vs.  Springfield Fire and Marine Insurance Company, 10 Gray 159, and Lycoming County Insurance Company vs. Updegraff, 40 Pa. 311.

 [*42]  As this view of the case is conclusive against the appellant's right to recover, the Court below was right in rejecting the first prayer. The second prayer was also properly rejected as a consequence of the rejection of the first, as well as because it asked the Court to instruct the jury that the [**8]  railroad company was entitled to recover the amount of its loss with interest from the time when the demand for payment was made, when, by the terms of the contract the loss was to be paid within sixty days after notice and proof thereof.
As the judgment of the Court below will be affirmed, it is unnecessary to notice the points raised by the exceptions of the appellee.
Judgment affirmed.
ROBINSON, J., dissented.  

140 of 142 DOCUMENTS 

JOHN LYONS vs. THE ORANGE, ALEXANDRIA AND MANASSAS RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 18; 1870 Md. LEXIS 3 

January 12, 1870, Decided 

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

This was an attachment on warrant, by the appellant against the appellee, a corporation not chartered by the State of Maryland, to recover an indebtedness originally due to him by the Manassas Gap Railroad Company, and for which it was claimed the appellee had become responsible. The attachment was dissolved by bond, and the appellee appeared and pleaded to the short note. Errors in pleading on both sides were waived, and it was agreed that the plaintiff or defendant might, respectively, rely on any matter of claim or defence connected with the liability of the defendant for the claims filed with the attachment papers, to which either would be entitled if specially declared on or pleaded. The appellant proved that the single bills and promissory notes filed with the attachment papers had been, on the day of the date of each of them respectively, and before the passage of the Acts of Assembly hereafter mentioned, duly executed, for and on behalf of the Manassas Gap Railroad Company, and delivered to him for debts then due by said company to him, and that said indebtedness had never been paid. He also proved two Acts of Assembly of Virginia,  [**2]  passed, the one on the 14th of February, and the other on the 29th of April, 1867, (the latter being amendatory of the former,) authorizing the charter, franchises and all the property of the Manassas Gap Railroad Company to be transferred to and vested in the Orange and Alexandria Railroad Company, upon the last mentioned company complying with and performing the terms, stipulations and agreements in said Acts set forth. One of the conditions was, that the Orange and Alexandria Railroad Company should assume the payment of all debts due by the Manassas Gap Railroad Company, whether bonded or floating, and whether then ascertained or thereafter to be ascertained, and that when the transfer of the charter should be determined upon by the respective companies, the Orange and Alexandria Railroad Company might assume and be known by the name of the Orange, Alexandria and Manassas Railroad Company--the present name of the appellee. He also proved, that at the time of trial, the appellee was, and for a long time had been, in possession of, and exercising acts of ownership over, working and using, the franchises, cars, road and other property formerly belonging to the Manassas Gap Railroad [**3]  Company, and had adopted and was known by the name only of the Orange, Alexandria and Manassas Railroad Company. He also proved that before the institution of this suit, his counsel called on the appellee for a settlement and payment of the claims now sued for, and that the appellee refused to make any settlement or payment thereof, or of any part of them. The appellee proved the contract, dated the 25th of April, 1867, between the two original companies, reciting that said companies had accepted the provisions of the Act of the 14th of February, as in the contract stated, and transferring to the Orange and Alexandria Railroad Company the charter, franchises, and all the property of the Manassas Gap Railroad Company. One of the conditions stated in the contract was, however, that the Orange and Alexandria Railroad Company should assume the debts of the Manassas Gap Railroad Company in the manner in said contract set forth, and no other; that is to say, that the President and Directors of the Orange and Alexandria Railroad Company should adjust and settle said debts with the creditors, on terms deemed equitable by said President and Directors and said creditors, having regard to the [**4]  then financial condition of the Manassas Gap Company and the value of the assets thereby transferred, and that said debts should be paid by the issue of the bonds of the Orange and Alexandria Railroad Company to the creditors, according to their respective amounts as agreed on and adjusted by said President and Directors and said creditors, or in such other mode as said parties might adopt. The Court, rejecting the prayers of the plaintiff, granted the prayer of the defendant, instructing the jury that the plaintiff was not entitled to recover. The plaintiff thereupon prosecuted this appeal.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Acceptance of an Act of Assembly by a Corporation -- Acceptance of a Charter -- Conditions precedent -- Construction of a Contract.

Acceptance of an Act of Assembly by a corporation, may be inferred from the exercise of corporate powers, or other unequivocal acts on its part; but this presumption cannot prevail against direct proof.

As a general rule, when a charter is granted, whether it be one of creation or an amendment to a pre-existing corporation, it must either be accepted or rejected as offered, and without condition; and in accepting the privileges conferred, the grantees will be required to perform the conditions imposed.

But this rule, while applicable to subsequent conditions to be performed after the organization of the company, does not apply to conditions precedent, upon the strict performance of which the very existence and exercise of powers on the part of the corporation depend.

Conditions precedent are any thing which, by the express provisions of the statute, is made a condition to be performed on the part of the corporation before, and as a foundation of the exercise of the powers and privileges under the charter.

An assumption to pay the debts of a company admitted to be hopelessly insolvent, ratably according to the value of its assets, is not substantially an agreement to pay its debts in full, "whether bonded or floating, ascertained or to be ascertained." 

COUNSEL:
James L. McLane and S. Teackle Wallis for the appellant.

The appellee by accepting a transfer of the charter, franchises, and property of the Manassas Gap Railroad Company, and using the same as its own, become bound for all the debts of the last mentioned company, which the Acts of Assembly required it to assume as one of the conditions of accepting such transfer and exercising such privileges. These Acts were equivalent to a new charter of the consolidated company. On receiving the rights conferred, and fulfilling the obligations imposed by the Acts, the consolidated [**5]  company was authorized to assume its present name. It had no right to qualify the terms on which it would accept the privileges conferred. The exercise of the privileges authorized by the Acts, imposed the obligations on which such exercise was authorized, and a contract to fulfil them will be implied. Angell & Ames on Corporations, 69 and 72, of old edition, 81 and 87, of new edition; Zabriskie vs. Cleaveland and Cincinnati R. R. Co., 23 Howard, 381-97; Bissell vs. City of Jeffersonville, 24 Howard, 287, 300; 2 Robinson's Practice, 397; 3 Robinson's Practice, 335; Bank of Columbia vs. Patterson, 7 Cranch, 299, 302-5; Rex vs. Westwood, 20 E. C. L. Rep., 58; Ehrenzeller vs. Union Canal Co., 1 Rawle, 190; Owen vs. Purdy, 12 Ohio, State Rep., 77, 8; Penobscot Boom Corporation vs. Lamson, 16 Maine, 230; Blanchard vs. Maysville Road, 1 Dana, 87, 8, 9.

From the use of the new name the Court will infer that every prescribed prerequisite, including the assumption of the debts had been fulfilled. Bank of United States vs. Dandridge, 12 Wheaton, 70. The acceptance of the terms of the law may be inferred from the acts of the company. Zabriskie vs. Cleaveland, Columbus and Cincinnati R. R.  [**6]  Co., 23 Howard, 381-97; Bissell vs. City of Jeffersonville, 24 Howard, 300. The law raises an implied assumption, even in invitum to fulfil all legal obligations. When it entitles one to money to be paid by another, it implies an assumption to pay, on which an action will lie. Mayor, &c., of Baltimore, vs. Howard, 6 H. & J., 383-94; Blanchard vs. Maysville Road, 1 Dana, 87, 88, 89.

If the companies meant to accept the Acts of Assembly on terms inconsistent with the Acts, the contract between the companies was valid so far as consistent with the Acts, and void so far as repugnant thereto--valid as to the transfer of the franchises and property of the Manassas Gap Railroad Company to the Orange and Alexandria Railroad Company, and the assumption by the latter of the debts of the former, and void as to the conditions of the assumption which were inconsistent with the law. The terms and conditions which the two companies sought to add, left it discretionary with the consolidated company, according to its construction of the contract, to pay the debts or not as it pleased, a discretion which it exercised by refusing to make any settlement or payment whatever. The Acts provided, that [**7]  when the Manassas Gap Company, by the transfer of its property, parted with the means of paying its debts, and by the transfer of its charter, went out of existence, the company to which the property and charter were so transferred should become liable for the debts of the company so disabled and annihilated.

If the law did not imply a contract to pay the debts on which an action would lie, it certainly imposed the obligation to assume them. The action was maintainable upon the refusal to assume them, and the amount of the debts, in such form of action, is the measure of damages. If one refuses to give a note, which he is bound to give, he may, even before the time when the note would have matured, be sued for such refusal, and a judgment recovered against him for the amount of the note he should have given. Under the agreement waiving errors in pleading, a count appropriate to this form of action is to be considered in, if necessary. 2 Parsons on Contracts, 486, 487, old edition; 3 Parsons on Contracts, 281, of new edition; Rinehart vs. Olwine, 5 Watts & Sergeant, 157.

If necessary to rely on the implied contract, it was one implied between the creditor and the party bound [**8]  to pay. If on the obligation to assume the debts it was an obligation between the same parties; in either aspect of the case, there was sufficient privity between the parties to this cause for the maintenance of the action. The Acts of Assembly, however, accepted and acted on, constituted a contract between them. Smith vs. Ches. & Ohio Canal Co., 14 Peters, 45, &c.; Bend vs. Susquehanna Bridge and Bank Co., 6 H. & J., 128-31.

Even if the contract be regarded as one exclusively between the two companies, the appellant is entitled to maintain his action for the money, which by it ought to be paid to him. Baltimore and Ohio Railroad Co. vs. Foley, recorded in Liber G. E. and J. S. F., No. 1, folio 127, of "Opinions Unreported;" 3 Robinson's Prac., 18, 22; Clapper vs. Union Bank, 7 H. & J., 92, 104; Owings vs. Owings, 1 H. & Gill, 488; Johnson vs. Evans, 8 Gill, 155; Cecil Bank vs. Farmers' Bank, 22 Md., 148; Ross vs. Milne, 12 Leigh, 224.

The remedy given by the Acts authorizing the Manassas Gap Company to resume its rights under certain circumstances is a cumulative one, for the benefit of that company, not intended to exclude the rights of the creditors. Still less was it [**9]  intended to authorize the two companies to combine together and deprive the creditors of all rights whatever. Mayor, &c., of Baltimore vs. Howard, 6 H. & J., 383-94.

The transfer of the charter and franchises of the Manassas Gap Railroad Company worked a dissolution of that corporation. It has no longer any existence--cannot be sued by its creditors--has no officers upon whom process could be served --no property out of which a judgment could be realized--no existence to enable it to maintain an action against the appellee. If the appellant is not entitled to the remedy he now seeks, he has none--the appellee has the road which he helped to build, without having paid for it, or being under any legal obligation to pay for it. Angell & Ames on Corporations, page 736, sec. 42, of old edition.

J. Randolph Tucker, for the appellee.

There is no legal contract between the defendant and the plaintiff. No privity exists between them. The contract relied on is one between the two companies, but there is none upon which the plaintiff can maintain an action against the defendant. 1 Strange's Rep., 592; Ross vs. Milne, 12 Leigh, 204.

There is no consideration to sustain any [**10]  such contract if made, and a consideration must be proved. It is a contract, if one be presumed, to answer the debt of another, and is without consideration. Sloan vs. Wilson, 4 H. & J., 322; Raymer vs. Sim, 3 H. & McH., 451; Rogers vs. Waters, 2 G. & J., 64; Andre vs. Bodman, 13 Md., 241; Nabb vs. Koontz, 17 Md., 283.

The contract being to answer the debt of another, must be in writing under the statute of frauds. There is no such contract proved in this case. A contract between the companies is not a contract between the plaintiff and defendant. The lex loci contractus governs here. Code of Va., ch. 143. No implied contract will be raised where there is an express one. Hannan vs. Lee, 1 H. & J., 131; Stockett vs. Watkins, 2 G. & J., 326. There is an express contract between the companies, upon which alone the plaintiff may rely; for any implied contract, not resting on this express one, is void under the Statute of Frauds. The plaintiff, therefore, can only recover on the express agreement, and that agreement, as the plaintiff concedes, is no promise to pay. There is no valid contract proved between the companies. The contract proved was subject to the approval of the stockholders [**11]  of each company. No approval by the stockholders of the Manassas Gap Company is proved, nor is there any evidence tending to prove it.

The Manassas Gap Company is still an existent corporation. It is not merged in the new corporation as between itself and its creditors. Its original promise still binds it. The obligation of the defendant is collateral to the original undertaking, and is thus subject to all the objections referred to under the Statute of Frauds. Code of Virginia, ch. 56, sec. 30.

The defendant binds itself by the contract to pay ratably all debts in proportion to the assets received. The recovery must be on this contract, or not at all. The plaintiff is in this dilemma: The Act of Assembly constitutes the new corperation sued, or it does not. If it does not, (because the contract made was not according to the law,) then the corporation sued has no being. If it does constitute the new company, it must be because the contract made complies with the Act, and that being so, the recovery must be on that contract, or not at all. But that contract, as the appellant concedes, does not promise to pay. Hence the plaintiff cannot recover upon it. The express promise [**12]  does not sustain this action, and no promise can be implied against the defendant, in the teeth of the express promise. That contract binds the defendant only in respect of assets, and to a ratable payment of all debts out of said assets. This is, in substance, the provision on a dissolution of a corporation, under the Code of Virginia, ch. 56, sec. 30.  

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

OPINIONBY:
ROBINSON 

OPINION:

 [*25]  ROBINSON, J., delivered the opinion of the Court.
This was an attachment on warrant by the appellant against the appellee, to recover an indebtedness originally due to him by the Manassas Gap Railroad Company, and which it was claimed the appellee had assumed or become liable to pay.
It appears that negotiations were pending in regard to the transfer of the charter, franchises and property of the Manassas Gap Company to the appellee, and therefore to enable the parties to make this transfer, and for the purpose also of conferring other powers and privileges upon the corporation to be formed by the consolidation of these companies, the Legislature of Virginia passed the following Act of Assembly: "An Act to authorize the transfer [**13]  of the property, charter and franchises of the Manassas Gap Railroad 

 [*26]  Company, and the stock shares in the same, to the Orange and Alexandria Railroad Company.
"WHEREAS a petition has been presented to the General Assembly, by the President of the Manassas Gap Railroad Company, setting forth that a contract is being negotiated between said company and the Orange and Alexandria Railroad Company, whereby the charter, franchises and all the property of the Manassas Gap Railroad Company shall be transferred to, and vested in the Orange and Alexandria Railroad Company; and, also, whereby all the stock held in said company, whether by the State or by the city of Alexandria, by counties or by individuals, shall, with the consent of the stockholders, be transferred to and merged in the said Orange and Alexandria Railroad Company, upon the said last mentioned company complying with, and performing the terms, stipulations and conditions herein set forth, to wit:
"That the Orange and Alexandria Railroad Company shall commence the rebuilding and construction of the Manassas Gap Railroad Company, within four months from the passage of this Act, and complete it to Harrisonburg within [**14]  two years from said date, and that the said Orange and Alexandria Railroad Company shall assume the payment of all the debts due by the said Manassas Gap Railroad Company, whether bonded or floating, and whether now ascertained or to be ascertained; and that the charges for transportation of local freight and passengers shall be the same pro rata on the lines of the Manassas Gap and Orange and Alexandria Railroad Company. **** Now, therefore,
"1. Be it enacted, That the said companies be and they are hereby authorized and empowered to enter into a contract containing substantially the provisions above set forth, and with the conditions and restrictions above recited.
"2. That when the proposed agreement between the two companies is effected and confirmed by the stockholders of 

 [*27]  both companies, the charter, franchises" **** "the road and all the property and rights of the Manassas Gap Railroad Company shall be transferred to, and the title to the same be vested in the Orange and Alexandria Railroad Company."
The subsequent sections authorizing the appellee, upon the transfer of the charter, to assume the name of The Orange, Alexandria and Manassas Railroad  [**15]   Company, with the power to increase the capital stock and borrow money, it is unnecessary to insert.
Now, this Act of Assembly, being an additional grant of powers and privileges to the appellee, an existing corporation, upon certain terms and conditions, it will be conceded that it could not operate or have any binding effect unless accepted. Was it thus accepted, is the question upon which the plaintiff's right to recover must depend.
It appears that at the time of the trial, the appellee was, and for a long time prior thereto, had been in possession of, and was exercising acts of ownership over the franchises, cars, and other property of the Manassas Gap Company, and had adopted and was known only by the name of the Orange and Alexandria and Manassas Gap Company. From this evidence, if standing alone, it might have been inferred that the appellee had accepted the Act of 1867, upon the terms and conditions therein prescribed, because it is well established, that acceptance may be inferred from the exercise of corporate powers, or other unequivocal acts on the part of the corporators. But this presumption, however well founded, cannot prevail against the direct proof to be found [**16]  in the following contract, executed by the two companies, declaring, in express language, the terms upon which the transfer of the charter and franchises of the Manassas Gap Company to the appellee was made, and to which its acts of possession and user, relied on by the appellant, are to be referred: "Whereas, the General Assembly, did by an Act passed February 14th, 1867, authorize the transfer of the property, 

 [*28]  charter and franchises of the Manassas Gap Company, and the stock-shares in the same, to the Orange and Alexandria Railroad Company, on certain terms and conditions therein set forth, and did confer certain other powers and rights on the Orange and Alexandria Company set out in said Act; and whereas, the said companies have accepted the provisions of said Act as hereinafter stated, now, this agreement, made and entered into this 25th day of April, 1867, between the Manassas Gap Railroad Company and the Orange and Alexandria Railroad Company, witnesseth as follows, to wit:
"It is agreed between the said companies, that the charter, franchises and all the property of the Manassas Gap Company, shall be and are hereby transferred to and vested in the Orange and Alexandria [**17]  Railroad Company," *** "that the said Orange and Alexandria Railroad Company shall assume the payment of all debts due by the said Manassas Gap Company in the following manner and form, and none other; that is to say, the President and Directors of the Orange and Alexandria Railroad Company shall adjust and settle said debts with the creditors on terms deemed equitable by the said President and Directors and said creditors, having regard to the present financial condition of the Manassas Gap Company and the value of their assets. ***
"And it is expressly understood, as a fundamental condition of this contract, that the Orange and Alexandria Railroad Company shall not be bound for more or a greater amount of said debts, or in any other, or different proportions or mode of payment, than shall be finally adopted and agreed upon by the President and Directors of the Orange and Alexandria Railroad Company and the creditors as aforesaid.
"And it is further agreed, that this agreement is subject to the ratification, approval and confirmation of the stockholders of the said companies respectively.
"EDW'D C. MARSHALL,   [Seal.]
Pres't Man. Gap R. R. Co.
"The Orange and Alexandria [**18]  Railroad Company, by
"JOHN A. BARBOUR, Pres't."

 [*29]  The question of acceptance must, therefore, depend upon the legal effect and operation of this contract. That the parties to this instrument did not intend, by its execution, to accept the terms and conditions of the act of 1867, we think too clear for controversy. The very recital states that, "Whereas, the General Assembly of Virginia did, by an Act passed February 14, 1867, authorize the transfer of the property, charter and franchises of the Manassas Gap Company, on certain terms and conditions therein set forth, *** and whereas, the said companies have accepted the provisions of said Act as hereinafter stated, now, this agreement witnesseth," &c. Having thus declared the purpose to accept only such of the terms of the statute as are set forth in the contract, the appellee agrees to assume the debts of the Manassas Gap Company, ratably, in proportion to the value of the assets transferred by said company. And, to be the more explicit, if possible, on this point, it is declared as a fundamental condition of the contract, that the appellee "shall not be bound for more or a greater amount of said debts,  [**19]  or in any other or different proportions." Here, then, is a direct refusal on the part of both companies to accept the powers and privileges conferred by the statute upon the conditions prescribed.
But it is insisted that the appellee had no right to qualify the terms of its acceptance, and that if it meant to accept the statute on terms inconsistent with its provisions, the acceptance was valid so far as consistent, and void so far as repugnant thereto--valid as to the transfer of the franchises and property of the Manassas Gap Company, and the assumption by the appellees of the debts of the former, and void as to the conditions of the assumption, which are inconsistent with the law. In other words, in accepting the privileges conferred by the statute, the appellee necessarily became liable to the burthens imposed.
As a general rule it is true that, when a charter is granted, whether it be one of creation or an amendment to a preexisting 

 [*30]  corporation, it must either be accepted or rejected as offered, and without condition; and that, in accepting the privileges conferred, the grantees will be required to perform the conditions imposed. Angell & Ames on Corp., 85;  [**20]  Grant on Corp., 19; Rex vs. Westwood, 20 Eng. Com. Law Rep. 58. But however well settled this may be in regard to subsequent conditions, to be performed after the organization of the company, and for a refusal to comply with which a party injured may have his remedy at law or in equity for a specific performance, it does not apply to conditions precedent, upon the strict performance of which the very existence and exercise of powers on the part of the corporation depend. And by conditions precedent we mean anything which, by the express provisions of the statute, is made a condition to be performed on the part of the corporators before and as a foundation of the exercise of powers and privileges under the charter. 1 Redfield on the Law of Railways, 171.
In such cases the organic life of the corporation depends upon a strict compliance with the conditions imposed, and until this is done there can be no such thing as an acceptance of the charter.
In this case the two companies were empowered, by the first section of the Act of 1867, to make a contract in regard to the transfer of the franchises and property of the Manassas Gap Company, to the appellee,  [**21]  upon certain "terms, conditions and restrictions," set forth in the preamble to the statute. One of these conditions required the appellee to assume "the payment of all debts due by the Manassas Gap Company, whether bonded or floating, and whether ascertained or to be ascertained; and the second section provided that when such an agreement was executed and confirmed by the stockholders of the two companies, the property and charter of the Manassas Gap Company should vest in the appellee. Here, then, was a special power conferred, to be exercised upon certain terms and conditions. The two companies were empowered to make a contract of transfer, provided the appellee assumed the payment of all the debts of the Manassas Gap Company, 

 [*31]  and when the contract thus made was confirmed by the stockholders, the property and franchises of said company were to vest in the consolidated company. No such contract, however, was made; but, on the contrary, by the agreement of the 25th of April, the appellee expressly refused to assume the debts of the former company upon the terms prescribed by the statute. It surely will not be said that an assumption to pay the debts [**22]  of a company, admitted to be hopelessly insolvent, ratably, according to the value of its assets, is substantially an agreement to pay its debts in full, "whether bonded or floating, ascertained or to be ascertained." Such a contract, in our opinion, is inconsistent with and repugnant to the plain and unequivocal provisions of the Act. The condition precedent, in consideration of which the amendment to the charter of the appellee was granted--namely, its assumption to pay the debts of the Manassas Gap Company--has never been complied with, and until this is done, neither the execution of a contract, which these companies were not empowered to make, nor acts of user under it, will operate as an acceptance of the amended charter.
This view of the case works no injustice to the appellant. The debt for which he sues, was not incurred by the appellee, nor upon the faith of the contract of April the 25th, but was created by the Manassas Gap Company long prior to the Act of 1867. The fact that the latter company, dismantled and bankrupt by the ravages of civil war, has been rebuilt by the energy, enterprise and credit of the appellee, cannot surely impair the security of his debt, or afford [**23]  any just ground of complaint.
In what we have said, we are not to be understood as intimating any opinion in regard to the liability of the appellee for debts created upon the faith of the consolidated company. That question would depend upon other principles which it is now unnecessary to consider.
For these reasons the judgment below will be affirmed.
Judgment affirmed. 

141 of 142 DOCUMENTS 

GEORGE SCHULL, (a Lunatic,) by GEORGE HUPPMAN, his Committee, vs. JOHN P. MURRAY, Executor of MARGARET LUDEKING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 9; 1870 Md. LEXIS 2 

January 10, 1870, Decided 

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

This appeal was taken from an order of the Orphans' Court of Baltimore city, dismissing the caveat of George Schull, a lunatic, by his committee, to the probate of two papers purporting to be last wills of his mother, Margaret Ludeking, executed the one on the 15th of July, 1863, the other on the 25th of April, 1864. By the first will the testatrix's brother, George Huppman, and her nephew, Nicholas A. Huppman, were appointed executors; by the second or last will, which contained a clause revoking all former wills, the appellee, John P. Murray, was appointed executor; the sole devisee under this will was George Schull, the son and only child of the testatrix. This will was admitted to probate by the Orphans' Court.

The caveat alleged the following grounds of objection to the wills:

1st. That the property which passed under the wills being property which had belonged to Mrs. Ludeking before the adoption of the Code, and her husband being alive at the time of the execution of such wills, and not consenting thereto, and they not having been republished after his death, were void.

2d. That Mrs. Ludeking was not of sound [**2]  and disposing mind at the time of their respective execution.

3d and 4th. That she was urged to make the wills by improper importunities, which she was too weak to resist.

5th. That she was not capable of knowing the contents of the papers, the manner in which they disposed of her estate, and of withholding her assent from the same.

The answer of John P. Murray to the caveat alleged,

1st. That the husband of Mrs. Ludeking was insane at the date of the execution of the last will, and that she was not, at the time of her death--having survived her husband--a feme covert, and incapable of making a will.

2d. That the property which passed under the will was obtained by Mrs. Ludeking in April, 1863, subsequently to the adoption of the Code.

3d. That Mrs. Ludeking was of sound mind at the time of making this last will, and subsequently to the death of her husband.

4th and 5th. Traversed the latter averments of the caveat.

On these averments of the answer the caveator joined issue, and testimony was taken thereon.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Power of the Orphans' Courts as to the Probate of Wills -- Capacity of a Married woman to make a Will, without the consent of her Husband -- Competency of an Executor as a Witness.

The Orphans' Courts have power to take probate of wills, but not to adjudicate questions of title dependent upon their operation and effect, or to decide upon the right of disposition. When probate is granted, authority to determine what passes under the will is devolved upon the Courts of Law and Equity.

By the law of this State, a married woman is competent to dispose, by a will made without her husband's assent, of property which she was entitled to receive and hold to her sole and separate use, whether before or since the Code, if the instrument creating the separate estate be silent as to the mode of disposition; and she has also the power of devising, as if she were a feme sole, all the property, real and personal, which belonged to her at the time of marriage, if that took place since the adoption of the Code, and all the property which she may have acquired or received since that period, by purchase, gift, grant, devise, bequest, or in course of distribution.

The will of a feme covert, professing to dispose of her property, must be admitted to probate in the same manner as that of any other person, capable in law of making a will; and the jurisdiction of the Orphans' Court is limited to inquiries which relate to probate alone, such as testamentary capacity, fraud, undue influence, and the due execution of the instrument.

Upon a caveat to a will, the executor, not a party to the proceeding in the capacity of executor, is competent to testify upon his own offer, and in his own behalf, as caveatee. 

COUNSEL:
Julian I. Alexander and T. A. Linthicum, for the appellants.

The main witness for the caveatee was the appellee,  [**3]  who drew the will and was appointed executor in it. His testimony was excepted to as not admissible under the Acts of 1864, ch. 109, and 1868, ch. 116. Before the Act of 1864, ch. 109, his evidence would have been inadmissible. He must therefore come in under that Act; but the second section provides that when "an executor or administrator is a party to the suit, action or other proceeding, the other party may be called, &c., but shall not be admitted to testify on his own offer, &c., unless a nominal party merely." The Act of 1868, ch. 116, adds a proviso, that when an executor is a party to the suit, when the cause of action has arisen on a contract made with such executor, &c., or out of transactions between such executor, &c., and the other party, or when the executor, &c., testifies as to any conversation had with the other party, either party may be examined as a witness. In this case the executor is not a nominal party; the cause of action has not arisen out of any contract with the executor; nor out of transactions between the executor and the caveator; nor does the executor here testify to any conversation had with the caveator.

The wills are void, being made to operate [**4]  on property acquired before the adoption of the Code, and not assented to by the husband of the testatrix. Beall vs. Schley, 2 Gill, 181. The caveatees themselves filed the deeds relating to this property; the one under which Mrs. Ludeking acquired the property within the meaning of the Code, is dated on the 2d November, 1854, and conveys the property therein described to Nicholas Huppman. The second deed is from the devisees of Nicholas Huppman to Margaret Ludeking, she being also one of these devisees, and is dated 29th April, 1863. It recites the former deed from Bull, and that the property was purchased by Nicholas Huppman, with the money of said Margaret Ludeking, and that the deed was intended to be in trust for her, and proceeds to convey it to Mrs. Ludeking. The representatives of Nicholas Huppman stand in his place, and the recital that binds them is to be taken as if made by him. It would be, therefore, equivalent to a declaration in writing made by Nicholas Huppman, in his lifetime, of the constitution of the trust at the time of the conveyance, even if the consideration had not been entirely advanced by Mrs. Ludeking. But, in truth, it was advanced by Mrs. Ludeking, and [**5]  the trust resulted to her. It is said by the Orphans' Court, "It is urged that it is recited in the deed to Margaret Ludeking, that Nicholas Huppman held it in trust for Mrs. Ludeking. We had no evidence before us to show this, and Nicholas Huppman being then dead, it was incompetent for these grantors to shew it"--and Story's Eq. Juris., secs. 1201 and 1202 n., is referred to, and the Court concludes that the property vested in Mrs. Ludeking after the adoption of the Code by a voluntary gift of the grantors in the second deed.

This doctrine of the Orphans' Court is not law. Hill on Trustees, 95, 96, edition of 1867, where the subject is discussed and the authorities collected; Brown vs. Staup, 21 Md., 328, is conclusive on this point. If this view be correct, then Mrs. Ludeking acquired the property described in the will before the adoption of the Code, and the marital rights of her husband attached thereon. Cecil Bank vs. Snively, 23 Md., 253; Key vs. Buchanan, 26 Md., 1.

Mrs. Ludeking died in August, 1868, and the will made without the consent of her husband was void, without republication after her death. 1 Bright H. & W., 12.

Robert C. Barry and John C. King, for [**6]  the appellee.

The last will of Margaret Ludeking, devises to her son, George Schull, a lot of ground which had been bought by her brother, Nicholas Huppman, from George W. Bull, by deed dated November 2, 1854. The consideration of this deed was $ 2,000. The will states that part of this "purchase money was paid with money belonging to her son, and part exclusively her own." Nicholas Huppman, to whom the deed for this property was made, died in March, 1863.

The deed from Bull to Huppman, brother of the testatrix, is absolute and unqualified in its terms. After the death of Nicholas Huppman, and on the 29th day of April, 1863, Margaret Huppman, executrix of Nicholas Huppman, and others, executed a deed of this lot to Margaret Ludeking. This is the first intimation on record, nine years after the conveyance to Nicholas Huppman, that the property conveyed to him absolutely was bought with the funds of the testatrix. No declaration of any resulting trust was ever made by the grantee. On the contrary it would appear from the declaration of the grantors in the deed just referred to, that he actually devised all his estate to the parties grantors in this conveyance.

This property [**7]  actually descended to the heirs of Nicholas Huppman. In view of these facts, the testatrix can with no propriety be said to have acquired the property until the conveyance to her was, in fact, made and executed on the 29th day of April, 1863, three years subsequent to the adoption of the Code.

The objection of the caveator to the will of 1864, on the ground that the testatrix was a feme covert and incompetent to make a valid will conveying property without the consent of her husband, is not tenable, because the property conveyed by the will was in reality acquired subsequent to the adoption of the Code. Code, Art. 93, sec. 308; Buchanan vs. Turner, 26 Md., 1.

The property was conveyed to the testatrix by the deed of April 29th, 1863. The appellant insists that the testatrix acquired this property by the deed of Bull to her brother, November 2d, 1854, nine years previous, because it appears that a portion of the purchase money belonged to the testatrix. "The doctrine of a resulting trust is, that payment of the purchase money is an equity to have the land." 1 Leading Cases in Equity, 281.

This trust is, therefore, a mere creature of a Court of Equity, repugnant to the [**8]  common law rules of conveyance, and is wholly different from the acquisition of property. The cestui que trust acquires nothing until the trust is established by a decree or a conveyance in compliance with the trust. The testatrix cannot be said to have acquired the property until it was conveyed to her.  

JUDGES:
The cause was argued before STEWART, BRENT, MILLER, ALVEY and ROBINSON, J.  

OPINIONBY:
MILLER 

OPINION:

 [*15]  MILLER, J., delivered the opinion of the Court.
This appeal is from an order of the Orphans' Court of Baltimore City dismissing a caveat filed by a lunatic son, by his committee, to the probate of two papers, purporting to be wills of his mother, executed, the one on the 15th of July, 1863, and the other on the 25th of April, 1864. The latter contains a clause revoking all former wills, and if entitled to probate, the case before us is determined.
At the time this instrument was executed, the testratrix was a married woman, and the first objection is that it was not made with the assent of her husband, and that the property thereby disposed of was acquired by her before the Code was adopted. Upon its face it professes to dispose of the personal estate and effects of the [**9]  testatrix, and of a lot of ground, with improvements, the legal title to which she derived by a deed executed in 1863. It is contended by the appellant that she acquired the entire equitable interest in this lot prior to the Code, and the recitals in the deed, that it was purchased in 1851, with her money, though the title was then taken in the name of another, are relied on to establish this position. The appellee takes a different view of the subject, and insists the acquisition was solely by the deed of 1863. A controversy of this character cannot be settled in this case, because, whether the property passes under the will or not, is a question remitted to other tribunals for decision. The Orphans' Courts have power to take probate of wills, but not to adjudicate questions of title dependent upon their operation and effect, or to decide upon the right of disposition. By the law of this State a married woman is competent to dispose, by a will made without her husband's assent, of property which she was entitled to receive and hold to her sole and separate use, whether before or since the Code, if the 

 [*16]  instrument creating the separate estate is silent as to the mode of disposition,  [**10]  and she has also the power of devising, as if she were a feme sole, all the property, real and personal, which belonged to her at the time of marriage, if that took place since the adoption of the Code, in 1860, and all the property which she may have acquired or received since that period by purchase, gift, grant, devise, bequest, or in course of distribution. Cooke vs. Husbands, 11 Md. 492; Code, Art. 45, secs. 1, 2, and Art. 93, sec. 308. Capacity to make a will without consent of her husband being thus conferred upon a feme covert, a will executed by her, professing to dispose of her property, must be admitted to probate in the same manner as that of any other person capable in law of making a will, and the jurisdiction of the Orphans' Court is limited to inquiries which relate to the probate alone, as in other like cases, such as testamentary capacity, fraud, undue influence, and the due execution of the instrument. When probate is granted, authority to determine what passes under the will is devolved upon the Courts of Law and Equity, tribunals which are clothed with ample jurisdiction to decide that question. Michael vs. Baker, 12 Md. 158, 169. [**11]  Probate is indeed necessary to enable parties claiming under the will to assert, in the appropriate forum, their title to the property it professes to pass. The first objection, therefore, is no ground for refusing probate to this instrument.
The other objections are undue influence and want of testamentary capacity. The whole property disposed of is given absolutely to the caveator, who is the only child and sole heir-at-law of the testatrix. There is no proof of undue influence, and, indeed, the disposition of the property is such as to exclude the idea that its execution was procured by the exertion of any such influence.
The remaining question of testamentary capacity is one purely of fact, depending upon the evidence contained in the record. The party named as executor was examined as a witness, upon his own offer, and in his own behalf as caveatee, 

 [*17]  and exception is taken to his competency. Before the Act of 1864, ch. 109, he would have been incompetent, as well by reason of interest in the result of the trial as of being a party to the proceedings. But both these objections are expressly removed by the first section of that Act, and he is clearly a competent [**12]  witness, unless excluded by the second section, as modified by the Act of 1868, ch. 116. This, so far as it touches the present question, provides that "when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action, or other proceeding, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co-defendant." It is sufficient to dispose of the precise point which has now arisen to say, without adverting to other considerations, that this witness was not a party to the proceeding in the capacity of executor. The will had not been admitted to probate, no letters had been granted to him, and the very question at issue was, whether he should be an executor or not. He was named executor in a paper whose existence and validity as a will was the subject of dispute, and simply stood in the proceedings as a party caveatee whose interest, and perhaps duty, it was to sustain the instrument. He occupied no different relation to the proceedings, either in point of interest or position as [**13]  party, than if he had been named a devisee or legetee in the will, and for that reason had been made a party caveatee. We are entirely satisfied of his competency, and his testimony must be considered with the other evidence in the cause.
After a careful examination of all the proof in the record on that subject, we are satisfied Mrs. Ludeking was possessed of testamentary capacity at the time she executed this will. No valuable result, in the way of a precedent for other cases, would be attained by extended comments on the evidence, and, therefore, none need be made. Such being our judgment upon the facts, and none of the objections to the probate of 

 [*18]  this paper being sustained, it becomes quite unnecessary to express any opinion upon the question whether, under the circumstances of the case, the appellant was entitled to interpose this caveat. The order appealed from must be affirmed.
Order affirmed. 

142 of 142 DOCUMENTS 

CHARLES E. GRIFFITH and MARY E., his Wife, vs. WILLIAM H. H. PARKS, JAMES PARKS and JOSIAS S. PARKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

32 Md. 1; 1870 Md. LEXIS 1 

January 7, 1870, Decided 

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

This appeal was taken from an order of the Court below, passed upon petitions filed by the appellees, in the case of Taylor vs. Griffith and others, allowing the claims of the petitioners, and directing the auditor to state an account between the several parties, in accordance with the principles contained in the opinion accompanying the order, and also from the order ratifying the report and accounts of the auditor filed pursuant to the first order. The case of Taylor vs. Griffith, et al., was an amicable suit among the heirs and devisees of John Burns for the sale of the residue of his real estate, for the payment of a certain charge thereon, and for distribution of the proceeds of sale among those entitled. The facts of this case are sufficiently set out in the opinion of the Court.  

DISPOSITION:
Orders affirmed with costs.  

HEADNOTES:

Liability of Sureties on a Guardian's Bond -- Equity Practice -- Evidence of general reputation, admissible to prove Insolvency.

By an order of the Orphans' Court of Baltimore county, passed upon his own application, a guardian was directed to deposit the money of his wards (one of whom had attained his majority,) in a designated bank, in the names of his wards, and subject to the control of the Court. The same order directed that upon the guardian's filing in Court the proper evidence of such deposit, the register should prepare accounts allowing him for the sums so deposited, and that thereupon he should be released from all further liability as guardian. The money was deposited according to the order of the Court, but the accounts required by the order never were prepared. In less than two months afterwards, the Orphans' Court revoked the first order, and authorized the guardian to withdraw the money from the bank and invest it, in his own name, as guardian. On the same day, the guardian passed his first and only accounts, in which he charged himself with these moneys. He subsequently became insolvent. One of his sureties died insolvent. The only other surety being dead, his personal estate and a portion of his real estate having been exhausted in the payment of his debts, and the residue of his real estate having been sold in a cause pending in the Circuit Court of Baltimore city, and the proceeds being in the hands of the trustee, the wards of the guardian interposed by petition in this cause, asking that their claims against the guardian be satisfied out of this fund. HELD:

1st. That the sureties were not released from liability by the deposit of the money in bank in pursuance of the first order of the Orphans' Court.

2d. That the wards properly proceeded by petition, instead of by original bill.

3d. That it was competent to prove the insolvency of the guardian by evidence of general reputation. 

COUNSEL:
William Rowland and John Carson, for the appellants.

William S. Keech and Thomas Rowland, for the appellees.  

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

OPINIONBY:
ALVEY 

OPINION:

 [*2]  ALVEY, J., delivered the opinion of the Court.
John Burns, deceased, was one of the sureties [**2]  on the guardian bond of George M. Hiss, and after his death, his personal estate having been exhausted, and also part of his real estate, in the payment of debts, a bill was filed for a sale of the residue of his real estate for the payment of a certain charge thereon, and for distribution of the proceeds of sale among those entitled.

 [*3]  The sale having been made, and the proceeds being in the hands of the trustee, subject to the Court's order, the wards of Hiss, namely, William H. H. Parks, James Parks and Josias S. Parks, the present appellees, filed their petition in the equity proceedings thus taken, praying to be paid, out of such proceeds of sale, the several amounts due them from Hiss, their guardian, as ascertained by accounts stated and passed in the Orphans' Court for Baltimore County, on the 16th of September, 1863.
In their petition they allege that Hiss is wholly without means, and owns no property from which they could make the amount due them; and that Cross, the other surety in the bond, is dead, and that his estate has been administered, and is insolvent, and that, consequently, there are no assets out of which their claims could be paid.
In resisting these [**3]  applications, the parties interested in the distribution of the proceeds of the sale insist:
1. That it is not clear that the remedy at law is ineffectual, inasmuch as the insolvency of Hiss is not sufficiently shewn, and that, therefore, the appellees have no right to relief in equity as against the real assets of the deceased surety.
2. That, conceding the liability of the estate of the surety, the proceeding of the appellees should have been by original bill, and not by mere petition, in another proceeding.
3. That the surety was discharged from all liability on the bond, in respect of the money now in controversy, by reason of an order of the Orphans' Court, passed on the 21st of July, 1863, directing the guardian to place the money in bank, subject to the control of the Court.
These propositions will be disposed of in the order here stated:
1. As to the insolvency of Hiss, we can have no doubt of its existence, and, consequently, of the want of an effectual remedy at law as against him. There is no conflict of evidence upon the subject, but all the witnesses examined as to that fact concur in saying either that he was reputed to be 

 [*4]  insolvent, or as being a party [**4]  from whom money could not be collected.
But it is contended that it was not competent to prove the insolvency of Hiss by general reputation. This, however, is not an open question in the Courts of this State, as it has been expressly decided, in the case of Crawford vs. Berry, 6 Gill & John. 63, that the admissibility of parol evidence of the notorious insolvency of a party could not be questioned. And, in the case of Watkins vs. Worthington, 2 Bl., 540, it was said by the Chancellor that, in the great majority of cases, it would be impracticable, or exceedingly tedious and expensive, to procure any other proof of insolvency than that of general reputation in the community where the debtor resides and is known.
It is conceded that all the personal estate of Burns, the deceased surety, had been exhausted, and was insufficient to pay debts; and it is not denied that Cross, the other surety, was dead, and that his estate was insufficient to pay his debts. These facts established, in connection with the fact of the insolvency of Hiss, the principal in the bond, the right of the appellees is clear to proceed against the proceeds of sale of the real estate [**5]  of Burns, to obtain payment in full of their respective claims. Claggett vs. Worthington, 3 Gill 84. And it is not essential that either Hiss or the representatives of Cross should be parties to the proceeding, (Young vs. Lyons, 8 Gill 162; Story's Equity Pleading, sec. 168,) although Hiss was, in fact, a party to the proceedings in which the appellees intervened.
2. As to the necessity of proceeding by original bill, instead of petition in a summary way, we think, by the well-established practice in this State, the mode of proceeding adopted in this case was fully authorized, and certainly commended for its convenience and economy to all parties concerned. The fund was in Court, subject to its order, and all the parties interested in resisting payment were before it. There is no dispute of the existence of the claims as against Hiss, and the 

 [*5]  only question arising thereon for litigation in this cause is, whether they be enforcible as against the real estate of the deceased surety. This is dependent on a few facts, about the existence of which there is but little dispute. Why, then, should the parties have been required to institute [**6]  an independent original proceeding, when there was one already pending in which the right in controversy could be investigated and declared with greater expedition, and less trouble and expense to all parties, than on original bill? In cases where a deceased debtor's real estate has been decreed to be sold for the payment of a mortgaged debt, or for partition among heirs, any creditor of the deceased, if his personal estate has been exhausted, will be allowed to come in by petition, and, upon proof under an order nisi, have his claim paid out of the whole or the surplus of the proceeds of the realty so far as they will go; the surplus, after the payment of the mortgage or other prior lien, being considered as a residuum of the real assets applicable to the payment of debts. This was the course of practice pursued by the late Chancellor Bland, as may be seen by reference to the case of Fenwick vs. Laughlin, 1 Bl., 471, and which practice was approved and commended by the Court of Appeals, in the case of Gaither & Warfield vs. Welch, 3 Gill & John. 259. And if such practice be allowed in the cases stated, we can perceive no reason why it should not [**7]  prevail in cases like the present. For instances of the summary proceeding by petition here adopted, see the cases of Baltzell vs. Foss, 1 Har. & Gill 504; Hays vs. Miles, 9 Gill & John. 193; Balch vs. Zentmyer, 11 Gill & John. 267, 282.
3. Having thus disposed of the preliminary questions, we come now to consider the main and leading question in the case, and that is, as to the effect of the order of the Orphans' Court of the 21st of July, 1863, and the subsequent order of rescission of the 16th of September, 1863.
By the order of the 21st of July, 1863, Hiss, the guardian, on his own application, was authorized and directed to deposit the money in bank in the names of his wards, there to be held 

 [*6]  subject to the control of the Court. And, by another clause in the order, the Register was directed to prepare the accounts of the guardian, and to allow him for the sums deposited in the names of the petitioners, upon his filing in Court the proper evidence of such deposit, and that thereupon he should be released from all further liability as guardian.
Whether the proper evidence of deposit was ever filed in Court [**8]  is supposed by the appellees to be doubtful, but we think it fair to conclude, from all that is disclosed in the record, that such evidence was filed, and that the order in this respect was complied with.
At the time of this order and deposit, but one of the wards, William H. H. Parks, was of age to receipt to his guardian, the others being minors. And there had never been any accounts settled of the guardianship to any of the petitioners. The extent of the guardian's accountability therefore remained unascertained.
After making the deposit, instead of settling accounts in accordance with the order of the 21st of July, and taking credit for the amounts placed in bank, the guardian, on the 16th of September, 1863, on application, obtained an order allowing him, as guardian, to withdraw from bank the money deposited under the previous order, with directions that he should invest the same, in his own name as guardian, in the bonds or securities of the United States, or some other safe security, bearing six per cent. interest, and report such investment to the Court for its ratification, and that the order of the 21st of July, 1863, should be rescinded.
On the day of the passage of [**9]  this last order, the guardian settled his first several accounts with the Orphans' Court; and in those accounts, instead of taking credit for the money deposited in bank, as authorized by the order of the 21st of July, he charged himself with it as still in his hands, thus showing clearly that the accounts were stated not in pursuance of the order of the 21st of July, but after and with reference to the order of the 16th of September, 1863.

 [*7]  It is contended on the part of the appellants that, notwithstanding the order of the 16th of September, 1863, and the accounts stated and approved on that day, the sureties in the guardian's bond were released by the deposit of the money in bank, under the previous order of the 21st of July. And whether such be the effect of the order, and the deposit thereunder, depends upon the construction of sections 192 and 237, of Article 93, of the Code.
By the section last mentioned, the Orphans' Court is invested with discretionary power, either ex officio, or upon application, to order any guardian whom they may have appointed, or whose bond they may have approved, to bring into Court, or place in bank, or invest in bank or other incorporated [**10]  stock, or any other good security, any money or funds received by such guardian, and the Court shall direct the manner and form in which such money or funds shall be placed in bank or invested; and the same shall at all times be subject to the order and control of the Court.
It was by virtue of this power that the order of the 21st of July was passed, but it will be observed that there is nothing in this provision of the law looking to the entire release of the guardian's bond. The power was given as an additional security of the fund, and for the greater protection of the ward. And while the guardian and his sureties may not be held responsible for money lost by the failure of a bank into which it has been deposited under an order of the Orphans' Court, it does not follow that all the responsibilities of the office of guardian cease, as to the particular fund, upon making the deposit, and that no subsequent control of or dealing with it will render the guardian accountable. On the contrary, the guardian still continues to be the officer of the Court, subject to all of its orders and directions with respect to the ward's estate within its control and jurisdiction, and its control [**11]  of the fund in bank, though on deposit in the name of the ward, is most generally, if not necessarily, exercised by and through the agency of the guardian. If money be placed in bank by 

 [*8]  the direction of the Court to await an opportunity for investment, who should the Court require, more properly than the guardian, to seek for and make the investment? And if the guardian be the proper party for such service to his ward, is it to be held that by placing the money in bank under the Court's order all responsibility of the bond, in regard to such money will at once cease, and that for the subsequent conduct of the guardian in making, or neglecting to make, the investment, the ward has no security at all? Such an idea could never be tolerated in any Court where law has the semblance of justice. In this case, by the order directing the deposit to be made, full control was retained by the Court over the fund. This was a power of which the Court could not have divested itself; for, as we have seen by the law, money so deposited shall at all times be subject to the order and control of the Court. Both the fund and the guardian, then, being subject to the Court's direction, why was [**12]  it not competent to it to order and direct the guardian to invest the money in some safe stock, such as was specified in the order of the 16th of September, 1863? The law certainly never designed that the ward's funds should remain on deposit in bank unproductive, when they could be safely invested to yield an interest. The Court, therefore, in directing the investment to be made, acted within the scope of their power and jurisdiction; but whether discreetly or not is immaterial to the present inquiry, and Hiss, as their officer, was bound to observe and execute their order, and we think it clear, that for any default in this respect his bond would be bound.
But it is contended, that as one of the wards was, at the time of the passage of these orders, of full age, and competent to receipt for his estate, so far at least as he is concerned, the order of the 16th of September, 1863, was void and without effect to charge the bond.
To this proposition we cannot assent. There had been no account settled with the Court, and the fund had never been ordered to be paid over to the ward. By sec. 192, of Article 

 [*9]  93, of the Code, already referred to, it is provided that on a ward's [**13]  arrival at age, the guardian shall exhibit a final account to the Orphans' Court, and shall deliver up, agreeably to the Courts' order, to the ward, all the property of such ward in his hands, including bonds and other securities, and on failure his bond may be put in suit. As the account is to be rendered to the Court, after the ward becomes of age, its jurisdiction and control of both fund and guardian must, of necessity, remain until such final accounting. Until final account and surrender of the property to the ward, the guardian remains responsible for the estate committed to his charge; and the obligation of the bond must be taken as coextensive with the duty and accountability of the guardian. Upon no other construction would the bond afford the security intended by the law.
Discovering nothing in the orders appealed from of which we disapprove, they will be affirmed, with costs to the appellees.
Orders affirmed with costs.